ADOR WELDING LTD. Vs. B GOPE

JUDGEMENT

(1.) It is a case of the petitioner- a Company duly registered under the provisions of Indian Companies Act that respondent No. 1 was initially appointed as Welding Demonstrator in Jamshedpur area office. Subsequently, he was given promotion and at the relevant point of time, he was holding the post of Assistant Manager and was discharging duties of Managerial and Administrative nature. Oftenly he, in absence of Area Business Manager, used to hold office as In-charge Area Business Manager which was the top most position of the Jamshedpur area office, commonly known as Jamshedpur Unit a controlling unit of Bihar and Orissa which had maximum number of 17 employees. On 9.5.1994, respondent No. 1 had tendered his resignation from his service but later on, he was allowed to withdraw the letter of resignation on promise being given that he will improve his efficiency. However, when it was found that there is no improvement in his efficiency, his services were terminated on 15.2.1995 (Annexure 1/1) as per the rules and contract of the employment with one month's salary in lieu of notice which was sent to the complainant through cheque dated 28.2.1995 and whatever the petitioner was entitled, that was paid through cheque towards full and final settlement of the dues. Respondent No. 1 initially accepted the order of termination and got the amount encashed but subsequently, respondent No. 1 in order to lodge complaint before the Labour Court under Section 26 of the Bihar Shops and Establishment Act, 1953 (hereinafter referred to as 'the Act') deposited the entire amount on 25.3.1995 in the account of the petitioner Company. Thereafter on 29.3.1995 he filed a complaint under Section 26(2) of the said Act before the Presiding Officer, Labour Court, Jamshedpur which was numbered as B.S.C Case No. 5 of 1995 by taking pleas that he was appointed as Welding Demonstrator and was given promotion on finding his performance as excellent, still his services were terminated while he was working as Sales Engineer, at the instance of Mr. Kher against whom he had raised voice for his illegal acts. It has been admitted that a cheque of Rs. 13,967.86 was received but that had been deposited in the petitioner's account.

(2.) Petitioner on his appearance submitted his written report where on amongst other took the plea that respondent No. 1 is not an employee as defined under Sub-section(4 ) of Section 2 of the Act as respondent No. 1 falls within the exemption clause as contemplated in Sub-section (2) of Section 4 of the Act read with serial No. 5 of the Schedule of the said Act and that respondent No. 1 being Assistant Manger was also discharging the duties of the Area Manager off and on in absence of Area Manager and that his services were terminated absolutely in terms of the contract and one month's salary in lieu of notice was sent towards full and final settlement of the dues which had been accepted but that was subsequently deposited in order to file the case. On the basis of the pleading, following issues were framed:

(3.) On the point of maintainability it was held by Presiding Officer, Labour Court that as per the assertion of the opposite party, it was the Area Business Manager who was holding top most position of Jamshedpur unit whereas the complainant was employed as Assistant Manager and thereby he was not exercising control over the affairs of the Company and as such, the complainant comes within the definition of employees.