Delhi District Court
Dr. Anil Kumar Jain vs Shri Ram Institute For Industrial ... on 22 April, 2014
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR No. 845/2011
Unique Case ID No. 02402C0 351402006
Dr. Anil Kumar Jain
S/o Shri Ajit Parshad Jain
58, Suraj Nagar, Azadpur
Delhi - 110 033 ..............................Workman
Versus
Shri Ram Institute for Industrial Research
19, University Road,
Delhi - 110 007 .......................MANAGEMENT
Date of institution of the case : 13.7.2006
Date for which Award reserved : 11.3.2014
Date of passing the award : 22.4.2014
Ref No. F.24 (170)/06/Lab/139498 dated 10.7.2006
A W A R D :
Having satisfied regarding existence of an industrial dispute
between the parties, the Dy. Labour Commissioner, Government of NCT of
Delhi in exercise of powers conferred by section 10(1)(c) and 12 (5) of the
Industrial Disputes Act, 1947 (hereinafter referred as 'Act') with Labour
LIR No. 845/2011 1 of 12
Department Notification No. S11011/2/75/DK (IA) dated 14.4.1975 referred the
present dispute to this Labour Court for adjudication with the following terms
of reference:
"Whether Dr. Anil Kumar Jain S/o Shri Ajit
Parshad Jain holding post of Scientist (SARC)
fall under definition of workman as defined in
the Section 2(s) of the Industrial Disputes Act,
1947 and if so, whether his services have been
terminated by the management illegally and/or
unjustifiably and if so, to what sum of money
as monetary relief along with other
consequential benefits in terms of existing
Law/Govt. Notifications and to what other
relief is he entitled and what directions are
necessary in this respect?"
2. Notice of the reference was sent to the workman who appeared
and filed the claim against the management claiming that he joined the
management w.e.f. 22.8.1988 and was confirmed in services on 22.8.1990
as Assistant Trainee (Technical) after undergoing training for two years
and had a clean service record. He submitted that he was promoted as
Research Assistant w.e.f. 01.6.1994 and was further promoted as Scientist
w.e.f. 15.2.2001. He alleged that on 20.2.2002 when he reported for duty,
he was directed verbally by Shri VK Verma - Dy. Director to report for
duty in Material Science Division and he complied with the said order. He
further alleged that on the same day, Shri RK Khandal - Director
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informed him to wait after duty hours outside the chamber of Dr. KM
Chako - Dy. Director (QAD). He further alleged that after waiting for 2½
hours, he was called by Dr. KM Chako where in the presence of Shri
Sanjay Bansal - Sr. Manager and Shri Samarjeet Chakraverti, he was
asked to tender his resignation and on his refusal, he was insulted,
humiliated and mentally tortured. He further alleged that on the same day,
at about 9.45 PM he tendered his resignation through fax. He further
submitted that on 26.2.2002 he submitted a detailed representation before
the Vice Chairman vide which he also withdrew his resignation but
instead of considering the same, the management terminated his services
vide order dt. 04.3.2002 and also withheld his salary for the month of
February 2002. He submitted that he filed a civil suit No. 276/2002 which
was dismissed on 25.1.2005 due to nonmaintainability and an appeal filed
subsequent thereto, was also dismissed. Hence, through the present claim
the workman has prayed for his reinstatement in service with full back
wages and continuity of service alongwith other consequential benefits.
3. The management appeared and opposed the claim by filing
WS wherein all the allegations were refuted specifically and categorically.
It was submitted on behalf of the management that the claimant is not
covered within the definition of workman under Section 2(s) of the ID Act
being a Scientist (SARC) and he was performing managerial,
LIR No. 845/2011 3 of 12
administrative and supervisory duties and was drawing monthly salary @
Rs.13,869/.
4. The claimant filed a rejoinder denying the allegations made by
the management and reinstating the pleas taken by him in his claim. From
the pleadings of the parties, following Issues were framed on 27.7.2010 :
1. Whether the claimant is a workman within
the meaning of Section 2(s) of the ID Act?
OPW
2. As per terms of reference. (OPW)
3. Relief.
5. The workman examined himself as WW1 and closed the
evidence. The management examined Dr. KM Chacko - Joint Director
(QAD) as MW1 and closed its evidence.
