Delhi District Court
Sh. L.P. Pant vs M/S Continental Auto Services on 31 May, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
Ref. No. : F.24 (4539)/2001Lab./449599
Dated : 26.03.2002
I.D.No. : 101/09
Unique Case ID no. No. 02402C0045642002
Sh. L.P. Pant, S/o Sh. R.P. Pant,
C/o Sh. Ravi Shankar, 167, Panchkuian Road,
New Delhi110 001. .................Workman
Versus
M/s Continental Auto Services
13 A, Mohan Cooperative Industrial Estate,
Mathura Road,
New Delhi110 044. ...............Management
Date of Institution of the case : 27.03.2002
Date on which reserved for Award : 03.05.2012
Date on which Award is passed : 31.05.2012
AWARD
The workman Sh. L.P.Pant, raised an industrial dispute
regarding the termination of his services by the management of M/s
Continental Auto Services. The appropriate Government on being
satisfied regarding the existence of Industrial Dispute between the
I.D. No. 101/09 Page 1 out of 73
parties, made a reference for adjudication. The said reference is as
under.
" Whether the services of Sh. L.P. Pant, S/o Sh. R.P.
Pant have been terminated illegally and/or unjustifiably
by the management, and if so, to what sum of money as
monetary relief along with consequential benefits in
terms of existing laws/Govt. Notifications and to what
other relief is he entitled and what directions are
necessary in this respect?"
Thereafter, statement of claim was filed by the workman. It is
stated by the workman in his statement of claim that the workman
was in the permanent employment of the management of M/s
Continental Auto Services since 29.03.1988 as Storekeeper and later
he was redesignated as Senior Store Officer, a clerical job with a
glorified designation and his last drawn wage was Rs. 8,748.00 per
month; that the record of service of the workman was clean and
without any blemish; that the management was quite satisfied with his
conduct, work and performance; that the dominant purpose of the
employment of the workman was to maintain and look after the
accounts of the company pertaining to its stores; that he was not
exercising any supervisory or administrative duties; that he was not
vested with the authority of signing the cheques and to operate the
I.D. No. 101/09 Page 2 out of 73
finance or accounts of the employer company; that the management is
also known for its indulgence in unfair labour practices such as
victimization etc.; that in the month of March, 2001, the management
started compelling the workman to sign on blank papers with some
ulterior motives and sinister designs; that the workman protested
against such illegalities of the management and upon this the
management got annoyed and started to victimize him on one pretext
or the other; that on 12th April, 2001 at 12 noon some of the officers
of the management Mr. Jitender Nanda, Chief Executive Officer and
Mrs. Gagan Singh threatened the workman with dire consequences
and insisted him to give his signatures on blank papers; that
thereafter the claimant workman was surprised to receive the letter
from the management wherein it was stated that due to business
exigencies and keeping in view of administrative and financial
constrains of the company, it was decided to down size the operations
of the company and for this it was left with no other option but to
discharge the claimant workman from the services of the company in
terms of clause 11 of the contract of employment effective from 17th
April, 2001; that the said clause is violative of the principles of
natural justice; that the management did not give any prior notice
before taking the extreme step of down sizing the operations of the
company and resorting to illegal retrenchment; that neither any
I.D. No. 101/09 Page 3 out of 73
compensation was paid nor offered to the claimant workman till date;
that the claimant workman served a demand notice upon the
management through Delhi State kamgar Union and demanded his
reinstatement in service with continuity of service and full back
wages along with all other consequential benefits; that the
management rejected the said demand under the misconception that
the claimant workman is not a workman within the meaning of
section 2(s) of the I.D. Act, 1947; that a civil suit was filed before the
Hon'ble Civil Judge, at Delhi which was duly registered and notices
were issued to the management and its officers; that the management
persuaded him to withdraw his case and the workman consented to
the said offer of the management provided if the management accepts
his claim along with other damages amounting more than Rs.
5,56,705.00; that though the management obtained some writings and
proposals from the claimant, it did not honour the same; that the
claimantworkman with a view to availing relief under the provisions
of the Industrial Disputes Act, 1947 (as amended upto date) withdrew
his above said civil suit in the court of Ld. Civil Judge and filed
appropriate statement of claim before the Conciliation Officer; that
since no settlement was arrived at during the conciliation, hence the
present dispute/reference before this court; that the claimant is not
gainfully employed and is unemployed since the date of his
I.D. No. 101/09 Page 4 out of 73
termination. Hence, he has claimed reinstatement with full back
wages, continuity of service and all consequential benefits.
Notice of the filing of statement of claim was sent to
the management. The management appeared and filed the written
statement and contested the claim of the workman. In the written
statement filed by the management it has taken the preliminary
objections that the claimant is not a workman as is defined under
Section 2(s) of the I.D. Act, 1947; that he was last employed as a
Senior Stores Officer and was responsible for the maintenance and
upkeep of company's stores valued at several lakhs of rupees; that he
was entrusted with onerous duties and responsibilities and was
performing supervisory administrative and managerial
responsibilities; that in the year 2001, the management of the
company changed hands and in such circumstances, in view of
business exigencies and keeping in view the administrative and
financial constraints of the company, whereat it was decided to
downsize the company's operations, the management was left with no
other option but to discharge the claimant from their services in terms
of Clause11 of the Contract of Employment, hence the claimant was
then discharged from the services of the management vide letter dated
April, 17, 2001; that on that occasion, the claimant was also tendered
one month's salary in lieu of notice; that he was also advised to visit
I.D. No. 101/09 Page 5 out of 73
the establishment and to settle all his dues in full and final; that action
of the management was strictly in accordance with the Contract of
Employment and the law; that the services of the claimant were
merely discharged and there was no stigma attached at the time he
was asked to leave the services of the management; that the
management by way of abandoned precaution at the time of severance
of the employeremployee relationship tendered compensation @ 15
days salary for every completed year of service; that the said offer of
payment was made as a special case without constituting a precedent,
hence, assuming for arguments sake, the contention of the claimant
that he was a workman and that as a consequence thereof was eligible
and entitled to receive the payment of retrenchment compensation,
the said payment was offered to the claimant along with the letter of
discharge; that hence, keeping in view the bonafide action on the part
of the management in offering the claimant compensation as per
requirement of the statute, the claimant has no valid legal claim or
dispute whatsoever against the management; that the claimant is
barred in law to raise the present industrial dispute since the law is
well settled in as much as the person who approaches a Forum for
redressal cannot elect another mode of remedy for resolution of his
claims on the doctrine of election of remedy; that in the present facts
and circumstances of the case, admittedly, the claimant had earlier
I.D. No. 101/09 Page 6 out of 73
filed a civil suit for grant of declaration, mandatory and permanent
injunction, thereafter, subsequently he approached the Forum under
the provisions of the Industrial Disputes Act, 1947; that in view of the
fact that the claimant approached the civil court,he is now barred in
law to raise this alleged industrial dispute before this Hon'ble Court.
On merits, it is submitted that the claimant joined the services of the
management on March, 29, 1988 on the post of Store Keeper and on
that occasion, he was duly issued a letter of appointment dated March,
25, 1988; that claimant was subsequently promoted as an Assistant
Officer in Grade5 with effect from October, 1, 1994; that his salary
was revised vide letter dated September, 12, 1995; that he was
granted an increase in his salary and allowances w.e.f. October,
1,1996; that again in recognition of his good performance, the
management was pleased to promote him as an officer in Grade6 and
revised his basic salary and allowances w.e.f. October, 1, 1997, vide
letter dated November, 3, 1997; that again in the following year in
recognition of his good performance, the management was pleased to
sanction him a special increment and to revise his salary and
allowance vide letter dated October, 27, 1998; that further on
October, 11, 1999 the management in recognition of the claimant's
good performance was pleased to promote the claimant as Senior
Stores Officer in Grade7 and revised his salary and allowances
I.D. No. 101/09 Page 7 out of 73
effective from October, 1, 1999; that the claimant continued to work
as a Senior Stores Officer and that his last drawn monthly salary was
Rs. 8,748/ per month; that as the Senior Stores Officer, he was the
senior most person posted in the Stores Department; that he
functioned as the Head of the Department and had the overall charge
and responsibility of the working in the stores; that amongst others he
used to ensure that all vehicles received at the workshop of the
management for repairs, maintenance and other jobs were provided
with complete spare parts; that he was therefore, required to ensure
that there was no shortage of any part whatsoever at the workshop
and that no vehicle be permitted to leave the workshop for the reason
that the Stores Department was unable to provide necessary spare
parts for the said vehicle; that in pursuance to the aforesaid duties, the
claimant was reporting to the Works Manager in the absence of the
Works Manager to the Chief Executive of the company; that based
upon the inputs provided by the claimant, the company used to place
orders on their principals i.e. M/s Daewoo Motors India Ltd; that this
activity was his responsibility, since the entire stores department,
which had materials worth several lacs of rupees lying at any point of
time was under his entire supervision and control; that in the event the
principals were not in a position to provide parts, he was duly
authorized by the company to make purchases from the open market
I.D. No. 101/09 Page 8 out of 73
so that the customers of the company are not affected due to the non
availability of the parts, accordingly, the claimant played a very
crucial and responsible role in the smooth and efficient working of the
stores department most particularly as he was the over all incharge of
the said department; that there were three supervisors working under
his direct supervision and control namely Mr. Mukesh Jain, Mr.
