D.Y. Chandrachud, J.
1. In these proceedings, the petitioner impugns an order of the Industrial Court dated 2nd September, 1997 passed in revision in an Application under section 44 of the Bombay Industrial Relations Act, 1946 ('the B.I.R. Act').
2. The petitioner was appointed as an Accounts Clerk by the first respondent which is a Co-operative Bank registered under the Maharashtra Co-operative Societies Act, 1960. In 1975, the petitioner was appointed to the post of Senior Officer, Grade-I and on 12th February, 1985, came to be posted as Branch Manager at the Central Office Branch, where the Head Office of the Bank is located. On 2nd January, 1991, a chargesheet was issued to the petitioner setting out that in violation of the directives issued by the Reserve Bank of India, the petitioner had been found to be extending facilities to customers of the Bank beyond 10% of the sanctioned limit. As a result, the Board of Directors had curtailed the powers of Branch Manager to limit such facilities to the extent of Rs. 50,000/- or 10% of the sanctioned limit, whichever was less. The chargesheet also alleged that the petitioner had despite this purchased cheques and had allowed withdrawals in the accounts of certain customers on 23rd and 28th June, 1990 a little prior to the closing of the annual accounts. This, it was, stated, was in clear violation of the R.B.I. directives and office orders and in spite of a communication dated 4th June, 1990 drawing attention to the previous irregularities. These cheques came to be subsequently returned. It was inter alia alleged that out of the five accounts referred to in the schedule to the chargesheet, only one was of a member of the Bank while the others were of non-members and extension of the cheque purchase facility to them was in violation of the applicable directives. In the circumstances, it was alleged that the action of the petitioner had resulted into serious repercussions affecting the reputation and business of the Bank, as well as causing financial loss to it. Thereafter, the charges were recorded which are as follows :--
'The said acts on your part also amounts to following act of misconduct in terms of provisions of Model Standing Orders being applicable to the employees of the Bank viz.
(i) Fraud of dishonesty in connection with the employer's business or property.
(ii) Breach of any standing order or any law applicable to theBranch or any rule made thereunder, (iii) Commission of act subversive of discipline or good behaviouron the premises of the establishment.
(iv) Neglect of work and gross negligence in performance of work.'
By a letter dated 11th January 1991, the petitioner sought a disclosure of the Model Standing Instructions/Orders besides certain other information. A copy of the Model Standing Orders was supplied to the petitioner on 24th January, 1991.
3. An enquiry into the conduct of the petitioner was thereafter held and upon the finding that the misconduct alleged had been established, the petitioner was issued a show cause notice dated 22nd May 1993 calling upon him, to explain as to why he should not be dismissed from service. The action of the Bank was challenged by the petitioner in a complaint under Section 28 read with Items 1(b), (d) (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('M.R.T.U. and P.U.L.P. Act'). In reply to the complaint, the respondent-Bank sought to contend that the petitioner was not an employee under section 3(5) of the M.R.T.U. and P.U.L.P. Act, 1971 and that the complaint was accordingly not tenable. Affidavits came to be filed on behalf of the petitioner as well as the respondent-Bank. On behalf of the respondent Bank an affidavit was filed of Shri A. K. Kardekar, General Manager/Chief Executive Officer. Admittedly, no cross-examination has taken place either of the witness for the Bank or of the petitioner who deposed in support of his own case. There is a dispute between the parties as regards the circumstances in which the cross-examination has not taken place. Shri Bukhari, the learned counsel appearing on behalf of the petitioner submitted before the Court that he had personally appeared before the Labour Court in the present case and that the matter had been adjourned from time to time since the Court had not been able to take up the case. The learned counsel placed on record a letter dated 24th July, 1996 of the Personnel Manager of the Bank to the learned counsel appearing on behalf of the Bank, a copy of which was also addressed to the learned Advocate appearing on behalf of the petitioner. In the said letter, it was recorded that the matter had been adjourned to 25th July, 1996 for recording the evidence of the General Manager of the Bank but, since an inspection by the Reserve Bank of India was due to be conducted at the time, it was not possible for the General Manager to attend the Court. Accordingly, the Bank requested the learned Advocate appearing for the Bank to apply for an adjournment of the hearing. The grievance of the petitioner is that in the pending complaint under the MRTU and PULP Act, 1971, cross examination did not take place, the matter was eventually closed for evidence and parties were directed to file their Written Submissions. In the circumstances, the petitioner was unable to cross-examine the witnesses for the Bank. By an order dated 9th July, 1997, the Labour Court upheld the contention of the Bank. The issue which was framed by the Labour Court was whether the petitioner-complainant, was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (though the complaint arose under theMRTU and PULP Act and the question was whether the petitioner was an employee within the meaning of Section 3(5) of the said Act). Though in the body of its reasoned order, this