1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2835 OF 1997 PETITION NO.2835 OF 1997 PETITION NO.2835 OF 1997 Shri Mahadeo Govind Patil ... Petitioner Vs. The Chairman, Ajara Taluka ... Respondents Sahakari Kharedi Vikri Sangh Ltd. and others. Mr. N.V. Bandiwadekar for Petitioner Mr. K.S. Bapat i/by Tejpal S. Ingale for respondents. CORAM CORAM CORAM : J.P. DEVADHAR, J. : J.P. DEVADHAR, J. : J.P. DEVADHAR, J. DATE DATE DATE : 24TH APRIL, 2008 : 24TH APRIL, 2008 : 24TH APRIL, 2008 P.C. P.C. P.C. :- :- :- 1. The short question raised in this Writ Petition is whether both the Courts below were justified in holding that the petitioner was working as a Manager in the respondent NO. 1- Society and therefore the complaint filed by the petitioner under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("1971 Act" for short) claiming to be a Workman cannot be entertained. 2. The petitioner was appointed as an Accountant by the respondent No.1 on 18th 2 December, 1963. He was promoted as Assistant Manager on 10th July, 1969. Admittedly in the year 1970-1971, the petitioner was promoted as a Manager for a period of three years and the same was approved by the authority under the Maharashtra Co-operative Societies Act from time to time. 3. On 7/12/1979, the petitioner was sanctioned long leave and on 8th December, 1979, the petitioner handed over a charge to Shri Ajgekar and proceeded on long leave. 4. Thereafter pursuant to the General Body Resolution dated 12th February 1980, the petitioner was dismissed from the service by order dated 25th February, 1980. 5. Challenging the dismissal order, the petitioner filed a complaint on 7th May, 1980 before the Labour Court at Kolhapur (ULP No.7/1980) claiming that he was a Workman doing the clerical work and not the managerial or the administrative work and that the dismissal order constitutes unfair labour practice under the 1971 Act. The respondent No.1 filed its reply opposing 3 the claim of the complainant and contended that the petitioner is not a Workman and therefore the complaint was not maintainable. 6. By a judgment and order dated 11th January, 1993, the learned Judge of the Labour Court dismissed the complaint filed by the petitioner was not a workman as he inter-alia on the ground that the petitioner was discharging the duties of Manager and hence the complaint was not maintainable. 7. Being aggrieved by the aforesaid order, the petitioner filed a Revision Application before the Industrial Court at Kolhapur and by the impugned judgment and order dated 1st April 1997, the Industrial Court dismissed the Revision Application filed by the petitioner. Challenging the aforesaid orders, the present petition is filed. 8. Mr. Bandiwadekar, learned counsel appearing on behalf of the petitioner submitted that both the Courts below erred in holding that the petitioner was not a Workman within the meaning of Section 2(s) of the Industrial Disputes 4 Act, 1947 (‘1947 Act’ for short) r/w 3(5) of the 1971 Act. He submitted that on the basis of evidence on record, it is clear that after handing over the charge of Manager to Mr. Ajagekar on 8/12/1979, there is nothing on record to suggest that the petitioner was discharging his duties in a managerial capacity. Therefore, on the date of dismissal order dated 25th February, 1980, the petitioner could not said to be working as a Manager and therefore both the Courts below ought not to have dismissed the complaint filed by the petitioner. 9. Mr. Bandiwadekar, further submitted that the salary drawn by the petitioner was less than Rs.1600/- and therefore in view of Clause IV of Section 2(s) of the 1947 Act r/w Section 3(5) of the 1971 Act, the petitioner was liable to be treated as Workman. He submitted that in the relevant annual reports of the society, Mr. Ajagekar is shown as Incharge Manager of the society which clearly shows that the petitioner was not discharging the duties as a Manager. Accordingly, Mr. Bandiwadekar submitted that the judgment of both the Courts below are liable to be quashed and set aside. 5 10. Mr. Bapat, learned counsel appearing on behalf of respondent No.1 submitted that in the present case, both the Courts below have given concurrent finding of fact and on the basis of the material on record have come to the conclusion that the petitioner was discharging his duties as a Manager and therefore the complaint filed by the petitioner claiming to be a workman has been rightly rejected. Once it is established that the petitioner was discharging the duties as a Manager, the petitioner could not take shelter under Clause IV of Section 2(s) of the 1947 Act r/w Section 3(5) of 1971 Act. 11. Relying upon the decisions of the Apex Court, in the case of H.R. Adyanthaya etc. vs. Sandoz (India) Ltd. etc. reported in AIR 1994 SUPREME COURT 2608, the decision in the case of Burmah Shell Oil Storage and Distribution Co. of India Ltd. vs. The Burma Shell Management Staff Association and others reported in 1970 (3) Supreme Court Cases 378 and the decision in the case of Mukesh K. Tripathi vs. Senior Divisional Manager, LIC and others reported in (2004) 8 Supreme Court Cases 387, Mr. Bapat submitted that 6 petitioner is not covered under the excluded categories specified under Section 2(s)of 1947 Act and therefore no interference is called for. 12. Having heard the learned counsel on both sides, in my view the petitioner has not made out a case for invoking the Writ jurisdiction of this Court The concurrent finding of fact recorded by the Courts below is that the petitioner was discharging his duties by visiting branches for inspection, he was sanctioning leave to the employees and he was given authority to sell and purchase goods for and on behalf of the Society. Moreover, in the proceedings before the Co-operative Court, the petitioner himself had admitted that he was appointed as a Manager on permanent basis in the year 1969 and thereafter his services were terminated. With these facts on record, it is difficult to find fault with the findings given by the Courts below. 13. The argument of Mr. Bandiwadekar that after handing over the charge on 8/12/1979 the petitioner has not rendered the services as a Manager has no merit because admittedly from 8/12/1979 the petitioner has proceeded onlong 7 leave and has never resumed his duties till his services were terminated. Therefore, when admittedly the last service rendered by the petitioner was in managerial capacity, it cannot be said that during the leave period the petitioner was rendering services as a Workman. 14. The fact that the petitioner was drawing salary less than Rs.1600/-, cannot be ground to hold that the petitioner was a Workman under Section 2(s) of 1947 Act r/w 3(5) of 1971 Act because once it is established that petitioner was discharging his duties as Manager, clause IV of Section 2(s) of the 1947 Act would not be applicable. Clause (IV) of the 1947 Act applies to supervisors drawing the salary in excess of Rs.1600/- per month. That provision would not apply to a Manager. 15. For all the aforesaid reasons, I see no merit in the petition and the same is hereby dismissed with no order as to costs. ( J.P. DEVADHAR, J.) J.P. DEVADHAR, J.) J.P. DEVADHAR, J.)