Case: T. Devadasan Vs. M/S. Gordon Woodroffe &amp; Co. (Madras) Privateltd. &amp; Anr

bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the Company. His services can only be terminated by the Madras Company in terms of paragraph 5 of the order and under Paragraph 5 he was required to work either in Madras Office (Office hours 9.15 a. m. to 5.30 p.m.) or Pallavaram (Office hours 8. A.m. to 4.30 p.m.) or at any other office or place of business of the Company. It is clear from this letter of appointment that he has to work wherever the company directs him to work. As such he would be a person wholly or principally employed in connection with the business of the Madras Company. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the Company it will be considered to be a part of the business of the company as indeed the words "business of the company" in Paragraph 5 govern not only the obligation to work at Pallavaram but at any other place or places where the company directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the contracts of all Assistants of the company. It is also to be noticed that the bonus was paid by the Madras Company nor is it disputed that his salary and bonus was being paid by that company. The Income-tax deductions were made by the Madras company which also furnished a certificate to the tax authority as per Ext. P. 9. That company further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that company were. It may also be mentioned that the appellants leave had to be granted by the Madras Company and not by the Pallavaram Company. Ext. M-II would show that the application for leave was made by the appellant to the Managing director of the Madras Company. One other fact which appears from the evidence of P. W. 1, Director of the Madras Company who was the also the Secretary of the Pallavaram Company is that appellant was signing bills for Tullies Woodrofee factory at Pallavaram which is another subsidiary of the Madras company. He was also signing the bills of sale of all such manufacture purely for administrative convenience. All these facts support the conclusion that the appellant was employed on business of the Madras Company because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does not make him an employee of that company nor does the Pallavaram company become his employer because neither that company pays his salary nor does it grant leave, nor has it any obligation towards the appellant in respect of Provident Fund, bonus of any other emoluments, nor for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by the Madras Company and not by the Pallavaram company. On the 15th October, 1966 this is what the Director of the Madras company wrote to the appellant:-"I refer to our letter of appointment of 19th October, 1963. I have given very serious consideration to the question of renewing your Agreement but have come to the conclusion that in the period during which you have been employed by this company your work has not reached the standard which was expected and therefore it is not possible to renew appointment. Will you kindly therefore take this letter as being the requisite one months notice of termination of your services in accordance with Paragraph 6 of the letter under reference. If you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October but I must advice you that I have taken an irrevocable decision in the matter." 12. This letter clearly shows that the employer is the Madras Company because it is only the employer who can terminate the services of an employee.It is, therefore, idle to suggest that the Pallavaram company was the employer merely because the Madras company had asked him to work in that company. 13. It is further submitted by the respondent that the Madras company and the Pallavaram company being two incorporated companies they were separate and independent legal entities and that merely because the Madras company has a controlling interest in the Pallavaram company does not vest the administration of Pallavaram company in the Madras Company. Whether it is so or not we have no evidence, nor is there anything to show under what arrangements between the two companies, the Madras company was managing the affairs of the Pallavaram company. If we have to accept the contention of the learned Advocate for the respondent that because the appellant was permitted by the Madras company to work in the Pallavaram company he was employed wholly or principally in connection with the business of the Pallavaram company, he will be an employer-less-employee because even though Pallavaram company has no control over him or his work nor has it the power to suspend or discharge him, he would nonetheless be an employee of that company for the purposes of S. (12) (iii). This would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is not a person employed. We do not think that such a result was intended, nor is a conclusion so baneful deducible from the provisions of the Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. What was considered in the first case is not whether the person is a person employed within the meaning of Section 2 (12) of the Act but whether under Section 4 (1) (a) which provides that nothing contained in the Act shall apply to persons employed in any establishment in a position of management, the 2nd respondent therein was a person in the position of management; if so whether his appeal under Section 41 (2) was incompetent. It is evident from this case that the two objections to the maintainability of the appeal preferred by the second respondent under Section 41 (2) of the Act which were taken before the Additional Commissioner were: (1) that under Section 4 (1) (a) of the Act the second respondent had been employed in the Bank in a position of management and (2) that the contention of the second respondent that if he could not be re-instated as Secretary, he could be reinstated as Cashier was untainable because by a valid notification issued by the Government, Cashiers had been excluded from the purview of the Act. The Additional Commissioner did not record any specific findings on the issue whether the second respondent had been employed as Cashier and whether he is entitled to prefer the appeal under Section 41 (2). That Court did not in view of the facts of that case consider it necessary to pursue the matter further. It was only on the question whether the second respondent was occupying a position of management, as such his appeal could not be entertained under Section 4 (1) (a) that was considered and decided. The observations of Rajapalan, J. at Page 257 that he was using the expression employed only to mean assign the work of are being sought to