Delhi District Court
This Reference Dated 22.12.2 vs Lt. Governor on 16 April, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
DATE OF REFERENCE : 22.12.2000
FIRST DATE BEFORE THIS PO : 20.04.2009
ARGUMENTS CONCLUDED ON : 18.03.2010
AWARD DATED : 16.04.2010
ID No. 16/09/01
Unique case no. 02402C001857200C
IN THE MATTER OF :
M/s K.G. Khosla Compressors Ltd.
2/1, D.B. Gupta Road, Paharganj
New Delhi -55
Now known as :
M/s Kirloskar Pneumatic Co. Ltd.
No. 1, Hadapsar Indl. Estate
Pune-411013 ...........Management
versus
Smt. Manju Hindoria
E-27, Jeewan Park
Pankha Road, Uttam Nagar
New Delhi ................Workman
AWARD
The entire file was received under a special order of transfer
passed by the Secretary Labour dated 19.03.2009 in F.25(54)/2008-
transfer-Lab.-168-72.
1. This reference dated 22.12.2000, was received from the
1/16
government vide No. F.24 (4292)/2000-Lab. 43588-92 is as under :
Whether the removal of Smt. Manju Hindoria from service
by the management is illegal and/or unjustified and if so, to
what relief is he entitled and what directions are necessary in
this respect ?
2. CASE OF THE WORKMAN : The workman pleaded that she
joined the management on 22.09.1992 as a steno typist. She worked
devotedly and sincerely for the management co. Her last drawn salary
was Rs. 3,860/- p.m. Management was dealing with manufacturing
and service of compressors, which was later taken over by M/s
Kirloskar group. The new management wanted to retrench the
workmen. It resorted to strong arm tactics and forced the workmen to
leave the company without compensation. Management also pressed
upon the workman to resign, workman refused. On 30.06.2000,
management tried to hand over a letter terminating her services. The
workman protested and asked by one of the officers to write on the
letter 'refused to accept'. She was stopped by the security guards
from entering the office when she reported for duty on 01.07.2000, at
9.30 a.m. The workman again reported for duty on 03.07.2000 but all
in vain. On 03.07.2000, at about 3 p.m. the workman received
photocopy of a letter dated 29.07.2000 (dates as pleaded in the claim
petition) terminating her services from the management. Juniors were
still in the employment of the management. No notice or notice pay
was given to her. Hence, she has sought for reinstatement along
with back wages on the ground that she remained unemployed despite
best efforts.
3. CASE OF THE MANAGEMENT : The management contends that
the claimant is not a 'workman' in view of Section 2(s) of the ID Act.
The management closed its entire business in Delhi. No industrial
2/16
dispute is maintainable. On the merits, it contended that the workman
who joined on 22.09.1992, and her last drawn salary was Rs. 4,037/-
per month. She was given the sensitive and confidential post
discharging supervisory managerial and administrative nature of jobs
drawing more than Rs. 1600/- per month. M/s Kirloskar took over the
co. in the year 1994-95. It denied having resorted to strong arm
tactics. The management never asked the workman to resign. In
terms of the appointment letter, the services of the workman since
were not required, the claimant was relieved from the employment
w.e.f. 30.06.2000, and that she was offered one month notice pay.
Workman refused to take the letter, hence, it was sent by registered
post. The workman never reported to duty on 01.07.2000. It claimed
that there was no security guard to have stopped her on 01.07.2000 or
03.07.2000 and the workman was very much in the knowledge that
her services are dispensed with effect from 30.06.2000. It denied that
there are 800 workmen working on its rolls. Management further
denied that the receipt of demand notice but contended that the same
was replied. The conciliation was suitably replied. Workman is gainfully
employed. Management contends that there is no illegality in the
removal. It prays for dismissal of the claim. Rejoinder is filed by the
workman reiterating that he is a 'workman' for the purposes of ID Act.
4. ISSUES : Based on the pleadings, my Ld. Predecessor had
framed the following issues on 13.01.2003 :
a) Whether the workman is not a 'workman' ?
b) Whether the management has closed its entire business
operation in Delhi office where the claimant was employed ?
c) As per the terms of reference.
5. EVIDENCE : To prove their respective stand, one witness
3/16
each is examined on both the sides. The arguments were heard.
Written arguments were also filed by the workman .
6. CONTENTIONS : During the course of arguments, the AR for the
workman had submitted that the workman was doing the job of purely
clerical in nature and the nomenclature of the job and the nature of
duties does not divest her of the status of the workman. It was further
argued that the workman was forced to be relieved, there was no
complaint against her. There was no enquiry. The relieving from the
post is nothing short of illegal termination as there was no reason for
terminating the services.