Makan Singh ,Mr. S.K. Panwar and two helpers namely Mr. Surinder
Kumar and Neem Bahadur; that the leaves of all such staffs,
recommendation for their increments/promotion was all effected
based upon the report of the claimant to the Works Manager and the
chief Executive Officer; that in fact on several occasions, he had
recommended disciplinary action, to the Human Resources
Department since the employees working under his supervision and
control were not performing their duties satisfactorily; that the
claimant was also entrusted with the onerous task of giving
instructions to the Accounts Department for making cheques to be
issued to different parties from whom the company purchased parts,
lubricants and other materials stocked in the Stores Department; that
in these matter, the claimant operated independently as the company
used to purchase goods, materials, stores and equipments worth lakhs
of rupees; that consequently, it cannot be urged before this Court
that the claimant was a workman as is defined under section 2(s) of
I.D. No. 101/09 Page 9 out of 73
the I.D. Act, 1947 and on the contrary, the claimant comes within the
exception of the said definition in the statute since he was performing
supervisory, administrative and managerial functions as the Senior
Stores Officer being the Head of the Stores Department; that it is
admitted that the record of service of the claimant is clean and
without blemish but due to business exigencies including recession in
the automobile market and keeping in view the administrative and
financial constraints of the company, it had decided to downsize the
operations in view of the change in the management; that
consequently, the management was constrained to invoke clause11
of the Contract of Employment and to discharge the claimant from
their services effective April, 17, 2001, on tendering him all his dues
in full and final settlement; that it is specifically repudiated that the
claimant was performing duties of a workman and on the contrary, he
was performing duties of a supervisory, administrative and
managerial nature; that the claimant is put to strict proof of his false,
baseless and motivated assertions and allegations regarding the
management's alleged indulgence in unfair labour practice including
victimization; that the claimant is put to strict proof of his assertions
that the management had compelled him to sign on blank papers with
some ulterior motives and sinister designs; that it is further repudiated
that the management was ever annoyed with the claimant and marked
I.D. No. 101/09 Page 10 out of 73
time to victimize him on one pretext or the other; that on the contrary,
the matter was clearly discussed with the claimant with regard to the
business exigencies as also the administrative and financial
constraints of the company compelling the management to downsize
its operations; that it was then clearly conveyed that it was not
possible to retain the claimant in their services any further in view of
the aforesaid circumstances, hence, the services of the claimant were
discharged simpliciter without casting any stigma on his services and
further he was not discharged from service for any act of misconduct
attributable to the claimant, but for reasons stated herein above, that
the management at the time of discharging the services of the
claimant vide letter dated April, 17, 2001, offered to pay him all his
dues in accordance with law, hence the claimant cannot make any
grievance of the same; that the claimant is put to strict proof of the
assertions, allegations and contentions stated therein viz. April, 12
2001, for the reason that no such incident took place as alleged and on
the contrary, it appears to be these allegations have been deliberately
and mischievously fabricated to give credibility to the assertions and
contentions of the claimant; that it is admitted that the management
discharged the claimant from their services vide letter dated April, 17,
2001; that it is, however, specifically repudiated that clause11 of the
Contract of Employment is either arbitrary or unreasonable or
I.D. No. 101/09 Page 11 out of 73
violative of principles of natural justice and/or liable to be declared as
abinitio void and non est; that on the contrary, Section 30 of the
Delhi Shops and Establishments Act, 1954, which is applicable to the
facts and circumstances of this case, specifically provides for the
procedure to dispense with the services of an employee on payment of
one month's salary or notice in lieu thereof and consequently, the
action of the Management is strictly in accordance with the law most
particularly as the claimant is not a workman as is defined under
section 2(s) of the I.D. Act, 1947; that the claimant has not set out the
rights he sought to assert and/or any unfair labour practices that the
management may have indulged in; that on the contrary, the
management clearly informed the claimant about its administrative
and financial constraints and the necessity to downsize operations
most particularly as in the year, 2001, there was severe recession in
the automobile industry; that consequently, costs had to be
specifically reduced for the company to be viable and to survive in
the competitive market and hence the allegations as set out in
corresponding paragraph of the statement of claim are specifically
repudiated and the claimant is put to strict proof of this assertions and
allegations; that it is submitted that the management vide their letter
dated April, 17, 2001, tendered one month's salary in lieu of notice;
that it is noteworthy that the said letter was personally handed over to
I.D. No. 101/09 Page 12 out of 73
the claimant on April, 17, 2001 but as he refused to receive the same,
it was sent under registered post at the last available address of the
claimant and thus accordingly, the action of the management is legal,
valid and proper; that the claimant alongwith the letter dated April,
17, 2001, was offered one month's notice pay and was advised to
collect all his other dues from the office on any working day during
working hours; that it is admitted that a demand notice was served on
the management and on receipt of the same, the management duly
replied to the same vide their letter dated April, 17, 2003, clearly
explaining the facts in respect of the action taken by the management,
hence the alleged demand notice is misconceived and untenable; that
it is further admitted that the claimant filed a civil suit against the
management; that the fact that the claimant approached the civil
courts, the present proceedings are barred in law for the reason that it
is settled in law that the person, who approaches a forum for redressal
cannot elect another mode of remedy for resolution of his claims on
the doctrine of election of remedy; that in the present facts and
circumstances of the case, the applicant had earlier filed a civil suit
wherein he had filed a suit for declaration, mandatory and permanent
injunction; that the said matter was contested by the applicant before
the civil court hence the present proceedings are not maintainable;
that the management duly appeared in the proceedings before the
I.D. No. 101/09 Page 13 out of 73
Hon'ble Civil Judge through their counsel whereat legal objections as
are available to the parties were taken, however, it is reiterated that
the alleged industrial dispute is not maintainable; that it is specifically
repudiated that the management ever offered the claimant an amount
of Rs. 5,66,705/ and he is put to strict proof of his such motivated
and mischievous allegations; that as the claimant did not obtain any
relief whatsoever before the Hon'ble Civil Judge, consequently he
sought to try his luck in proceedings under the Industrial Disputes
Act, 1947, therefore he lodged proceedings before the Conciliation
Officer, whereat the said officer without application of mind and in an
arbitrary manner, referred the alleged dispute for adjudication,
notwithstanding the fact that the claimant is not a workman as is
defined under section 2(s) of the Industrial Disputes Act, 1947; that
the claimant is put to very strict proof of his assertion that he is not
gainfully employed and/or that he is unemployed despite his best
efforts; that it is not understood as to how the claimant can continue
his livelihood without being engaged in any economic activity then
most particularly as his services stood discharged with effect from
April, 17, 2001; that it appears that the present proceedings have been
launched with the only motive of extorting fabulous sums of money
on alleged grounds of illegal termination and a claim for backwages;
that it is regretted that this Hon'ble Court is being manipulated as a
I.D. No. 101/09 Page 14 out of 73
device to obtain the relief of backwages and most particularly when
the claimant, even to his own knowledge, is gainfully employed and
is comfortably making both ends meet and therefore is making a
deliberate false statement regarding alleged unemployment; that the
claimant is not eligible and/or entitled to any relief whatsoever, much
less to reinstatement in services either with or without continuity in
wages and/or backwages and/or any other benefit. All other
allegations are denied. Hence, it is prayed that the claim be
dismissed.
In rejoinder, all the averments of statement of claim
are reaffirmed and of the written statement are denied by the
workman.
On the pleadings of the parties vide order dated
19.08.2004, the following issues were framed:
(1) Whether claim is not maintainable in
view of the preliminary objection no.4 in the
W.S.?
(2) Whether claimant is a workman within
the meaning of Sec.2(s) of the I.D. Act?
(3) As per terms of reference.
No other issue arose or pressed and the case was
adjourned for Workman evidence.
In support of his case, workman himself appeared as
WW1, filed his evidence by way of affidavit Ex.WW1/A. In his
I.D. No. 101/09 Page 15 out of 73
affidavit, he has reiterated all the averments of his statement of claim.
He has relied upon the documents Exts. WW1/1 to WW1/6.
After examining WW1, the workman evidence was
closed.
In support of its defence, management has examined
MW1 Sh. P.N. Joshi, (HR) Manager of the management, who has
tendered his evidence by way of affidavit Ex.MW1/A. In his affidavit
he has reiterated all the averments of the written statement. He has
relied upon documents and already exhibited in the cross
examination of the claimant.
After examining MW1 management has closed its
evidence.
I have heard the submissions of ARs of both the
parties. ARs for both the parties have also filed written submissions.
AR for the workman has relied upon citations: (2002 LAB I.C.794)
Chandrakant Tukaram Nikam & Ors Vs. Municipal Corporation of
Ahmedabad & Others, 1993 (1) LLJ 127 Gwalior Investment
Co.Pvt.Ltd. And K.M.Desai, Member, Industrial Court, CWP No.
12886/2006 Maheshwar Singh Vs. M/s Indomag Steel Technology
Ltd., 1999 2 LLJ600 Lokmat Newspapers Pvt. Ltd. And
Shankarprasad, 1993 IILLJ 104 Mohan Singh & Ors and RSRT &
Another,Workman ITPO Vs. Management ITPO Writ Petition (C)
I.D. No. 101/09 Page 16 out of 73
No.12343 of 2005 Date of Decision: 03.09.2007 of Hon'ble High
Court of Delhi, (2010) 3 SCC 1992 Shri Harjinder Singh, Applicant
Vs. Punjab State Warehousing Corporation,
Respondent,MANU/DE/0227/1977 Mathur Aviation, Appellants Vs.
