JUDGMENT
Eswara Prasad, J.
1. This Appeal arises out of the Judgment of the learned Singe Judge, dismissing Writ Petition No. 22642 of 1990 in which, the appellant challenged the award of the second respondent – Labour Court dated 12-7-1989.
2. The facts in short are as follows :
The appellant was working as the Manager of a Cinema Theatre after being promoted from the post of an Assistant Manager. His services were terminated by the first respondent on the ground of misconduct by a letter of termination dated 24-4-1982 issued by the first respondent. An amount of Rs. 1318.33 P. was sent by a cheque along with the termination order in final settlement. It was stated in the said letter that the appellant neglected his duties as Manager; that he failed to act as per the instructions of the first respondent; that he failed to maintain the various particulars prescribed under the Entertainment Act and Rules, and did not pay the Provident Fund contributions to the authorities, leading to serious infraction of law and putting the Management into trouble with the authorities. It was also stated that the Management lost confidence in the appellant and was not in a position to conduct an enquiry on account of threats issued by the appellant.
3. The appellant questioned the termination before the 2nd respondent-Labour Court. After holding an elaborate enquiry and after examining witnesses on behalf of the appellant and the first respondent and after considering the documentary evidence produced by both the parties, the Labour Court held that the appellant is not a ‘workman’ within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (‘the Act’ for short). It was also held that the appellant misconducted himself and the termination of his services is proper. Having held so, the second respondent rejected the reference on both the counts.
4. The appellant challenged the order of the second respondent in this court. The learned Judge agreeing with the findings of the Labour Court dismissed the Writ Petition, holding that the appellant is not a workman within the meaning of the Act and is not entitled to any relief, leading to the filing of this Appeal.
5. The learned Counsel for the appellant, Sri Subba Rao, vehemently contended that the findings of the Labour Court bordered on perversity and that there was no evidence to support the ‘findings of the Labour Court and even if there was some evidence, it was grossly inadequate and was not properly appreciated by the Labour Court. He submitted that the appellant, though designated as Manager, was drawing a paltry sum of Rs. 350/- p.m. and was only a glorified clerk, and the Labour Court as well as the learned Single Judge has not properly appreciated the fact that the functions discharged by the appellant are not managerial or supervisory in nature.
6. The learned Counsel for the respondent contended that the appellant was appointed as an Assistant Manager in the first instance and was later promoted as a Manager and that the emoluments received by the appellant was not the main criteria in determining as to whether the appellant was discharging managerial functions. He contended that the Labour Court clearly found that the appellant was in overall charge of the Cinema Theatre, that he had the power to appoint the staff and to take disciplinary action against them, that he was incharge of the ticket books, collections, submitting of Entertainment Tax returns, payment of Provident Fund ad signing of various forms prescribed by the authorities under various Acts as the occupier or owner/manager and as such, the Labour Court was correct in taking the cumulative effect of these functions discharged by the appellant, in coming to the conclusion that he was not a workman.
7. In view of the submissions of the learned Counsel for the appellant that the findings of the Labour Court are perverse and not based on evidence, we permitted him to take us through the portions of the evidence on record, in order to find out whether he was correct in making such submissions. The appellant admitted that he was appointed as an Assistant Manager and later he was promoted as a Manager. MW. 1-partner stated that the appellant was incharge of the entire management of the theatre. MW. 1 stated that the appellant had the power to appoint and dismiss the members of the staff and that he was in full control of the Theatre and that he was engaged in the supervision of all the employees numbering about 20 in the Theatre. The appellant admitted that he way paying the Provident fund contributions and was signing the necessary forms as occupier and he was having the custody of the ticket books which were being entrusted to the clerks and that he was collecting back the unsold tickets. He further admitted that he was distributing the salary to the staff. Though he admitted the having given the letter Exhibit M. 15 wherein the admitted that he committed grave misconduct, later on the stated in evidence that it was obtained from him by threats. The Labour Court relied on Exhibit M. 15 in holding that the punishment imposed is not too harsh. There is ample evidence to support the findings of the Labour Court. We are unable to agree with the learned Counsel for the appellant that the findings of the Labour Court are perverse.