issue was answered in the negative, in the operative part of the order the Labour Court held that 'the complaint is disposed of as the complainant is covered under the definition of Section 2(s) of the Industrial Disputes Act, 1947. Before the Labour Court, the petitioner had sought to contend that the Bank was estopped from taking the plea that he was not a workman in view of the fact that the chargesheet issued by the Bank was under the provisions of Model Standing Orders and the Bank has treated the petitioner as an employee under the provisions of the M.R.T.U. and P.U.L.P. Act, 1971 read with the B.I.R. Act, 1946. Reliance in this regard was placed upon the judgment of a Learned Single Judge of this Court, Mr. Justice B. N. Srikrishna in S. A. Sarang v. W.G. Forge and Allied Industries Ltd. 1995 1 CLR 837. The Labour Court recorded the submissions urged on behalf of the petitioner and held that the petitioner was not a workman on the basis of two circumstances, these being (i) the documents which had been produced by the Bank showed that the petitioner had recommended leave for certain members of the staff and (ii) that one of the documents showed that the petitioner had issued a warning to a member of the staff. The duties and functions attached to the post and performed by the petitioner were not adverted to, beyond a bare discussion of the aforesaid two points.
4. The petitioner carried the matter in revision before the Industrial Court. The industrial Court dismissed the Revision Application by a brief order dated 2nd September, 1997 which reads thus:--
'After going through the evidence on records the Labour Court observed that the applicant is recommending authority the Labour Court has considered leave application where informed (sic) that the applicant has recommended the leave passing remark on application. So also Labour Court held from documentary evidence that the applicant is use (sic) to issue warning to subordinate staff, admittedly the applicant is working as Assistant Manager in respondent Bank. The Labour Court while deciding that the applicant is not workman under Section 2(s) of the II IDA he relied on documentary evidence produced before him. Prima facie the order, do (sic) not suffer from any error of law.
The applicant is being (sic) Assistant Manager in respondent bank it is difficult to accept that he is workman under Section 3(13) of the B.I.R. Act. As the applicant is not performing the skilled work but he is having managerial power to control the subordinate staff working recommending authority (sic). Therefore there is no case to call interference and admission (sic) of application under Section 44 of the Act. Hence rejected summarily.'
The dismissal of the Revision Application was without notice being issued to the respondent-Bank since the application came to be rejected summarily.
5. The learned Counsel appearing on behalf of the petitioner submitted that in the present case, the petitioner has been seriously prejudiced by the closure of the evidence, resulting thereby in a denial of an opportunity to cross-examine the witness for the Bank. But, more fundamentally, the award of the Labour Court was sought to be impugned on the ground that there has been no adjudication by the Labour Court in the true sense at all. The Labour Court, in the submission, has decided the entire matter by merely relying upon documents which suggested that the petitioner had recommended the leave applications of some members of the staff and had issued a warning to some other member of the staff. The learned counsel submitted that in determining the question whether the petitioner is an employee within the meaning of the M.R.T.U. and P.U.L.P. Act, 1971 and the B.I.R. Act, 1946, it is not merely the appellation of designation of the post which is to be taken into account but the nature of the duties attached thereto. There has been absolutely no consideration by the Labour Court of the nature of the duties and functions attached to the post. The learned counsel sought to submit, that the position of the petitioner was not akin to the Branch Manager of a Nationalized Bank but, the petitioner was merely a disbursing authority who was subject to the control or direction of the General Manager. The Learned counsel submitted that the closure of the evidence in the present case, has caused serious prejudice to the petitioner, in that as a result of the denial of an opportunity to cross-examine the witness for the Bank, the petitioner has been unable to establish with reference to the cross-examination, the true nature of the duties and functions which he was required to perform. The learned counsel submitted that besides the fact that there was no adjudication by the Labour Court in the facts of the present case, the Industrial Court has rejected the Revision Application by a brief order without going into the issue which arises in the present case. Finally it was urged that the Bank is estopped from challenging the status of the petitioner as an 'employee' within the meaning of Section 3(13) of the B.I.R. Act, 1946 in view of the fact that it had consistently treated the petitioner as a workman in these proceedings. The Learned counsel submitted that there has been a non-application of mind by the Labour Court which would be evidenced by the fact that instead of applying the test requisite to the M.R.T.U. and P.U.L.P. Act, 1971 and B.I.R. Act, 1946 for determining whether the petitioner was an employee within the meaning of that expression as defined under the said two Acts, the Labour Court had applied the test under Section 2(s) of the Industrial Disputes Act, 1947. Moreover, in its operative order the Court had held that the petitioner is covered by the definition under Section 2(s).