Lt. Governor, and Ors., Respondents.
AR for the management has relied upon citations : Hussan Mithu Mhasvadkar Vs. Bombay Iron & Steel Labour Board 2001 LLR 1083 (SC), Tanoj Kumar B.Chatterji Vs. Solapur Municipal Corporation 2004 LLR 108 (Bombay High Court), V.K. Sharma Vs. Government of NCT of Delhi & Anr. 2008 LLR 521 (Delhi High Court), John Joseph Khokar Vs. B.S. Bhandange & Ors. 1998 LLR 213 (Bombay High Court), Alarsin and Alarsin Marketing Employees' Union Vs. Alarsin Pharmaceuticals and Alarsin Marketing (P) Ltd. and another, 2004 LLR 869 Bombay High Court, Engineering and Ancillary Manufacturers Vs. Salim Khan 2004 II CLR 309 (Bombay High Court).
My issuewise findings are as under: Issue no.1 It is seen from the record that the preliminary objection has been taken by the management in its written statement to the instant statement of claim to the effect that the same is not I.D. No. 101/09 Page 17 out of 73 maintainable by virtue of the workman having filed a civil suit for grant of declaration, mandatory and permanent injunction in respect of his grievances in the instant statement of claim in the Civil Court. However, it is seen from the record that the evidence has been led by the workman in his workman evidence to the effect that the said suit filed by him against the management in respect of his grievances against the management vide the instant statement of claim has been duly withdrawn on his part vide his statement dated 29.11.2001 given to the said effect before the concerned court and the order of the same date passed by the concerned court on the same dismissing his suit as withdrawn on his part Ex.WW1/6, on record, thereby proving on record that the same had not been decided on merits in respect of its contents between the parties in order for the same to be not maintainable in this Court or operate as 'Res judicata' between the parties as also no evidence in rebuttal to the said evidence has been brought, on record by the management and instead it is the case of the management as is evident from the suggestions put on behalf of the management to the claimant in his cross examination as WW1 in workman evidence to the effect that "it was correct that he had withdrawn the civil suit filed by him against the management." In view of the above, I find that the objection as raised by the management against the workman is not maintainable. Accordingly I.D. No. 101/09 Page 18 out of 73 the issue no.1 is decided in favour of the claimant and against the management.
Issue no.2 It is seen from the record that the workman has appeared in workman evidence as WW1, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.WW1/1 to WW1/6. In his affidavit by way of evidence Ex.WW1/A, the workman has reiterated the contents of his statement of claim to the effect that he was initially employed as Storekeeper w.e.f. 29.03.1988; that while promoting him on 01.01.1992 his designation was changed as Supervisor in Store and his duty was added for collection of spare parts from principal company i.e. M/s Daewoo Motors, but in practice he had been performing his duties in a clerical nature of job; that again he was promoted on 22.10.1994 as Assistant Officer in Gr.IV but his duties remained unchanged; that again the management promoted him from Assistant Officer to Officer vide their letter dated 03.11.1997, however, his duties remained the same of a clerical nature of job; that again the designation was changed vide order of the management dated 11.10.1999 as Senior Store Officer in Gr.VII; that he had no authority to recruit or maintaining the discipline or marking attendance and supervising the work of others, but his work was supervised by the Works Manager in Store I.D. No. 101/09 Page 19 out of 73 and he had been maintaining the store in a clerical nature of job w.e.f. the date of his initial employment i.e. 29.03.1988 till his termination from service; that the management terminated his services vide their letter dated 17.04.2001 on the ground of administrative and financial constraints of the company which is illegal and unjustified because the 21 days notice for reduction of work was not served upon him; that the management had been pressing him from the month of March, 2001 onwards to sign the blank papers with ulterior motives with a view to victimize him; that the termination of services of the workman is in violation of provisions of Section 25 F of the I.D. Act; that the management retained his juniors and his services were terminated without following the procedure of law as the management changed his designation only with a view to terminate him from the job on which he had been performing with the management; that the activities of the management is unfair labour practice and his termination/retrenchment is illegal and void; that he is unemployed since the date of his termination of services.
This witness has been cross examined by the management in which he has deposed that it was correct that he had joined the services of the company on 29.03.1988; that at the time of joining the services of the management, he had submitted a personal data form which is Ex. WW1/M1; that he had also submitted an application for I.D. No. 101/09 Page 20 out of 73 employment with the management which is Ex.WW1/M2; that he had applied for the post of Store Keeper in the company; that it was wrong to suggest that the job of a store keeper is of a supervisory nature and not that of a workman; that at the time of joining duties, he had submitted a joining report which is Ex.WW1/M3; that it was correct that he was promoted from the post of store keeper to that of supervisor in the Stores Deptt; that there was a change in his designation; that it was correct that he was promoted as Assistant Officer in GradeV w.e.f. 01.10.1994; that it was correct that he was promoted as an officer in GradeVI w.e.f. 01.10.1997; that it was correct that at the time he was promoted as Assistant Officer in GradeV, he was issued a letter dated 22.10.1994 which is Ex. WW1/M4; that it was correct that his salary was revised vide letter dated 12.09.1995, same is Ex.WW1/M5; that the revision in his salary effective 30.10.1996 is Ex.WW1/M6; that it was correct that subsequently he was promoted and his salary increased vide letter dt. 27.10.1998 Ex.WW1/M7; that it was correct that he had submitted a letter to the management dt. 08.07.2001 Ex.WW1/M8 requesting for full and final settlement; that he used to report to the Works Manager at the work Shop; that in the absence of the Work Manager, he used to report to the Finance Manager or the Personnel Manager; that it was wrong to suggest that in the absence of the Works manager, he used I.D. No. 101/09 Page 21 out of 73 to report to the Chief Executive Officer who was incharge of the entire workshop/unit; that it was correct that he was the senior most person working in the Store's Department of the Workshop; that the management used to decide as to the parties to be dealt with but he used to ensure that the lubricants and all other materials, required in the workshop were obtained either from the principals, vendors or open markets based on the requirements of the workshop; that it was correct that it was his responsibility to ensure that there was no shortage of any part or material whatsoever at the workshop and for this purpose he even used to physically count the items available; that it was correct that he was also responsible to ensure that there was no shortage of any part or material at the workshop so that as a consequence thereof no vehicle be permitted to leave the workshop for the reason that the store's department was unable to provide necessary spare parts etc. to the said vehicle; that it was correct that on behalf of the company he used to place orders for materials, spare parts and the like running into lacs of rupees such as orders on M/s Daewoo Motors India; that the Works Manager used to procure material from the market in the event the parts spares etc. were not available from M/s Daewoo Motors; that it was wrong to suggest that it was his duty and responsibility to procure such materials from the market dealers etc; that it was wrong to suggest that he was deposing I.D. No. 101/09 Page 22 out of 73 falsely that it was the Works Manager who used to procure materials spares etc. when not available from the principals; that the document marked A was not signed by him and as such he cannot comment as to its authenticity; that he cannot say as to whether mark A was his performance review form for the year 19992000; that it was on his performance that determines his promotion and increment in the workshop; that he had joined the services of the management in March 1988 at that time the specific duties performed by him were to receive the material at the workshop to unpack the material and then to place it in the respective bins for use subsequent; that this was the only job and duty performed by him then; that the duties performed by him till he was discharged from services in April, 2001, there was no change whatsoever in duties performed by him during his entire tenure in the services of the company, he continued to perform the same duties without any change whatsoever during the entire period of service; that it was correct that while he was working in the store department S/Sh. Mukesh Jain, Makan Singh and S.K. Panwar were working as supervisors; that there were two other helpers working on need base basis namely Mr. Surinder Kumar and Neem Bahadur; that it was incorrect to suggest that the leave of the aforesaid supervisors/helpers etc was sanctioned by him; that their leave was sanctioned by Col. Choudhary, Works Manager; that he had I.D. No. 101/09 Page 23 out of 73 absolutely no role to play with regard to their increments, promotions and the like; that it was wrong to suggest that he had on several occasion recommended disciplinary action against the workmen in the stores department; that it was correct that he was entrusted with the task of making request to the Accounts Department for preparation of cheques to be issued to different parties who supplied the company with parts, lubricants and other materials that are stocked in the stores department; that it was correct that the materials so supplied to the stores department was valued at several lakhs of rupees; that it was correct that he was the senior most employee working in the stores department; that the performance review form of Sh. Tajesh Kumar for the period 15.12.1999 to 31.03.2000 bears his signatures at point Mark A; that same is exhibited as Ex.WW1/M9; that it was correct that Ex.WW1/M10 is the performance review form of his for the period of 01.10.1999 to 30.09.2000; that it was incorrect to suggest that he had put his signatures on the performance review forms of other employees working in his department; that it was correct that Ex.WW1/M11 was his leave record for the year 1999; that he can not say whether the document Mark Z1 was his leave record for the year 2000. Vol. the copy of the same was not made available to him, hence, he cannot comment on it; that he had never asked for a copy of the same; that it I.D. No. 101/09 Page 24 out of 73 was correct that prior to coming to this court, he had filed a civil case against the management; that copy of the plaint and the notice issued by the Civil Court as also the reply of the management in the said case are Ex.WW1/M12 (collectively); that he cannot say off hand as to what was his last drawn salary at the time of his alleged termination however it was around Rs. 8000/ and odd; that he cannot admit or deny without seeing the records that his salary was Rs. 8748/ after deduction at that time; that it was correct that his revised salary was mentioned in his promotion letter dated 11.10.1999 Ex.WW1/4; that it was correct that he was also getting allowance towards children education which is not reflected in the records; that it was also correct that he was also getting reimbursements towards telephones, books and periodicals, electricity, gas and water, scooter maintenance, leave travel assistance and medical reimbursement; that it was incorrect to suggest these above mentioned reimbursements were not paid to workman employees; that he cannot produce any documentary evidence to show that these reimbursements were paid to the workman employees as well. Vol. the documents are in the power and possession of the management; that he had only followed up the payments of a party at the time of placing further order upon the said party by the management so that the delivery of the materials can be made; that it was correct that S/Sh. Mukesh Jain, Makan I.D. No. 101/09 Page 25 out of 73 Singh, S.K. Panwar, Vijay Chopra were all working in the Stores Department; that it was correct that his leave entitlement was casual leave 12, sick leave 7 and earned leave 30 in a year; that he did not know as to what the leave entitlement was that of the workman in the establishment. Vol. the leave rules are not being made known to all the employees so far as their entitlements are concerned; that he had not asked in writing from the management with respect to his leave entitlement. Vol. on the apprehension of losing the job; that he did not know if in the year 1988 when he joined the services of the management, the management was in the hands of DCM Limited and that in the year 2001 it was managed by M/s Bhasin Motors India Pvt. Limited; that it was correct that he had withdrawn the civil suit filed by him against the management; that he is under graduate i.e. 12 pass; that he had not undergone any technical or other training; that he did not remember the years of his experience prior to joining the management; that his family consists of himself, his wife and two children one son and one daughter; that his children are unemployed, again said that they are doing private work and not in any company; that his children are unmarried and are living with him; that his household expenses are being met out by the earnings of his children and his wife and his in laws also help him; that his monthly expenses are around Rs. 4,000/ to Rs. 4,500/ per month. Vol. he owned his I.D. No. 101/09 Page 26 out of 73 own house; that it was incorrect to suggest that he was operating contract buses on the route between Uttam Nagar and I.S. B.T.; that it was incorrect to suggest that he was deposing falsely.
