LAKSHMIPATHI DR T N Vs. STANDARD VACUUM OIL COMPANY LTD

JUDGEMENT

(1.) THE petitioner in this Writ Petition, Dr. T. N. Lakshmipathi was engaged by respondent 1, the Standard Vacuum Oil Company, Madras, in 1944, and in 1946, he entered into an agreement regarding his conditions of service with respondent 1. One of the conditions of this agreement was that the service would be terminable at the instance of either party by two months' notice. Belying on this clause, respondent 1 company terminated the petitioner's service on 19 August 1958, to be effective from 1 September 1958. Urging that he was a person employed within the definition in Section 2 (12) of the Madras Shops and Establishments Act of 1947, the petitioner sought for relief under Section 41 of the above Act from respondent 2, the Additional Commissioner for Workmen's Compensation, Board of Revenue, Chepauk, Madras. The respondent 2, after considering the evidence before him adduced by the petitioner, as well as respondent 1 company, came to the conclusion that the petitioner's employment did not satisfy the definition in Section 2 (12) (iii) of the above Act, and dismissed the appeal. The present writ petition is filed against the above order.

(2.) THE contention of the petitioner was that a careful analysis of the nature of his duties would show that he was a "person employed" within the meaning of Section 2 (12) of the Madras Shops and Establishments Act and that respondent 2 failed to exercise his Jurisdiction in deciding the above question, without taking into account all the materials placed before him. This claim was disputed in the counter-affidavit of respondent 1 who urged that there was no error of law apparent on the face of the record justifying the interference with the order of respondent 2 in a writ proceeding. It was urged specifically that the work on which the petitioner was employed was to render medical service to the employees of respondent 1 and this was in no way connected with the work of import, storage, or distribution of petroleum product which is the business of respondent 1 company.

(3.) SECTION 2 (12) of the Madras Shops and Establishments Act, 1947, defines a "person employed" as (i) in the case of a shop, a person wholly or principally employed there in connexion with the business of the shop; (ii) in the case of a factory or an industrial undertaking, a member of the clerical staff employed in such factory or undertaking; (iii) Jin the case of a commercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in connexion with the business of the establishment, and includes a peon. . . . It is common ground that respondent 1 company, though under, a single management, has two premises called the Kasimode terminal and the Royapuram terminal which are treated as "factory" within the meaning of the Factories Act, 1948, while the head office or territory office does not come under the Factories Act, and it could be more properly treated as a commercial establishment 'as defined in Section 2 (3) of the Act. The petitioner's contract with the company was marked before the Assistant Commissioner, as Ex. A1, and I was given an opportunity of perusing it. Under the contract, the petitioner was required to visit Kasimode and Royapuram terminals and the territory office daily, starting from the Kasimode terminal at 9 a. m. and devote adequate time to each of these places to give adequate time to each of these places, to give adequate and necessary medical attention to all members of the staff requiring attention. He has also got to "attend to accident oases occurring while present at the terminals. " In other cases of accidents it might be necessary for the petitioner to visit the injured persons either at the hospital or at their home for investigation and report. In such oases he would be given visiting fee. There is also a clause that, if, for any reason, the petitioner could not attend the territory office or terminals for any period, such as during illness, absence from Madras, etc. , the petitioner should arrange for a qualified doctor to attend in his place. There is a separate fee for Kasimode, Royapuram and the territory office amounting to Rs. 350 in all. Subsequently this was increased. The petitioner was also required to examine candidates for employment in the territory office or terminals with a lee of Rs. 5 per candidate, payable by the candidate himself. There is a final clause that under the agreement the petitioner would not be considered as an employee of the company and that the fees stated above will cover all the services rendered by him. He was not entitled to any other remuneration or benefits, such as company's annuity and Insurance plan. The agreement concluded with a clause that the agreement was terminable with two months' notice at the instance of either party.