Jharkhand High Court
Ador Welding Limited vs Sri B. Gope on 16 May, 2011
Author: Prakash Tatia
Bench: H. C. Mishra, Prakash Tatia
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 234 of 2009
Ador Welding Limited .... ... Appellant
Versus
Sri B. Gope ..... ... Respondent
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CORAM : HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE H. C. MISHRA
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For the Appellant : Mr. K.P.Choudhary, Advocate
For the Respondent : Mr. S.L.Agrawal, Advocate
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Reportable
Dated: 16th of May, 2011
Heard the learned counsel for the parties.
2. The appellant, employer is aggrieved against the order dated 16th April, 2009, passed by the learned Single Judge, whereby the writ petition No., W.P. (L) No. 856 of 2007, challenging the order passed by the Labour Court, Jamshedpur in B.S. Case No. 5 of 1995, dated 29th November, 2006, has been dismissed.
3. The facts, in brief, are that the Respondent-writ petitioner claimed that he is a workman under the definition given under sub-section 2 of Section 4 of the Bihar Shops & Establishment Act, 1953 (in short 'Act') and his services has been terminated illegally. The petitioner, therefore, challenged the order of termination, dated 15th February, 1995. After evidence, the Labour Court, Jamshedpur, allowed the claim of the respondent-claimant, after rejecting the appellant's plea that the respondent was holding the managerial post and also after rejecting the appellant's plea that the petitioner was paid due compensation before termination of service. The Labour Court directed the appellant to reinstate the writ petitioner- respondent in service and awarded 25 per cent back wages.
4. The appellant's contention before the learned Single Judge was that the respondent was not the workman in the definition of sub- section 2 of Section 4 of the Act of 1953 as he was discharging the function and the duties of the Manager and was holding the position no. 2 in the 2. organization at Jamshedpur. Learned counsel for the appellant drew our attention to the statement of the respondent-complainant and pointed out that the respondent-complainant, in his statement, admitted that at Jamshedpur office, the senior most officers were the Engineers and amongst the Engineers, the respondent was the senior most. He admitted that he had to issue certificates to the dealers of the appellant and he was authorized not only to operate the Bank account but he himself, by his own signature, opened the Bank account. It is also submitted that the appellant admitted that there were 17 employees in the organization at Jamshedpur and as per sub-section 2 of Section 4 read with serial No. 5 to Schedule, the two senior most persons of the appellant could not have been included in the definition of the workman under the Act of 1953.
5. Learned counsel for the Respondent vehemently submitted that it is a pure question of fact whether the respondent was discharging the managerial duties or not and this finding of fact has been recorded by the Labour Court after appreciation of the evidence and it has been upheld by the learned Single Judge. Therefore, the Division Bench in exercising the jurisdiction under the Letters Patent, may not interfere in such finding of fact. It is also submitted that the exclusive definition of the Manager, as given in the Schedule, referred to above, is absolutely vague and therefore, the benefit should go to the workman and it is also submitted that the appellant could not prove any fact on the basis of which, it can be gathered that the two senior most persons alone could have been excluded from the definition of the workman by treating them as the persons working on the managerial post. It is also submitted that the evidence which has been relied upon by the appellant, do not establish the fact that the respondent was discharging the managerial function. Learned counsel for the Respondent 3. further submitted that the respondent had neither control over the office nor he was the disciplinary authority, nor he had the supervisory authority over all other employees. Therefore, it is not established even from the alleged admissions of the respondent that the respondent was discharging the function of the manager or holding the post of the nature of the managerial category.
6. We consider the submissions of the learned counsel for the appellant and perused the facts of the case. It is true that the finding of fact recorded by the Labour Court required to be given due respect even in the writ jurisdiction under Article 226 of the Constitution of India and the jurisdiction under the Letters Patel Appeal is narrower. But so far as the law is concerned where the finding of fact can be interfered, it is also well settled. If a relevant evidence has not been considered or irrelevant evidence has been considered for arriving at the conclusion then that finding of fact is not a finding of fact, as it stands vitiated because of the non-consideration of the relevant facts and for consideration of the irrelevant facts. If the admitted case is ignored and a finding is recorded then also, the finding of fact is not binding upon the writ Court or the Court hearing the Letters Patent Appeal. Therefore, we have to find out, whether in this case any case is made out by the appellant so as to necessitate interference by this Court in such finding of fact.
7. The learned Single Judge has observed that admittedly, there were 17 employees and 10 per cent of which, comes to two and the employer-appellant failed to establish that the respondent-employee was holding the position No. 2, which is contrary to fact on record and admission of respondent. There is an admission of the Respondent in his statement on oath before the Labour Court, Jamshedpur that at 4. Jamshedpur office, the senior most persons were designated as Sales Engineer and alongwith him, there were three Sales Engineers. Then he specifically admitted that amongst all the Sales Engineers, he was the senior most. Then the Respondent stated that he was authorized to open the Bank account and that he had opened the Bank account of the appellant at Jamshedpur. He also admitted that he was authorized to sign the cheques on behalf of the appellant-Company and alongwith him, one more signature of K. N. Murthy was required, therefore, he admitted that he was also dealing with the Bank account of the Company. Then the Respondent in his statement admitted that he issued the certificates to the dealers of the Company in his own signature, however, he explained that those certificates were issued as per the direction of the Head Office, which is situated at Bombay.
