Delhi District Court
Lir No.2899/16, Sh. Kamal Kishor vs . M/S Reuters India Pvt. Ltd., on 20 February, 2020
1
IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT
ROUSE AVENUE COURTS , NEW DELHI
INDUSTRIAL DISPUTE BETWEEN :
LIR No.2899/2016 & Old ID No:542/2009
Sh. Kamal Kishore S/o Sh. Kishore Chand Kamboj,
C6/236, Milan Vihar, 72, IP Extension, Patpar Ganj,
Delhi92 .....Workmen
VERSUS
Management of M/s Reuters India Pvt. Ltd.,
Birla House, 10th Floor, East Tower, 25
Barakhamba Road, New Delhi110001 .....Management
Date of receipt of Reference : 13082009
Date of Final Arguments : 18022020
Date of Award : 20022020
AWARD
1. The Deputy Labour Commissioner (SD), vide its order
No.F.24(35)/NDD/Lab/173, dated Nil, referred the present industrial dispute of
workmenherein with the above mentioned management to the Labour Court with the
following terms of reference:
"Whether the services of the workman Sh. Kamal Kishore S/o Sh. Kishore Chand
Kamboj has 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
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
2
terms of existing laws and government notification issued from time to time is he
entitled and what directions are necessary in this respect ?"
2. Notice of the reference was issued to the Workmen and he had filed the
Statement of Claim. Brief facts as stated in the statement of claim are that the
Workmen was employed with the Management as a "Dark Room Assistant Cum
News Photographer as a regular employee. He was appointed by South Asia Manager,
Reuters. His last Designation was Deputy Chief Photographer and his last drawn
wages was around Rs.1,08,000/ per month cost to the company. The nature of his
duties was that of a Press Photographer. He had no managerial, administrative or
supervisory powers. He had rendered dedicated service to the management for 19 ½
years without any complaints whatsoever from any quarter when his services were
terminated by the management on 28112006.
3. It is alleged by the workman in his statement of claim that since April 2006
the immediate supervisor of the workman Mr. Desmond Boylan started accusing him
underperformance due to professional rivalry. Such allegations were made even
though the workman had an outstanding excellent trace record as professional
photographer and well acclaimed in the Media circles in India and abroad particularly
within the Reuters Worldwide and he was given certificate of appreciation by the
management upon completing 15 years of service. It is stated by the workman that in
November 28. 2006 the management accused that his performance has dropped to
unacceptable levels and he lacked work instincts. It is submitted that on 28112016
the workman was served with termination letter by the management w.e.f. 3011
2006.
4. . It is submitted that the services of the workman was terminated by the
management with malafide intention and without any valid grounds or reasons
whatsoever and only because of the professional rivalry of his immediate supervisor.
The workman was not given an opportunity to explain the baselessness of the
allegations made against by the management in letter dated 28112016. It is
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
3
stated that the management has illegally retrenched the workman and thereby violated the
provisions of Industrial Dispute Act and the provisions of Working Journalist and other
Newspaper employees (Conditions of Service) and Misc. provisions Act, 1955.
5. Workman stated to have issued a legal notice dated 01052007 to the
management demanding immediate reinstatement. The management replied to the
said legal notice vide communication dated 22062007 denying reinstatement.
Hence, the present case.
6. It is averred that the termination of the Workman by the Management is illegal
and he is unemployed. The Workman has claimed relief of reinstatement with full
back wages and all other consequential benefits.
7. Notice of the statement of claim was issued to the Management. Management
filed its written statement. The management raised preliminary objection that
complainant was not a workman as defined under the Industrial Dispute Act as he
was employed with the company in a supervisory capacity drawing a monthly
remuneration of more than Rs.1600/.
