JUDGMENT D.P. Singh, J.
1. Heard Sri Mool Bihari Saxena, learned counsel for the petitioner and Shri Shyam Narain for the respondent.
2. This writ petition is directed against an award of the labour court dated 30.4.1981, rendered in Adjudication Case No. 120 of 1980 by which the labour court has granted reinstatement with full back wages to the respondent No. 3 who was working as a Manager of a Cinema Theatre.
3. The respondent No. 3, Raja Ram, was employed as a Manager for the petitioner Theatre. A raid was conducted by the officials of the Entertainment Tax Department on 3.2.1979. In the raid, certain anomalies were found and, therefore, the licence of the petitioner was suspended for three days. This led to serving of a charge-sheet on the employee which resulted in his termination dated 31.8.1979. Resultant was a reference under Section 4K of the U. P. Industrial Disputes Act. The labour court apart from other issues, also framed an issue with respect to whether the employee was a workman within the meaning of the Act, and, another Issue was framed with regard to fairness of the domestic enquiry. Both the issues were decided against the petitioner and the labour court went on to hold that since the petitioner had not sought an opportunity to prove the charges before it, it held that the termination was illegal and granted reinstatement with full back wages.
4. The only contention of the learned counsel for the petitioner is that due to the nature of the duties and powers vested in the respondent employee, he was not a workman within the meaning of the Act. However, learned counsel for the respondent, rebutting the argument has urged that mere nomenclature is not decisive as to whether the employee was a workman or not.
5. The view, by now is well-settled that mere nomenclature of the post is not a determinative factor, but the substantial part or the main nature of the work performed, the responsibilities of the post, whether the employee could take independent decisions and bind the establishment, etc. are some factors which have to be considered before concluding whether an employee is a workman or not. The contention of the learned counsel for the respondent workman is, therefore, correct. However, it would have to be seen and examined as to what was the nature of the work performed and the responsibilities of the post held by the respondent workman.
6. A power-of-attorney had admittedly been executed in favour of the respondent employee which is annexed as Annexure-2 to the writ petition. The labour court, though has noted the said power-of-attorney but has held that there was no evidence on record to show as to whether the power granted to the respondent employee was exercised. It would be useful to note the wording of the power-of-attorney :
"By this power-of-attorney, I, Ram Prakash Agarwal son of Seth Sri Kishan, resident of Mohalla Jogipura, Budaun, U.P. and licencee of M/s. Prakash Talkies, Budaun, hereby constitute and appoint Sri Raja Ram son of Sri Gokul Chand resident of Mohalla Sahbazpur, Budaun, as Manager of M/s. Prakash Talkies, Budaun, my attorney, for me, in my name and on my behalf, Jointly and severally to do and execute acts, deeds and things pertaining to the said M/s. Prakash Talkies, Budaun, viz., to apply and secure Cinema or other licenses and to deal with all matters in connection with the U. P. Cinema (Regulation) Act, 1955 and the U. P. Entertainment and Betting Tax Act, 1937) as may be in force from time to time and to commence carry on, or defend all actions and other proceedings concerning the said M/s. Prakash Talkies, Budaun, in which I may be a party before any Government or local authority."
7. From a perusal of the aforesaid power-of-attorney, it is evident that the respondent employee was empowered to do all acts for running of the Cinema Theatre. He could take decisions to bind the firm, sue in the name of the firm and deal with all matters in relation to the laws applicable to a Cinema Theater. The power vesting with the respondent employee was very vast. One of the most crucial documents for running a Cinema Theatre, is form 'B' which has to be signed by or on behalf of the proprietor. This form admittedly had been signed by the respondent employee. From the said two documents, it is evident that the respondent employee was vested with powers that of a proprietor. Further, Annexure-1 to the rejoinder-affidavit is a copy of the reply to the charges levelled against him by the proprietor. From the perusal of the said documents, it is apparent that charge No. 1 relates to screening of 'A' certificate movie as for universal viewing. It is the management, which has to ensure that 'A' certificate movies are not screened as 'U' certificate movies. In his reply, the employee does not deny that it was his responsibility, but he has only explained as to in which circumstances, the film was wrongly screened. Another charge was that children were given tickets for the adult movie though they were not accompanied by their parents. In reply to this charge also, he does not deny his responsibility, but says that during the relevant show he was not present and in his absence, he had appointed Sri B. K. Agrawal as the incharge of the Theatre. The very power of appointing another person as Incharge of the Theatre would show the extent of power vesting with the respondent employee. The third charge related to using tickets of one show for the other. Here also, while replying, he does not deny his responsibility, but says he himself had checked the first class gallery and after finding discrepancy, he had noted down in the register. The specific case set up by the respondent employee was that he was performing the job of a head clerk. But, as noted hereinabove, he had signed 'B' form, had appointed a Theatre Incharge in his absence which appears to be the main and substantial work that he was performing. Though it has come in evidence that he did issue some tickets but it has not been shown that he was a booking clerk or it was his main work. In fact, the respondent employee also used to supervise the staff for crowd controlling measures whenever there was heavy rush. The labour court fell in error in not examining these crucial documents, which were on record. It was also in error in holding that the employee had not exercised the powers vested in him by the power-of-attorney. The very nature of the power vested in the employee clinches the issue. The learned counsel for the petitioner has relied upon the decisions of the Apex Court in Range Forest. Officer v. S. T. Hadimani, 2002 (2) AWC 1268 (SC) : 20O2 (94) FLR 622, to contend that the onus of proving that the employee was not a Manager lay with the employee. Firstly, the facts of S.T. Hadimani are totally different and the ratio would not apply. Secondly, once a dispute has been referred by the State Government, it is the establishment which will have to show that the concerned employee was not a workman. The learned counsel for the employer relying upon decisions of the Apex Court in the case of National Engineering Industries Limited v. Shri Krishna Bhageria. AIR 1988 SC 329 and Sharad Kumar v. Government of NCT of Delhi, 2002 (4) SCC 490, has contended that nomenclature of the post is not determinative. As already held, the nature of work performed is the determinative factor.
8. Normally, this Court after coming to the aforesaid conclusion ought to remand the matter for decision afresh, however, this writ: petition has remained pending in this Court for more than two decades, thus, it would not be prudent to remand the matter, especially so, where by the very nature of the powers vested in respondent No. 3 and the exercise of some of those of powers which are evident from the material on record, it cannot be held that he was a workman within the meaning of the Act. Thus, it would be futile to remand the matter.
9. In view of the discussions hereinabove, the writ petition succeeds and is allowed. The impugned order, dated 30.4.1981 is hereby quashed. No order as to costs.