It is seen from the record that Ex.WW1/1 is the appointment letter dated 25.03.1988 of the workman vide which he has been firstly appointed as a store keeper with the management, Ex.WW1/2 being the letter promoting the workman as Assistant Officer in Grade V with the basic salary of Rs. 2015/ per month w.e.f. 01.10.1994, Ex.WW1/3 being the letter promoting the workman as Officer in Grade VI and revising his salary and allowances as mentioned therein i.e. his basic salary from Rs.2850/ to Rs.3065/ per month along with other allowances w.e.f. 01.10.1997, Ex.WW1/4 being again a letter dated 11.10.1999 of the management to the workman promoting him as Senior Stores Officer in Grade VII and revising his salary and allowances as mentioned therein w.e.f. 01.10.1999 i.e. his basic salary from Rs.3,385/to Rs.3,735/ along with other allowances, Ex.WW1/5 being letter dated 17.04.2001 terminating the services of the workman w.e.f. the said date along with one month's salary in lieu of notice, Ex.WW1/6 being copy of the order dated 29.11.2001 of the Court of the concerned Ld. Civil Judge, Delhi vide which the suit of the claimant/workman against the respondent/management in respect of the matter in issue in the instant I.D. No. 101/09 Page 27 out of 73 statement of claim has been dismissed as withdrawn on his part on the statement of the applicant before the concerned court in respect of his suit against the respondent/management given in this regard.
It is seen from the record that the management has led the evidence of MW1 Sh. P.N. Joshi alleged (HR) Manager of the management who has tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents already exhibited in the cross examination of the claimant viz. Exts.WW1/M1 to WW1/M12 (Colly), on record. It is seen from the record that vide his affidavit by way of evidence this witness has deposed to the effect that the claimant joined the services of the management on 29.03.1988 on the post of a storekeeper. He was duly issued appointment letter dated 25.03.1988; that he was subsequently promoted as an Assistant Officer in GradeV w.e.f. 01.10.1994 and his salary was revised vide letter dated 12.09.1995; that he was granted an increase in his salary and allowances w.e.f. 01.10.1996; that in recognition of the claimant's good performance, the management was pleased to promote him as an officer in Grade 6 and revise his basic salary and allowances w.e.f. 01.10.1997 vide letter dated 03.11.1997; that in the following year in recognition of his good performance, the management was pleased to sanction him a special increment and to revise his salary and allowance vide letter dated 27.10.1998; that further on 11.10.1999 the I.D. No. 101/09 Page 28 out of 73 management in recognition of the claimant's good performance was pleased to promote the claimant as Senior Stores Officer in Grade 7 and revise his salary and allowances effective 01.10.1999; that the claimant continued to work as a Senior Stores Officer and his last drawn monthly salary was Rs. 8,748/ ; that as a Senior Stores Officer, he was the senior most person posted in the Stores Department; that he was the head of the department and had the overall charge and responsibility of the entire working in the Stores; that amongst the various responsibilities entrusted and duties performed by him, he used to ensure that all vehicles received at the workshop for repairs, maintenance and other jobs were provided with complete spare parts; that he was therefore, required to ensure that there was no shortage of any part whatsoever at the workshop and that no vehicle be permitted to leave the workshop for the reason that the Stores Department was unable to provide necessary spare parts for the said vehicle; that hence he had independent authority to arrange spare parts from various sources in the market place; that in pursuance to his duties, the claimant was reporting to the Works Manager; that in the absence of the Works Manager, he used to report to the Chief Executive of the company; that based upon the inputs provided by the claimant, the company used to place orders on their principals i.e. M/s Daewoo Motors India Ltd.; that this activity was I.D. No. 101/09 Page 29 out of 73 his complete independent responsibility since the entire Stores Department which has materials worth several lakhs of rupees lying at any point of time was under his entire supervision and control; that admittedly he was the senior most person in the Stores Department; that in the event the Principals were not in a position to provide parts to their establishment, the claimant was duly authorized by the company to make purchases from the open market, so that the customers of the company are not affected due to the nonavailability of the parts; that in order to facilitate the claimant to discharge his duties, there were three Supervisors working under his direct supervision and control namely S/Sh. Mukesh Jain, Makan Singh and S.K. Panwar and further two helpers were also working under his direct supervision and control namely S/Sh. Surender Kumar and Neem Bahadur; that accordingly the leaves of all such staff, recommendation for their increments/promotion, was all effected based upon the report of the claimant to the Works Manager and the Chief Executive Officer; that the claimant was also entrusted with the task of giving instructions to the accounts department for preparing cheques to be issued to different parties from whom the company purchased parts, lubricants and other materials stocked in the Stores Department; that the claimant operated independently as the company used to purchase goods, materials, stores and equipment worth lakhs I.D. No. 101/09 Page 30 out of 73 of rupees on a regular basis; that the parties used to collect their cheques directly from the claimant and not from the Accounts Department; that hence, the claimant held a very responsible position in the company and was performing supervisory, administrative and managerial functions as a Senior Stores Officer being the head of the Stores Department; that in view of business exigencies and keeping in view the administrative and financial constraints of the company, whereat it was decided to downsize the company's operations, the management was left with no other alternative but to discharge the claimant from their services in terms of Clause 11 of the Contract of Employment dated March 25, 1988 vide Ex.WW1/1 and hence the claimant was discharged from services of the management vide letter dated 17.04.2001, Ex.WW1/5; that on that occasion, the claimant was also tendered one month's salary in lieu of notice; that further he was advised to visit the establishment and to settle all his dues in full and final; that the management by way of abundant precaution, at the time of severance of employeremployee relationship, tendered compensation of fifteen days salary for every completed year of service; that the said offer of payment was made as a special case, without constituting a precedent; that assuming for argument sake, the contention of the claimant is that he was a workman, and that as a consequence thereof was eligible and entitled to receive the payment I.D. No. 101/09 Page 31 out of 73 of retrenchment compensation the said payment was duly offered to the claimant along with the letter of discharge; that keeping in view the bonafide action on the part of the management in offering the claimant compensation as the requirement of the Industrial Disputes Act, 1947, the claimant has no valid legal claim or dispute whatsoever against the management; that the claimant is barred in law to raise the present industrial dispute since the law is well settled in as much as the person who approaches a forum for redressal cannot elect any other mode of remedy for resolution of his claims on the doctrine of election of remedy; that admittedly, the claimant had earlier filed a civil suit for grant of declaration, mandatory and permanent injunction; that due to business exigencies including recession in the automobile market and keeping in view the administrative and financial constraints of the company, the management had decided to downsize the operations; that it was in such circumstances that the management was compelled to invoke clause 11 of the Contract of Employment and to discharge the claimant from their services w.e.f. 17.04.2001 on tendering to him all his dues in full and final settlement including by way of abundant precaution, retrenchment compensation as computed as per Industrial Disputes Act, 1947; that the claimant is covered by section 30 of the Delhi Shops & Establishment Act, 1954, which is applicable to the facts and I.D. No. 101/09 Page 32 out of 73 circumstances of this case; that the letter of discharge dated 17.04.2001, was personally handed over to the claimant by the deponent; that however, as the claimant refused to receive the same, it was sent under registered post at the last available address of the claimant, which was duly received by him; that thereafter the claimant served the management with a demand notice and on receipt of the same, the management duly replied vide their letter dated 17.04.2003; that the claimant continues to be gainfully employed and that he is engaged in various economic activities including operating contract buses on the route between Uttam Nagar and ISBT; that the claimant, while in the employment used to do the Performance Review for various subordinates including that of Sh. Tajesh Kumar for the period 15.12.1999 to 31.03.2000; that the Performance Review Form of the claimant for the period 01.10.1999 to 30.09.2000 is Ex.WW1/M10; that the working conditions of workmen and supervisory/managerial staff in their establishment are distinct and different; that to illustrate, the supervisory, administrative and managerial personnel had the entitlement of 24 days earned leave and 12 days casual leave but the workmen were eligible to 18 days earned leave and 7 days causal leave.