8. The learned Counsel took us through the various Decisions of the Supreme Court. In S. K. Verma v. Mahesh Chandra and Anr. it was held that no narrow meaning should be given while construing whether a person is a “workman” within the meaning of the Act. That was a case where a Development Officer of L. I. C. was found to have no supervisory or administrative control and had no subordinate staff. The facts of the present case are altogether different inasmuch as the appellant is found to be in full administrative control of the staff numbering about 20 and had the power to appoint and remove them from service.
9. Reliance is also placed on Ananda Bazar Patrika (P) Limited and its Workmen 1969 II LLJ 670, by the learned Counsel, in contending that the functions of the appellant are not supervisory in character. In that case, the Supreme Court found that the concerned person was only the senior most Clerk and the duties which were being discharged by him were minor in nature and were not supervisory. This Decision also does not help the case of the appellant, in view of the findings in this case.
10. In Punjab Co-operative Bank Limited v. R. S. Bhatia (dead) through L. RS. , relied on by Sri Subba Rao related to an Accountant who was not entrusted with any administrative or managerial duties and was merely discharging clerical functions. This Decision is also not applicable in view of the fact that there were no administrative or a managerial functions discharged by the Accountant.
11. The principles that were to be borne in mind while deciding the appellant as a workman within the meaning of Section 2(s) of the Act, are succintly stated in Shri S. K. Maini v. M/s. Carona Sahu Company Limited and Ors. 1994 II CLR 359. The Supreme Court held that in order to determine as to whether an employee in a workman under Section 2(s) of the Act, the principal nature of duties and functions of the employee should be examined and that such questions are required to be determined with reference to the facts and circumstances of the case and materials on record and that it is not possible to lay down any straight jacket which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. It was held that functions such as employee being incharge of the establishment; being fully required to keep himself fully conversant with all the Regulations in force or that may come into force from time to time with regard to Octroi, Sales Tax and Shops and Commercial Establishments Act and/or any other local Regulation applicable to the establishment; power to appoint staff are some of the functions which are administrative and managerial in character. It was further held that when an employee occupies a position of command or decision and is authorised to act in certain matters within the limits of the authority without the sanction of his superior, then he functions as a Manager or Administrator. Power to sign statutory Forms as an employee is also one of the functions performed in the discharge of managerial duties.
12. Applying the principles laid down by the aforesaid Decision of the Supreme Court, we have no hesitation in holding that the appellant performs all the functions of a Manager and cannot fall within the category of ‘workman’ within the meaning of Section 2(s) of the Act. The appellant was in overall charge of the management of the Theatre. He had the power to appoint and to dismiss the staff. He was in full control of the ticket books, he was signing all the statutory Forms under the various enactments of the employer. He had the power to supervise the work of all the employees and to represent the Management before all the authorities. He was paying the Entertainment Tax and was making Provident Fund contributions. It is not the case of the appellant that there was any other Manager apart from him. In the aforementioned preponderance of circumstances, the solitary fact that the appellant was drawing a small salary of Rs. 350/- p.m. would not make any difference and he cannot be termed as a ‘workman’. Salary of the employee is relevant only where clause (iv) of Section 2(s) is attracted, where a person is employed in a supervisory capacity with the further requirement that the wages drawn by the employee do not exceed Rs. 1,600/-. Under clause (iii) of Section 2(s), if a person is employed mainly in a managerial or administrative capacity, there is not further requirement with regard to the wages drawn by him in determining whether the employee is a workman within the meaning of the Act. If the person is mainly employed in the managerial or administrative capacity, he will not be a ‘workman’ within the meaning of the Act and the salary drawn by him is of no consequence for the purpose of determining whether he is a ‘workman’ or not.
13. For all the aforesaid reasons, we agree with the order of the Labour Court and see no reasons to interfere with the Judgment of the learned Single Judge and dismiss this Writ Appeal. No order as to costs.