In their reply on merits the management has stated that the claimant was employed
with Reuters India Private Limited as Photographer in the Company's Delhi establishment. It
is stated that professional photography for a wire service of an international standard
demands both creativity and appropriate use of technical and photoshooting skills and there
is no hard and fast rules or any other objective criterion for assuring the quality or standards
of the pictures produced by the Reuters journalist and stringers. It is submitted that the
claimant was required to perform his duties diligently and efficiently but the work
performance of the claimant in the last 8 months before his termination was far below the
required levels with the quality of the claimants work dropping to unacceptably deficient
levels.It is stated that the quality of the claimant's work was so bad that most of the claimant's
ictures had to be 'spiked' i.e. they could not be put into the company's usable set of pictures
for onward commercial licensing. Management further stated that Mr. Paul Barker and
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
4
Mr. Petar Kujundzic, the two editors who monitored the incoming file from India, which
contained the pictures taken by the claimant and wrote weekly report on the India file,
communicated extensively with the claimant on what were the errors claimant was
committing and how he could rectify them and improve his performance. It is stated that
despite the time to time counseling and advise to improve the claimant's performance
including by way of several emails, the claimant failed to do so. It is submitted that the
quality and composition of the work of the claimant was very poor and the lackluster quality
of work of the claimant meant the company to unable the services of the complainant and
the services of the workman became useless for the management. It is denied by the
management that Mr. Desmond Boylan has any personal animosity with the claimant. It is
stated that the claimant was given due notice, intimation, counseling, advice, constructive and
specific feed back and suggestion to improve his performance and the quality of his work but
he chose not to improve his performance and continued to produce work of unsatisfactory
quality, which is not acceptable by the management. It is submitted that the claimant was
dismissed on the grounds mentioned in the letter dated 28112006 issued by the Chief
Photographer wherein the grounds and the reasons for the dismissal of the claimant have been
explicitly explained. It is stated that the removal of the claimant by the management from its
employment can not be called retrenchment. The workman was dismissed for the reasons of
unsatisfactory quality of work despite repeated notice and warnings to the complainant. The
management has denied all other averments and allegations of the claimant and prayed for
dismissal of the claim of the claimant.
8. No rejoinder filed on behalf of the workman to the written statement of the
management. From the pleadings of the parties, the following issues were framed for
trial on 16072010:
(1) "Whether the claimant is not a workman as defined u/s 2(s) of the I.D. Act
being working in supervisory capacity ?
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
5
(2) As per terms of reference.
(3) Relief.
9. Workman has examined himself as WW1 and filed his evidence by way of
affidavit Ex.WW1/A. Workman has reiterated the whole contents of his statement of
claim in his evidenciary affidavit Ex. WW1/A. Workman has during the examination
inchief has relied upon and exhibited documents i.e. Ex. WW1/1 to Ex. WW1/8.
AR of the management has also cross examined the WW1.
10. The management has examined Sh. B. Rakesh Kumar as MW1 who filed his
evidence by way of affidavit Ex.MW1/A. In his evidenciary affidavit MW1 has
reiterated the contents of written statement. He relied upon the documents Ex. MW1/1
and Ex. MW1/2. Confirmation letter dt. 02021990 is Ex. MW1/1 ( objected to by
the AR of the workman being photocopy).(Objection is kept open and will be
decided a the later stage). Acknowledgement of company policies/guidelines dated
16022005 is Ex. MW1/2. MW1 has been cross examined by the AR of the
workman at length.
11. I have heard the argument of Authorized representative of the workman as
well as of management and perused the record. My findings on the issues are as
under:
12. Issue No.1 :
"Whether the claimant is not a workman as defined u/s 2(s) of the ID Act being
working in supervisory capacity ?
Section 2(s), Industrial Disputes Act, defines a workman as follows:
"workman" means any person (including an apprentice) employed in any industry to
do skilled or unskilled manual, supervisory, technical or clerical work for hire or
reward, whether the terms of employment be expressed or implied, and for the
purposes of any proceedings under this Act in relation to an industrial dispute,
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
6
includes any such person who has been dismissed, discharged or retrenched in connection
with, or as a consequence of that dispute, or whose dismissal, discharge, or retrenchment
has led to that dispute, but does not include any such person
(i) who is subject to the Army Act, 1950 (46 of 1950), or the Air Force Act, 1950 (45
of 1950), or the Navy (Discipline) Act, 1934 (34 of 1934), or
(ii) who is employed in the police service or as an officer or other employee of a
prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in supervisory capacity, draws wages exceeding five
hundred rupees per mensem or exercises, either by the nature of the duties attached
to the office or by reason of powers vested in him, functions mainly of a managerial
nature.
