Gulab Namdeo Bhure v. Zilla Parishad and Govt. Employees Co-operative Society Ltd.
2019-04-18
A.S.CHANDURKAR
body2019
DigiLaw.ai
JUDGMENT : A.S. Chandurkar, J. The petitioner is aggrieved by the order reverting him from the post of Branch Manager to Senior Clerk. The question that arises for consideration in this writ petition is whether the aspect of jurisdiction has to be determined by considering the status of the petitioner prior to the order of reversion or whether his status after being reverted to the post of Senior Clerk has to be taken into consideration? 2. Rule. Heard finally with consent of counsel for the parties. 3. The facts giving rise to the present writ petition lie in a narrow compass. The petitioner who entered service with the respondent-Cooperative Society was appointed on the post of Junior Clerk. On 01.12.2013, the petitioner came to be promoted from the post of Junior Clerk to the post of Branch Manager. Thereafter, by an order dated 04.07.2017 he was informed that on a complaint made by another employee, his services were being reverted. Accordingly, by an order passed on that date, the petitioner was reverted to the post of Senior Clerk as according to the respondent-Society, he was not entitled for being promoted on the post of Branch Manager. Being aggrieved by the said order dated 04.07.2017, the petitioner filed complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, 'the said Act') by invoking Item Nos.5, 6, 9 and 10 to Schedule IV of the said Act. The respondents raised an objection to the jurisdiction of the Industrial Court on the ground that the petitioner was not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, 'the Act of 1947') as the petitioner was discharging duties in the capacity of Branch Manager and drawing salary more than Rupees Ten Thousand. The jurisdiction therefore did not vest with the Industrial Court. The trial Court initially passed an order on 03.10.2017 holding that it had jurisdiction to entertain the complaint. This order was challenged by the respondents by filing Writ Petition No.7408 of 2017. The said writ petition was allowed on 23.04.2018 and after setting aside the order passed by the Industrial Court, the proceedings were remitted for fresh consideration.
The trial Court initially passed an order on 03.10.2017 holding that it had jurisdiction to entertain the complaint. This order was challenged by the respondents by filing Writ Petition No.7408 of 2017. The said writ petition was allowed on 23.04.2018 and after setting aside the order passed by the Industrial Court, the proceedings were remitted for fresh consideration. Thereafter by the order dated 12.09.2018, the Industrial Court has held the complaint to be not maintainable as the petitioner was holding the post of Branch Manager and getting salary more than Rupees Ten Thousand per month. Being aggrieved, the complainant has challenged the aforesaid order. 4. Shri A.M. Ghare, learned counsel for the petitioner submitted that the Industrial Court erred in considering the status of the petitioner as Branch Manager. Though the petitioner was promoted from the post of Junior Clerk to the post of Branch Manager, he was aggrieved by the order dated 04.07.2017 by which he was reverted to the post of Senior Clerk. It was necessary for the Industrial Court to have examined the aspect of jurisdiction by treating the complainant as being reverted to the post of Senior Clerk. Mere fact that if the impugned order was set aside, the petitioner would continue to work as Branch Manager was not the test for determining the jurisdiction of the Industrial Court. The petitioner on reversion as a Senior Clerk was a 'workman' within the meaning of Section 2(s) of the Act of 1947 and therefore the jurisdiction of the Industrial Court had been rightly invoked. Placing reliance on the decisions in Premier Automobiles Ltd. Versus Premier Automobiles Employees Union, (1988) 2 LLN 686 and Everest Advertising Pvt.Ltd. Versus Pratik C.Khandhadiya & Others, (1999) 1 CurLR 774, it was submitted that the status of the complainant on the basis of which he has invoked the jurisdiction of the Labour Court/Industrial Court was material. He thus submitted that the complaint was rightly filed before the Industrial Court which had jurisdiction to entertain the same. 5. Per contra, Shri D.M. Kakani, learned counsel for the respondents supported the impugned order. According to him, the petitioner was promoted to the post of Branch Manager in the year 2013 and as he was doing supervisory duties, he ceased to be a 'workman' as contemplated by Section 2(s) of the Act of 1947.
5. Per contra, Shri D.M. Kakani, learned counsel for the respondents supported the impugned order. According to him, the petitioner was promoted to the post of Branch Manager in the year 2013 and as he was doing supervisory duties, he ceased to be a 'workman' as contemplated by Section 2(s) of the Act of 1947. After being reverted to the post of Senior Clerk, the petitioner was seeking the relief of again being put back on the post of Branch Manager which was beyond the jurisdiction of the Industrial Court. He referred to the prayers made in the complaint and submitted that in the light of the reliefs sought therein, the Industrial Court had rightly held that it had no jurisdiction to entertain the complaint. He referred to the adjudication in Writ Petition No.3819 of 2002 [Manohar Ramraoji Raut Versus The Amravati Zilla Parishad Shikshak Bank Ltd., Amravati] dated 23.07.2013 wherein it was held that a Branch Manager of a similar bank was not a 'workman' under Section 2(s) of the Act of 1947. He therefore submitted that there was no reason to interfere with the impugned order. 6. I have heard the learned counsel for the parties and I have given due consideration to their respective submissions. It can be seen from the complaint as filed that the petitioner was initially appointed as a Junior Clerk with the respondents. Thereafter on 01.12.2013, the petitioner came to be promoted to the post of Branch Manager. While discharging duties as Branch Manager on 04.07.2017 the respondents reverted him to the post of Senior Clerk on the ground that another Senior Clerk was entitled to be promoted as Branch Manager on the post held by the petitioner. This order of reversion dated 04.07.2017 is the subject matter of challenge in the complaint filed under Section 28 of the said Act. Perusal of the complaint indicates the cause of action being shown as the order of reversion dated 04.07.2017. The complaint has been filed on 10.07.2017 and the relief sought by the petitioner is to set aside the order dated 04.07.2017 and thereafter continue the services of the petitioner on the post of Branch Manager. 7. According to the petitioner, he is aggrieved by the order of reversion as a result of which he was required to work as a Senior Clerk.
