:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1183 OF 2008 WRIT PETITION NO. 1183 OF 2008 WRIT PETITION NO. 1183 OF 2008 Virendra Dube ..Petitioner versus Leela Kempinski M/s. Hotel Leela Ventures ..Respondents Mr. R. L. Nerlekar for the Petitioner. Mr. J. P. Cama, Senior Counsel with Ms. Sanika Desphande i/b. M/s. Haresh Mehta & Co. for the Respondents. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 21ST JULY, 2008. DATE : 21ST JULY, 2008. DATE : 21ST JULY, 2008. P.C. P.C. P.C. . By this petition, the petitioner challenges the Order of the Ld. Industrial Court dismissing his Revision against the Order of the Labour Court rejecting his Complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The petitioner was serving the respondents as a Captain in Restaurant. His services were terminated after holding an Enquiry for misconduct. He challenged the termination before the Labour Court unsuccessfully and thereafter before the Industrial Court. :2: 2. Before this Court, the learned counsel for the petitioner submitted that the Courts below have committed an error of law in over-looking the law settled by this court that if an employer has treated the employee as a workman then the employer cannot be allowed to deny that the employee is a workman. He therefore submitted that the petitioner ought to have been held to be a workman. The learned counsel for the petitioner relied on three decisions of this Court (1) Cricket Club of India Cricket Club of India Cricket Club of India vs. Baljit Shyam (Mrs.) & Anr. [1998 I CLR 570] vs. Baljit Shyam (Mrs.) & Anr. [1998 I CLR 570] vs. Baljit Shyam (Mrs.) & Anr. [1998 I CLR 570], (2) S. A. Sarang vs. W. G. Forge & Allied S. A. Sarang vs. W. G. Forge & Allied S. A. Sarang vs. W. G. Forge & Allied Industries Ltd., Thane & ors. [1995 I CLR 837) Industries Ltd., Thane & ors. [1995 I CLR 837) Industries Ltd., Thane & ors. [1995 I CLR 837) and (3) Development Credit Bank Ltd. vs. Azim A. Development Credit Bank Ltd. vs. Azim A. Development Credit Bank Ltd. vs. Azim A. Charania [2000 LAB I.C. 2757)] Charania [2000 LAB I.C. 2757)] Charania [2000 LAB I.C. 2757)] for the said proposition. It appears on appraisal of the facts of this case that the position in law enunciated by this court in the aforesaid decisions has no application. 3. In one of the decision i.e. S. A. Sarang S. A. Sarang S. A. Sarang vs. W. G. Forge & Allied Industries Ltd. & Ors. vs. W. G. Forge & Allied Industries Ltd. & Ors. vs. W. G. Forge & Allied Industries Ltd. & Ors. [1995 I CLR 837] [1995 I CLR 837] [1995 I CLR 837], this court observed as follows: "......If an employer continuously and consistently proposes and takes action against its employee on the footing that he :3: is covered by the Model Standing Orders (thereby implying that the employee is a "workman" within the meaning of the Act), then such employer must be estopped from denying the said fact when a dispute regarding the dismissal of the employee finally lands up before an industrial adjudicator...." 4. In the first place it cannot be said that an employer continuously and consistently proposes and takes action against its employee that he is a workman merely because the employer appears to believe that the employee is covered by Model Standing Orders. It is only in such circumstances, that the estoppel can be said to really arise. In the present case, the respondents - Management has merely stated in the charge sheet that the cause alleged against the petitioner would tantamount to misconduct under the Certified Standing Orders. It cannot be inferred from this that the respondents consciously treated the petitioner as a workman merely because there is a reference to Certified Standing Orders. Certified Standing Orders produced by the respondents, define employee as follows:- ’Employee’ means a person employed to do ’Employee’ means a person employed to do ’Employee’ means a person employed to do manual or technical or clerical or manual or technical or clerical or manual or technical or clerical or supervisory work in the establishment.’ supervisory work in the establishment.’ supervisory work in the establishment.’ Moreover, it is in the evidence of the respondents :4: that charge sheet can be even given to the Supervisor under the Certified Standing Orders of the Hotel. There is therefore no merit in the contentions on behalf of the petitioner. 5. It must be observed that the point has been decided against the petitioner on the basis of evidence relating to the duties performed by the petitioner. The Labour Court has observed on the basis of evidence of the witness who was also working as a Captain in the Restaurant that a Captain of a Restaurant, such as the petitioner, has below him Stewards, Assistant Stewards, Trainees and Hostes, etc. The allocation of work is done by the Captain. The whole operation is looked into by the Captain in consultation with the Manager. Thus, the Courts came to the conclusion that the petitioner was doing a job which was supervisory in nature. There is no merit in the contention on behalf of the petitioner that he was merely doing the clerical job of making "KOT" i.e. "Kitchen Table Order" and was therefore a workman. In fact, the Labour Court has exhaustively dealt with the subject of the petitioner and his status. There is no perversity or error of law apparent on the face of the record. There is no reason to interfere with the impugned :5: orders. Petition is dismissed. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)