The definition therefore provides for workmen to mean persons engaged in manual,
supervisory, technical or clerical work in any industry. The manual work in turn may be
skilled or unskilled. Altogether therefore there are five categories of people who are within
the definition of workman. They are:
(1) Persons who are engaged in skilled manual work;
(2) Unskilled manual work;
(3) Supervisory work;
(4) Technical work; and
(5) Clerical work.
From the generality of persons comprehended by the definition, four categories
of persons are excluded They are:
(1) Persons who are subject to the Army Act, 1950 or the Air Force Act, 1950 or the Navy
Discipline Act, 1950;
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
7
(2) Persons employed in the police service or as an officer or other' employee of a prison;
(3) Persons employed mainly in managerial or administrative capacity; and
(4) those, being employed in supervisory capacity, draw wages exceeding live hundred
rupees per mensem or exercise, either by the nature of the duties attached to the office or by
reason of the powers vested in them, functions mainly of a managerial nature.
The predominant nature of the work of the person employed shall be determinative of
the question whether he is employed to do any manual, or supervisory or technical or clerical
work in view of the decisions of the Supreme Court reported in South Indian Bank v. A.R.
Chacko , May & Baker (India) Ltd. v. Their Workmen, Ananda Bazar Patrika v. Its workmen
1969II L.L.J. 670 and Burmah Shell Oil Storage v. Burmah Shell Management
If every employee of an industry was to be a workman except those mentioned in the
four exceptions, these four classifications need not have been mentioned in the definition and
a workman could have been defined as a person employed in an industry except in cases
where he was covered by one of the exceptions. The specification of the four types of work
obviously is intended to lay down that an employee is to become a workman only if he is
employed to do work of one of those types, while there may be employees who, not doing
any such work would be out of the scope of the word "workman' without having to resort to
the exceptions.
The definition of Manager provided in the following dictionaries will have to also be
seen -
1. According to 'WORDS & PHRASES LEGALLY DEFINED' (Butterworths, 3rd
Edition, Page 93), the phrase, 'Manager of the Company' is explained as, "prima
facie according to the ordinary meaning of the words, connotes a person holding,
whether de jure or de facto, a post in or with the company of a nature charging
him with the duty of managing the affairs of the company for the company's
benefit."
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
8
2. In WORDS & PHRASES, the word, 'Managerial' was explained as, "...
something pertaining to or characteristic of a manager and it is equally obvious,
that the word, 'manager' means one who manages....it (manage) apparently
includes the action or manner of conducting affairs or administering and directing
or controlling any matter. It is obvious, I think, that the essential meaning of the
word is to control and direct and that must obviously include not only
administration but direction of planning for any particular enterprise..."
3. Further, BLACK'S LAW DICTIONARY defines 'Manager' as;
"(1) A person who administers or supervises the affairs of a business, office or other
organization, General Manager: A manager who has overall control of a business, office or
other organization including authority over other managers. A manager is usually equivalent
to the President or the CEO of a Corporation."
4. In WEBSTER ILLUSTRATED CONTEMPORARY DICTIONARY
(Encyclopaedic Edition), the expression 'Manager' is defined as; "1) One who
manages, especially one who has the control of a business. 2) One who directs or
oversees the affairs of a household, athletic team etc."
5. BOUVIERS LAW DICTIONARY (Unabridged Rawl'es Third Revision Vo. 2
page 2073) defines 'Manager' as - "A person appointed or elected to manage the
affairs of another. A term applied to those Officers of a Corporation who are
authorised to manage its affairs. One who has the conduct or direction of
anything."
