Oriental Bank of Commerce vs The Commissioner of Labour, Madras-6 and Others

S. Padmanabhan, J.

The short question that arises for consideration in this writ petition filed by the Oriental Bank of Commerce is whether the third respondent who

was working as its Branch Manager and whose services were terminated by the petitioner is entitled to invoke the provisions of the Tamil Nadu

Shops and Establishments Act, 1947 (hereinafter called the Act) and prefer an appeal before the Additional Commissioner for Workmen''s

Compensation, Madras under S. 41 of the Act.

The third respondent, as already stated, was appointed as an officer by the petitioner and posted as the Manager of the Madras Branch. While

so on 28-7-76 the petitioner passed an order terminating the services of the third respondent. The order of termination of the third respondent''s

services was passed in view of the fact that pursuant to certain complaints against him, the third respondent was taken into police custody and later

released on bail and that some criminal complaint was pending against him. Against this order of dismissal the third respondent preferred an appeal

T.S.E. Appeal No. 72 of 1980 before the Additional Commissioner for Workmen''s Compensation under S. 41 of the Act. The petitioner took an

objection before the Commissioner of Labour that the third respondent was an employer as defined under the Act and he could not, therefore,

seek the protection of S. 41 of the Act and prefer an appeal before the Additional Commissioner for Workmen''s Compensation. The petitioner

also preferred an application before the Commissioner of Labour, Madras under S. 41 of the Act for a declaration that the third respondent was

not a person employed as defined under the Act to claim protection under S. 41 of the Act and that consequently T.S.E. Appeal No. 72 of 1980

pending before the Additional Commissioner for Workmen''s Compensation should be dismissed. The Commissioner of Labour, Madras, the first

respondent herein, passed an order on 26-7-1980 holding that the third respondent was a person employed and was entitled to invoke the

provisions of S. 41 of the Act. Accordingly he directed that the Deputy Commissioner of Labour II, Madras, before whom the appeal preferred

by the third respondent was pending, should proceed to dispose of the appeal on merits. Under these circumstances, the petitioner has filed this

writ petition for the issue of a writ of certiorari to quash the order passed by the first respondent in C.C. No. 1 of 1980 on 26-7-1980.

While Mr. Ramalingam, the learned counsel for the petitioner would contend that the third respondent was not a ""person employed"" within the

meaning of the Act, Mr. Anandan Nair would contend that the third respondent was a ""person employed"" within the meaning of S. 2(12) of the

Act.

Section 2(5) of the Act, defines ""employer"" thus :

Employer'' means a person owning, or having charge of, the business of an establishment and includes the manager, agent or other person acting in

the general management or control of an ''establishment''.

Section 2(12) of the Act, defines ""person employed"" thus :

Person employed"" means ... (i) in the case of a shop, a person wholly or principally employed therein in connection with the business of the shop;

(ii) in the case of a factory or an industrial undertaking, a member of the clerical staff employed in such a factory or undertaking;

(iii) in the case of a commercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or

principally employed in connection with the business of the establishment, and includes a peon; Section 2(12)(iv) and (v) are omitted, as they are

not relevant for our present purpose. Section 2(12)(vi) and (vii) reads as under :

(vi) in the case of an establishment not falling under paragraphs (i) to (v) above, a person wholly or principally employed in connection with the

business of the establishment, and includes a peon.

(vii) in the case of all establishments, a person wholly or principally employed in cleaning any part of the premises; but does not include the

husband, wife, son, daughter, father, mother, brother or sister of an employer who lives with and is dependent on such employer;

It was not disputed by Mr. S. Ramalingam, learned counsel for the petitioner, that if the third respondent is considered to be a person employed

within the definition of S. 2(12), then he would have had a right of appeal under S. 41(2) of the Act. It cannot be disputed that the petitioner is a

person employed vis-�-vis the Oriental Bank of Commerce Ltd., the petitioner herein. This factual situation was not disputed by the learned

counsel for the petitioner. If once it is found that the third respondent is a person employed within the meaning of the definition of the ""person

employed"" under S. 2(12) of the Act, he would be entitled to invoke the provisions of S. 41(2) of the Act, unless he falls within the exception

provided for under S. 4(1) of the Act. Section 4(1)(a) which is the only provision which is relevant for our purpose reads as under :

Exemptions :- (1) Nothing contained in this Act shall apply to -

(a) Persons employed in any establishment in a position of management;

In this case, the third respondent does not dispute the fact that he was in a position of management, though he has no power of appointment or

dismissal. However, S. 5 of the Act states that notwithstanding anything contained in S. 4, the State Government may, by notification, apply all or

any of the provisions of the Act to any class of persons or establishments mentioned in that section, other than those mentioned in clause (c) and (f)

of sub-s. (1) and modify or cancel any such notification. Pursuant to the power so conferred under S. 5, the Government of Tamil Nadu issued

G.O. Ms. No. 4074, Industries, Labour and Housing (Labour), 5th October, 1966, which reads as follows :

In exercise of the powers conferred by S. 5 of the Madras Shops and Establishments Act, 1947 (Madras Act XXXVI of 1947), the Governor of

Madras hereby applies all the provisions of the said Act to the class of persons mentioned in clause (a) of sub-s. (1) of S. 4"".

In the other words, the provisions of the Act are applicable to persons employed in any shop in a position of management. This was not disputed

by the learned counsel for the petitioner. In these circumstances, it must necessarily follow that the 3rd respondent being a person employed within

the meaning of S. 2(12) of the Act would be entitled to maintain an appeal under S. 41(2) of the Act.

Mr. Ramalingam, the learned counsel for the petitioner emphasised upon the definition of the word ""employer"" which means, among others, the

manager of an establishment. I do not think the argument of the learned counsel for the petitioner could be sustained. As rightly pointed out by the

Commissioner of Labour, the 3rd respondent cannot both be an employer and an employee. The definition of the word ""employer"" within the

meaning of S. 2(5) merely requires that a person who is employed should have the general management and control of the establishment. In the

context of the present situation, the employer of the 3rd respondent could only be the person who is in general management or control of the

petitioner-Bank. Merely because the 3rd respondent is the Manager of a Branch, it cannot follow that he is an employer within the meaning of S.

2(5) of the Act vis-�-vis himself. I am therefore, of the view that he is entitled to invoke the provisions of S. 41(2) of the Act. In the

circumstances, I am of the view that there are no merits in this writ petition. The writ petition, therefore, fails and is dismissed. The 3rd respondent

will be entitled to his costs Advocate fee Rs. 250.