( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2051 OF 2008 Naval Ramdas Patil PETITIONER VERSUS Maharashtra State Cooperative Marketing Federation Ltd., Mumbai. RESPONDENTS ..... Mr. Vivek Dhage, advocate holding for Mr. M.H. Patil, advocate for the petitioner. None for the respondents though served. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th July, 2009] PER COURT : 1. By this petition, the petitioner impugns judgement and order rendered by the learned Member, Industrial Court, Dhule where his complaint (ULP) No. 156/2004 came to be dismissed. The learned Member of the Industrial Court held that the petitioner cannot be termed as “workman” within the meaning of section 2 (s) of the Industrial Disputes Act, 1947. ( 2 ) 2. The petitioner asserted that the respondent committed unfair labour practices as described under Items 5, 7 and 9 of the Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “the MRTU & PULP Act”). The petitioner averred that he was serving as Marketing Officer at Chandrapur and was assigned work to deal in sale of fertilizers, pesticides and to recover dues from creditors. He had sold super-phosphet and other products valued Rs. 73, 700/- to a Cooperative Society called “Adivasi Vividh Karyakari Sahakari Sanstha, Babal” District Chandrapur. He had deposited a part of the amount recovered from the said creditor. The petitioner alleged that he was not responsible for certain recoveries and that the sold goods worth Rs. 53,785/- were returned by the said Co-operative Society. Inspite of such peculiar situation, which was outcome of the rejection of a lot of the goods by the Co-operative Society (creditor), he was called upon to recoup amount of Rs. 1, 12, 789/- and was held guilty for financial misdeeds. After disciplinary inquiry, he was removed ( 3 ) from service. 3. The petitioner challenged the order regarding recovery of the said amount, alleging that the respondent committed unfair labour practices under Items 5, 7 and 9 of the Schedule-IV of the MRTU & PULP Act. The learned Member of the Industrial Court framed certain issues below Exhibit-3 in the proceedings. The learned Member of the Industrial Court came to the conclusion that the petitioner failed to establish his status as “workman” and, therefore, he was not eligible to invoke jurisdiction of the Industrial Court. The learned Member of the Industrial Court held that considering the nature of the work of the petitioner, he cannot be regarded as “workman” within the meaning of section 2 (s) of the Industrial Disputes Act. 4. Heard learned counsel for the petitioner. Though served, none appears for the respondent. 5. On perusal of the impugned judgement, it is manifest that the inquiry was not properly held as far ( 4 ) as status of the petitioner is concerned. There was no issue framed in respect of his status as workman. The petitioner submits that he was taken by surprise when the complaint came to be dismissed only for the reason that he was not a workman and was, therefore, not eligible to invoke jurisdiction of the Industrial Court. It appears that though no issue was framed in this behalf, yet, abruptly, the learned Member of the Industrial Court considered the status of the petitioner on basis of averments made in the paragraph No. 5 of the complaint. It is true that the petitioner alleged that he was District Marketing Officer and was assigned work to deal in vending of fertilizers, pesticides, etc. so as to enhance sale of the respondent – Marketing Federation. The petitioner was not given any opportunity to explain the nature of his actual work at the place of working. The learned Member of the Industrial Court considered his averments in the complaint and on such basis, reached conclusion that the work was of managerial cadre. Needless to say, without framing any issue and without giving opportunity to the petitioner, such finding is rendered. The determination ( 5 ) of employer-employee relationship depends on various factors. Mere nature of duties or the nature of pay scale, isolatedly, cannot be treated as decisive factors. The question to be addressed is whether the petitioner is covered by Model Standing Orders. The petitioner could have been called upon to explain the details of the duty assigned to him. The nomenclature of his post or designation will not, by itself, be significant to reach appropriate conclusion. He may be called “District Marketing Officer”, yet, he may be actually required to run from pillar to post in order to deliver the goods to the creditors/customers at small villages. Thus, there may be involvement of physical activity and other allied work which has no connection with the supervisory or managerial work as such. Considering these aspects of the matter, I am inclined to hold that the impugned judgement rendered by the Industrial Court deserves to be quashed. The petitioner is entitled to have opportunity to make out his case before the Industrial Court as regards his status claimed by him. ( 6 ) 6. In the result, the writ petition is allowed. The impugned judgement and order is quashed with direction that the complaint be restored to its original position and afresh inquiry be carried out and the issue regarding status of the petitioner be framed and thereafter, both the sides may be given due opportunity to lead the evidence on such issue. The complaint (ULP) shall be decided afresh at the earliest. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP2051-08