In the present case the workman has asserted that he was not having any managerial
or administrative power. In his crossexamination the workman has stated (relevant part
only):
"..........I joined the management as Dark Room Assistant cum News
Photographer in the year 1987 as regular employee. I was holding the same post in the
year 1990. As per the global role network Ex.WW1/M1, I was promoted from Dark Room
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
9
Assistant sum News Photographer, to a Photographer, Senior Photographer and
thereafter, Deputy Chief Photographer. I was not involved logistical planning, leading a
small team of photographers or deputizing for the chief photographer. I was not
responsible for giving assignments to photographers. I was not responsible handling India
desk during the absence of Chief Photographer. It is correct that document i.e. email dated
June 12, 2006 Ex. WW1/M2 was sent by me to Desmond Boylan, Paul Barker and Petar
Kujundzic. Vol. From desk mentioned in the above communication means only Delhi
Desk. ..... It is wrong to suggest that I was required to guide the junior photographers. .."
The crossexamination of the MW1 reveals (relevant part only):
"Ques. What is the predominant nature of duties of Chief Photographer? Does he
also go to the field for taking photograph or does he sit in office to supervise the work of
junior photographers.
Ans. Amongst the other, the primary requirement of the Chief Photographer is to
manage the group of stringers and photographers and to take led role in managing major
assignments being fully conversant with all aspects of digital photography. It is primarily a
desk job but in case the team is not available, the Chief Photographer might go to the field.
Ques. Can you tell me who were the alleged juniors of the workman?
Ans. I am not aware of the names of the person who were reporting to the workman at
that point of time.
Ques. What is the predominant nature of duties of workman, Deputy Chief
Photographer ?
Ans. Amongst the other, the primary requirement of the Deputy Chief Photographer is to
manage the group of stringers and photographers and to take led role in managing major
assignments being fully conversant with all aspects of digital photography and also assist
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
10
the Chief Photographer. It is primarily a desk job but in case the team is not available, the
Chief Photographer might go to the field.
Q. Do you have any document to show that the claimant had any power to appoint
take disciplinary action against any of his alleged subordinates?
Ans. I am not aware. (vol. Mr. Kamal Kishore has himself admitted that he is a Dy.
Chief Photographer.
Q. Has claimant ever done the annual appraisal of any of his alleged subordinates?
Ans. I am not aware.
Q. Has claimant ever sanctioned the leave applications of his alleged subordinates?
Ans. I am not aware. (vol. I am witness based on the documents which are maintained
by the company and was never part of the organization during the relevant time.).
Q. Is it true that the predominant duty of the claimant was that of a photographer?
Ans. It is partly true. (vol. Apart from the role of photographer, claimant was also
responsible as a Deputy Chief Photographer.)."
In Burmah Shell Oil Storage & Distribution Company of India Ltd., and the Burmah
Shell Management Staff Association and others and vice versa, [1970II L.L.J. 590]. After
referring to the amended definition of "workman", Their Lordships of the Supreme Court
observed thus :
"There is a clear distinction between technical work and manual work. Similarly,
there is a distinction between employments which are substantially for manual duties, and
employments where the principal duties are supervisory or other type, though incidentally
involving some manual work. Even though the law in India is different from that in England,
the views expressed by Branson, J., in Appeal of Gardner : In re Mascheck : In re Tyrrell,
[1958] 1 All E.R. 20, are helpful, because, there also, the nature of work had to be examined
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
11
to see whether it was manual work. As examples of duties different from manual labour,
though incidentally involving manual work, he mentioned cases where a worker
(a) is mainly occupied in clerical or accounting work, or
(b) is mainly occupied in supervising the work of others, or
(c) is mainly occupied in managing a business or a department, or
(d) is mainly engaged in salesmanship, or
(e) if the successful execution of his work depends mainly upon the display of taste or
imagination or the exercise of some special mental or artistic faculty or the application of
scientific knowledge as distinguished from manual dexterity.
Another helpful illustration given by him of the contrast between the two types of
cases was in the following words :
"If one finds a man employed because he has the artistic faculties which will enable
him to produce something wanted in the shape of a creation of his own, then obviously
although it involves a good deal of manual labour, he is employed in order that the employer
may get the benefit of his creative faculty."
