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Canara Bank Ltd. Vs. State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1967)IILLJ776AP
AppellantCanara Bank Ltd.
RespondentState of Andhra Pradesh and ors.
Excerpt:
.....products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of..........were terminated on 16 may 1959 giving him three months' salary in lieu of notice.4. respondent 3 filed writ petition no. 596 of 1959 to quash the order of termination of his services. that writ petition, however, was dismissed by this court on 17 jane 1959, for the reasons which need not be mentioned. he, thereafter, filed an application with the inspector of shops and establishments claiming various amounts due from the petitioner-bank. he was, however, advised by the inspector to file his claim before the authority under the shops and establishments act (hereinafter called the act). he, therefore, filed an application on 29 october 1959, before the authority under the act and claimed the following amounts:rs.pay from 1 may to 23 october1959 at rs. 585 per mensem adding annual.....
Judgment:

Gopal Rao Ekbote, J.

1. This petition is filed under Article 226 of the Constitution of India for the Issue of a writ of certiorari or other appropriate writ, order or direction to call for the order G.O. Ms. No. 637 dated 3 April 1963, Home (Labour II) Department, and quash the same.

2. The necessary facts in order to appreciate the contention raised before me are that respondent 3 was employed first by G. Raghunathmull Bank, Ltd., which was an incorporated body. The said bank's business was amalgamated with Canara Bank with effect from 4 September 1961.

3. Respondent 3 was formerly working as a manager In the head office. He was however subsequently appointed as a special officer on duty to collect what are called sticky advances. While he was holding, that position, his services were terminated on 16 May 1959 giving him three months' salary In lieu of notice.

4. Respondent 3 filed Writ Petition No. 596 of 1959 to quash the order of termination of his services. That writ petition, however, was dismissed by this Court on 17 Jane 1959, for the reasons which need not be mentioned. He, thereafter, filed an application with the Inspector of Shops and Establishments claiming various amounts due from the petitioner-bank. He was, however, advised by the Inspector to file his claim before the authority under the Shops and Establishments Act (hereinafter called the Act). He, therefore, filed an application on 29 October 1959, before the authority under the Act and claimed the following amounts:

Rs.Pay from 1 May to 23 October1959 at Rs. 585 per mensem adding annual Increment due. 3,453.59Provident fund up to 28 October1959 ... 10,107.02Gratuity at Rs. 553 per mensem,7 1/2 months' salary ... 4,147.50Three months' salary in lieu of notice ... 1,755.00Difference in salary for April1959 ... 37.00Salary for leave in credit ... 1,170.00__________20,669.91 (sic)__________

This petition was resisted by the bank through Its counter dated 10 December 1959. The principal contention of the bank with which I am concerned was that the Act is not applicable to the case of respondent 3 as he held the position of management In the bank and also because of the fact that his duties involved traveling. While the said claim was pending before the authority under the Act, the petitioner filed an application on 1 June 1960, that the question whether the Act applied to the claim put forth by respondent 3 hat to be decided only by the Government under the Act and the authority, therefore, should stay the enquiry of the claim until the petition filed by the petitioner before the Government Is disposed of Blonde the authority was not Inclined to stay the proceedings, the petitioner filed a writ petition In this Court seeking the Issue of a writ of mandamus against the authority to stay the enquiry of the claim until the matter is disposed of by the Government. That writ petition was allowed by this Court on 21 September 1960, and the enquiry before the authority was stayed.

5. The Government of Andhra Pradesh, through Its order, dated 3 April 1963, held that the provisions of the Act apply to the claim Instituted by respondent 3 negativing the contention raised by the petitioner. It is this order of the Governmant that Is now Impugned In this writ petition.

6. The principal contention of Sri N. Narasimha Ayyangar, the learned Counsel for the petitioner, Is that respondent 3 was a person employed In the bank in a position of management within the meaning of Section 4 (1)(a) of the Act and his work Involved travelling and consequently the Act does not apply to his claim and the impugned Government order has, therefore, to be quashed. In order to appreciate this contention It is necessary to read Sections 4 (1)(a) and 4 (1)(6):

4. (1) Nothing contained in this Act shall apply to-

(a) persons employed in any establishment in position of management;

(b) parsons whose work involves travelling and parsons employed as watchmen, canvassers and caretakers.

The expression 'position of management' Is not defined In the Act. There can be no hard and fast test laid down as to when a particular position would be a position of management. The Supreme Court, however, in Prem Sagar (T.) v. Standard Vacuum Oil Co. Madras, and Ors. 1961-I L.L.J. 47, laid down broadly the following teats (at p. 53):

It may be enquired whether the person had a power to operate on the bank account or could he make payment to third parties and enter Into agreements with them on behalf of the employer, was he 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.

