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2015 DIGILAW 1041 (GUJ)

Kishorebhai Sunderji Mistry v. Assistant Labour Commissioner (Central)

2015-10-14

PARESH UPADHYAY

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ORDER : Paresh Upadhyay, J. Challenge in this petition is made to the communication of the Assistant Labour Commissioner (Central) Ahmedabad dated 21.08.2014 refusing to entertain the representation of the petitioner to make reference to the Central Government Industrial Tribunal (CGIT). The impugned refusal is on two counts. Firstly that the petitioner is not the workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and secondly that the Assistant Labour Commissioner (Central) Ahmedabad did not have territorial jurisdiction, since it is the authorities at Mumbai which is competent. 2. Mr. Shukla, learned advocate for the petitioner has submitted that the petitioner was a workman. It is submitted that, he was initially appointed in the State of Gujarat and was terminated also for the misconduct allegedly committed while he was working as Branch Manager in the State of Gujarat and therefore the impugned order needs to be interfered with on both the counts. It is submitted that, the impugned order be quashed and set aside. 3. On the other hand, Mr. Gadhia, learned advocate for the respondent Bank and Mr. Amin, learned advocate for the Central Government Authority have supported the impugned the impugned order and have contended that on both the counts the impugned order needs to be upheld. Attention of the Court is invited to the averments made by the petitioner himself and the termination order, to contend that the petitioner could not be termed to be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and therefore no interference needs to be made. 4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 4.1 The respondent Bank is Indian Bank' which is a Nationalised Bank. The termination order of the petitioner dated 26.11.2002 is on record. 4.2 Without going into the merits of the termination order, only for the purpose of examining the issue as to whether the petitioner can be termed to be workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, the relevant part of the termination order, for which the petitioner wanted reference to be made, reads as under. "You worked as Branch Manager of our Godhra Branch during the period from 27-05-1999 to 29- 08-2000. "You worked as Branch Manager of our Godhra Branch during the period from 27-05-1999 to 29- 08-2000. It is reported that while working as Branch Manager of our Godhra Branch, you committed certain serious irregularities including co-acceptance of bills / hundies without proper authority from the controlling office and allowing TOD for huge amount beyond the discretionary powers of the branch manager. XXX.... In view of the foregoing, I impose on you the major penalty of "Removal from service, which shall not be a disqualification for future employment" with immediate effect in terms of clause (i) of Regulation 4 of Indian Bank Officer Employee's (Discipline and Appeal) Regulations, 1976 as amended by HO : Personnel Department Circular NO: 002/99-2000 dated 07-04-1999." 4.3 It is this termination order for which reference was sought to be made to the CGIT by the petitioner, claiming him to be a workman'. The Central Government Authorities have refused the same principally on the ground that, in view of the stipulation of Section 2(s) of the Industrial Disputes Act, the petitioner can not be termed to be a workman. Section 2(s) of the Industrial Disputes Act, 1947 reads as under. The Central Government Authorities have refused the same principally on the ground that, in view of the stipulation of Section 2(s) of the Industrial Disputes Act, the petitioner can not be termed to be a workman. Section 2(s) of the Industrial Disputes Act, 1947 reads as under. "2(s) :- "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person - (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding [one thousand six hundred rupees (as was prevailing then) ] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature]." 4.4 If the facts of the present case are examined in view of the above quoted section, the petitioner can not be termed to be a workman' going by any parameter. Firstly, the termination order refers him to be the Branch Manager of a Nationalised Bank. The petitioner would thus be excluded from the definition of Section 2(s) of the Industrial Disputes Act, vide exclusion (iii) quoted above. 4.5 Even if the case of the petitioner is discounted in his favour, he would still be excluded from the definition of a workman' in view of exclusion (iv) quoted above, since it is not in dispute that he was drawing wages much more then rupees one thousand six hundred, at the relevant time. As a matter of fact, it was Rs.17,800/- per month as per the case of the petitioner himself before the Authorities. As a matter of fact, it was Rs.17,800/- per month as per the case of the petitioner himself before the Authorities. This is much more then even the stipulation of Rs.10,000/- per month which is prevailing now. (at the relevant time it was Rs.1600/- per month). For these reasons, this Court finds that the petitioner is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, and the Authority has not committed any error in holding so. 5. Since the petitioner is rightly termed to be not a workman', the other aspect of territorial jurisdiction need not be gone into. 6. For the reasons recorded above, this petition is dismissed. Notice is discharged. No order as to costs. Writ Petition dismissed.