IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTIETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P. No.3962 of 2005 Between: The Management of Hyderabad Chemical Supplies Ltd., Rep.by its Managing Director Mr.N.Sukuma, Having its regd. Office at A24/25, A.P.I.E. Balanagar, Hyderabad. … Petitioner And B.Jeevan Babu and another. … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P. No.3962 of 2005 ORDER: This writ petition has been filed seeking for issuance of Writ of Mandamus declaring the order dated 22.12.2004 passed in M.P. No.58 of 1999 by the Additional Industrial Tribunal cum Additional Labour Court, Hyderabad as illegal and arbitrary. The petitioner herein is the Management of Hyderabad Chemical Supplies Limited and the 1st respondent is the workman. The workman filed M.P. No.58 of 1999 under Section 33-C (2) of the Industrial Disputes Act, 1947 seeking to order for unpaid salary and the bonus and the same was allowed directing the petitioner herein to pay an amount of Rs.52,506/- within two months from the date of the order. Aggrieved by the same, the petitioner filed the present writ petition. Brief facts of the case are that the workman was working as Stores Officer under the petitioner’s management. On 06.06.1998 he received a message from Chennai that his mother-in-law was sick and he intimated the same to the Works Manager and applied for leave and left for Chennai. Thereafter, his mother-in-law died on 08.06.1998 and he informed the same to the Works Manager and after attending funeral reported to duty on 14.06.1998 but he was not allowed to join duty on the ground that there are certain allegations against him. On receiving the written intimation from the workman, the petitioner gave reply intimating that disciplinary action was initiated against him and in the enquiry he was dismissed from service by order dated 09.12.1998. Aggrieved by the same, the workman raised I.D. No.26 of 1999 on the ground that neither he was allowed to attend duty from 14.06.1998 nor kept him under suspension by paying salary and only an amount of Rs.1,296/- was paid towards salary for 9 days for the month of June and he withdrew the same under protest. Even though he demanded for his salary for the period from 06.06.1998 to 08.12.1998 at the rate of Rs.7,251/- per month which was his last drawn salary the same was not paid. Hence, he filed M.P. No.58 of 1999 and the said M.P. was allowed and directed the petitioner herein as stated hereinabove. Assailing the same, the petitioner filed the present writ petition. The learned counsel for the petitioner submits that with regard to the status of the workman itself is in dispute and before filing of the said M.P. he was dismissed from service levelling certain allegations, which were proved against him in the domestic enquiry. In the I.D. filed by the workman, the Court below held that the domestic enquiry is invalid and the petitioner is entitled to reinstatement into service. Aggrieved by the same, the petitioner, Management, filed the writ petition and obtained stay and thereafter the workman filed a vacate stay petition and the same is pending on the file of this Court. As far as this petition is concerned, he submits that the Court below without considering the evidence on record directed for payment of the amount towards unpaid salary and bonus. He further submits that the amount that has been claimed by the 1st respondent herein in the capacity of workman and the main contention of the Management is that the workman is not a workman within the definition of Section 2(s) of the Act and that itself is in dispute in the writ petition filed by the management petitioner. Therefore, impugned order is liable to be set aside. On the other hand, the learned counsel for the 1st respondent, workman, submits that as far as I.D. is concerned the Court below after considering the entire evidence on record gave a finding that the nature and duties performed by the workman attracts the provisions of Section 2(s) of the Act and he is a workman within the meaning of Section 2(s) of the Act. Aggrieved by the same, the petitioner, Management, filed writ petition and on behalf of the workman vacate stay petition has been filed and the same is pending on the file of this Court but that writ petition, filed by the Management, does not come in the way of considering this writ petition since the said M.P. was filed claiming unpaid salary and bonus, which the Court below had rightly considered and directed the petitioner herein to pay unpaid salary and bonus. Therefore, there are no merits in this writ petition and the same is liable to be dismissed. Heard the learned counsel on either side and perused the material on record. From a perusal of the proceedings of this Court, on 03.03.2005 while admitting the writ petition granted interim stay subject to the petitioner depositing half of the amount granted by the Court below and after depositing the same the 1st respondent, workman, was permitted to withdraw the same. Accordingly, both the counsel submitted that the petitioner, management, had deposited half of the amount granted by the Court below and the same is withdrawn by the workman. The factual position to the extent that the workman worked under the management of the petitioner and the petitioner herein contested the said M.P. admitting the factual position to the extent that the last drawn salary of the workman was Rs.7,251/-. The main ground of the petitioner is that the 1st respondent herein is not a workman as defined under Section 2(s) of the Act as he is a supervisor with managerial powers and therefore, he cannot invoke the provisions under Section 33 (c) of the Act. Further ground of the petitioner is that the workman is not entitled to salary from 06.06.1998 to 08.12.1998 and the bonus since enquiry was held against him on a charge sheet dated 12.10.1998 and was dismissed from service. As could be seen from the order passed by the 2nd respondent, Tribunal, there is no dispute with regard to master and servant relationship between the petitioner and the workman. The only dispute that the workman did not work during the period for which he is claiming salary and during that period he is gainfully employed elsewhere and to that effect he adduced evidence of Ex.M.12 and M.13 and examined one of the officers of management. The witness for the petitioner was examined as MW.1, who admitted the duties of the workman were not mentioned in his letter of appointment. The designation of Stores Officer, does not give rise to the view that he is an officer cadre. In private companies the designations would be magnificent but in fact the nature of duties will not be with managerial powers. Further, the petitioner adduced material evidence of Ex.M.12 and M.13 in support of his contention that the workman gainfully employed somewhere else during the period for which the workman claiming unpaid salary but the workman did not admit the said allegation and doubted the genuineness of that material evidence. Therefore, it is for the petitioner to prove the material documents and for that the petitioner examined MW.3 P.Balakrishna, Legal Officer, Sanghi Polyster Limited but the petitioner failed to examine the Officer who issued Exs.M.12 and M.13, G.Nageshwar Rao, Manager (HRD). Therefore, the material evidence Exs.M.12 and M.13 adduced by the petitioner cannot be fully admitted and nothing prevented the petitioner for examining the officer who issued the said documents. Further it is also to be noted here that when the workman was not permitted to join duty on the ground that certain allegations are made against him, the petitioner might have kept the workman under suspension. But the petitioner neither permitted the workman to join duty nor kept him under suspension. If the workman was kept under suspension he would have entitled to the subsistence allowance. In view of the above, I am of the view that the grounds that were raised by the petitioner are question of fact, which were to be proved before the Court below and the same were considered by the Court below and came to the conclusion that the workman is entitled to amount claimed by him. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, I am of the view that the Court below had rightly considered the material evidence on record and did not commit any error in passing the impugned order and the petitioner does not make out any case for interference of this Court with the impugned order. Therefore, I do not see any reason to interfere with the impugned order and the writ petition is liable to be dismissed. Accordingly, this writ petition is dismissed. There shall be no order as to costs. ________________________ JUSTICE G.CHANDRAIAH Date: 20.12.2010 LSK