7. According to the petitioner, he is aggrieved by the order of reversion as a result of which he was required to work as a Senior Clerk. He was the 'workman' on account of passing of the impugned order. On the other hand, according to the respondents, since the petitioner was promoted in the year 2013 to the post of Branch Manager he ceased to be a 'workman'. As a Branch Manager, he could not have invoked the jurisdiction of the Industrial Court. 8. The question therefore that arises for consideration is whether the status of the aggrieved complainant as regards the post held by him prior to issuance of the impugned order of reversion has to be considered or whether the cause of action giving rise to the complaint would be relevant. In this regard, it would be necessary to refer to the judgment of the learned Single Judge in Premier Automobiles Limited (supra). Therein, the complainant was promoted on the post of Supervisor on 01.08.1974. He started discharging his duties as Supervisor. Thereafter, a charge-sheet came to be issued to the complainant therein with regard to certain irregularities in connection with his work. On 22.07.1981 according to the complainant his forcible resignation was obtained. The same was accepted by the Management. On a dispute arising between the parties, a reference was made to the Labour Court which directed his reinstatement. In challenge to that award, a contention was raised that the complainant was not a 'workman' under Section 2(s) of the Act of 1947. In that context, it was observed that the duties performed by the complainant prior to 01.08.1974 were not relevant. What was relevant was the period subsequent to 01.08.1974 when the complainant was occupying the post of Supervisor of the shop. The dispute was with regard to resignation from the post of Supervisor and therefore in that capacity he was not a 'workman' within the definition of Section 2(s) of the Act of 1947. It was observed that since the complainant was discharging duties as Supervisor, the Labour Court had no jurisdiction to entertain the proceedings. In Everest Advertising Private Limited (supra), the complainant was promoted to the post of Group Manager with effect from 01.04.1991. His services were however terminated with effect from 02.09.1991 and hence the complainant filed a complaint before the Labour Court seeking reinstatement.
In Everest Advertising Private Limited (supra), the complainant was promoted to the post of Group Manager with effect from 01.04.1991. His services were however terminated with effect from 02.09.1991 and hence the complainant filed a complaint before the Labour Court seeking reinstatement. On the question of jurisdiction of the Labour Court to entertain the complaint, it was found that the cause of action for the said complaint was the termination of service with effect from 02.09.1991. After referring to the decision in Premier Automobiles Limited (supra) it was observed that whatever be the nature or character of employment at the time of entry in service, it is the character of employment on the date of termination of service that determines the jurisdiction of the Tribunal. The character of employment of the complainant as on 02.09.1991 would govern the jurisdiction of the Labour Court. It was thus held that the Labour Court had no jurisdiction to entertain the complaint in view of the fact that the complainant on the date of termination of service on 02.09.1991 as a Group Manager was not a 'workman' within the meaning of Section 2(s) of the Act of 1947. 9. From the aforesaid decisions, it can be seen that the status of the complainant on the date when the cause of action has arisen is relevant and same would determine the question of jurisdiction. As observed in Everest Advertising Pvt. Ltd. (supra) it is the character of employment as on the date of termination of service that determines the jurisdiction of the Tribunal. In the present case, the order under challenge in the complaint before the Industrial Court is that of reversion. It is undisputed that on the date when the order dated 02.07.2017 was issued the petitioner was holding the post of Branch Manager and he has been reverted to the post of Senior Clerk. The petitioner approached the Industrial Court as a Branch Manager who had been wrongly reverted to the post of Senior Clerk. It was not disputed by the petitioner before the Industrial Court as recorded in paragraph 5 of the impugned order that he was receiving salary exceeding Rupees Ten Thousand per month but it was his case that the petitioner was assigned with clerical work. Another finding recorded was that after his promotion as Branch Manager, Rule 8(1)(a) of the Service Rules was made applicable to him.
Another finding recorded was that after his promotion as Branch Manager, Rule 8(1)(a) of the Service Rules was made applicable to him. It was also his admission that all clerical work referred by him in his affidavit was being done by his subordinates and he used to sign the same. All the staff attached to the Sakoli Branch where he was discharging duties were subordinate to him. In the light of the aforesaid material on record and in view of the legal position referred to hereinabove, the finding as recorded by the Industrial Court that the complainant was not a workman is based on the material available on record. It has been rightly held that the complainant as Branch Manager was not a workman and the Industrial Court had no jurisdiction to entertain the complaint. In absence of any jurisdictional error, there is no reason to interfere with the impugned order. 10. The writ petition is therefore dismissed. Rule stands discharged with no order as to costs. Needless to state that the petitioner is free to avail the remedies available to him in law for redressal of his grievance and any observation made in the present order except the finding as regards jurisdiction would not come in his way if such remedy is exhausted.