SANJAY KUMAR UPADHYAY Vs. PRESIDING OFFICER, LABOUR COURT

JUDGEMENT

(1.) In this writ petition, the petitioner has prayed for setting aside the judgment/order dated 23.7.2004 passed in B.S. Case No. 6/2002 by Presiding Officer, Labour Court, Ranchi whereby he has held that the petitioner is not an employee under the provision of Section 2(4) of the Bihar (now Jharkhand) Shops and Establishments Act, 1953 (hereinafter to be referred as the said Act) and the complaint under Section 26(2) of the said Act against his dismissal is not maintainable.

(2.) The said order has been challenged on the ground that the order is perverse and arbitrary. The labour court has decided the maintainability, as preliminary issue, without giving opportunity to the petitioner to adduce the evidence in support of his claim. Learned labour court referred three documents, which have no relevance in deciding the issue: whether the appellant is an employee within the ambit of Section 2(4) of the said Act. The same have been relied upon to hold that the complainant was in the managerial cadre of the company and he does not come within the definition of 'employee' under Section 2(4) of the said Act.

(3.) According to the petitioner, he was holding the post of Field Officer in the Company. He suddenly fell ill on 25.10.2001 at Begusarai. The doctor advised him for complete bed rest. The petitioner; in that circumstance, could not move and attend duties up to 7.1.2002. The petitioner had given intimation regarding his illness, on telephone as well as in writing, to the Area Manager, Patna, He had resumed his duty on 8.1.2002. He had also submitted medical certificate. Suddenly, he received letter dated 11.1.2002, terminating his services w.e.f. 26.10.2001 i.e. with retrospective effect on the ground that he had not been attending his duties since 26.10.2001. It has been stated that there was no such service condition for awarding punishment of dismissal from service in case of overstaying or absence from duty, and that too without initiating any proceeding and affording him opportunity of representation.