6. On the other hand, it was sought to be submitted on behalf of theBank that there is sufficient material on the record to sustain the conclusionthat the petitioner as a Branch Manager was not a workman. The LearnedCounsel invited the attention of the Court to the affidavit filed on behalf ofthe main witness of the Bank and the annexures thereto. Consequently, it wassought to be submitted that this Court should not exercise its writ jurisdiction under Article 226 of the Constitution particularly having regard to the fact that the petitioner was a Branch Manager against whom there are serious allegations of misconduct.
7. At the outset, it must be noticed that the expression 'employee' has been defined by Section 3(13) of the B.I.R. Act. 1946. The expression has been defined as follows :--
'3(13). 'Employee' means any person employed to do any skilled or unskilled work for hire or reward in any industry........ but does notinclude -
(i) a person employed primarily in a managerial, administrative, supervisory or technical capacity drawing basic pay (excluding allowances) exceeding one thousand rupees per month;
(ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such persons which the State Government may by notification in the Official Gazette, specify in this behalf.'
The expression 'employee' has been defined by Section 3(5) of the MRTU and PULP Act, 1971 as follows :
'(5) 'employee' in relation to an industry to which the Bombay Actfor the time being applies, means an employee as defined in clause(13) of Section 3 of the Bombay Act, and in any other case means aworkman as defined in clause (s) of Section 2 of the Central Act, anda sales promotion employee as defined in clause (d) of Section 2 ofthe Sales Promotion Employees (Conditions of Service) Act, 1976;'
A Division Bench of this Court in Vilas Gangaram Khetle v. S. D. Rane,1983 L I.C. 1055, has held that in the substantive part of the definition, theterm 'employee' is defined in generic terms. The expression includes anyperson employed to do any skilled or unskilled work for hire or reward in anyindustry. Prior to the amendment in 1953, the expression was defined tomean, 'any person employed to do any skilled or unskilled manual or clericalwork for hire or reward in any industry' after which there was an inclusivedefinition which followed. After Amending Act LXIII of 1953, the definitionwas amended in terms which have been set out earlier. The earlier definitioncovered persons employed to do any skilled or unskilled manual or clericalwork and excluded from its purview persons employed in managerialadministrative and other categories. The Division Bench noted that the objectof the Amending Act was to widen the scope and purview of the definition.The Division Bench then held as follows :--
'In the definition as it stands today the words 'skilled and unskilled' are retained and the word 'Manual' is deleted. The deletion of the word clearly indicates that words : skilled and unskilled which are ofwider import, are used in generic sense so as to include all types of skilled and unskilled employees and the Legislature deleted the words 'Manual and Clerical' to widen the scope of the definition, and also because they are already included in the generic words 'skilled and unskilled'. If even after the deletion of word 'Manual' the generic words 'skilled and unskilled' are again restricted to the said category only, namely, to 'Manual work' then the very purpose of the amendment will be frustrated. Therefore, it is not possible for us to place a narrower construction which would fail to achieve the manifest purpose of the legislation.'
8. Section 3(13) expressly excludes from the purview of the definition of the expression 'employee', a person employed primarily in a managerial, administrative, supervisory or technical capacity drawing a basic pay, excluding allowances exceeding Rs. 1000/- per month. The question involved in the present case was whether the petitioner fell into one of the excluded categories under the definition.
