SUDHIR Vs. KANAYALAL MADANLAL FACTORY

JUDGEMENT

(1.) BY invoking the writ jurisdiction of this court under Articles 226 and 227 of the constitution of India, this petition is directed against the order dated June 28, 1991 passed by the appellate authority, i. e. the Industrial court in Appeal (PGA No. 11/1984), whereby the order passed by the Labour Court rejecting the application of the petitioners seeking relief of payment of gratuity was rejected on October 20, 1984.

(2.) THE relevant facts are as under: one Trimbakrao was employed in the firm, named and styled as, "kanayalal madanlal Factory, Deptt. " as a clerk in the year 1952 and was required to carry out all types of clerical work. Trimbakrao died on october 14, 1982. The petitioner No. 1 is son and petitioner No. 2 is his widow and they had filed the proceedings i. e. the Payment of Gratuity Case No. 23/1983 before the controlling authority i. e. the Labour Court claiming payment of gratuity as per the provisions of the Payment of Gratuity Act, 1972 (for short, the Gratuity Act ). The Labour court considered the evidence adduced by the parties and on hearing the counsel for the parties, had come to the conclusion that deceased Trimbakrao was not an employee as per the definition of 'employee' under Section- 2 (e) of the Act and consequently rejected the application. Being aggrieved, the petitioners carried appeal before the appellate authority, i. e. the Industrial Court. The Industrial Court upheld the findings of the Labour Court and dismissed the appeal on June 28, 1991. This order is under challenge in this petition.

(3.) MR. Harkare, the learned counsel for the petitioners contended that deceased trimbakrao joined as a clerk and he was doing all clerical jobs since the date of joining till his death. Being clerk, he was required to look after the Store of the factory and he was also required to work on the scale of the factory. He used to do correspondence as per the directions of the partner and he was working as per the directions of the partners of the factory. The deceased Trimbakrao was not holding the status or the post of the Manager at any time while he was in service of the respondent. He contended that by way of amendments in the Gratuity Act, the definition of employee includes a person whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or State government and is governed by any other Act or by any rules provided for payment of gratuity. He contended that the Court has to consider various factors for determining the question of status of an employee and it is immaterial whether by any other nomenclature, a person is called as a clerk or manager. In support of this submission, he relied on the decision of Division Bench of the Supreme court in the case of T. Prem Sagar v. Standard vaccum Oil Company, Madras and others, air 1965 SC 111 : 1964-I-LLJ-47 and also on another decision of the Supreme Court in the case of Punjab Co-operative Bank Ltd. v. R. S. Bhatia, AIR 1975 SC 1898 : 1975 (4) SCC 696 : 1975-II-LLJ-373.