7. The management on the other hand argued that the joined as a
steno-typist and she was not a 'workman' at the time of severance of
employment. Management argued that she was working as a senior
Secretary who was having the knowledge of highly confidential matters
affecting the administration. She used to fill the tenders, open and
seal the confidential tenders. She was employed in the office. She
admits that there was no pressure on the part of the management
asking her resignation. Since the workman is only discharged
simplicitor, there is no stigma attached and further, it was argued that
the termination is fully in accordance with the terms of employment.
8. RULINGS URGED BY EITHER SIDE : The AR for the workman
had filed the following rulings :
a) 1997 - II LLJ 255 Mathur Aviation v/s Lt. Governor, Delhi & Ors. to
urge that even a pilot is considered as a workman ;
b) 1953 - II - LLJ 334 Ford Motor Co. of India Ltd. v/s Ford Motors
Staff Union holding that the test to decide a workman is made clear in
this ruling ;
c) 2008-1-LLJ 367 Amarsey Damodar v/s Rashtriya Cotton Kamgar
4/16
General Union & Anr. to urge that the termination without complying
Section 25-F is bad in law ;
d) 2007 Lab. IC/3553 : Workmen ITPO v/s Management, ITPO to
urge that the mere notice given by the management that the workman
may collect the dues would not be treated as compliance of Section
25-F of the ID Act ;
e) 2007 - Lab. IC 1756 Mrs. Naresh Sharma v/s Secretary General,
Indian Red Cross Society & Ors. to urge that the workman is entitled
for back wages ;
f) 2005 - Lab. IC 1325 M/s Oswal Agro Furane Ltd. and Anr.
enumerating that the settlement of closure should be within scope of
Section 2(p) and Section 18(3) of the ID Act ;
g) 2008 Lab. IC 3220 Ravi Dutt & Ors. v/s State of HP & Ors. to urge
that receipt of lump-sum compensation received by workman would
preclude them from enforcing their rights has to be rejected.
Apart from the above, the workman had also culled out several
rulings in the lengthy written arguments filed by him which I have gone
through. In the ruling of VLT Cargo Movers Pvt. Ltd. v/s Sh. Ajit Kumar
S. Puri 2009 (1) LLJ 709, the Bombay High Court held that the objection
of employer regarding the status has to be made out by the employer.
In the ruling of S.K. Verma v/s Mahesh Chandra, 1983 (4) SCC 214, the
Hon' Supreme Court held that even the Development Officer is a
workman within the meaning of Section 2(s) of the ID Act. The
question is whether the claimant had any authority to bind the
management by his independent wisdom and actions in Ved Prakash
Gupta v/s Delton Cables India Ltd. 1984 (II) SCC 569, the Hon'
Supreme Court while laying down the test had held that a claimant
who had no powers to appoint or dismiss any workman and the
5/16
substantial duty being that of a Security Officer at the gate had no
managerial or supervisory powers. In DP Maheshwari v/s Delhi
Administration LLJ 1983 Page 425, it is held that when a claimant was
not discharging supervisory functions, itself is a strong circumstance to
hold that he was discharging duties of clerical nature. If the Labour
Court had drawn such an inference, it would have been well justified in
doing so. The employees occasionally deputed on important mission
are to be looked from the main duties alloted to such a claimant. In All
India Reserve Bank Employees Association v/s RBI, 1966 AIR SC 305, it
is held that that are only two circumstances in which a person ceases
to be a workman. If he draws wages in excess of Rs. 500/- per month
or if he performs managerial function by reason of a power vested in
him.
