Case Note & Summary
The appellant, Shri Vithal Bakula Kokate, was initially appointed as a Learner by Podar Mills in 1966 and later promoted to various positions, ultimately becoming a Super Senior Assistant Master in 1997. On 16 February 1998, the employer, by then a unit of National Textile Corporation Ltd., informed him that he would attain the age of 60 on 14 March 1998 and would retire on 15 March 1998 under Model Standing Order No. 26-A. The appellant challenged this by filing Writ Petition No. 483 of 1998 before the Bombay High Court, but withdrew it with liberty to approach the Industrial Court under the Bombay Industrial Relations Act, 1946 (BIR Act). He then issued an approach notice under Section 42 of the BIR Act and filed Application (BIR) No. 84 of 1998 under Section 42 read with Sections 78 and 79, seeking quashing of the retirement letter, reinstatement with full back-wages, and continuation in service until age 63. The employer raised a preliminary objection that the appellant was not an 'employee' under Section 3(13) of the BIR Act, and thus the application was not maintainable. The Labour Court and the Industrial Court upheld this objection, holding that the appellant was not an employee under the BIR Act. The appellant challenged these orders by filing Writ Petition No. 2797 of 2001, which was dismissed by a learned Single Judge on 9 February 2005. The present intra-court appeal was filed against that dismissal. The Division Bench, after hearing the parties, confirmed the findings of the lower courts and the Single Judge, holding that the appellant was not an employee within the meaning of Section 3(13) of the BIR Act, and therefore the application under Section 42 was not maintainable. The appeal was dismissed with no order as to costs.
Headnote
A) Industrial Law - Definition of Employee - Section 3(13) Bombay Industrial Relations Act, 1946 - The appellant, a Super Senior Assistant Master, was held not to be an 'employee' under Section 3(13) of the BIR Act as he was not an operative or a person employed in a clerical capacity in connection with the textile industry. The Labour Court and Industrial Court findings that the appellant was not an employee were confirmed by the Single Judge and the Division Bench. (Paras 1-3) B) Industrial Law - Maintainability of Application - Section 42 read with Sections 78 and 79 Bombay Industrial Relations Act, 1946 - Since the appellant was not an 'employee' under Section 3(13), his application under Section 42 of the BIR Act was not maintainable. The appeal was dismissed. (Paras 1-3)
Issue of Consideration
Whether the appellant was an 'employee' within the meaning of Section 3(13) of the Bombay Industrial Relations Act, 1946, and consequently whether the application under Section 42 read with Sections 78 and 79 of the BIR Act was maintainable.
Final Decision
The appeal is dismissed. The judgment and order of the learned Single Judge dated 9/2/2005 dismissing Writ Petition No. 2797 of 2001 is confirmed. No order as to costs.
Law Points
- Definition of employee under Section 3(13) of BIR Act
- 1946
- Applicability of Model Standing Orders
- Maintainability of application under Section 42 of BIR Act