This witness has been cross examined on behalf of the workman in management evidence, in which he has deposed that he I.D. No. 101/09 Page 33 out of 73 did not know as to whether the claimant was paid his salary for the period 01.04.2001 to 17.04.2001; that the monthly salary earned by the claimant was about Rs. 8,800/; that it was wrong to suggest that the claimant was not paid compensation at the rate of 15 days salary for every completed year of service as mentioned in Ex.WW1/5, the payment of compensation was paid by cheque; that clause 11 is mentioned in the appointment letter Ex.WW1/1; that the claimant had not committed any misconduct, the reason to discharge from service is stated in Ex.WW1/5; that it was correct that due to paucity of work in the establishment as also due to severe financial problems faced by the management the services of the claimant were discharged vide Ex. WW1/5; that no twenty one days notice was served on the claimant prior to the discharge of his services; that it was correct that the services of the claimant were found satisfactory by the management; that Sh. Suresh Pawar who was junior to the claimant continuous to be in the employment of the management; that during the time the claimant was in the services of the management he did not commit any fraud or embezzlement or any other misconduct; that he did not know the total number of employees working in the establishment; that he cannot say whether there are more than 100 employees working in the establishment; that he cannot say as to whether or not the work in the establishment has increased; that the claimant did not I.D. No. 101/09 Page 34 out of 73 have the powers to issue chargesheets, notices, appointment letters, termination letter and marking attendance Vol that the claimant used to recommend to the Chief Executive Officer with regard to the grant of increments, promotions, disciplinary action, appointments and other administrative actions to be taken by the management; that he had recommended for promotion and increment persons mentioned in paragraph 7 of his affidavit; that these recommendations were made by the claimant verbally and not in writing; that it was wrong to suggest that he was deposing falsely in this regard; that it was wrong to suggest that his affidavit is false; that it was wrong to suggest that the claimant has been victimized by the management or that his services were taken on regular basis only to give evidence before this court; that it was also denied that his affidavit was not based on the facts of the case; that the management had not given any letter to him to appear before the Court and adduce evidence on its behalf that day.
It is seen from the record that Ex.WW1/M1 is the copy of the personal data form submitted by the workman with the management at the time of applying for his alleged employment with it, Ex.WW1/M2 being his application to the management for the post of Store Keeper with it, Ex.WW1/M3 being the joining report dated 29.03.1988 of the workman with the management on the post of Store Keeper with it, Ex.WW1/M4 being letter dated 22.10.1994 of the I.D. No. 101/09 Page 35 out of 73 management to the workman promoting him as Assistant Officer in Grade V with basic salary of Rs. 2,015/ per month w.e.f. 01.10.1994, Ex.WW1/M5 being letter dated 12.09.1995 of the management to the workman revising his basic salary upwards to be Rs.2,150/ per month w.e.f. 01.10.1995 along with other allowances as mentioned therein, Ex.WW1/M6 being letter dated 30.10.1996 of the management to the workman increasing his salary and allowances as mentioned therein w.e.f. 01.10.1996, Ex.WW1/M7 being letter dated 27.10.1998 of the management to the workman in respect of the sanctioning of a special increment and revision of his salary and allowances on the part of the management as mentioned therein w.e.f. 01.10.1998, Ex.WW1/M8 being a letter of the workman to the management qua his request for full and final settlement in his respect, Ex.WW1/M9 being copy of an alleged Performance Review Form of one Sh. Tajesh Kumar alleged casual worker of the management in which the claimant is alleged to have recommended for his confirmation vide his signatures at point A thereon, Ex.WW1/M10 being the Performance Review Form of the management in respect of the claimant, Ex.WW1/M11 being the Leave Record of the workman with the management for the year 1999, Mark Z1 is alleged leave record of the workman with the management for the year 2000, Ex.WW1/M12 (Colly) being the I.D. No. 101/09 Page 36 out of 73 copy of the plaint filed by the workman against the management before the Ld.Civil Judge, Delhi and the notice issued by the Civil Court as also the reply of the management in the said case.
It is seen from the record that it is the case of the management that the workman who was initially appointed with the management on the post of Store Keeper vide his appointment letter, dated 25.03.1988 (Ex.WW1/1) by virtue of various promotions given to him as Assistant Officer in Grade V vide letter dated 22.10.1994, Ex.WW1/2 and then Officer in Grade VI with consequent increase in his basic pay and the allowances to which he was entitled vide letter dated 03.11.1997, Ex.WW1/3 and then as Sr. Stores Officer in Grade VII with consequent revision/increase in his basic salary and the allowances like HRA and conveyance to which he is allegedly entitled vide letter dated 11.10.1999, Ex.WW1/4 along with letters Exts. WW1/M4 to WW1/M7 in respect of the workman, on the relevant date of the termination of his services on the part of the management vide termination letter dated 17.04.2001, Ex.WW1/5 was not a workman since his designation was Senior Stores Officer with the management and who admittedly was the senior most employee working in the Stores Department of the management with persons employed under him viz. S/Sh. Mukesh Jain, Makhan Singh, S.K. Panwar, allegedly supervisors along with two helpers namely I.D. No. 101/09 Page 37 out of 73 S/Sh. Surender Kumar and Neem Bahadur. It is seen from the record that it is further the case of the management by way of affidavit by way of evidence of MW1 Sh. P.N. Joshi, (HR) Manager of the management that by virtue of the claimant allegedly placing orders worth lakhs of rupees in respect of procurement of spare parts for the purpose of stocking and utilization in the Stores Department of the management upon M/s Daewoo Motors was holding very responsible position as Senior Stores Officer admittedly being the senior most employee of the management in the Stores Department. It is further seen from the record that by way of Ex.WW1/M9 which is the performance review form of one Sh. Tajesh Kumar an alleged casual worker of the management in the stores department of the management, it is the case of the management that by virtue of the claimant having recommended for the said casual worker to be confirmed in service with the management vide his signatures as admitted by the claimant at point A thereon, the workman used to make recommendation to the management in respect of important decisions like confirmation/retainment of the casual employees in service with the management apart from the allegation that the claimant used to sanction leaves of the aforesaid supervisors/helpers allegedly working under him as also recommend disciplinary action against the workmen in the stores department as is evident from I.D. No. 101/09 Page 38 out of 73 suggestions put on behalf of the management to the claimant in his cross examination on behalf of the management as WW1 in workman evidence. It is further the case on behalf of the management that the claimant was allegedly receiving certain entitlements like 12 casual leaves, 7 sick leaves and 30 earned leaves in a year and other allowances which are not eligible to be given to the workmen and accordingly the claimant being the senior most employee of the management in the stores department having three alleged supervisors namely S/Sh. Mukesh Jain, Makan Singh, S.K. Panwar working under him along with two other helpers namely S/Sh. Surender Kumar and Neem Bahadur working under him was exercising the duties of a supervisory nature and as also by virtue of placing orders in lakhs of rupees in respect of procurement of vehicle spare parts from M/s Daewoo Motors for the purpose of stocking and utilization in the stores department of the management was holding a responsible position taking him out from the definition of a workman as defined u/s 2 (s) of the Industrial Disputes Act, 1947 as also admittedly his remuneration was over and above the amount as fixed in respect of a supervisor in the same.
It is further seen from the record that the workman on the other hand has alleged that even though he was holding the appointment of a Senior Stores Officer with the management at the I.D. No. 101/09 Page 39 out of 73 relevant time i.e. the date of his alleged termination of services on the part of the management viz.17.04.2001, however, he was not having any administrative power to recommend any disciplinary action against the employees of the management also employed in the stores department allegedly under him viz. S/Sh. Mukesh Jain, Makan Singh, S.K. Panwar with the alleged nomenclature of supervisors along with two other helpers on need basis namely S/Sh. Surinder Kumar and Neem Bahadur and nor he was marking their attendance and nor sanctioning leaves in their respect and thus it cannot be said that he was holding any supervisory position over the said employees or doing the duties of a supervisor qua the said employees with the management. It is the case of the workman that he was doing the duties in the nature of a clerk/clerical nature of job and that he was placing orders on behalf of the management and even though designated as an officer/senior officer in the Stores Department of the management with alleged promotions w.e.f. the date of his initial employment with the management as a Store Keeper till the date of termination of his services with the management as a Senior Stores Officer which were basically promotions increasing his basic salary as also his allowances like HRA and conveyance with the passage of time and on account of his performance as mentioned in the relevant letters of promotions of the management in his respect as above said, I.D. No. 101/09 Page 40 out of 73 on record, with no change in the nature of his duties since even though he had been allegedly placing orders of lakhs of rupees for procurement of spare parts of vehicles for the purpose of stocking and utilization in the Stores Department of the management from its fixed principal supplier one M/s Daewoo Motors, he had no powers to purchase the same from the open market in case the same were not available with the fixed principal supplier of the management in this regard viz. M/s Daewoo Motors as abovesaid which responsibility/power was only with the Works Manager of the management and not with him.
