M/s. D.P. Bodhanwala vs K.L. Banerjee

Heard counsels for the parties.

The writ jurisdiction has been invoked against the Award dated 12.12.2007 passed in Reference Case No. 34 of 2000 passed by the Presiding Officer, Labour Court, Jamshedpur, whereby the reference has been answered in favour of the workman.

It appears that the Respondent-workman was regular employee of the petitioner-employer (partnership firm), has been terminated from service w.e.f. 01.04.1999. The said termination was without assigning any reason or without any departmental proceeding or provisions under Industrial Disputes Act, 1947.

The Industrial Disputes has been raised against the said termination by the concerned workman which has been referred vide Reference No. 34 of 2000. The terms of reference is as follows:-

"Whether the termination of service of workman K.L. Bannerji by the management M/s. D.P. Bodhanwala Transport and Handling Contractor, Patel Building, Bistupur, Jamshedpur is justified? If not, what relief workman is entitled to?"

The Labour Court has framed two issues which are as follows:-

(I) Whether Shri K.L. Bannerji employee of M/s. D.P. Bodhanwala Transport and Handling Contractor, Bistupur, Jamshedpur (Management), was workman within the definition of section 2(s) of Industrial Disputes Act, 1947.

(II) Whether termination of Mr. K.L. Bannerji with effect from 1.4.99 was legal and valid and in consonance with the principle of natural Justice and to what relief he is entitled to?"

So far present writ petition is concerned, only issue no. 1 has been assailed before this Court, taking plea by the counsel for the petitioner-employer that the alleged employee is not covered under the definition of workman. Argument has been advanced on the basis of Section 2(s) (iv) of The Industrial Disputes Act, 1947, quoted hereinbelow:-

"Section 2(s)(iv): who, being employed in a supervisory capacity, draws wages exceeding [One Thousand Six Hundred Only] rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]"

Argument has been advanced that the petitioner was working in the supervisory capacity and was getting salary of Rs. 2000/- while statutory limit is Rs. 1600/- and as such ousted from the definition of workman.

Contention has been raised that if either of the parameters is satisfied i.e. either he has worked in a supervisory capacity or he is getting salary for more than Rs. 1600/- then the concerned-employee is not covered under the definition of workman.

So far as, fact of the present case is concerned. It is admitted position that the concerned employee has been removed without following any procedure, no departmental proceeding, no retrenchment benefit.

Considering the material on record the finding has been recorded, on the basis of nature of duty performed by terminated employee, that employee is covered under the definition of workman.

So far as, the order of termination has not been defended by the employer either before the Labour Court or before this Court. Only technical defence has been taken that employee is not covered under the definition of workman.

It is settled principle of law that to come under the exclusion clause, the nature of duty assigned or performed by the concerned employee is the deciding factor not the nomenclature of the post. Duty coupled with salary, is necessary for exclusion. Only duty or salary alone rather they are conjunctive, both parameters has to be satisfied simultaneously for exclusion. The reference may be made to the judgment reported in 1994 AIR(SC) 1824 in case of S.k. Maini Vs. M/s. Carona Sahu Company Limited and Ors. And judgment reported in 1988 AIR(SC) 329 in case of National Engineering Industries Ltd. Vs. Shri Kishan Bhageria & Ors.

In the present case, finding of fact has been recorded regarding the nature of duty being performed by the employee on the basis of material available of record. It is trite that under supervisory jurisdiction this Court is not supposed to look into the sufficiency of the evidence or re-appreciate the evidence. It is not a case of no evidence.

On perusal of the record, it appears that sufficient material/evidence was available before the Labour Court to record such finding.

In view of above discussion, this Court finds no merit in the present writ petition. Accordingly, the same is, hereby, dismissed.