1. The second respondent was appointed Secretary of the petitioner Bank on 16th November, 1945, and he was also granted a power-of-attorney by the Board of Directors of the Bank. The petitioner claimed that as the Secretary of the Bank he was its chief executive officer. When the Reserve Bank carried out its inspection of the Bank in 1951, certain irregularities were noticed. Independently of that, there was a loss of Rs. 10,000, on 15th November, 1952. The second respondent entrusted a cheque for Rs. 10,000 to a peon to be cashed at the local branch of the Indian Bank. The peon absconded with the money. On 25th March, 1953, the shareholders of the Bank at a meeting of the general body, directed that action should be taken against the second respondent. On 29th March, 1953, the Board of Directors framed charges against the second respondent and called for his explanation, which he submitted on nth April, 1953. On. 11th June, 1953, the Board of Directors resolved to terminate the services of the second respondent with effect from 13th June, 1953. He was given one month's pay in lieu of notice. The second respondent declined to accept the offer of payment and informed the Directors that he intended to appeal. He followed this up by presenting an appeal on 19th June, 1953, under Section 41(2) of the Shops and Establishments Act (Act XXXVI of 1947) hereinafter referred to as the Act.
2. In the proceedings before the Additional Commissioner for Workmen's Compensation under Section 41(2) of the Act, the petitioner contended that the appeal was incompetent.
3. A reference to a few more facts would be necessary to appreciate the scope of the objections put forward by the petitioner before the Additional Commissioner and pressed again before me. The second respondent would appear to have been designated the Secretary of the Bank all through up to 13th June, 1953, and it was common, ground that he was paid the emoluments of that office up to that date. On nth Febrauary, 1953, however, one of the Directors was placed in charge, of the duties the second respondent had been discharging as Secretary at the Head Office, and the second respondent himself was directed to work as cashier in the, Shevapet branch of the Bank until further orders. On 12th February, 1953, the second respondent protested against the transfer and he also applied for a month's leave. That leave was granted on 7th March, 1953. Between 12th February, 1953. and 7th March, 1953, the petitioner worked as cashier at the Shevapet Branch. Then he went on leave for a month on 10th April, 1953. When the petitioner reported himself for duty at the head office, he was not permitted to discharge the duties of the Secretary pending disposal of the charges which had meanwhile been framed against him. One of the Directors continued to discharge the duties of the Secretary of the Bank. Between 10th April, 1953 and 13th June, 1953, the second respondent claimed he had been assigned the work of a general assistant at the Head office, arid that he worked as such. The truth of that contention was challenged by the petitioner before the Additional Commissioner, but no evidence apparently was offered by the petitioner in the proceedings before the Additional Commissioner to controvert the claim of the second respondent. The Additional Commissioner accepted as proved the second respondent's claim, supported by his statement on oath.
4. Two objections to the maintainability of the appeal preferred by the second respondent under Section 41(2) of the Act appear to have been taken before the Additional Commissioner. One was based upon Section 4(1)(a) of the Act. The petitioner contended that the second respondent had been employed in the Bank in a position of management. The second contention was to meet the alternative claim put forward by the second respondent before the Additional Commissioner, that if he could not be reinstated as secretary he should be reinstated as cashier. The petitioner contended that, by a valid notification issued by the Government under the Act, cashiers were excluded from the purview of the Act.
5. The Additional Commissioner did not record any specific finding on the issue, whether the second respondent had been employed as a cashier and whether that disentitled him to prefer the appeal under Section 41(2) of the Act. It may not be necessary to pursue the matter further. No doubt the second respondent worked as cashier for a short period between 12th February, 1953, and 7th March, 1953. But after 7th March, 1953, when he went on leave, it was nobody's case that that was the post he held or was entitled to hold. The relevant period for consideration is from 10th April, 1953, when the second respondent reported himself to the Bank for duty again, and 13th June, 1953, when the Bank terminated his services. During that period the second respondent did not hold the post of a cashier. Nor could he claim that he was entitled to hold that post.
6. The Additional Commissiner overruled the objections of the petitioner based upon Section 4(1)(a) of the Act.
7. It was the validity of the order of the Additional Commissioner, dated 12th May, 1954, that the petitioner challenged by his application under Article 226 of the Constitution for the issue of a proper writ to direct the Additional Commissioner to refrain from proceeding further with the disposal of the appeal.
8. Section 4(1)(a) of the Act runs:
Nothing contained in this Act shall apply to persons employed in any establishment in a position of management.
9. There was no dispute before the Additional Commissioner or before me that the second respondent was a "person employed" within the meaning of Section 2(12) of the Act. Nor was it ever disputed that the Head Office of the Bank at Salem was an "establishment" within the meaning of Section 2(6) of the Act. The question for determination therefore is, was the second respondent a person employed in that establishment "in a position of management". That question must be determined with refernce to the date 13th June, 1953, on which the second respondent's services were terminated and the period immediately antecedent to that, 10th April, 1953, to 13th June, 1953.
10. The correctness of the finding of fact recorded by the Additional Commissioner, based no doubt on the second respondent's sworn testimony, that from 10th April, 1953 to 13th June, 1953, the second respondent was assigned miscellaneous duties as a general assistant of the Bank, cannot be challenged in these proceedings under Article 226 of the Constitution. Besides, that finding was fully supported by the evidence placed before the Additional Commissioner.
11. No doubt all through up to 13th June, 1953, the second respondent was shown in the books of the petitioner Bank as its Secretary. It is equally true that it was for negligence as Secretary that he was punished by the Bank by termination of his services. Even the order, dated 13th June, 1953, which terminated the services of the second respondent, referred to the second respondent as Secretary:
The Board of Directors has resolved to dispense with the services of the Secretary Sri G. Govinda Gupta with effect from 13th June, 1953.
