Rajasthan High Court - Jodhpur
Amar Singh Chouhan vs Manager, Midas Mink Optical P. Ltd &Ors on 13 August, 2012
Author: Govind Mathur
Bench: Govind Mathur
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S.B.CIVIL WRIT PETITION NO. 6087/2012
Amar Singh Chouhan
Vs.
Manager, M.M.O. Pvt. Ltd. and Ors.
Date of Order :: 13.8.2012
HON'BLE MR. JUSTICE GOVIND MATHUR
Mr. Shambhoo Singh, for the petitioner/s.
...
This petition for writ is preferred to question correctness of the award dated 6.3.2012 passed by the learned Labour Court, Jodhpur in Industrial Dispute No.47/2006. The appropriate Government under the Notification dated 28.6.2005 referred an industrial dispute to the Labour Court in the terms that "Whether the termination of Amar Singh Chouhan S/o Shri Pep Singh Chouhan, R/o Shrisela, Tehsil Bali, District Pali by his employer Midas Mink Optical Private Limited, Opposite Railway Station, Falna w.e.f. 1.1.2003 is just and proper ? If not then for what relief the applicant is entitled ?"
The Labour Court after examining the entire material available on record arrived at the conclusion that the petitioner was not employed with respondent Midas Mink Optical Private Limited as "workman" defined under Section 2(s) of the Industrial Disputes Act, 1947 (for short 'the Act of 1947' hereinafter). The Labour Court also arrived at the conclusion that the petitioner was not terminated from service, but he voluntarily left the same.2
While questioning correctness of the award, the submission of learned counsel for the petitioner is that the respondent Midas Mink Optical Private Limited under a letter dated 22.12.1999 communicated a list of persons employed with it to the controlling authority under the Payment of Gratuity Act, Jodhpur and that contains name of the petitioner also, therefore, he is a workman and as such the finding given by the Labour Court is contrary to the admission made by the employer himself. Reliance is also placed by learned counsel for the petitioner upon the document Annex.11, a certificate of employment issued by the Employees' State Insurance Corporation certifying that the petitioner was in employment of Midas Mink Optical Private Limited.
On basis of two documents aforesaid, the submission of learned counsel for the petitioner is that the Labour Court without considering the actual nature of the duty assigned to the petitioner has arrived at the conclusion that he was not a workman as defined under the Act of 1947.
I do not find any merit in the argument advanced. So far as the list of employees remitted to the controlling authority under the Payment of Gratuity Act, 1972 (for short 'the Act of 1972' hereinafter) is concerned, suffice to mention here that under the Act of 1972, the concept of "workman" as referred under the Act of 1947 is not at all applicable. The Act of 1972 is applicable to the employees, definition of which is given 3 in clause (e) of section 2, that reads as under:-
"(e)- "employee" means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."
A bare reading of the provision aforesaid makes it clear that a person if discharging even clerical work and even if employed in managerial or administrative capacity, he is to be treated as an employee. The reference of the petitioner in the list aforesaid is not a reason sufficient to treat him a "workman" under the Act of 1947. Even under the Employees' State Insurance Act, 1948, the concept of "workman" as applicable under the Act of 1947 is not relevant. In this Act too, the term used is "employee" and it nowhere excludes the persons from the purview of "employee" if they are working in managerial capacity. The certification of employees issued by the Employees State Insurance Corporation, therefore, is having no consequence to arrive at the conclusion that the petitioner was a workman.
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On the other hand, from perusal of the facts discussed in the award impugned, it is apparent that the petitioner himself accepted that he was working in managerial capacity as he was maintaining the attendance register of the workman and was looking after the work done by the labourers pertaining to production. The name of the petitioner was also registered in the register pertaining to the managerial staff. As such, I do not find any wrong with the finding arrived by the Labour Court under the award impugned that may warrant interference of this Court.
The petition for writ, therefore, is dismissed.
(GOVIND MATHUR), J.
rm/-