9. The learned counsel appearing on behalf of the petitioner sought to urge that the Bank was estopped from challenging the status of the petitioner as an 'employee' within the meaning of Section 3(13) of the B.I.R. Act, 1946 since the chargesheet which had been issued to him was expressly under the Model Standing Orders framed under Section 35 of the BIR Act, 1946. In S.A. Sarang v. W. G. Forge and Allied Industries Ltd. 1995 1 CLR 837, a learned Single Judge of this Court Mr. Justice B. N. Srikrishna, dealt with a case where 4 show cause notices and one chargesheet had been issued by the employer between 1971 and 1974 to the employee who had been engaged as a Security Supervisor with the employer. On behalf of the employee it was sought to be submitted that the employer was estopped from challenging his status as a workman under Section 2(s) of the Industrial Disputes Act, 1947. The Learned Single Judge noted that 'the law on the subject is clear and irrespective of a designation, it is the actual work done by the employee which is determinative of whether he falls within the scope of the definition of 'workman' under Section 2(s) of the Act'. The Learned Judge further held that the evidence on the record was equivocal and did not indicate conclusively the nature of the work which was done by the employee. The Learned Judge, however, came to the conclusion that the employer having consistently proceeded on the basis that the employee was a workman within the meaning of Section 2(s), the employer was estopped from denying the said fact when a dispute was raised. In that regard, the Learned Judge held as follows:--
'6. Uniformly, in each Show Cause Notice and charge-sheet, it has been alleged that the act imputed to the petitioner was a misconduct under the Model Standing Orders. It is not possible to ignore the cumulative effect of this conduct on the part of the first respondent Employer. To that extent, the contention, needs to be accepted. If anemployer continuously and consistently proposes and takes action against its employee on the footing that he 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 .......The Show Cause Notices and Chargesheet pointed out to me cannot be ignored and due weightage will have to be given to them. Considering the cumulative effect of these documents, I am of the view that the petitioner was a 'workman' within the meaning of Section 2(s) of the Act and, therefore, the impugned order needs to be interfered with.'
10. The test which was formulated by the Learned Single Judge, with which I respectfully concur, is whether the employer has 'continuously and consistently' taken action against the employee on the footing that he is covered by the Model Standing Orders, implying thereby that he is a workman within the meaning of Section 2(s) of the Act or a similar provision. If the employer has done so, he cannot be heard to rely upon the exclusionary clause when an industrial dispute is raised by the employee. On the other hand, what is necessary is that there should be a continuous and consistent course of action on the part of the employer. The Learned Single Judge in Sarang's case has in fact, held that it was on the basis of the cumulative effect of the documents in that case that the Court had come to the conclusion that the employer was estopped from challenging the status of the workman. On the other hand, the Judgment of another Learned Single Judge of this Court, Mrs. Justice Sujata Manohar (as the Learned Judge then was) in The Premier Automobiles Ltd. v. The Premier Automobiles Employees Union 1988 2 CLR 257, holds that a mere reference in the chargesheet to the Standing Orders, would not be conclusive and the real question would be whether the employee was discharging duties of the kind which would place him within the scope and purview of the exclusionary clause in the definition of the expression 'workman'. Mrs. Manohar, J. held thus:
'It is true that the charge-sheet is on the basis that the Standing Orders apply to the 2nd respondent. But what one has to examine in the present case is whether in fact the 2nd respondent was discharging duties of a supervisory nature or not. Hence reference to standing Orders in the charge-sheet is not directly relevant in deciding this issue.'
11. An isolated reference in a charge-sheet to the Model Standing Orders (as in the Premier Automobiles case) has thus to be distinguished from a continuous and consistent course of conduct by which the employer treated the employee as a workman under the relevant statutory provision. The rule is one of estoppel. Having continuously and consistently treated an employee as a workman, the employer cannot be permitted to question that status inindustrial adjudication. An isolated or stray reference is not enough : a continuous and consistent course of conduct must exist. The judgment of the Learned Single Judge in Sarang's case has been referred to in a subsequent judgment of another Learned Single Judge, Mr. Justice F.I. Rebello, in Cricket Club of India and Anr. v. Baljit Shyam, reported in : (1998)IILLJ578Bom . Apart from these judgments, reliance has been placed on behalf of the petitioner on the judgment of Supreme Court in Workmen of Hindustan Lever Ltd. v. Management of Hindustan Lever Ltd., reported in 1984 L IC 276. In that case, it has been held by the Supreme Court that once an agreement which had been entered into between the Employer and the Union was held to be binding, the employer was estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of that expression under the relevant Act.