support the contention that these words would furnish a test in determining whether a person is a person employed under Section 2 (12) (iii). These observations have been torn out of the context because what the learned Judge says immediately thereafter would negative any such contention. What is said is this:-"In my opinion it is an assignment of work, a valid assignment of the work by the employer, that should furnish the real test in deciding whether a given employee is a person employed in a position of management within the meaning of Section4 (1) (a)."We find that throughout the judgment the question whether a person was a person employed within the meaning of Section 2 (12) (iii) has not been mooted. In the second case of Chandra also this question was not considered as is clearly apparent from the observations of the learned Chief Justice delivering the judgment of the Bench at page 669 that it was not contended before them that the Appellant was not a person employed within the meaning of Section 2 (12) of the Act10. In the third case similarly the decision of this Court turned on the question whether the appellant therein was employed in a position of management. It was held on the facts of that case that he was not a person employed in a position of management and as such did not fall within the exemption of Section 4 (1) (a). On the other hand what has been stated by reference to Section 2 (12) (iii) is useful. Gajendragadkar, J. ashe then was observed at page 1036:11. The key of Sec. 2 (12) (iii) is whether a person is wholly or principally employed in connection with the business of the commercial establishment. On the very threshold. What we have to determine is by whom the respondent (appellant?) is employed. Is he employed by the Madras company or by the Pallavaram company which is a factory and if he is by the former which it is not disputed he is, is he wholly or principally employed by it ? It is contended that the Appellant is employed wholly or principally by the Pallavaram Company because it is the place where he has been working.In our view there is no validity in this submission. On the facts of this case the Pallavaram company is not the employer of the appellant. All relevant facts that have been established and are not disputed point to the irresistible conclusion that the employer is the Madras Company. It was this Company that appointed the appellant. The appointment Order of 19th October, 1963 shows that he was appointed as an Assistant in that Company. The terms of the Order further show that apart from the salary set out therein on which he was appointed, he was to receiver dearness allowance at the rate of 35 per cent of the basic salary or such other rate as the Board of that company may decide from time to time. He has to become a member of the Provident Fund to which both he and the Madras Company have to subscribe. The annual bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the Company. His services can only be terminated by the Madras Company in terms of paragraph 5 of the order and under Paragraph 5 he was required to work either in Madras Office (Office hours 9.15 a. m. to 5.30 p.m.) or Pallavaram (Office hours 8. A.m. to 4.30 p.m.) or at any other office or place of business of the Company. It is clear from this letter of appointment that he has to work wherever the company directs him to work. As such he would be a person wholly or principally employed in connection with the business of the Madras Company. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the Company it will be considered to be a part of the business of the company as indeed the words "business of the company" in Paragraph 5 govern not only the obligation to work at Pallavaram but at any other place or places where the company directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the contracts of all Assistants of the company. It is also to be noticed that the bonus was paid by the Madras Company nor is it disputed that his salary and bonus was being paid by that company. The Income-tax deductions were made by the Madras company which also furnished a certificate to the tax authority as per Ext. P. 9. That company further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that company were. It may also be mentioned that the appellants leave had to be granted by the Madras Company and not by the Pallavaram Company. Ext. M-II would show that the application for leave was made by the appellant to the Managing director of the Madras Company. One other fact which appears from the evidence of P. W. 1, Director of the Madras Company who was the also the Secretary of the Pallavaram Company is that appellant was signing bills for Tullies Woodrofee factory at Pallavaram which is another subsidiary of the Madras company. He was also signing the bills of sale of all such manufacture purely for administrative convenience. All these facts support the conclusion that the appellant was employed on business of the Madras Company because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does not make him an employee of that company nor does the Pallavaram company become his employer because neither that company pays his salary nor does it grant leave, nor has it any obligation towards the appellant in respect of Provident Fund, bonus of any other emoluments, nor for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by the Madras Company and not by the Pallavaram company. On the 15th October, 1966 this is what the Director of the Madras company wrote to the appellant:-"I refer to our letter of appointment of 19th October, 1963I have given very serious consideration to the question of renewing your Agreement but have come to the conclusion that in the period during which you have been employed by this company your work has not reached the standard which was expected and therefore it is not possible to renew appointmentWill you kindly therefore take this letter as being the requisite one months notice of termination of your services in accordance with Paragraph 6 of the letter under referenceIf you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October but I must advice you that I have taken an irrevocable decision in the matter."12. This letter clearly shows that the employer is the Madras Company because it is only the employer who can terminate the services of an employee.It is, therefore, idle to suggest that the Pallavaram company was the employer merely because the Madras company had asked him to work in that companyThis would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is not a person employed. We do not think that such a result was intended, nor is a conclusion so baneful deducible from the provisions of the Act.