It is not in doubt that at the time when respondent 3's services were determined he was appointed as a special officer on duty to collect sticky debts of the bank. Whatever may be his salary, his duties, as mentioned in the affidavit filed by the petitioner, were as follows:

Respondent 3 was an officer of the transferor-bank and he was last working as manager and as officer on special duty for recovery of advances, etc. His rank In the said bank was next only to the secretary. He was also holding a general power-of-attorney, dated 21 May 1916, on behalf of the transferor-bank for the purpose of carrying on the business of the said bank Including the power to Institute legal proceedings. Copy of the said power is herewith filed and marked I. Respondent 3 also entered Into a service agreement with the traneferor-bank on 11 July 1946, and the same embodies the right sand duties of the parties. Copy of the said agreement IB herewith filed and marked II.

As manager and special officer-in-charge of recoveries of advances, respondent 3 exercised powers of supervision, control and management of matters dealt with by him and which were generally within his sphere of activities. Having regard to the powers conferred on him under the said power-of-attorney, the rank held by him in the bank and the powers exercisable by him as manager and special officer-in-charge of recoveries, etc., respondent 3 exercised powers of guidance and management in the conduct of the business of the bank. His work also Involved travelling as he had to go out on tours for supervising and Inspecting the various branches, of the said bank, such as the Jodhpur group of branches and also the branches situated In the twin cities of Hyderabad and Secunderabad and in the Mahabubnagar district.

On the other hand, the duties attached to the said office were mentioned by respondent 3 In his counter to the petition filed by the petitioner before the Government:

(i) Maintaining of accounts registers-

(a) Law charges.

(b) Decree accounts register.

(c) Decree accounts balance register.

(ii) Maintaining jewellery auction sale register.

(iii) Preparing debit vouchers regarding law charges.

(iv) Copying cheques and other bank documents to be produced in Courts.

(v) Notices Issuing register.

(vi) Notices issuing flies.

(vii) Sending papers to parties regarding advertised sale of mortgaged jewellery,

(viii) Duplicate flies of Court oases.

(ix) Correspondence drafting and comparing regarding above subjects.

(x) Typing the said correspondence on portable typewriter.

(xi) Contacting parties for repayment of loans.

(xii) To give evidence of contents of bank documents In Courts.

7. In addition to this any other work asked by the opposite party or directors to do.

8. Applying the teat an stated earlier, It will be clear that the duties as gathered from above attached to the office held by respondent 3 on the date of termination of his services did not Involve any supervisory powers. No staff was working under him, nor It was possible for him to appoint anybody. He had no powers to compromise the debts or make In any manner relinquishments. There was no occasion for him to take any decision In regard to the debts which ho was asked to collect. Ha was only maintaining the accounts of the debts which he could collect. It did riot Involve travelling for supervision. Keeping is view the duties which he performed, in cannot be said that he was holding a position of management at the time when his services were terminated. I am, therefore, satisfied that the duties referred to do not satisfy the test In order to bring respondent 3 within Section 4 (1)(a) of the Act. I do not find, therefore, any difficulty In rejecting that contention.

9. It was then contended that the Act la not applicable to the casa of respondent 3 for another reason. The argument was that the term 'wages' as given in the Act means wages as denned In the Payment of Wages Act (4 of 1936). According to that definition not only the definition as given in Section 2(vi) of the Paymant of Wages Act is made applicable but in pursuance of the words used 'as denned' attracts Section 1(6) of the said Act, argued the learned Counsel. It was submitted that if these two provisions are read together, the definition of 'wages' would, for the purpose of this Act., mean that wages which average la Rs. 200 a month or more would not be included within the purview of the Act. In other words, It is contended that the Act will not apply to a parson whose salary is more than Ra. 200 a month. I do not think any effect can be given to this argument. What Section 2 (20) of the Hyderabad Shops and Establishments Act does Is to make the definition of 'wages' as defined in the Payment of Wages Act, a part of the Act by reference. It is only to the definition of the term 'wages' defined In the Payment of Wages Act one has to look to. It would not be permissible to travel beyond the definition given in the said Act of the term 'wages.' What Section 1(6) of the Payment of Wages Act enjoins Is that nothing In that Act shall apply to wages payable in respect of a psricd which, over such wage-period, average Rs. 200 a month or more. In other words, the said Act would not apply to wages payable in respect of a wage-period, which, over such a wage-period, average RB. 200 a month or more. It la an exception embodied In the Payment of Wages Act. I fall to see how this provision can be connected with the definition of 'wages' which alone is made part of the Act by reference. Section 1(6) of the Payment of Wages Act is not a part of the definition of 'wages' and there is no justification to treat It as a part of definition of wages. There Is no warrant for the argument that Section 1(6) of the Payment of Wages Act must be read along with the definition of 'wages' as appears in that Act and consequently, the Act will not 'apply to a person who as wages payable in reapect of wage-period which, over such wage-period, average Ra. 200 a month or more. No such exception can be read in so far as the Act is concerned. That provision has not been made part of the Act by any reference. I see, therefore, no substance in this contention.

10. As no other argument was advanced, the writ petition fails and la dismissed. In the circumstances, I make no order as to costs. Government Pleader's fee Rs. 100.


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