S.T. Kharche, J.
1. By invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, this petition is directed against the order dated 28-6-1991 passed by the appellate authority, i.e. the Industrial Court in Appeal (PGA No. 11/1984), whereby the order passed by the Labour Court rejecting the application of the petitioners seeking relief of payment of gratuity was rejected on 20-10-1984.
2. The relevant facts are as under:
One Trimbakrao was employed in the firm, named and styled as, 'M/s Kanayalal Madanlal Factory, Deptt.' as a clerk in the year 1952 and was required to carry out all types of clerical work. Trimbakrao died on 14-10-1982. The petitioner No. 1 is son and petitioner No, 2 is his widow and they had filed the proceedings i.e. the payment of gratuity Case No. 23/83 before the controlling authority i.e. the Labour Court claiming payment of gratuity as per the provisions of the Payment of Gratuity Act, 1972 (for short, the Gratuity Act). The Labour Court considered the evidence adduced by the parties and on hearing the counsel for the parties, had come to the conclusion that deceased Trimbakrao was not an employee as per the definition of 'employee' under section 2(e) of the Act and consequently rejected the application. Being aggrieved, the petitioners carried appeal before the appellate authority, i.e. the Industrial Court. The Industrial Court upheld the findings of the Labour Court and dismissed the appeal on 28-6-1991. This order is under challenge in this petition.
3. Mr. Harkare, the learned counsel for the petitioners contended that deceased Trimbakrao joined as a clerk and he was doing all clerical jobs since the date of joining till his death. Being clerk, he was required to look after the Store of the factory and he was also required to work on the scale of the factory. He used to do correspondence as per the directions of the Partner and he was working as per the directions of the partners of the factory. The deceased Trimbakrao was not holding the status or the post of the Manager at any time while he was in service of the respondent. He contended that by way of amendments in the Gratuity Act, the definition of employee includes a person whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or State Government and is governed by any other Act or by any rules provided for payment of gratuity. He contended that the Court has to consider various factors for determining the question of status of an employee and it is immaterial whether by any other nomenclature, a person is called as a clerk or manager. In support of this submission, he relied on the decision of Division Bench of the Supreme Court in the case of T. Prem Sagar vs . M/s Standard Vaccum Oil Company, Madras and others, : (1964)ILLJ47SC and also on another decision of the Supreme Court in the case of Punjab Co-operative Bank Ltd. vs . R. S. Bhatia, : (1975)IILLJ373SC .
4. Mr. Harkare also relied on the Single Bench decision of this Court in the case of Khanderao P. Rajopadhye vs. United Western Bank Ltd. and Ors., 1984 M.L.J. 348 wherein it is held that; mere nomenclature of the post is not of much consequence and what is to be seen is the nature of the duties performed by the employees concerned so as to arrive at the conclusion as to whether he is an employee within the meaning of section 2(e) of the Act. On the basis of this observation, Mr. Harkare submitted that Trimbakrao was employed as clerk and was required to do the duties which was assigned to him as per the directions of the partners of the firm. There is no evidence to show that he was employed in the managerial or administrative capacity, therefore the impugned order passed by both the Courts below are not sustainable in law and deserves to be set aside directing the respondent-employer to make payment of gratuity to the petitioners who are legal heirs of deceased Trimbakrao.
5. Mr. Palshikar, the learned counsel for the respondent No. 1-employer contended that petitioners did not adduce any evidence to show that Trimbakrao was not working in the managerial or administrative capacity. He contended that the Labour Court was right in observing that there are two documents on which Trimbakrao had put his rubber stamp showing that he was Manager and in that capacity he had written the letters. Then, there was evidence of Vijay Nimbekar, who was presently working as the Manager with the respondent and his evidence indicates that Trimbakrao was working as Manager and at that time he himself was working as a Clerk and that the documents 'B' and 'C were scribed by him and Trimbakrao had signed on those documents. In the cross-examination, information was elicited from the witness to the effect that Trimbakrao had authority to appoint person and remove from the service. Mr. Palshikar further contended that the Labour Court has properly appreciated the evidence and came to the right conclusion that Trimbakrao was working as Manager and was not working as a Clerk and as such he would be excluded from the definition of employee appearing under section 2(e) of the Gratuity Act. Mr. Palshikar therefore, support the findings of both the Courts below rejecting the application of the petitioners seeking relief of payment of gratuity. He contended that there is hardly any scope in this petition to interfere into the orders passed by both the Courts, and therefore, the petition is liable to be dismissed.