With the above said respective contentions of the parties, this Court hereby embarks upon the scrutiny of the evidence brought, on record by the parties in respect of their submissions on the issue Whether claimant is a workman within the meaning of Sec.2(s) of the I.D. Act?
It is seen from the record that it has been deposed by the workman by way of his affidavit by way of evidence Ex.WW1/A that he was initially employed as Store Keeper with the management w.e.f. 29.03.1988 vide appointment letter dated 25.03.1988, Ex.WW1/1; that while promoting him on 01.01.1992 his designation was changed as Supervisor in Store and his duty was added for collection of spare parts from principal company i.e. M/s Daewoo I.D. No. 101/09 Page 41 out of 73 Motors but in practice he had been performing his duties in a clerical nature of job; that again he was promoted on 22.10.1994 as Assistant Officer in Grade V but his duties remained unchanged; that again the designation was changed as Officer in Grade VI vide letter dated 03.11.1997 Ex.WW1/3 but his duties remained the same; that again the designation was changed vide order of the management dated 11.10.1999 as Senior Stores Officer in Grade VII; that he had no authority to recruit or maintaining the discipline or marking attendance and supervising the work of others but his work was supervised by the Works Manager in Stores; that he had been maintaining the store in a clerical nature of job w.e.f. the date of his initial employment i.e. 29.03.1988 till the date of termination of his services by the management.
In cross examination of the claimant, he has deposed that even though there was change in his designation from Store Keeper to that of supervisor in the Stores Department or as Assistant Officer in Grade V, then as Officer in Grade VI and then as a Senior Stores Officer with consequent revision of his salary vide relevant exhibits filed by him as also the management in this regard, on record, he used to report to the Works Manager at the Workshop; that in the absence of the Works Manager he used to report to the Finance Manager or I.D. No. 101/09 Page 42 out of 73 Personnel Manager; that it was wrong to suggest that in the absence of the Works Manager, he used to report to the Chief Executive Officer who was incharge of the entire workshop/unit; that it was correct that he was the senior most person working in the Stores Department of the Workshop; that the management used to decide as to the parties to be dealt with but the workman used to ensure that the lubricants and all other materials, required in the workshop were obtained either from the principals, vendors or open markets based on the requirements of the workshop; that it was correct that it was the responsibility of the workman to ensure that there was no shortage of any part or material whatsoever at the workshop and for this purpose the workman used to physically count the items available; that it was correct that the workman was also responsible to ensure that there was no shortage of any part or material at the workshop so that as a consequence thereof no vehicle be permitted to leave the workshop for the reason that the Stores Department was unable to provide necessary spare parts etc. to the said vehicle; that it was correct that on behalf of the company he used to place orders for materials, spare parts and the like running into lacs of rupees such as orders on M/s Daewoo Motors India; that Works Manager used to procure material from the market in the event the parts spares etc. was not available from Daewoo Motors; that it was wrong to suggest that it was his I.D. No. 101/09 Page 43 out of 73 duty and responsibility to procure such materials from the market dealers etc; that it was wrong to suggest that he was deposing falsely that it was the Works Manager who used to procure materials spares etc. when not available from the principals; that the document marked A was not signed by him and as such he cannot comment as to its authenticity; that he cannot say as to whether mark A was his performance review form for the year 19992000; that it was on his performance that determines his promotion and increment in the workshop; that he had joined the services of the management in March 1988 at that time the specific duties performed by him were to receive the material at the workshop to unpack the material and then to place it in the respective bins for use subsequent; that this was the only job and duty performed by him then; that the duties performed by him till he was discharged from services in April, 2001, there was no change whatsoever in duties performed by him during his entire tenure in the services of the company, he continued to perform the same duties without any change whatsoever during the entire period of service; that it was correct that while he was working in the Store Department S/Sh. Mukesh Jain, Makan Singh and S.K. Panwar were working as supervisors; that there were two other helpers working on need base basis namely Mr. Surinder Kumar and Neem Bahadur; that it was incorrect to suggest that the leave of the aforesaid I.D. No. 101/09 Page 44 out of 73 supervisors/helpers etc. was sanctioned by him; that their leave was sanctioned by Col. Choudhary, Works Manager; that he had absolutely no role to play with regard to their increments, promotions and the like; that it was wrong to suggest that he had on several occasion recommended disciplinary action against the workmen in the stores department; that it was correct that he was entrusted with the task of making request to the Accounts Department for preparation of cheques to be issued to different parties who supply their company with parts, lubricants and other materials that are stocked in the Stores Department; that it was correct that the materials so supplied to their Stores Department was valued at several lakhs of rupees; that it was correct that he was the senior most employee working in the Stores Department; that the performance review form of Sh. Tajesh Kumar for the period 15.12.1999 to 31.03.2000 bears his signatures at point Mark A; that same is exhibited as Ex.WW1/M9; that it was correct that Ex.WW1/M10 is the performance review form of his for the period of 01.10.1999 to 30.09.2000; that it was incorrect to suggest that he had put his signatures on the performance review forms of other employees working in his department; that it was correct that Ex.WW1/M11 was his leave record for the year 1999; that he could not say whether the document Mark Z1 was his leave record for the year 2000. Vol.
I.D. No. 101/09 Page 45 out of 73 the copy of the same was not made available to him, hence, he cannot comment on it; that he had never asked for a copy of the same; that it was correct that prior to coming to this court, he had filed a civil case against the management; that copy of the plaint and the notice issued by the Civil Court as also the reply of the management in the said case are Ex.WW1/M12 (collectively); that he cannot say off hand as to what was his last drawn salary at the time of his alleged termination however it was around Rs. 8000/ and odd; that he cannot admit or deny without seeing the records that his salary was Rs. 8748/ after deduction at that time; that it was correct that his revised salary was mentioned in his promotion letter dated 11.10.1999 Ex.WW1/4; that it was correct that he was also getting allowance towards children education which is not reflected in the records; that it was also correct that he was also getting reimbursements towards telephones, books and periodicals, electricity, gas and water, scooter maintenance, leave travel assistance and medical reimbursement; that it was incorrect to suggest these above mentioned reimbursements were not paid to workman employees; that he cannot produce any documentary evidence to show that these reimbursements were paid to the workman employees as well. Vol. the documents are in the power and possession of the management; that he had only followed up the payments of a party at the time of placing further order upon I.D. No. 101/09 Page 46 out of 73 the said party by the management so that the delivery of the materials can be made; that it was correct that S/Sh. Mukesh Jain, Makan Singh, S.K. Panwar, Vijay Chopra were all working in the Stores Department; that it was correct that his leave entitlement was casual leave 12, sick leaves 7 and earned leaves 30 in a year; that he did not know as to what the leave entitlement was that of the workman in the establishment. Vol. the leave rules are not being made known to all the employees so far as their entitlements are concerned; that he had not asked in writing from the management with respect to his leave entitlement. Vol. on the apprehension of loosing the job; that he did not know if in the year 1988 when he joined the services of the management, the management was in the hands of DCM Limited and that in the year 2001 it was managed by M/s Bhasin Motors India Pvt. Limited; that it was correct that he had withdrawn the civil suit filed by him against the management; that he is under graduate i.e. 12 pass; that he had not undergone any technical or other training; that he did not remember the years of his experience prior to joining the management; that his family consists of himself, his wife and two children one son and one daughter; that his children are unemployed, again said they are doing private work and not in any company; that his children are unmarried and are living with him; that his household expenses are being met out by the earnings of his children and his I.D. No. 101/09 Page 47 out of 73 wife and his in laws also help him; that his monthly expenses are around Rs. 4,000/ to 4,500/ per month. Vol. he owned his own house; that it was incorrect to suggest that he was operating contract buses on the route between Uttam Nagar and I.S. B.T. It is further seen from the record that MW1 Sh. P.N. Joshi Manager (HR) of the management has deposed in his cross examination on behalf of the workman in management evidence that he did not know as to whether the claimant was paid his salary for the period 01.04.2001 to 17.04.2001; that the monthly salary earned by the claimant was about Rs. 8,800/; that it was wrong to suggest that the claimant was not paid compensation at the rate of 15 days salary for every completed year of service as mentioned in Ex.WW1/5 the payment of compensation was paid by cheque; that clause 11 is mentioned in the appointment letter Ex.WW1/1; that the claimant had not committed any misconduct, the reason to discharge from service is stated in Ex.WW1/5; that it was correct that due to paucity of work in the establishment as also due to severe financial problems faced by the management the services of the claimant were discharged vide Ex. WW1/5; that no twenty one days notice was served on the claimant prior to the discharge of his services; that it was correct that the services of the claimant were found satisfactory by the management; that Sh. Suresh Pawar who was junior to the claimant continuous to I.D. No. 101/09 Page 48 out of 73 be in the employment of the management; that during the time the claimant was in the services of the management he did not commit any fraud or embezzlement or any other misconduct; that he did not know the total number of employees working in the establishment; that he cannot say whether there are more than 100 employees working in the establishment; that he cannot say as to whether or not the work in the establishment has increased; that the claimant did not have the powers to issue chargesheets, notices, appointment letters, termination letter and marking attendance Vol that the claimant used to recommend to the Chief Executive Officer with regard to the grant of increments, promotions, disciplinary action, appointments and other administrative actions to be taken by the management; that he had recommended for promotion and increment persons mentioned in paragraph 7 of his affidavit; that these recommendations were made by the claimant verbally and not in writing; that it was wrong to suggest that he was deposing falsely in this regard; that it was wrong to suggest that his affidavit is false; that it was wrong to suggest that the claimant has been victimized by the management or that his services were taken on regular basis only to give evidence before this court; that it was also denied that his affidavit was not based on the facts of the case; that the management had not given any letter to him to appear before the Court and adduce evidence on its behalf that day.
