Court : Chennai High Court
Brief : Merely because the 3rd
respondent is the Manager of a Branch, it cannot follow that he is an
employer within the meaning of S. 2(5) of the Act vis-a-vis himself. I
am therefore, of the view that he is entitled to invoke the provisions
of S. 41(2) of the Tamil Nadu Shops and Establishment Act.
Citation : Oriental Bank Of Commerce vs The Commissioner Of Labour, Madras-6 And Ors. on 5/3/1982
JUDGMENT
1. The short question that arises for consideration in this writ
petition filed by the Oriental Bank of Commerce is whether the third
respondent who was working as its Branch Manager and whose services
were terminated by the petitioner is entitled to invoke the provisions
of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter
called the Act) and prefer an appeal before the Additional Commissioner
for Workmen's Compensation, Madras under S. 41 of the Act.
2. The third respondent, as already stated, was appointed as an officer
by the petitioner and posted as the Manager of the Madras Branch. While
so on 28-7-76 the petitioner passed an order terminating the services
of the third respondent. The order of termination of the third
respondent's services was passed in view of the fact that pursuant to
certain complaints against him, the third respondent was taken into
police custody and later released on bail and that some criminal
complaint was pending against him. Against this order of dismissal the
third respondent preferred an appeal T.S.E. Appeal No. 72 of 1980
before the Additional Commissioner for Workmen's Compensation under S.
41 of the Act. The petitioner took an objection before the Commissioner
of Labour that the third respondent was an employer as defined under
the Act and he could not, therefore, seek the protection of S. 41 of
the Act and prefer an appeal before the Additional Commissioner for
Workmen's Compensation. The petitioner also preferred an application
before the Commissioner of Labour, Madras under S. 41 of the Act for a
declaration that the third respondent was not a person employed as
defined under the Act to claim protection under S. 41 of the Act and
that consequently T.S.E. Appeal No. 72 of 1980 pending before the
Additional Commissioner for Workmen's Compensation should be dismissed.
The Commissioner of Labour, Madras, the first respondent herein, passed
an order on 26-7-1980 holding that the third respondent was a person
employed and was entitled to invoke the provisions of S. 41 of the Act.
Accordingly he directed that the Deputy Commissioner of Labour II,
Madras, before whom the appeal preferred by the third respondent was
pending, should proceed to dispose of the appeal on merits. Under these
circumstances, the petitioner has filed this writ petition for the
issue of a writ of certiorari to quash the order passed by the first
respondent in C.C. No. 1 of 1980 on 26-7-1980.
3. While Mr. Ramalingam, the learned counsel for the petitioner would
contend that the third respondent was not a "person employed" within
the meaning of the Act, Mr. Anandan Nair would contend that the third
respondent was a "person employed" within the meaning of S. 2(12) of
the Act.
4. Section 2(5) of the Act, defines "employer" thus :
"Employer' means a person owning, or having charge of, the business
of an establishment and includes the manager, agent or other person
acting in the general management or control of an 'establishment'."
5. Section 2(12) of the Act, defines "person employed" thus :
"Person employed" means ... (i) in the case of a shop, a person
wholly or principally employed therein in connection with the
business of the shop; (ii) in the case of a factory or an industrial
undertaking, a member of the clerical staff employed in such a
factory or undertaking;
(iii) in the case of a commercial establishment other than a
clerical department of a factory or an industrial undertaking, a
person wholly or principally employed in connection with the
business of the establishment, and includes a peon; Section
2(12)(iv) and (v) are omitted, as they are not relevant for our
present purpose. Section 2(12)(vi) and (vii) reads as under :
"(vi) in the case of an establishment not falling under paragraphs
(i) to (v) above, a person wholly or principally employed in
connection with the business of the establishment, and includes a
peon.
(vii) in the case of all establishments, a person wholly or
principally employed in cleaning any part of the premises; but does
not include the husband, wife, son, daughter, father, mother,
brother or sister of an employer who lives with and is dependent on
such employer;"
It was not disputed by Mr. S. Ramalingam, learned counsel for the
petitioner, that if the third respondent is considered to be a person
employed within the definition of S. 2(12), then he would have had a
right of appeal under S. 41(2) of the Act. It cannot be disputed that
the petitioner is a person employed vis-a-vis the Oriental Bank of
Commerce Ltd., the petitioner herein. This factual situation was not
disputed by the learned counsel for the petitioner. If once it is found
that the third respondent is a person employed within the meaning of
the definition of the "person employed" under S. 2(12) of the Act, he
would be entitled to invoke the provisions of S. 41(2) of the Act,
unless he falls within the exception provided for under S. 4(1) of the
Act. Section 4(1)(a) which is the only provision which is relevant for
our purpose reads as under :
"4. Exemptions :- (1) Nothing contained in this Act shall apply to -
(a) Persons employed in any establishment in a position of
management;"
In this case, the third respondent does not dispute the fact that he
was in a position of management, though he has no power of appointment
or dismissal. However, S. 5 of the Act states that notwithstanding
anything contained in S. 4, the State Government may, by notification,
apply all or any of the provisions of the Act to any class of persons
or establishments mentioned in that section, other than those mentioned
in clause (c) and (f) of sub-s. (1) and modify or cancel any such
notification. Pursuant to the power so conferred under S. 5, the
Government of Tamil Nadu issued G.O. Ms. No. 4074, Industries, Labour
and Housing (Labour), 5th October, 1966, which reads as follows :
"In exercise of the powers conferred by S. 5 of the Madras Shops and
Establishments Act, 1947 (Madras Act XXXVI of 1947), the Governor of
Madras hereby applies all the provisions of the said Act to the
class of persons mentioned in clause (a) of sub-s. (1) of S. 4".
In the other words, the provisions of the Act are applicable to persons
employed in any shop in a position of management. This was not disputed
by the learned counsel for the petitioner. In these circumstances, it
must necessarily follow that the 3rd respondent being a person employed
within the meaning of S. 2(12) of the Act would be entitled to maintain
an appeal under S. 41(2) of the Act.
6. Mr. Ramalingam, the learned counsel for the petitioner emphasised
upon the definition of the word "employer" which means, among others,
the manager of an establishment. I do not think the argument of the
learned counsel for the petitioner could be sustained. As rightly
pointed out by the Commissioner of Labour, the 3rd respondent cannot
both be an employer and an employee. The definition of the word
"employer" within the meaning of S. 2(5) merely requires that a person
who is employed should have the general management and control of the establishment. In the context of the present situation, the employer of the 3rd respondent could only be the person who is in general
management or control of the petitioner-Bank. Merely because the 3rd
respondent is the Manager of a Branch, it cannot follow that he is an
employer within the meaning of S. 2(5) of the Act vis-a-vis himself. I
am therefore, of the view that he is entitled to invoke the provisions
of S. 41(2) of the Act. In the circumstances, I am of the view that
there are no merits in this writ petition. The writ petition,
therefore, fails and is dismissed. The 3rd respondent will be entitled
to his costs Advocate fee Rs. 250.