On the other hand, management relied on the following rulings :
a) The Management of Sonepat Co-operative Sugar Mills v/s Ajay
Singh 2005 LLR 309 to urge that merely because an employee had not
been performing the managerial or supervisory duties would not ipso-
facto mean to be a workman. In that case, the respondent was a legal
Assistant ;
b) T.N. Vishakantaiah v/s Management of Mysore Petro Ltd. 2005 LLR 162 Kar. to urge that in arriving at the conclusion whether the workman is covered U/s 2(S) of the ID Act, the nomenclature attached to designation should not blur the mind of the court. In that case, the claimant was a Junior Engineer ;
c) District Red Cross Society v/s Babita Arora & Ors. LLR 2007 1125 of the Hon' SC to urge that where only a unit or undertaking is closed down which has no functional integrality with other units or undertakings, the provisions of Section 25-FFF ID Act, will get attracted 6/16 and the workmen are only entitled to compensation as provided therein ;
d) Haryana Urban Development Authority v/s Om Pal 2007 LLR 582 SC wherein it is held that under the discretionary powers U/s 11A of the ID Act, relief of reinstatement with full back wages should not be granted automatically ;
e) Orissa FDC v/s PO Labour Court, 2005 LLR 763 Ori. wherein it is held that a Stenographer can not be equated with ordinary workman ;
f) General Manager Haryana Roadways v/s Rudan Singh 2005 LLR 849 SC where the Hon' Supreme Court held that Labour Court holding termination as violation of Section 25-F of ID Act, entire back wages is not the thumb rule. Several other factors like length of service etc. are to be considered ;
g) Allahabad Jal Sansthan v/s Daya Shankar Rai 2005 LLR 534 SC wherein the Hon' Supreme Court had held that full back wages as a result of reinstatement is to be seen through the passage of time where a need has arisen to develop pragmatic approach '
h) Kishan Lal v/s GNCT of Delhi 2007 LLR 976 Del. wherein our Hon' High Court held that considering the long gap, facts and circumstances of each case, relief is to be moulded and it is no longer a matter of right available to the workman to claim and receive relief of reinstatement with full back wages ;
i) K. H. Pandhi v/s PO Labour Court 2004 LLR 409 Del. where our High Court had held that designation is no consequence and primary duties of the employee are to be taken into consideration to determine whether the employee is a workman or not ;
j) MP State Electricity Board v/s Smt. Jarina Bee 2003 LLR 848 SC where it is held that a sum of Rs. 80,000/- is awarded as back wages 7/16 and full back wages is not the natural consequence ;
k) A.N. Shukul v/s Philips India 2009 LLR 1179 Del. wherein our Hon' High Court held that award of damages does not arise in that case as there was no wrongful termination. The said judgment is delivered in the original suit where a question arose with regard to an employee who was working as Manager Group - VI and Branch Head ;
l) State of Rajasthan v/s Ganeshi Lal, 2008 LLR 770 SC wherein it is held that reliance on the decision without looking into the factual background is impermissible ;
m) The Managing Director NEKSRTC v/s Shivayanamath 2004 LLR 91 Kar. wherein it is held that observations made by a court in a judgment is to be considered in the background of the facts and circumstances of particular case ;
n) Tata Sons Ltd. v/s S. Bandopadhaya and Anr. 2004 LLR 506 Del. wherein our Hon' High Court held that an employee engaged in senior position like Deputy Manager and being highly qualified can not claim to have a status of a workman under Section 2(S) of the ID Act ;
o) TP Srivastava v/s National Tobacco Co. FLR 1991 (63) SC 672, wherein it is held that a salesman can not be treated as a workman however, an amount of three years salary is awarded as compensation in that case by the Hon' Supreme Court ;
p) M/s E. Hill and Co. v/s State of UP 2002 LLR 1073 wherein it is held that after closure, employee's agitation with regard to earlier transfer becomes infructuous ;
q) Garrison Engineers v/s Narender Singh, 2007 (8) SCALE 368 wherein the matter was remitted to the labour court regarding the applicability of the Act, since the management contended that it is not an industry ;
8/16r) Ram Ashrey Singh & Anr. v/s Ram Bux Singh 2003 LLR 415 SC is relied to urge that lack of aptitude of employee, likelihood of absence in sincerity of work, are to be considered in fixing the back wages ;
s) NTPC v/s Jawahar Lal 2007 LLR 788 SC wherein it is held that when an employee is gainfully employed only reinstatement is maintained and no back wages.
I have gone through the above rulings. It is well settled law that nomenclature of a post is immaterial. The list of duties are to be looked into. The precedents can not be the sole factor without considering the evidence and facts of each case. The grant of back wages is settled as a matter of pure discretion and not as a rule. In the present case, the evidence and the facts proved or disproved are considered in the light of the rulings of our HOn' High Court and the Hon' Supreme Court. The rulings of other High Courts are only of persuasive value.
9. With the above contentions on either side and in the context of the applicable rulings on the hand and with the available oral and documentary evidence concerning the present case, I am to answer the issues as under.