8. In view of the above reasons, the Respondent was not only working as the Sales Engineer but was doing the job of the Manger. What is the work of the Manager or what is nature of the managerial post, that depends upon the facts of the case. It is not necessary that a Manager should have a right to appoint and remove the employees, which power vests in the appointing authority. The Managerial work consists of several types of works and in an Organization there may be several persons or several workers and one or some may discharge the managerial works, whereas the appointing authority may be only one. In view of the above reasons, we do not find any substance in the submission of the learned counsel for the respondent that since respondent was not authorized to appoint and remove, therefore, he was not working as Manager. It is a settled law that one can prove his case by his own evidence or even by the evidence of the rival party himself. In this case, the claimant was the respondent and his own 5. evidence proved the fact that he was not doing the work of a mere employee but was discharging the duties of the Manager.
9. The another question, which has been raised by the learned counsel for the respondent, is with respect to the interpretations of sub- section 2 of Section 4 read with Serial No. 5 to Schedule I of the Act of 1953, which reads as under: -
"Sub-Section (2) of Section 4 reads as under:-
Notwithstanding anything contained in this Act, the provisions thereof specified in the third column of the Schedule shall not apply to the establishment, employees and other persons referred to in the corresponding entry in the second column;
Provided that the State Government may, by notification, add to, omit or alter any of the entries in the Schedule in respect of one or more areas of the State and on the publication of such notification, the entries in either column of the Schedule shall be deemed to be amended accordingly.
Serial No.5 to Schedule I of the Act reads as follows :
Sl. Establishments, employees or other Provisions of the
No. Persons Act
5. Person occupying positions of managerial All provisions or supervisory character in an establish-
ment employing more than five persons, provided that not more than ten per centum of the total number of employees in an establishment shall be so exempted:
Provided that where ten per centum of the total number of employees in an establishment comes to a fraction less than one such fraction shall be rounded off to one.
10. It is clear from the said definition that in the definition, an exclusion clause has been made purposefully in larger interest of workmen community, so that the employer may not give name or work of Managers to the large number of the employees to bring them out from the benefit of the Act of 1953. Therefore, it has been provided that where there 6. are more persons working in the name of managerial capacity or in the capacity of supervisor in any establishment, then where the employees are more than five, then not more than 10 per cent of the total number of employees in an establishment shall be exempted. Therefore, by this provision, even those persons who may have been working on the post of Manager or in the supervisory post, they are also given the benefit of the Act of 1953. Apparently, there may be force in the submissions of the learned counsel for the Respondent that there is a vagueness in the language used in column of serial No. 5 of the Schedule I of the Act of 1953 because of the reasons that it has not been provided that which of the persons, out of those ten per cent, who have been given the nomenclature of the Manager or the supervisor will be excluded but the logical conclusion can be drawn that the persons who are required to be covered, are required to have the less beneficial position. It cannot be presumed that the exclusion can start from the top, so as to cover them in the Act of 1953 and lower persons are to be excluded who are working as Manager or Supervisor. The persons getting the more benefits and are on better position will be covered under the Act of 1953 but lower person will be excluded, that interpretation can not be given. It is a settled law that the provisions of law are required to be considered harmoniously as well as to fulfill the aim and object of the Act. In view of the above reasons, even if it is not provided specifically in Serial No. 5 of Schedule I of the Act of 1953, even then the exclusion from the benefit of the Act of 1953, can be from the top and not from the bottom of the Managers or the supervisors. In view of the above reasons, since the respondent was discharging the function of the Manager and doing the supervisory work also and that fact has been admitted by the Respondent in his statement and since there were 17 employees and two higher in position, 7. out of them the persons working on the managerial post are required to be excluded from the operation of the Act of 1953, then the Respondent was holding the position No. 1 and not less than position no. 2. In any case, he cannot be below to other Sales Engineers in the seniority in the organization. Therefore, the petitioner who was holding the position no. 1 or 2 in the establishment of the appellant at Jamshedpur was not covered under the Act of 1953 and therefore, the finding of fact suffers from error apparent on the face of the record and the Labour Court as well as the learned Single Bench failed to appreciate the material admissions of the Respondent.
11. In view of the above, this Letters Patent Appeal is allowed. The order passed by the learned Single Judge, dated 16th April, 2009, dismissing the writ petition and the order passed by the Labour Court, dated 29th November, 2006 are hereby set aside. The complaint filed by the Respondent stands dismissed.
(Prakash Tatia, A.C.J.) ( H. C. Mishra, J.) APK/R.Kr.