6. I have heard Shri Sunil Mittal - Ld. AR for the claimant and
Shri BK Mishra - Ld. AR for the Management and have carefully gone
through the records. My issuewise findings are as under :
ISSUE No. 1 :
7. The onus to prove this issue was upon the claimant. He has
admitted in his crossexamination that he was qualified as M.Tech , PhD
meaning thereby that he was a highly qualified person . Admittedly, he last
LIR No. 845/2011 4 of 12
worked as Scientist (Research Project) and was later on transferred as
Scientist (SARC). He also deposed in his crossexamination that he used
to do research work based on his studies, intellect and experience and try
to innovate some new product/new development. In his letter dt. 26.2.2002
Ex.MW1/W1, he stated that there are 9 Patents in his name.
8. In his crossexamination he denied performing any
supervisory duties or recommending ACR of any employee but was
confronted with his deposition recorded in the civil suit filed by him
Ex.WW1/M1, wherein he deposed that "It is correct that annual
confidential report of the staff is submitted in the Institute. ACR is given
by a superior officer of the staff concerned. I also use to give ACRs of the
subordinate staff. ACRs Ex.PW1/D12 to D25 are some of the ACRs given
by me as reporting officer of the staff members concerned. It is correct
that my duties were supervisory in nature". However, in the cross
examination recorded in the present proceedings, he resiled from the said
deposition and deposed that he did not use to write ACRs of subordinate
staff.
9. He further deposed in the crossexamination that he was
holding post of a scientist and was in senior position of confidence.
Management relied upon a document Ex.MW1/5 wherein various duties
LIR No. 845/2011 5 of 12
were assigned to him which included signing of acceptance of job order,
receipts against payments, irradiation certificates for nondrug and drug
invoices etc. The claimant termed them to be clerical duties, however, in
my opinion these functions cannot be assigned to any skilled or non
skilled worker and are required to be performed only by a person enjoying
supervisory functions.
10. In regard to the ACRs referred to herein above and also relied
in the present case as Ex.WW1/M1 to WW1/M15, the claimant submitted
that they were not ACRs but meant only for increment purposes. It is to be
observed that these documents do not anywhere mention that they are
meant only for increment purposes but state that the same are the
confidential report for the year ending 30.9.2001. It is only on the basis of
the recommendations of the reporting officer that the gradation is given
by the Divisional Head or the Director of a Department for the simple
reason that the staff concerned whose confidential reports are reported by
the reporting officer is directly under his control and supervision .
11. It was further pointed out by Ld. AR for workman that the
management failed to crossexamine the claimant on the nature of duties
as detailed by him in para 13 and 14 of his affidavit and further that he
was working under the Divisional Head as admitted by MW1. Even if this
LIR No. 845/2011 6 of 12
hierarchy is accepted, it does not mean that there was no person working
under him as there may be Senior Manager, Chief Manager or Managing
Director above a Manager. The nature of duties as mentioned in para 14 of
the affidavit of the claimant such as report competent authority on safety
status inform Director, Deputy Director of any unusual occurrence having
significant bearing on safety, maintain records of quality assurance etc. are
only ancillary duties which come automatically because of his position
and which he has to perform in routine.
12. Ld. AR for the workman pointed out that the management
took the plea that the claimant was the Incharge of the SARC Division but
in the crossexamination , MW1 deposed to a question regarding any
document showing the claimant to be Incharge that by virtue of his
designation , Scientist is automatically assumed as Incharge of the said
department. He also deposed that it may be correct that Mr. Rahul Shukla
and Mr. NA Hashmi were also working as Scientist in SARC at that time
and thus, it was submitted that the claimant could not have been Incharge
of the SARC Division as two other persons with similar designation were
also working there. It has not been clarified either by the claimant or by
the management if there were other subdivisions of SARC headed by
various persons including the claimant or not and as such this cross
examination cannot be read to the benefit of the claimant.
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13. Ld. AR for the workman relied upon the judgment delivered in
Kirloskar Electric Co. Ltd. Vs. Govt. of NCT of Delhi 2010 (2) LLJ 701
Delhi, wherein it was held that the designation of a workman should not
be considered rather the nature of duties performed by him should be
taken care of. In that case, the workman was designated as Account
Officer/Asst. Manager.