I.D. No. 101/09 Page 49 out of 73 It is thus seen from the record that it has been admitted by the MW1 Sh. P.N. Joshi alleged Manager (HR) of the management that the claimant had no power to issue chargesheets, notices, appointment letters, termination letter as also marking attendance of any employee working under him which are duties in the nature of supervisory/managerial or administrative work/function. It is further seen from the record that though it has been alleged that the claimant used to recommend to the management with regard to the grant of increments, promotions, disciplinary action, appointments and other administrative actions to be taken by the management, however, no such evidence has been produced by the management in this regard, on record.
I further find that the workman has alleged that his duties were clerical in nature with no supervisory/administrative and managerial work in the nature of marking attendance of the employees allegedly working under him or initiating/recommending disciplinary action against them or granting leave to them or even supervising their work to the extent of even marking their attendance to which there has been no effective rebuttal on the part of the management either in the cross examination of the workman as WW1 in workman evidence or even in its management evidence by way of the testimony of the MW1 in management evidence, on record, who I.D. No. 101/09 Page 50 out of 73 on the contrary, as abovesaid, admitted in his cross examination on behalf of the workman as MW1 in management evidence that the claimant did not have the powers to issue chargesheets, notices, appointment letters, termination letter and marking attendance of the employees (emphasis supplied).
I further find that much stress has been laid by the management on the claimant allegedly placing orders worth lakhs of rupees upon M/s Daewoo Motors India the principal supplier in respect of materials/spare parts etc. to be stocked in the Stores Department of the management for the purpose of utilization and disposal in his capacity as Senior Stores Officer in the Stores Department of the management, however, it is seen from a perusal of para 5 of the affidavit by way of evidence of the MW1 Sh. Pitamber Nath Joshi, alleged HR Manager of the management, Ex.MW1/A that it has been deposed "based upon the inputs provided by the claimant, the Company used to place orders on their "Principals" i.e. M/s Daewoo Motors India Ltd. This activity was his complete independent responsibility since the entire Stores Department which have materials worth several lakhs of rupees lying at any point of time was under his entire supervision and control" and accordingly it is found that the workman was merely following orders of the management in the matter of procurement of materials/spare parts I.D. No. 101/09 Page 51 out of 73 from the principal supplier viz. M/s Daewoo Motors India Ltd. for the purpose of stocking and utilization in the Stores Department of the management in which he had been designated as the Senior Stores Officer by the management at the relevant time and thus was performing clerical nature of job as alleged by him. It is further seen from the record that no evidence has been brought on record by the management in support of its allegation that in the absence of the principal supplier viz. M/s Daewoo Motors India Ltd., as abovesaid, being not in a position to supply parts/spare parts to the management the claimant was duly authorized/used to make purchases in this respect from the open market as alleged by it vide para 6 of its affidavit by way of evidence Ex.MW1/A which allegation of the management has been duly denied by the claimant in his cross examination as WW1 in workman evidence or even in rebuttal of the allegation of the claimant that in the event of the principals viz. M/s Daewoo Motors India Ltd. being not in a position to supply the required materials/parts to the management, it was the Works Manger and not he who used to procure material from the open market, in order for the said activity to be said to be exercise of independent judgment on the part of the workman so as to distinguish his work from that of a clerical nature as alleged by the claimant to that of a supervisor.
I.D. No. 101/09 Page 52 out of 73 Furthermore, admittedly, supervisory/managerial and/or administrative duties/powers are to be exercised in respect of men and not merely machines/materials.
I further find that though it has been alleged by the management that the claimant used to recommend to the management with regard to the grant of increments, promotions, disciplinary action, appointments and other administrative actions to be taken by the management in respect of the employees allegedly under him, however, no evidence to the said effect has been produced by the management in its evidence, on record, so much so in respect of the alleged recommendation of the workman qua the alleged casual employee Sh. Tajesh Kumar in the Stores Department vide his signatures at point A on alleged performance review form in his respect Ex.WW1/M9 which it is seen from the record also bears the signatures of another employee of the management as Departmental Head qua the said employee in respect of the alleged recommendation for confirmation of the said casual employee in service of the management on the same, it has not been shown/proved on record vide the said exhibit or any other document that the said alleged recommendation of the claimant qua the said employee has been acted upon by the management in order for the same to be said to be binding upon the management which is an essential prerequisite of I.D. No. 101/09 Page 53 out of 73 the alleged duty on the part of the claimant to be in the nature of supervisory/managerial or administrative as alleged. Vide citation AIR 1966 SC 305 All India Reserve Bank Employees Association and Anr. Appellants Vs. Reserve Bank of India and Anr. Respondents it has been held "The definition of workman in Sec.2(s), Industrial Disputes Act, 1947, as amended in 1956 includes inter alia an employee employed as a supervisor. There are only two circumstances in which such a person ceases to be a workman.
One is when he draws wages in excess of Rs.
500/ per month and the other is when he performs managerial functions by reason of a power vested in him or by the nature of duties attached to his office".
"The word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of the context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the I.D. No. 101/09 Page 54 out of 73 manual work of others."
" The question whether a particular workman is a supervisor within or without the definition of workman is ultimately one of fact, at best one of mixed fact and law. The question is really depend upon the nature of the industry the type of work in which he is engaged the organisational set up of the particular unit of industry and like factor. The work in a Bank involves layer upon layer of checkers and checking is hardly supervision. Where however, there is a power of assigning duties and distribution of work there is supervision. Mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision. The work done in the audit department of a bank is not supervision. 19611 Lab LJ 18(SC) Ref. to"
Irrespective of the wages paid, the test to determine whether a person is a workman or not is laid down by the Hon'ble Supreme Court in Arkal Govind Raj Rao Vs. Ciba Giegy of India Ltd., Bombay, reported in 87 Bom. L.R. at page 344 (AIR 1985 SC I.D. No. 101/09 Page 55 out of 73
985). The Supreme Court has held "Whether a particular employee is a workman within the meaning of the expression as defined in S.2 (s) of the Industrial Disputes Act, 1947 or a person employed in a supervisory capacity the test that one must employ is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth. The definition of the expression workman clearly shows that the person concerned would not cease to be a workman if he performs some supervisory duties but he must be a person who must be engaged in a supervisory capacity."
It has further been held in the same " 7. Where an employee has multifurious duties and a question is raised whether he is a workman I.D. No. 101/09 Page 56 out of 73 or some one other than a workman, the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person."
It has been held vide citation 2001 LLR 1083 Supreme Court of India; Hussan Mithu Mhasvadkar Vs. Bombay Iron & Steel Labour Board "10. No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him."
I.D. No. 101/09 Page 57 out of 73 Similarly, it has been held vide citation 2004 LLR 108 Bombay High Court Tanojkumar B.Chatterjee Vs. Solapur Municipal Corporation "5.Now, it is well settled in this branch of law, as in many others, that designations are not dispositive the court has to have due regard to the real nature of the duties and functions. In so far as supervisor is concerned, he or she is one who can bind the employer by taking some kind of decision on his behalf. National Engineering Industries Ltd. Vs. Shri Kishan Bhageria, AIR 1988 SC 329: 1988 Lab IC 384. A supervisor is one who has authority over others to superintend and direct. A supervisor may possess the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them or to adjust their grievances or effectively to recommend such action. The work of a supervisor is distinguished from work which is of a clerical nature by the exercise of I.D. No. 101/09 Page 58 out of 73 independent judgment. The decision of the Supreme Court as well as of this court have been considered in a judgment of Mr. Justice Rebello, speaking for this Court, in Union Carbide (I) Ltd. Vs. Samuel, (1998) 2 Cur LR 736; 1999 LLR
21. In the Bombay Dyeing and Manufacturing Company Ltd. Vs. R.A. Bidoo, 1989 (2) Cur 248:
1990 Lab IC 116. Division Bench of this Court held that a supervisor is an overseer. A person can be said to be a supervisor if there are persons working under him over whose work he has to keep a watch. A supervisor is empowered to take corrective steps if a subordinate errs in work assigned to him."
Thus, in view of the law as laid down by the Hon'ble Supreme Court of India and the Hon'ble High Courts in respect to the determination as to whether the claimant comes within the definition of workman as provided under Section 2(s) of the Industrial Disputes Act 1947 or not vide the above quoted citations as also in view of my findings as above, I find that the claimant has been able to discharge the onus which was upon him to prove the instant issue viz. whether I.D. No. 101/09 Page 59 out of 73 he is a workman as defined under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 by way of his testimony in workman evidence as also in the cross examination of the MW1 in management evidence and the management has not been able to bring any material, on record, in rebuttal of the arrival of such a finding on the part of this Court in respect of the instant issue, on record. The issue is accordingly, decided in favour of the workman and against the management.