12. In the present case, the Learned Counsel appearing on behalf of the petitioner adverted to the following circumstances viz., (i) the chargesheet which had been issued to the petitioner expressly referred to the Model Standing Orders and in fact extracted the relevant clause of the Standing Orders; (ii) in reply to the letter dated 11th January 1991 of the petitioner, the respondent-Bank had furnished the Model Standing Orders together with a photocopy of a cover page relating to the Industrial Employment (Standing Orders) Act, 1946; (iii) during the course of the departmental enquiry, the witness for the management was asked under which provision the chargesheet had been issued and he stated that it had been issued under the Industrial Employment (Standing Orders) Act, 1946 and the Bombay Rules of 1959; (iv) The petitioner had at the interim stage sought the benefit of subsistence allowance under the Standing Orders. The employer had then sought to challenge the applicability of the Model Standing Orders. The Labour Court, relying upon the decision of Mr. Justice Srikrishna in Sarang's case (supra) had come to the conclusion that the enquiry had been conducted under the Model Standing Orders, subsistence allowance was already paid to the workman and under the circumstances, the respondent-Bank was estopped from denying that the petitioner was not a workman. In the Written Statement which was filed on behalf of the employer before the Labour Court what was sought to be contended in para 8 was that the same disciplinary rules namely, the Model Standing Orders were extended to all the employees of the Bank including managerial employees. Mr. Pai, the Learned Counsel appearing on behalf of the respondent-Bank sought to submit that the Bank had extended the application of the Model Standing Orders to all its employees but, that this would not make the employees workmen within the meaning of the Industrial Disputes Act, 1947 or 'employees' under the BIR Act, 1946. However, the Learned Counsel stated in all fairness that he was unable to produce any resolution of the Board or of the competent authority of the Bank extending the provisions of the Standing Orders to the other employees either for the limited purpose of disciplinary proceedings or otherwise. The LearnedCounsel also fairly stated that the circumstances in which the chargesheet came to be issued under the Model Standing Orders have not been explained in the evidence which was sought to be adduced on behalf of the Bank.
13. The Labour Court, before whom the judgment in Sarang's case was cited held that 'In normal course this will have to be accepted', but relied upon the circumstance that the petitioner was in a position whereby he could recommend leave in respect of certain members of the staff and had in fact issued a warning to a member of the subordinate staff. The Industrial Court has unfortunately not dealt with the question of the estoppel at all. The question as to whether the respondent-Bank was indeed estopped from denying the status of the workman as an 'employee' is a mixed question of fact and law having regard to the fact that a continuous and consistent course of conduct has to be established, before estoppel can arise, under the dictum in Sarang 's case (supra). It would have been only appropriate and proper that the question as to whether there was a continuous and consistent course of conduct of the employer to regard the petitioner as an 'employee' under the Act was elucidated in the course of the judgment of the Labour Court or, for that matter, in evidence. Unfortunately, in the facts of the present case what has happened is that the evidence came to be closed after affidavits were filed by the respective parties. The correctness and veracity of the statements which have been made in the course of the affidavits has consequently not been tested on the anvil of cross-examination. This leads to a rather unsatisfactory state of affairs where the submission which has been urged on behalf of the petitioner has not been considered by the revisional Court and necessary material which ought to have been elucidated in the course of the evidence before the Labour Court has not been brought on record for want of cross-examination.
14. Now, it is a well settled principle of law that the question as to whether a person is an employee within the meaning of Section 3(13) of the Bombay Industrial Relations Act, 1946 has to be determined with reference to the principal nature of the duties and functions performed by the person engaged. This has been the well settled position in law and has been reiterated in the judgment of the Supreme Court in S. K. Maini v. Carona Sahu Co. Ltd. and Ors., reported in 1994 2 CLR 359. The Supreme Court held that in determining the question as to whether a person is a workman (the Supreme Court was there considering the case under Section 2(s) of the Industrial Disputes Act, 1947) regard would have to be had to the facts and circumstances of each case and to the material on record and it would hot be possible to lay down a strait jacketed formula that would govern all cases. The Court noted that given the complexity of industrial or commercial organization, employees are often required to discharge more than one kind of work and it is then necessary to determine the classification into which the employee falls for testing whether he does or does not fall within meaning of the expression 'workman'. The designation of an employee, it was held bythe Supreme Court, is not of much importance and what is important is thenature of duties being performed. The determinant factor, according to thejudgment consists of the main duties performed by the employee and notwork incidentally done. In that context the Supreme Court held as follows :--
'In other words, what is, in substance, the work which an employeedoes or what in substance he is employed to do. Viewed from thisangle, if the employee is mainly doing supervisory work butincidentally or for a fraction of time also does some manual or clericalwork, the employee should be held to be doing supervisory work.Conversely, if the main work is of manual, clerical or of technicalnature, the mere fact that some supervisory or other work is also doneby the employee incidentally or only a small fraction of working timeis devoted to some supervisory work, the employee will come withinthe purview of workman as defined in Section 2(s) of the IndustrialDisputes Act.'