14. He next relied upon the judgment in Maheshwar Singh Vs.
Indomag Steel Technology Ltd. 2010 (4) LLJ 51 Delhi. In that case the
workman was a Draftsman and was treated to be a workman irrespective
of his technical expertise and knowledge to prepare some plans and
designs for the reason that his idea or work was subject to the final
decision of the superior authorities.
15. It is true that for determining whether the claimant falls within
the definition of workman , his true nature of duties are to be considered
irrespective of his designation or nomenclature. In the instant case, the
primary duty of the claimant was that of a Scientist who had to perform
the research work and which he deposed in his crossexamination .
LIR No. 845/2011 8 of 12
16. Ld. AR for the management also relied upon a judgment
delivered Jamia Hamdard Vs. Delhi Administration & ors. 46 (1992)
DLT 210 DB (Delhi). In that case, the workman was a Research Fellow. It
was held that the functions of respondent No. 3 were purely academic in
nature and he should not be regarded as a workman within the meaning of the definition of Section 2(s) of the Industrial Disputes Act. It was observed that a highly qualified postgraduate with doctorate degree, appointed as Research Fellow, cannot be regarded as workman .
The management also relied upon a recent judgment which covers the facts of present case in entirety. In Divyash Pandit Vs. The Management of National Council for Cement & Building Materials 2012 LLR 463 Delhi, the workman was also a Scientist. The Labour Court as well as the Hon'ble Single Judge of the Hon'ble High Court took the view that he was not a workman . The Division Bench of the Hon'ble High Court upheld the said view while relying upon various judgments. It was observed by the Hon'ble Division Bench that "the appellant before us admittedly is an engineering graduate. As per his own statement before the Tribunal he had been carrying out research work in Process Engineering field related to Cement Industry. He claims to have special knowledge in research work . It has also come in the deposition of Shri LIR No. 845/2011 9 of 12 K . Suryanarayna and Shri RP Sharma that the appellant was supervising the employees working for routine, manual and stereo type work . He was receiving wages of Rs.1600/ per month in the prerevised scale. Therefore, we see no reason to interfere with the view taken by the Labour Court and Ld. Single Judge in this regard. Considering the nature of work which the appellant was performed, it cannot be said that he was doing any manual, skilled, unskilled, technical, operational or clerical work within the meaning of Section 2(s) of the ID Act. The very nature of scientific research which the appellant was carrying out, runs counter to his being a manual, unskilled, skilled, technical, operational or clerical worker within the meaning of Section 2(s) of the ID Act. We fail to appreciate how a Scientist, who is a qualified engineering graduate and, is engaged in research work as well as supervising the work of other employees can be said to be a workman when a teacher has been held not to be a workman (referring to the judgment in Ms. A . Sundarambal Vs. Govt. of Goa , Daman & Diu & ors. 1988 4 SCC 1700 SC)".
17. It is clear from the judgment referred to above in the case of Jamia Hamdard and Divyash Pandit (supra) that a research fellow or a Scientist as is the case of the claimant, will not fall in the definition of a LIR No. 845/2011 10 of 12 workman considering his main nature of work that of research . It has also come on record, as observed above, that the claimant had been enjoying supervisory functions as well by reporting the confidential reports of the subordinate staff as well as performing other functions of supervisory nature as detailed in Ex. MW1/5. Hence, he cannot be termed to be a workman within its definition under Section 2(s) of the ID Act. This issue is accordingly decided in favour of the management and against the workman .
ISSUE No. 2/Reference :
18. Once it has been held that the claimant do not fall within the definition of workman , the question of his services having been terminated illegally under the ID Act do not arise at all.
19. It may also be noted that the claimant himself tendered resignation from his job on 20.2.2002, though later on he withdrew it vide letter dt. 26.2.2002 Ex.MW1/1 but his withdraw was not considered and the management accepted his resignation vide its letter dt. 04.3.2002 Ex.WW1/6. In view thereof, this issue is also decided in favour of the management and against the workman .
LIR No. 845/2011 11 of 12 ISSUE No. 3/RELIEF :
20. Since it has been held while deciding Issue No. 1 above that the claimant is not covered within the definition of workman under Section 2(s) of the ID Act, he is not entitled to any relief.
Reference is accordingly answered. Let a copy of this Award be sent for publication . Case file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 22nd day of April 2014 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR No. 845/2011 12 of 12