Issue no.3 It is seen from the record that it is the case of the management that the services of the workman have been terminated purportedly under the provisions of clause 11 (c) of the appointment letter Ex.WW1/1 in respect of the workman which provides for termination of services of the workman/employee on the part of the management without assigning any reason after giving one month's notice or payment in lieu thereof. However, from a perusal of the termination letter dated 17.04.2001 issued in respect of the workman on the part of the management Ex.WW1/5, reasons viz. "due to business exigencies and keeping in view administrative and financial constraints of the Company, it has been decided to downsize our operations. In the circumstances, we are left with no other option but to discharge you from the services of our Company I.D. No. 101/09 Page 60 out of 73 in terms of clause 11 of your contract of employment, with immediate effect i.e. 17th April, 2001. Hence, you are being paid alongwith this letter one month salary in lieu of Notice" have been mentioned which were not required to be given in case the termination was under the provisions of clause 11 (c) of the appointment letter Ex.WW1/1 simplicitor as alleged by the management. Further more vide the provisions of Section 25 (J) of the Industrial Disputes Act, 1947 (as amended upto date) it is provided/stipulated, 25J. Effect of Laws inconsistent with this Chapter. (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law [including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946)] :[Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable I.D. No. 101/09 Page 61 out of 73 to him then those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.] (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to layoff and retrenchment shall be determined in accordance with the provisions of this Chapter.] Thus, in view of the provisions of Section 25J of the I.D. Act, 1947 as also the contents of the termination letter dated 17.04.2001 of the management Ex.WW1/5, as abovesaid, it is held that the termination of the services of the workman on the part of the management cannot be read to be in terms of any contract of I.D. No. 101/09 Page 62 out of 73 employment between the parties but is, in fact, retrenchment of the services of the workman on the part of the management as defined under section 2 (oo) of the I.D. Act, 1947 (as amended upto date).
Admittedly, in view of the evidence, on record, the workman has worked for a period of 240 days in the year preceding the date of the alleged termination of his services on the part of the management viz. 17.04.2001 in the instant case under the provisions of section 25B of the I.D.Act,1947 by virtue of being in employment with the management w.e.f. the date of his appointment with it viz. 29.03.1988 till the date of his termination viz.17.04.01 i.e. a period of 13 years as admitted between the parties and thus is entitled to the protection of the provisions of Section 25F of the I.D.Act,1947 as on the date of his termination of services on the part of the management, as above said.
I further find no force in the contention on behalf of the management to the effect that by virtue of the following contents viz.
"Further, we are also tendering to you severance compensation at the rate of fifteen days for every completed years of service as a special case, without constituting a precedent. This payment along with your other dues may be collected from our office, on any working day during working hours" in the termination letter dated 17.04.2001 in respect of the termination of the services of the workman on the part of the management, provisions of Section 25 F I.D. No. 101/09 Page 63 out of 73 of the I.D. Act, 1947 (as amended upto date) have been complied with on the part of the management since it has been categorically held vide citation (2010) 5 Supreme Court Cases 497 Anoop Sharma, Appellant Vs. Executive Engineer, Public Health Division No.1, Panipat (Haryana), Respondent.
16. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in clauses (a) and (b) of Section 25F of the Act are satisfied. In terms of clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause
(b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen day's average pay for every completed year of continuous service or any part thereof in excess I.D. No. 101/09 Page 64 out of 73 of six months.
17. This Court has repeatedly held that Sections 25F (a) and (b) of the Act are mandatory and noncompliance therewith renders the retrenchment of an employee nullityState of Bombay vs. Hospital Mazdoor Sabha, Bombay Union of Journalists vs. State of Bombay, SBI v.
N. Sundara Money, Santosh Gupta vs. State Bank of Patiala, Mohan Lal vs. Bharat Electronics Ltd., L. Robert D' Souza vs. Southern Railway, Surendra Kumar Verma vs. Central Govt. Industrial TribunalcumLabour Court, Gammon India Ltd.vs. Niranjan Dass, Gurmail Singh vs. State of Punjab and Pramod Jha vs. State of Bihar.
18. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25F of the Act.
Sometimes it has been termed as ab initio void, I.D. No. 101/09 Page 65 out of 73 sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Sections 25F (a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated.
19. The question whether the offer to pay wages in lieu of one month's notice and retrenchment compensation in terms of clauses (a) and (b) of Section 25F must accompany the letter of termination of service by way of retrenchment or is it sufficient that the employer should make a tangible offer to pay the amount of wages and compensation to the workman before he is asked to go was considered in National Iron and I.D. No. 101/09 Page 66 out of 73 Steel Co. Ltd. V. State of West Bengal. The facts of that case were that the workman was given notice dated 15.11.1958 for termination of his service with effect from 17.11.1958. In the notice, it was mentioned that the workman would get one month's wages in lieu of notice and he was asked to collect his dues from the cash office on 20.11.1958 or thereafter during the working hours. The argument of the Additional Solicitor General that there was sufficient compliance with Section 25F was rejected by this Court by making the following observations: (AIR p.1210, para 9) "9. The third point raised by the Additional Solicitor General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or if it was shown that there was victimisation of the workman, etc. Learned counsel further argued that the Tribunal had gone wrong in holding that the I.D. No. 101/09 Page 67 out of 73 retrenchment was illegal as Section 25F of the Industrial Disputes Act had not been complied with. Under that section, a workman employed in any industry should not be retrenched until he had been given one month's notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lieu of such notice, wages for the period of the notice.
The notice in this case bears the date 15.11.1958. It is to the effect that the addressee's services were terminated with effect from 17th November and that he would get one month's wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on 20.11.1958 or thereafter during the working hours.
Manifestly, Section 25F had not been complied with under which it was I.D. No. 101/09 Page 68 out of 73 incumbent on the employer to pay the workman, the wages for the period of the notice in lieu of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with Section 25F, we need not consider the other points raised by the learned counsel."
20. In SBI v. N. Sundara Money the Court emphasised that the workman cannot be retrenched without payment, at the time of retrenchment, compensation computed in terms of Section 25F(b).
21. The legal position has been beautifully summed up in Pramod Jha v. State of Bihar in the following words: (SCC pp. 62425, para 10) "10.............The underlying object of Section 25F is twofold. Firstly, a retrenched employee must have one month's time available at his disposal to search for I.D. No. 101/09 Page 69 out of 73 alternate employment, and so, either he should be given one month's notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustenance to the worker for the period which may be spent in searching for another employment.
Section 25F nowhere speaks of the retrenchment compensation being paid or tendered to the worker along with one month's notice; on the contrary, clause (b) expressly provides for the payment of compensation being made at the time of I.D. No. 101/09 Page 70 out of 73 retrenchment and by implication it would be permissible to pay the same before retrenchment. Payment or tender of compensation after the time when the retrenchment has taken effect would vitiate the retrenchment and noncompliance with the mandatory provision which has a beneficial purpose and a public policy behind it would result in nullifying the retrenchment."
22. If the workman is retrenched by an oral order or communication or he is simply asked not to come for duty, the employer will be required to lead tangible and substantive evidence to prove compliance with clauses (a) and (b) of Section 25F of the Act."
In view of the above case law on the subject, I find mandatory provisions of Section 25 F of the I.D. Act 1947 (as amended upto date) have not been complied with on the part of the management qua the termination of the services of the workman as on the date of termination of his services on its part viz. 17.04.2001 I.D. No. 101/09 Page 71 out of 73 vide its letter of the said date Ex.WW1/5 in the instant case, on record and consequently the termination of the services of the workman on the part of the management as on the relevant date as above said is held to be illegal.
It is further seen from the record that vide testimony of MW1 Sh. P.N. Joshi Manager (HR) of the management in his cross examination on behalf of the workman in management evidence it has been admitted on his part that Mr. Suresh Panwar who was junior to the claimant continues to be in the employment of the management (emphasis supplied). In view of the above statement of the MW1 it is thus also seen that the management has not complied with the provisions of Section 25G in respect of the termination of the services of the workman vide Ex.WW1/5 on its part as on the date of his termination and that the principle of 'last come first go' as incorporated in the provisions of Section 25G of the I.D. Act, 1947 (as amended upto date) has been given the go by by the management in the case of the termination of the services of the workman on its part on the relevant date and on this account also the termination of the services of the workman on the part of the management vide Ex.WW1/5 on record is held to be illegal.
In view of the facts and circumstances of the case it is felt appropriate that the relief of reinstatement in service, however, along I.D. No. 101/09 Page 72 out of 73 with 50% of back wages and continuity of service be awarded to the workman against the management since it cannot be held that the workman has remained totally unemployed during the period w.e.f. the date of termination of his services on the part of the management till the date of passing of award as also it has not been proved on the part of the management that the workman had been gainfully employed during the period in question by leading of any cogent, admissible and relevant evidence in this regard, on record, except for leveling bald allegation that he was operating contract buses on the route between Uttam Nagar and I.S.B.T., which allegation I find from the record has been duly denied by the workman and has nowhere been proved, on record, either in the cross examination of the workman in workman evidence or in the evidence of the MW1 led by the management in its management evidence, on record.
Reference is answered accordingly and the Award is passed. The Ahlmad is directed to send the six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in open Court on (CHANDRA GUPTA)
31.05.2012 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
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