NARENDRA NATH TIWARI, J. - (1.) IN this writ application, the petitioner has prayed for quashing of order dated 6.6.1997 passed in B.S. Case No. 9/93 by the Presiding Officer, Labour Court, Ranchi dismissing the complaint petition under Section 26(2) of the Bihar Shops and Establishement Act.
(2.) THE petitioners case is that he was appointed in the year 1962 and was posted at Ranchi and continued to work at Ranchi in the respondents No. 3 company. The company has its Head Office at Calcutta and its different branches at various towns in India including at Patna and Ranchi. According to the petitioner, the work assigned to him was the work of sales representative, in real sense he was not controlling the affairs of the company at Patna. By virtue of a Power of Attorney dated 3.2.1983 the petitioner was given an authority to act as a Manager but the said Power -of -Attorney was executed by respondent No. 3 for specific performance and no absolute power with regard to the management of affairs of the Patna Branch was ever given to him. According to the petitioner, since he was never given the duties to function as an independent authority as a Master to this subordinates, he was not holding a managerial post either at Patna or Ranchi. According to him, although he had been functioning as Branch Manager at Patna yet the nature of job was of an employee and not managerial. He was subsequently transferred to Ranchi designated as Manager on Special Duty he was assigned to work to receive/collect orders from various parties, collect payments from them and sent compliance report to Patna office and head office. At Ranchi, the petitioner was the sole employee and no other person was appointed to perform the job under his control and direction. Petitioner made out a case that he was not paid his salary for December, 1992 in time and as such he wrote several letters to the Chairman, who instead of paying his salary, sent a letter dated 4.6.1993 asking the petitioner to deposit a sum of Rs. 12,427/ - with Patna Branch which was shown standing in his name and debited in his account and thus in that way the respondent No. 3 developed bias against him. For the said reason and also that the petitioner prayed for payment of salary of December, 1992, a letter was issued on 15.6.1993 thereatening him and levelling false allegation which ultimately culminated into a termination of the services of the petitioner by letter No. JJA -13/ SNS/93 dated 14.7.1993. According to the petitioner, when show cause notice was not served on him. Aggrieved by the said termination order, the petitioner filed complaint petition under Section 26(2) of the Bihar Shops and Establishment Act, (hereinafter referred to as the said Act for the sake of brevity) before the respondent No. 2, which was registered as B.S. Case No. 9 of 1993 and in the said case the respondents also appeared on notice and contested the same. Both the parties led evidences, oral and documentary. The Presiding Officer, Labour Court then passed the impugned order dismissing the complaint of the petitioner, which is under challenge in this writ application. The grounds of challenge made out in the writ application is that the Presiding Officer, Labour Court has not properly appreciated the material and evidences on record and has arrived at erroneous conclusions which are not based on legal evidences and are perverse. The respondent No. 3, M/s. J.J. Automotive Limited, who is admittedly the employer of the petitioner, appeared on notice and filed a detailed counter affidavit. In the counter affidavit, the respondent No. 3 refuted the grounds made in the writ application stating, inter alia, that there is absolutely no infirmity, illegality or arbitrariness in the order of the Presiding Officer, Labour Court. The said order has been made on thorough appraisal of evidences and materials on record and also on proper appreciation of the provisions of law and as such the same is wholly sound and legal.
(3.) MR . R. Krishna, learned counsel appearing on behalf, of the petitioner made submissions in support of his grounds taken in the writ application. According to him from the materials brought on record, the Presiding Officer should have held that the petitioner comes within the definition of an employee as defined in Section 2(4) of the said Act. According to him, it is evident from the record that the petitioner at the relevant time was working alone and there was no other employee of whom the petitioner had any control or supervision. According to Mr. Krishna, a Manager is not expected to discharge a duty of sales representative or salesman. According to him, after his transfer at Ranchi, he was assigned the duty of sales representative and salesman and in that view, it cannot be said that the petitioner was holding a managerial post, though he was called Manager or Branch Manager in the letters or in the document. According to Mr. Krishna, only labeling the word Manager does not mean that he comes within the ambit of Section 2(5) of the said Act, rather in view of his work and duties he comes within the definition of employee as envisaged under Section 2(4) of the Act. On that premise, Mr. Krishna submits that the impugned order is vitiated due to total non -consideration of the said relevant facts and the same is arbitrary and illegal.;