The decision in Carona Sahu is also significant in that it does lay down that an employee discharging managerial duties and functions may not as a matter of course be invested with the power of appointment and discharge of other employees. In a large setup, the power to appoint personnel or to adopt disciplinary proceedings may not be invested in a local manager but may be placed in a superior officer in the management cadre at a Divisional or Regional level. In the case which was decided by the Supreme Court, it was held that the High Court was justified in coming to the conclusion, having regard to the duties and functions of a shop manager that he was not a workman under Section 2(s) of the Industrial Disputes Act, 1947.
15. The question as to whether, for the purposes of Section 3(13) of the Bombay Industrial Relations Act, 1946, the petitioner was not an employee would thus depend upon whether the work for which he was primarily employed was of a managerial, administrative or supervisory nature. The statute, therefore, necessarily requires proof of the nature of the duties and functions which the employee has to perform before a conclusion can be arrived at as to whether the statutory definition under Sub-section (13) of Section 3 of the BIR Act, 1946 is satisfied. A Division Bench of Calcutta High Court in Kesoram Industries and Cotton Mills Ltd. v. Third Industrial Tribunal and Ors. 1987 L IC 769, has held that this is a mixed question of law and fact which has to be decided after evidence is adduced in full and on all issues. The Division Bench held that the evidence in that case was inconclusive and that the matter should be remanded back to the Tribunal for fresh determination.
16. The practice of the Industrial Court in disposing of a complaint solely on the basis of affidavits has been regarded with disapproval by a Learned Single Judge of this Court. Mr. Justice A. P. Shah in Abbott Laboratories (India) Ltd. v. J. D. Jamdar, reported in : (1997)IIILLJ1101Bom . In the present case, what has happened is that the management and the petitioner filed affidavits before the Labour Court. The management on its part sought to set out circumstances in justification of the plea that the petitioner who was designated as a Branch Manager was in fact a Branch Manager who was vested with the duty of supervising the day-to-day operations of the Branch of the Bank of which he was a Manager. The powers and duties which were delegated to the Branch Manager including those of sanctioning and disbursing loans upto a certain amount were adverted to in the affidavit which was filed on behalf of the management. The management had relied upon documents to show that the petitioner had recommended leave applications and that he had recommended the appointments on promotion of certain members of the staff to the higher authorities. Similarly, reliance was sought to be placed on certain loan agreements and the sanction which was granted by the petitioner. On the other hand, the petitioner sought to contend that in the hierarchy of the Bank, he was not in over all charge of the supervision of the affairs of the branch and that in the Co-operative Bank in which he was a Branch Manager, he was only playing the role of a coordinator between the General Manager on the one hand and the staff of the Branch. According to the petitioner, he was merely doing certain clerical work of communicating and forwarding information in relation to the Branch to the General Manager. The Labour Court before which the complaint was filed in the first instance has obviously not considered the duties and functions which attached to the post of Branch Manager. The Labour Court was guided by two circumstances viz., that (i) the petitioner had recommended the leave of certain members of the staff and (ii) that he had in fact, issued a warning on some occasion to a staff member. The principal, essential or dominant nature of the work which was being done by the Branch Manager was not considered by the Labour Court. When the matter went in revision before the Industrial Court, the Industrial Court dismissed the revision summarily by a short speaking order, holding that the evidence has been duly considered by the Labour Court and its conclusion was accordingly affirmed. The net result, therefore, in these proceedings is that no oral evidence was adduced by the parties and two affidavits by way of examination-in-chief came to be filed before the Labour Court. There was no cross-examination of either of the two witnesses who had filed affidavits before the Labour Court. The Labour Court, as noted earlier, has not had regard to the duties and functions which were vested in the petitioner in his capacity as Branch Managed.