10. ISSUE NUMBER 1 : Workman contends that she continues to be a workman and she was never doing any supervisory job. The AR for the management submits that the evidence is sufficient to hold that she was not a workman and she was doing supervisory job or managerial in nature. I had looked into the evidence. WW 1 had stated in her affidavit at Ex. WW 1/A that she joined on 22.09.1992 as a steno-typist and her last drawn salary is Rs. 4,037/- She further testified that she was never given any promotion and that she remained as a steno-typist throughout. She deposed that her duty was 9/16 to take the dictation from the officers, typed such dictated matter and she was the only steno-typist. She further stated on oath that she had no supervisory work and her duty was not confidential affecting the administration of the management. There were nobody working under her nor she had any powers of financial sanctions nor to appoint anybody. She further deposed that she had no powers of disciplinary action. In the cross-examination, her deposition regarding she having no powers of appointment or financial transactions are not demolished. However, it is elicited that she used to fill up the documents and tenders forms. She further admitted that tender forms used to be submitted after sealing them in an envelope so that nobody could see. From the cross-examination, I do not find any material discrediting the witnesses of her having no role in the supervisation or administration or management of the concern of the management. It is found from the cross-examination that she was the only steno-typist in the co. Even in the evidence of MW 1 who stated that the workman was given promotions from time to time, I do not find any documentary evidence promoting her to the post of managerial and administration jobs. Ex. MW 1 /2 the appointment letter shows that she was appointed as a steno-typist. Ex. MW 1/3 dated 29.06.2000, being the order of relieving her from duties describes her designation as a stenographer. Therefore, there is no evidence to believe the arguments of the management that workman Manju Hindoria, was vested with managerial and administrative powers divesting her from the definition of Section 2 (s) of the ID Act. Hence, I hold that the claimant is a workman for the purposes of the Industrial Act, and this issue is answered in favour of the workman and against the management.
11. ISSUE NUMBER 2 : The workman deposed in her chief that 10/16 she worked with the management. She has stated that she was working in Desh Bandhu Gupta Road office for the last years. She denies in her cross-examination that DBG Road office was closed down w.e.f. 30.06.2000. However, she has relied on some documentary evidence. Ex. WW 1/1 is the original appointment letter issued by KG Khosla Compressors Ltd. No. 1, DBG Road, Delhi-55. This is dated 14.10.1992. Ex. WW 1 /2 is again a letter addressed to Manju Hindoria, the workman by the present management showing that she was a stenographer attached to Delhi branch. The address of DBG Road is not found. However, Ex. WW 1/3 the demand notice sent by the workman establishes the address of the management as at DB Gupta Road, Delhi.
12. It is the contention of the management that the office of the management is closed down. At para 7 of the WS, it is contended that the Delhi office of the management wherein the claimant was working stands closed and no employee is working in that office. It is the onus on the part of the management to prove this pleading. In the evidence of Mool Chand Sharma, MW 1 at para 11 of his affidavit had contended that the claimant was employed and working till his relieving at Pahar Ganj, New Delhi Office. It was a rented premises owned by Punjab National Bank. Management closed its office and surrendered the premises. He has also produced Ex. MW 1 /4 as the documentary evidence. The said document shows that the management Kirloskar Pneumatic Co. Ltd. handing over peaceful and vacant possession of the first floor of the PNB building which was rented out to them earlier.
13. I have gone through the cross-examination of this witness. In the cross-examination, there is nothing to demolish the say of the MW 1 as having surrendered the office premises. On the other hand, it is 11/16 affirmed in the cross-examination that the management had to vacate as the landlord PNB was putting lot of pressure and filed a case. There is no suggestion to MW 1 that after evicting from the premises, the management is functioning from some other place. In the evidence of WW 1 also, it is stated that the management is functioning from Majusha Building, Nehru Place, Delhi-19. The say of this workman is not corroborated by any independent witness or by documentary evidence. Therefore, the contention of the management that it has closed down its operation from the premises is proved on record.
14. ISSUE NUMBER 3 (TERMS OF REFERENCE) : Now I am to look into the legality or otherwise of the termination of services of the workman. The workman contends that she was terminated illegally. Ex. WW 1 /2 is the termination letter. I find from the termination letter that according to the service rules and regulations of the co. and further in accordance with the conditions of the appointment of the claimant, the management decided to dispense with the services of the workman w.e.f. 30.06.2000. As such Ex. WW 1 /2 speaks of the offer of the management of the statutory requirement of one month salary to the workman. Workman was advised to hand over the official charge and all belongings. She was also advised to collect the full and final dues.
15. In the demand letter at Ex. WW 1/3, workman made it clear that the termination is misconceived and that she was not aware of the rules of the co. According to her, mere dispensation of service, is illegal and that no notice or notice pay is given to her.
16. MW 1 justifying the action of the management testified that no stigma was casted upon the workman and that the relieving order by letter dated 29.06.2000, offered one month pay to her. Further, MW 1 12/16 stated that the workman refused to accept the relieving order and the same was sent by registered post.