6. I have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is necessary to reproduce section 2(e) of the Gratuity Act, which reads thus;
(e) 'employee' means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
7. It is undisputed position that Trimbakrao was employed by 'the respondent-employer and he was carrying out the duties as per the directions of the partners of the firm. It is also not in dispute that Trimbakrao died in the year 1982 and therefore, would not be governed by the amended provisions of section 2(e). The words, 'and whether or not such person is employed in a managerial or administrative capacity' have been introduced by way of amendment by the Act No. 25 of 1984 which came into force w.e.f. 1-7-1984, and therefore, question does not arise as to whether the services of Trimbakrao would be governed by these amended provisions so far as the payment of gratuity is concerned. Fact remains that unamended provisions would clearly indicate that the 'employee' means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
8. The question that arises for determination, is therefore, whether Trimbakrao was governed by the definition of employee under section 2(e) of the Gratuity Act
9. In Khanderao vs. United Western Bank 1984 M.LJ. 348, Single Bench of this Court held that; mere nomenclature of the post is not of much consequence and what is to be seen is the nature of the duties performed by the employees concerned so as to arrive at the conclusion as to whether he is an employee within the meaning of section 2(e) of the Act. The only category of persons excluded from entitlement of gratuity are persons who are employed in the managerial or administrative capacity. While deciding question as to whether a particular person is an employee employed in a managerial or administrative capacity, the actual duties which he was doing will alone be material. In such cases, the Court should ascertain as to what is the main or substantial work which an employee is employed to do.
10. In Prem Sagar vs . S.V. Oil Company : (1964)ILLJ47SC the Division Bench of the Supreme Court observed in para 18 that; 'That takes us to the question as to whether the appellant is an employee whose case falls under the category of exempted cases provided for by section 4(1)(a). Section 4(1)(a) refers to persons employed in any establishment in a position of management, and so, the question is when can a person be said to have been employed by the respondent in a position of management. It is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question. Several considerations would naturally be relevant in dealing with this problem. It may be enquired whether the person had a power to operate on the bank account or could he make payments to third parties and enter into agreements with them on behalf of the employer, when he was entitled to represent the employer to the world at large in regard to the dealings of the employer with strangers, did he have authority to supervise the work of the clerks employed in the establishment, did he have control and charge of the correspondence, could he make commitments on behalf of the employer, could he grant leave to the members of the staff and hold disciplinary proceedings against them, has he power to appoint members of the staff or punish them; these and similar other tests may be usefully applied in determining the question about the status of an employee in relation to the requirements of section 4(1)(a). The salary drawn by the employee may have no significance and may not be material though it may be treated theoretically as a relevant factor'.
11. In the case of Punjab Co-op. Bank Ltd. vs . R. S. Bhatia : (1975)IILLJ373SC , the Division Bench of the Supreme Court held that; mere fact that employee used to sign salary bills of staff, it did not follow that he was 'employed mainly in a managerial or administrative capacity'.
12. The legal position that emerged from the aforesaid decisions is that, while deciding the question as to whether a particular person is an employee employed in managerial or administrative capacity, various factors are to be taken into consideration and also the actual duties which he was doing also would be relevant and material and the Court should ascertain as to what is the main or substantial work which an employee is employed to do.
13. The Labour Court relied on two documents on which there was rubber stamp showing that Trimbakrao was acting in the capacity of Manager and those two documents were the letters issued by him. This fact would show that Trimbakrao was attending the correspondence. The Labour Court also relied on the evidence of Vijay Nimbekar who was working as a Manager with the respondent-firm and his oral evidence showed that Trimbakrao was working as Manager and at that time he was also working as a Clerk and he had authority to appoint persons and remove them from services. What is relevant to note is that none of the partners of the firm has been examined to show as to whether the appointment order was issued to Trimbakrao when he was employed in the year 1952. The evidence of any of the partner of the firm along with appointment order would have some relevance. Be that as it may, though the deceased Trimbakrao was attending correspondence, it did not follow that he was not an employee within the definition of section, 2(e) of the Act. The oral evidence of Vijay Nimbekar do show that Trimbakrao had authority to appoint persons and to remove them from services, but he did not state a single instance as to which person was appointed and which person was removed from service and when. Considering the evidence adduced on record, it would reveal that Trimbakrao was basically employed as a Clerk and was doing his duties as per the directions of the partners of the firm. In absence of evidence of partners of the respondent-firm, it is not possible to say that Trimbakrao was employed in managerial or administrative capacity.
14. It was therefore, apparent on the face of the record that the authorities committed an apparent error in coming to the conclusion that Trimbakrao was not an employee. Even though both the authorities below had recorded a concurrent finding in that respect, the question whether a person is or is not an employee is not a pure question of fact and in any case it is a mixed question of law and fact. In arriving at the conclusion in that behalf, the authorities were swayed away by the background of the petitioners and -having regard to the evidence placed on record it was clear that the nature of the duties performed by Trimbakrao were supervisory in nature and not administrative or managerial and consequently he was entitled to be paid gratuity. Simply because he was attending the correspondence and was carrying out duties as per the directions of the partners of the firm, it did not follow that his services were not governed by the provisions of section 2(e) of the Gratuity Act.
15. In this view of the matter, it is apparent that both the Courts below have committed an error in coming to the conclusion that Trimbakrao was not employee within the meaning of section 2(e) of the Gratuity Act, therefore, impugned order is set aside and the petition is allowed. The respondent-employer shall pay gratuity as per the provisions of the Gratuity Act, to the petitioners, within the period of eight weeks from the date of this order, in default to pay the interest at the rate of Rs. 12% p.a. till realisation. Rule is made absolute in the aforesaid terms.