17. In an affidavit dated 4th July 2001, the petitioner has stated that at the stage when evidence was recorded, the Labour Court directed the parties to file their affidavits on the preliminary question as to whether the petitioner is an employee within the meaning of the BIR Act, 1946. It has been stated that on 21st October 1995, the first respondent filed an affidavit of its General Manager in reply to which the petitioner filed an affidavit dated 13thNovember, 1995. The matter was thereafter adjourned from time to time for the cross-examination of the Bank's witness. The petitioner lies stated that he had held meetings with his Advocate for preparing for cross-examination and the Learned Advocate had prepared his notes on the various documents which were produced by the Bank. The cross-examination, however, could not take place and reliance has been sought to be placed on a letter dated 24th July 1996 of the first respondent that it was unable to produce its witness for cross-examination due to his official preoccupations for a period of about 10 days. The petitioner has stated that the Labour Court thereafter decided to determine and adjudicate upon the preliminary issue as to whether he is an 'employee' on the basis of the affidavits which have been filed by the parties.
18. An affidavit in reply has been filed to the aforesaid affidavit of the petitioner on behalf of the first respondent. The first respondent has relied upon the Roznama of the proceedings before the Labour Court and a copy thereof was made available by the Learned Counsel for the first respondent for the perusal of the Court. From the Roznama it would appear that on 16th September 1995, the Labour Court had passed an order that the preliminary issue as to whether the petitioner is a workman/employee would be decided first. The matter was adjourned for evidence on the preliminary issue to 21st October, 1995. On 21st October, 1995 an affidavit on behalf of Bank was filed and the matter was thereafter adjourned to 13th November, 1995. On 13th November, 1995, an affidavit of the petitioner was filed and the hearing was adjourned to 27th November, 1995 for the affidavit of the first respondent. On 27th November, 1995 the affidavit on behalf of the Bank (in rejoinder) was filed. In the meantime, the petitioner had filed an application (Exh. U-20) for the payment of subsistence allowance and the matter was thereafter adjourned on diverse dates between January 1996 and February 1996 for the hearing of the said application. The Labour Court passed its order on the said application on 19th March, 1996. On 26th March 1996, 11th April 1996, 5th June, 1996, 28th June, 1996, 12th July 1996, 25th July 1996, 17th August 1996, 7th September 1996, 20th September 1996, 4th October 1996, 19th October 1996, 7th December 1996, and 21st December 1996, the matter was adjourned. On 18th January 1997, the Labour Court passed the following order:--
'No further evidence by parties. Matter is adjourned for filingsynopsis to 5-2-1997.'
A perusal of the Roznama shows that there was no purshis or application indicating the consent of the parties to the effect that there would be no cross-examination or that the matter would be decided only on the basis of the affidavits filed by the parties. Indeed, it would only be appropriate and proper even if evidence were to be adduced in lieu of examination-in-chief by filing affidavits, that the veracity of what has been stated on affidavit is tested on the anvil of cross-examination. Having perused the rival affidavits whichhave been filed by the parties and the Roznama of the Labour Court, I am of the view that the question as to whether the petitioner is an employee within the meaning of the BIR Act, 1946 ought not to have been determined merely on the basis of the affidavits filed by the contesting parties and that an opportunity should have 'been granted to the parties of cross-examining the respective witnesses who have deposed on the issue on affidavit.
19. In these circumstances, the impugned order of the Labour Court dated 9th July 1997 and the order of the Industrial Court dated 2nd September, 1997 are quashed and set aside. Complaint (ULP) No. 135 of 1993 is restored to the file of the First Labour Court at Mumbai. The Labour Court shall permit the petitioner and the first respondent to cross-examine the respective witnesses who have filed affidavits in lieu of examination-in-chief on the question as to whether the petitioner is an employee within the meaning of the Bombay Industrial Relations Act, 1946 and the MRTU and PULP Act, 1971. The Labour Court shall decide the aforesaid question afresh after the cross-examination is duly completed. The petitioner and the first respondent shall appear for directions before the Labour Court on 6th August 2001. The Labour Court shall dispose of the complaint within a period of 3 months from today. The Labour Court shall fix a time schedule for the cross-examination and for the hearing of the complaint and the parties shall cooperate fully so as to enable the Labour Court to complete the hearing and disposal of the complaint by the date which has been fixed. No opinion is expressed by the Court on the merits of the question as to whether the petitioner is an employee within the meaning of the BIR Act, 1946 and all rights and contentions of the parties are kept open.
20. The Writ Petition is allowed in the aforesaid terms. In the circumstances, there shall be no order as to costs.