KRISHNACHARAN PRAMODNATH CHAKRABERTI Vs. INDIAN TEXTILES CO LTD

JUDGEMENT

(1.) By this petition filed under Article 226 of the Constitution of India, the petitioner is challenging the legality of the order dated March 14, 1985 passed by the Presiding Officer, First Labour Court, Bombay, in an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The petitioner filed the application for recovery of various amounts, including the amount of gratuity for the period of 36 years service. The petitioner claimed that he was employed by the respondent Company in the Sales Department and his services were terminated from the month of February 1979. The application was resisted by the Company initially claiming that the petitioner was employed as a typist. The Company denied that the amounts claimed by the workman are due. As regards the claim for gratuity, it was urged that the said claim cannot be entertained by the Labour Court in proceedings under Section 33-C(2) of the Act, but will have to be left for determination of the authority constituted under the Payment of Gratuity Act. The petitioner threupon did file proceedings before the Assistant Labour Commissioner, Bombay and Controlling Authority under the Payment of Gratuity Act in respect of claim for gratuity. That claim was granted and appeal No. B-42 of 1984 filed by the Company before the Appellate Authority and Regional Labour Commissioner under Sub-section (7) of Section 7 of the Payment of Gratuity Act was dismissed by an order dated May 1, 1985. The Company preferred Writ Petition No. 2758 of 1985 in this Court to challenge the order of the Appellate Authority, out the petition was summarily dismissed on August 7, 1985. The Company was ultimately required to pay the gratuity amount to the petitioner.

(2.) The Labour Court did not enter into merits of the application filed by the petitioner, but disposed it of on the preliminary issue holding that the petitioner is not a workman. The Labour Court did not accept the claim of the Company that the petitioner was appointed and worked in the capacity of Manager. The Labour Court recorded a finding that the petitioner was working as a salesman and used to attend the customers, prepare cash-memos and demonstrate as to how to use the articles. The Labour Court felt that a salesman is not a workman as contemplated under Section 2(s) of the Act and reliance in support of this finding was placed on the decision of the Supreme Court reported in 1970(2)LLJ 590 Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. The Burmah Shell Management Staff Association and Ors.). The order of the Labour Court is under the challenge.

(3.) Shri Damania, learned counsel appearing on behalf of the petitioner submitted that the finding recorded by the Labour Court that the petitioner is not a workman is wholly misconceived and cannot be sustained either on facts or in law. The learned counsel urged that the authority under the Gratuity Act has awarded the claim for gratuity on the basis that the petitioner is a workman and that finding has been upheld by the Division Bench of this Court while summarily dismissing the petition filed by the Company. Shri Damania submitted that accepting the finding of the Labour Court that the petitioner was working as a salesman, the conclusion is inescapable that petitioner was a workman and the application was maintainable. I find considerable merit in the submission of the learned counsel. It is interesting in this connection to note that initially the written statement was filed by the Company on April 11, 1980 and in paragraph 1 of the written statement it was specifically mentioned that the petitioner was working with the Company as a typist and he had nothing to do with the sales department except for typing work. The written statement was amended from time to time and finally on September 20, 1984 paragraph 1 of the written statement was amended by claiming that the petitioner was initially appointed as typist in the year 1943 and subsequently in the year 1947 started working as a salesman and finally from the year 1969 as a Manager. It is obvious that the Company required more than four years to ascertain what the petitioner was doing from the time of his appointment. In my judgment, there is hardly any doubt that the Company was trying to improve its case from time to time. The Labour Court on appreciation of evidence recorded a finding that the claim of the Company that the petitioner worked in the managerial capacity was not established and I do not find any infirmity in that conclusion, shri Vishwanath, learned counsel appearing on behalf of the Company, very strenuously urged that several documents produced on record before the Labour Court were taken into account but the Labour Court did not record a correct finding that the petitioner was not working in the managerial capacity. It is not possible to permit Shri Vishwanath to agitate that point again in this petition, as I am not sitting in appeal against the order but exercising very limited jurisdiction under Article 226 of the Constitution.