12. It was nobody's case that at any time after 11th February, 1953, when the second respondent was first deputed to work as cashier in a branch office, any one else was appointed Secretary of the Bank. It was one of the Directors of the Bank that discharged the duties of the Secretary of the Bank. With these incontrovertible facts the question arises, was the second respondent "a person employed in a position of management", within the meaning of Section 4(1)(a) of the Act.
13. In my opinion Section 4 (1)(a) would appear to provide for a factual existence when it speaks of a person employed in any establishment in a position of management. Obviously it is not enough to show that a person was at one time employed in a position of management to bring him within the disability clause, Section 4(1)(a). With reference to Section 41(2), when a person-employed complains of a wrong done to him and seeks to get that wrong corrected by an appeal for which Section 41(2) provides, that person could be denied the benefits of the Act, only if it could be shown that at the time the wrong complained of was committed, he was a person employed in an establishment in a position of management within the meaning of Section 4(1)(a). That was why I stated earlier that, the relevant date for determining that question is 13th June, 1953 and the relevant period in the circumstances of the case is the period between 10th April, 1953 and 13th June, 1953.
14. During that period, though the second respondent was still designated the Secretary of the Bank, he did not discharge the duties assigned to the Secretary, he was still an employee of the Bank, and he was a "person employed" within the meaning of the Act. But during that period he was assigned the work of a general assistant and he did discharge those duties. During that period he did not discharge the duties of a person employed in a position of management. It could not be denied that a general assistant in the Bank was not a person employed in a position of management within the meaning of Section 4(1)(a).
15. What the position would have been had the second respondent continued to be on leave from 7th March, 1953, when he was granted leave, up to 13th June, 1953 when his services were terminated, I am not called upon to determine, in these proceedings. The question, what the effect of a suspension preceding the termination of the services would have been in construing the scope of Section 4(1)(a) I am not called upon to determine either. The second respondent was certainly on duty between 10th April, 1953 and 13th June, 1953. He was not under suspension.
16. The position comes to this. The second respondent was an employee of the Bank up to 13th June, 1953. He held the post of the Secretary and discharged the duties of that office up to 11th February, 1953. Up to that period he was certainly in a position of management within the meaning of Section 4(1)(a) of the Act. Between 10th April, 1953, and 13th June, 1953, he continued to be designated as Secretary. But he did not work as Secretary. It was not the case of the petitioner Bank, that the assisgnment of work to the second respondent during that period the work of a general assistant, was invalid and should be treated as non est in law. The contention of the learned Counsel for the petitioner in effect was whether or not the second respondent discharged the duties of a Secretary, the second respondent must be deemed to have held that post. The second respondent himself all through, even up to the date of presenting his appeal under Section 41(2), described himself as Secretary. It was as Secretary he was described by the petitioner in dispensing with the services of the second respondent. Therefore, the learned Counsel for the petitioner contended, the second respondent was a person employed in a position of management within the meaning of Section 4 (1)(a). I am unable to accept this contention. As I said what has to be determined under Section 4 (1)(a) is whether, as a fact, a given employee was employed in a position of management during the relevant period. Such a question of fact must necessarily be answered only with reference to the circumstances of that particular case. Though no doubt the second respondent was paid during the relevant period the salary-and other emoluments attached to the post of a Secretary, which post was within the scope of Section 4(1)(a) as that of a person employed in a position of management he was not actually employed by the employer during the relevant period in a position of management. In this context I am using the expression "employed" only to mean "assigned the work of". In my opinion, it is an assignment of work, a valid assignment of work, by the employer, that should furnish the real test in deciding whether a given employee is a person employed in a position of management within the meaning of Section 4(1)(a).
17. The scheme of the Act does not import any monetary test in deciding who is a person employed in a position of management. Let me take the case of a bank with a number of branches. It may have a number of employees. It may foe that an employee on a lower scale of pay is appointed manager of a branch, whose would certainly be a position of management, while a higher paid employee is employed in the Head Office but not in a position of management. Again it may be that these persons interchange places, and the employee, who had been a manager of a branch and had held a position of management, is transferred to the Head Office, though on the same pay or even on a higher pay, but assigned the work of a post which would not entitle him to claim that he occupies a position of management in the Head Office. If the statutory right conferred by Section 41(2) is claimed, the relevant period would be that immediately preceding that claim of right. In such a case the claim that the person had at one time held a position of management would be no ground for denying under Section 4(1)(a) of the Act the statutory right conferred by Section 41(2) of the Act. Let me take another hypothetical example. In the head office of a bank a person may be in a position of management at a given point of time, but he may be transferred to another section, where with equal or even higher pay he may not be in a position of management but may be subordinate to some other who is in a position of management. Still for the purposes of Section 4(1)(a) what was the work that the employee actually did under the proper assignment of work from the employer would appear to be the real test. Judged by that test I would have to hold, that, though the second respondent was entitled to be paid and was paid the emoluments of Secretary and was even described as Secretary, the actual work assigned to him and the duties he discharged did not place him in a position of management during the relevant period.
18. I have discussed the question at issue independently of the final conclusion arrived at by the Additional Commissioner, that the provisions of Section 4(1)(a) do not apply to the second respondent. It was a jurisdictional issue that the Additional Commissioner had to decide, and the correctness of that finding is open to examination afresh, if necessary in proceedings under Articles 226 of the Constitution.
19. In my opinion the petitioner failed to establish that the ultimate finding of the Additional Commissioner, that Section 4(1)(a) did not apply to the second respondent was wrong.
20. The rule is discharged. The petition fails and is dismissed with costs of the second respondent. Counsel's fee Rs. 100.