"The example (e) given above very appropriately applies to the case of a person
employed to do technical work. His work depends upon special mental training or scientific
or technical knowledge. If the man is employed because he possesses such faculties and they
enable him to produce something as a creation of his own, he will have to be held to be
employed on technical work, even though, in carrying out that work, he may have to go
through a lot of manual labour. If, on the other hand, he is merely employed in supervising
the work of others, the fact that, for the purpose of proper supervision, he is required to have
technical knowledge will not convert his supervisory work into technical work. The work of
giving advice and guidance cannot be held to be an employment to do technical work."
It is settled that the test of substantial work performed by the employee concerned is
to be applied to find out as to whether the employee is employed to do skilled, unskilled
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,
12
manual work, supervisory work, technical work or clerical work, etc. It is the nature of the
duties which an employee has to perform primarily and not his designation that can determine
whether he is a workman of a particular category or not.
It has been held in Marshal Braganza vs S.R. Samant, Presiding Officer, (reported in
(1975) IILLJ 189 Bom that:
"11. ......It may be that in the narrow sense photography is an art but it is a highly
developed science.
In my judgment, the execution of the work of a cameraman involves special technical
knowledge. The nature of the work of the cameraman indicates that for the successful
creation of reality in a motion picture he depends upon the display of his imagination and the
exercise of artistic faculty and the application of technical knowledge as distinguished from
manual dexterity. In reaching this conclusion I am guided by the observations made by their
Lordships of the Supreme Court in the case of Burmah Shell quoted above. I therefore, hold
that the petitioner would fall within the meaning of the definition of the word "workman" as
defined in S. 2(s) of the Act."
The management has also argued that the workmanherein is not a "working
journalist" as per S.2(f) of the Working Journalists Act,1955 which is worded thus:
(f) "working journalist" means a person whose principal avocation is that of a
journalist and who is employed as such in, or in relation to, any newspaper establishment, and
includes an editor, a leaderwriter, news editor, subeditor, featurewriter, copytaster,
reporter, correspondent, cartoonist, newsphotographer and proofreader, but does not
include any such person who
(i) is employed mainly in a managerial or administrative capacity, or
(ii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature;
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 13 The abovesaid definition certainly includes the job of the "news photographer" in its ambit.
As far as the issue of the salary of the workman being above the prescribed limit is concerned the following exceptions to S.2(s) of the I.D. Act need to be pointed out:
"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person Exception (iii) who is employed mainly in a managerial or administrative capacity; or Exception (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
Section 2(s) provides for the exceptions in III and IV visàvis workmen employed :
"mainly in managerial or administrative capacity" or being employed in a supervisory capacity, draws wages exceeding the prescribed limit(s); and exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
A workman to be out of the above said definition of "workman" needs to be firstly discharging "managerial/ administrative function or being employed in a supervisory capacity and also receiving salary more than the prescribed limit. Merely belonging to the category of "supervisory capacity" will not disentitle workman to be out of this definition. The definition thus needs to be read out "supervisory" in conjunction with "salary above prescribed limit".
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 14 If a workman is not discharging any supervisory function then the exception will not apply. In the present case the management has not been able to show that the workman was discharging "managerial / supervisory / administrative" functions. Thus the workman will be well within the definition of as per s.2(s) of the I.D. and will not fall in any of the exceptions.
It has been held in Michael Villavarayar And Anr. vs The Workmen {reported in (1962) 1 MLJ 313} :
"Tindal is employed in the industry of carriage of cargo in boats, and hence falls within the main body of the definition. The question is whether, as contended by the learned Counsel for the petitioner, he comes under Exception (iii) or Exception (iv) to the section. Exception (iii) refers to a person who is employed mainly in a managerial or administrative capacity. Exception (iv) refers to one who though employed in a supervisory capacity draws wages exceeding Rs.500 per mensem or the nature of whose duties attached to the office or by reason of the powers vested in him, discharges functions mainly of a managerial nature. It is common ground that a tindal does not get a pay exceeding Rs.500. Therefore the first part of Section 2(s)(iv) is excluded. This leaves the second part of Section 2(s)(iv) and Section 2(s)
(iii). Both these have this in common namely, that the duties on which the workman is mainly engaged should be of a managerial nature. Section 2 (s)(iii) has also another limb, 'administrative capacity'. But that does not appear to be very relevant in the case of a tindal.
