1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.3988 of 2007 Ramesh Laxman Prabhu Petitioner Vs. Everest Integrated Communications Ltd. and ors. Respondents Petitioner in person. CORAM: B.H.MARLAPALLE, J. March 5, 2008 ORAL ORDER: 1. Heard the petitioner - party in person. Perused the R. & P. The petitioner impugns the judgment and order dated 23/6/2005 rendered by the 10th Labour Court at Mumbai thereby rejecting Complaint (ULP) No.131 of 2001 and which has been confirmed by the Industrial Court at Mumbai by dismissing Revision Application (ULP) No.196 of 2005 on 25/1/2007. 2. The complainant was appointed on 30th July 1972 as Billing Assistant and around 3rd April 1990 he was promoted as Billing Manager in the respondent - company. On or about 21st December 2000 he 2 received an order of termination simplicitor and, therefore, he approached the Labour Court in Complaint (ULP) No.131 of 2001 filed under Item 1 of Schedule IV and Items 2 and 5 of the said Schedule read with Section 28 of the MRTU & PULP Act, 1971 ("the Act" for short) and challenged the order passed mainly on two grounds, (a) that the billing work could not be closed and, therefore, there was no reason to reduce the staff in the billing department and (b) while issuing the termination order, notice pay and retrenchment compensation was not paid to him. The respondent - management appeared before the Labour Court and filed its reply opposing the complaint. It reiterated that the billing department was closed and the billing work was assigned to the concerned sections and the surplus manpower found in the said department was serviced with the termination orders. The complainant was one such officer who was found to be surplus. He was paid one month’s salary in lieu of notice and the legal dues. The management took up a preliminary objection on the maintainability of the complainant stating that the complainant’s monthly salary at the relevant time was in the range of Rs.20,000/- to Rs.24,000/- and he was holding the post of Billing Manager and, therefore, 3 he could not be termed as an "employee" within the meaning of Section 3(5) of the Act. The learned Judge of the Labour Court held that the complainant was discharging the duties of supervisor though not a manager and, therefore, he could not lay a complaint. The Labour Court also examined the allegations on merits and recorded a finding that there was no specific act of unfair labour practice made out by the complainant. The Industrial Court on perusal of the record has confirmed the findings as well as reasoning set out by the Labour Court while dismissing the revision application. 3. A perusal of the complaint filed by the complainant substantially makes out only two grounds viz. (i) that there was no justification to close down the billing section and (ii) non-compliance of the mandatory requirement of Section 25F of the Industrial Disputes Act, 1947. He also denied that he was not an employee within the meaning of Section 3(5) of the Act and in support of his case he examined himself and one Mr.Farhad Jal Gimi at Exhibit U-18. The respondent - company examined Mr.Anil Murlidhar Kharpas who was at the relevant time working as Senior Manager - Accounts i.e. in 4 December 2000. Mr.Farhad Gimi in his depositions before the Labour Court stated that he was in the employment of the respondent 0 company for about thirty years and when the complainant’s services were terminated he was holding the post of Executive Director in the respondent - company. He was holding the said post for about four years. He admitted in his cross-examination that he was not concerned with the accounts as well as the billing department and further admitted that the billing department was closed by way of a policy decision and that the billing work would be undertaken by the concerned departments and the employees in the billing department were informed accordingly. In his examination-in-chief he gave the names of at least three persons who were working as the assistants of the complainant i.e. Mr.Shanbag, Mr.Kaushik and Mr.Pandit. He also admitted that the complainant was promoted in April 1990 to the post of Billing Manager and he was in-charge of the billing section. 4. There is no dispute that apart from the complainant, in the billing section there were five other employees i.e. one senior billing officer, two billing officers and two assistants. The whole 5 thrust of the complainant’s argument was that he did not occupy the post of manager and he was not performing managerial duties. Whereas the company by bringing on record the job profile of the complainant at Exhibit C-14 and proved before the Labour Court that the complainant was discharging the duties of supervisor. Even the cross-examination of the company’s witness taken by the complainant proceeded on the grounds that he was alleged to be performing managerial duties. The evidence on record went to show that the complainant was recommending leave of the assistants in the billing section, he was signing the papers on behalf of the company and these included bills, he was responsible for the work of the billing section and admittedly he was drawing a salary in excess of Rs.20,000/- per month. On these obtaining circumstances and by taking into consideration the oral and documentary evidence including that of Mr.Gimi (Jimmy), the Labour Court recorded a finding that the complainant was working as a supervisor and this finding cannot be termed as perverse or manifestly erroneous. 6 5. Once the Labour Court recorded a finding that the complainant did not fall within the ambit of the term "employee" as defined under Section 3(5) of the Act, it was not necessary to examine the complaint on merits. Even then as a matter of abundant precaution the Labour Court proceeded to examine the complaint on merits. The complaint filed under Items 2 and 5 of Schedule IV of the Act was not maintainable before the Labour Court and, therefore, the Labour Court rightly confined its scrutiny only to Item 1 of Schedule IV. On perusal of the complaint the Labour Court recorded a finding that there was no specific averment of unfair labour practice made out except saying that there was no reason to close down the billing department and retrenchment compensation was not paid. To close down a particular department is a managerial decision and if the company had taken the said decision and had done away with the service of surplus staff, that by itself would not be an unfair labour practice within any clause of Item 1 of Schedule IV of the Act. The Labour Court has no powers to examine the justifiability of closure of the billing department, in complaint of unfair labour 7 practice. The Industrial Court considered the evidence adduced by both the parties and also the respective averments and recorded a finding that the complainant was occupying the post of supervisor and, therefore, he could not have filed a complaint of unfair labour practice before the Labour Court. These concurrent findings recorded by both the Courts below do not call for any interference under Article 227 of the Constitution. Consequently, the issue of non compliance of Section 25F of the ID Act would not arise. 6. The complainant relied upon the decision of this Court in the case of Aloysius Nunes Vs. M/s. Thomas Cook India Ltd. [2004 (3) Mh.L.J. 404] [2004 (3) Mh.L.J. 404] [2004 (3) Mh.L.J. 404]. That was a case where this Court was dealing with the duty of a manager and not that of a supervisor. This Court also held that the burden of proving that the complainant could not file a complaint lies on the person who disputes the status and that is obviously the respondent - management. The view taken by the learned Judge of the Labour Court in fact follows the law laid down by this Court and his finding that the 8 complainant was working as a supervisor is, in no way, contrary to the said decision. 7. Hence the petition fails at the threshold and the same is hereby rejected summarily. (B.H.MARL