17. The contention of the management is that the workman was relieved without any stigma and further in accordance with the appointment letter, she was relieved.
18. It is to be kept in mind that the workman was appointed w.e.f. 22.09.1992 and she worked till 30.06.2000, as per Ex. WW 1/1 and 1/2. These documents are not in dispute. Section 25-F of ID Act, makes it very clear that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the workman was given one months notice in writing indicating the reasons for retrenchment and after the expiry of notice period or the workman has been paid in lieu of one month notice. Further, it is mandated that the workman must be paid the retrenchment compensation equal to 15 days average pay for every completed year of service or any part thereof in excess of six months. Further, such notice in the prescribed manner must have been served on the appropriate government.
19. The evidence led by the management does not show that it has complied the provisions of Section 25-F of the ID Act. The contention of the AR from the management that the order of relieving is in accordance with the terms of appointment can not be allowed in view of Section 25- F of the ID Act. Therefore, the relieving of the workman sans stigma can not be treated as legal and justifiable.
20. 23. The ruling of our Hon' High Court in Parmod Kumar and another Vs. Presiding Officer and another, 123, DLT 509, DB, has held at para 11 as under:-
'Para 11. In a number of matters, this court has also 13/16 examined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of reinstatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma Vs. Nehru Yuva Kendra Sangathan, 96 (2002) DLT 412 (DB) and K. H. Pandhi Vs. The Presiding Officer, Addl.
Labour court and another, 110 (2004) DLT 101 and Pal Singh Vs. NTPC Ltd. 96 (2002) DLT 877.
In the given context of the case, I find that the reinstatement can not be ordered for the reason of the management having closed down its office and further considering the long gap of delay.
21. Coming back to the question of granting of back wages, I am to consider the rival contentions. It was urged by the management that no back wages can be granted since the granting of back wages is only a matter of discretion. In Secretary State of Karnataka v/s Uma Devi 2006 (4) SCALE 197, it is held that in the interest of justice, a lump-sum amount may be directed to be paid as compensation in lieu of reinstatement with back wages. It is well settled that the grant of back wages is only a matter of discretion and that the court may award compensation in lieu of reinstatement. Each case is to be considered on its own merits. In the LPA 85/09, Kamla v/s Management of Social Welfare, DD 02.04.2009, our High Court had granted reinstatement with 50 % back wages on the ground that Section 25-F of the ID Act, was not followed by the management. However, from the close reading of all the rulings relied by the workman, it is very clear that the grant of back wages is purely the matter of discretion to 14/16 be decided on various factors and each case is to be weighed in its own basis and merits of the case.
22. In this case, the contentions of the management is that the workman had deposed that she worked for one month in a firm at Ajmeri Gate but she did not continue there because of foul environment though salary was almost the same, therefore, she deposed that she left the employment. In view of the above deposition, it was argued that for the choice of the workman who had left the alternate employment on her own, the earlier employer can not be saddled with back wages.
23. It is not out of place to mention that the management wanted me to enforce a settlement which was alleged to have endorsed by the senior counsel who appeared for the workman earlier in this case. However, the application of the management was dismissed by me by an order dated 19.08.2009. The workman had got the matter transferred under a special notification after having denied a settlement alleged to have entered into the presence of a senior counsel and the management contended that it had brought the agreed amount of Rs. 55,792/- towards full and final settlement of all the claims of the workman.
24. In the peculiar context of the present case, I find that the proper relief that can be granted is compensation in lieu of reinstatement and back wages. The workman had joined w.e.f 22.09.1992 and worked till 30.06.2000, for about 7 years and almost 9 months. Her last drawn salary was Rs. 4,037/- per month. I find a lump-sum of Rs. 90,000/- (RUPEES NINTY THOUSAND ONLY) will be the proper and adequate compensation payable in this case towards damages, the retrenchment compensation, gratuity and back wages payable to the 15/16 workman by the management. Consequently, I pass the following award :
AWARD The termination of the services of the workman is held as illegal and unjustified. Consequently the management is directed to pay a lump-sum of Rs. 90,000/- (RUPEES NINTY THOUSAND ONLY) as compensation payable to the workman towards all the legal benefits.
The amount be paid to the workman within 30 days after publication of the award failing which the management shall pay the same along with interest @ 18 % p.a. from the date of award till realisation.
Reference is answered accordingly.
Let requisite number of copies of this award be sent to the appropriate government for publication.
File be consigned to record room.
16th April, 2010 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 16/16