It is nobody's case that he has got administrative duties. One relevant question is whether a tindal's duties in supervising the work of lascars under him, are such that he should be considered to be exercising duties mainly of a managerial nature. In this case, the Labour Court, Madurai, was content to dispose of this point with the short observation:
In my opinion tindal is none but a lascar paid a larger wages than the latter. If, on the other hand, he did not travel in the boat, but only controlled the affairs of the boat by remaining on the shore, it would be possible to hold that his duties were of a managerial or administrative nature. That not being so, it must be held that he is a workman not coming under the two Exceptions (a(s)(iii) and 2(s)(iv) of the Act) referred to above."
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 15 In the present case the management has failed to establish that the workmanherein was doing any sort of supervisory function. The workmanherein is duly covered under the definition of "workman" u/s 2(s) of the I.D. Act. Thus the Issue No.1 is decided in favour of the workman and against the management.
13. ISSUE No. 2: As per the terms of reference : "Whether the services of the workman Shri Kamal Kishore son of Shri Kishore Chand Kamboj has been terminated illegally and / or unjustifiably by the management and if so what sum of monetary relief alongwith consequential benefits in terms of existing laws and government notification issued from time to time is he entitled to and what direactions are necessary in this respect?"
The perusal of the Ex.WW1/5 (Letter dated 28.11.2006) mentioned :
"By this letter we are terminating your employment with Reuters India Private Limited with effect from 30th November 2006.
The reasons given by the management is that several feedback and guidance were given to the workmanherein but no improvement was shown. A very detailed Written Statement reveals that the management had very critically evaluated the performance of the workmanherein where the work of the workmanherein was severely criticised and held below the expectations of the management. The specific criticism of the managementherein are :
1. Bad photography and the pictures clicked did not tell the story which was meant to be told in pictures;
2. Several unnecessary pictures putting avoidable workload on the editing desk;
3. Lack of team spirit;
4. Lacklustre quality of work. Work way below standard;
5. Not using the related software effectively and efficiently;
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 16
6. No improvement in work despite ample feedback and suggestions;
The grievance of the workmanherein that on 28.11.2006 he was issued a letters Ex.WW1/5 and also termination letter Ex.WW1/6 thereby terminating the services of the workmanherein on arbitrary basis and no explanation was called from the workmanherein. No chargesheet was issued and no chance was offered to the workman to explain. It is also case of the workmanherein that he has been commended for his performance vide various letters and certificate of excellence which are adduced as Ex.WW1/1, Ex.WW1/2, Ex.WW 1/3 (workmanherein was rated SUPERIOR in his performance) and Ex. WW1/4 (certificate of recognition & appreciation).
The workman has asserted that his agonies has commenced ever since Sh. Desmond Boylan was appointed as Chief Photographer inApr. 2006 and his supervisor whose behaviour was very racial and discriminative towards the workmanherein. According to the workmanherein his immediate Supervisor Sh. Desmond Boylan started accusing the workmanherein due to racial prejudices and professional rivalry. The relevant portion of the crossexamination of the workmanherein is thus :
"It is correct document i.e. email dated 13.06.2006 Ex. WW1/M3 was sent by me to Petar Kujundzic, Phil Smith, Simon Denyer, Desmond Boylan and Paul Barker. ........It is correct that email dated 12.06.2006 was received by me from Desmond Boylan (email is on the same page of Ex. WW1/M2) where I was informed about my performance and improvement required. It is correct that email dated 15.06.2006 Ex. WW1/M4 was received by me from Paul Barker and duly acknowledged it on the same day. It is correct that email dated 03.07.2006 Ex. WW1/M5 was received by me from Paul Barker and duly acknowledged vide email dated July 4, 2006.
........ It is correct that other than Mr. Desmond Boylan other senior officers were also involved in assessing my work. (witness was shown Ex. WW1/M4 and Ex.WW1/M5 before answering the above question.)....."
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 17 In the matter of Management of Karnataka State Road Transport Corporation v. M. Boraiah and another, wherein it was held that termination on the ground of services not being found satisfactorily falls within the ambit of retrenchment. It is needless to point out that it has been held by this Court in The Chartered Bank, Bombay v. The Chartered Bank Employees' Union {1960II L.L. J. 222} that if the termination of service is a colourable exercise of the power vested in the management or as a result of victimisation or unfair labour practice, the Industrial Tribunal would have jurisdiction to intervene and set aside such a termination. In order to find out whether the order of termination is one of the termination simpliciter under the provisions of contract or of standing orders, the Tribunal has ample jurisdiction to go into all the circumstances which led to the termination simpliciter. The form of the order of termination, is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of dismissal for misconduct. It is, therefore, open to the Tribunal to go behind the form of the order and look at the substance. If the Tribunal comes to the conclusion that though in form the order amounts to termination simpliciter but in reality cloaks a dismissal for misconduct, it will be open to it to set aside the order as a colourable exercise of power by the management.
Principles to the same effect have also been reiterated in the later decision in Tata Oil Mills Co. Ltd v. Workmen and Anr. 1964II L.L. J. 113 or 196311 L.L. J. 78, where the Apex Court observed as follows:
"The true legal position about the Industrial Court's justification and authority in dealing with cases of this kind is no longer in doubt. It is true that in several cases, contract of employment or provisions in standing orders authorise an industrial employer to terminate the service of his employees after giving notice for one month or paying salary for one month in lieu of notice, and normally, an employer may, in a proper case, be entitled to exercise the said power. But where an order of discharge passed by an ' employer gives rise to an industrial dispute, the form of the order by which the employee's services are terminated would not be decisive; industrial adjudication would be entitled to examine the substance of the matter and decide whether the termination is in fact discharge simpliciter or it amounts to dismissal which has put on the cloak of discharge simpliciter. If the Industrial Court is LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 18 satisfied that the order of discharge is punitive, that it is mala fide, or that it amounts to victimisation or unfair labour practice, it is competent to the Industrial Court to set aside the order and, in a proper case, direct the reinstatement of the employee." (emphasis is mine) The version of the workmanherein appears convincing that in the 19 years of his service he had been receiving accolades and even prizes for his work. In this regard the witness MW1 was put certain questions such as :
"Q. Is it true that the competency of the claimant as a photographer were raised for the first time in April 2006, after the claimant had completed 19 years of service?
Ans. The incompetency of the claimant were identified in and after April 2006 only.
In Workmen Of Premier Tyres Limited vs Premier Tyres Limited { (1976) IILLJ 251 Ker} the termination of the workman read :"Of late, it has been observed that you have been behaving in an abnormal manner in the office during working hours. It has also been observed on quite a number of times that you have been questioning the instructions of your superiors with regard to your work. It has become a habit with you to quarrel with your co workers and officers. Your behaviour generally has been insolent and you have been warned several times against this kind of behaviour.........In the circumstances, we are constrained to feel that your presence in the office will jeopardize the general discipline and the smooth running of the office. It has, therefore, been decided to terminate your service forthwith. You will be paid a month's salary in lieu of a month's notice, which can be collected from the Accounts Department...." . It was held therein:
"According to the company, the service of an employee can be terminated for any reason including misconduct under this rule and such a termination is not a punishment. But the doctrine that a master can hire and fire an employee is not allowed full scope in industrial adjudications............The argument that whenever the employer purports to terminate the services of his employee by virtue of the power conferred on him, by the terms LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 19 of the contract, Industrial Tribunals cannot question its validity, propriety or legality, is not accepted for the reason that just as an employer's right to exercise his option in terms of the contract, has to be recognised, so is the employee's right to expect security of tenure to be taken into account. On this principle the employer's power to terminate, is very often scrutinized to see whether the power conferred by the contract has been exercised bona fide. So the jurisdiction of the Industrial Court, in respect of an industrial dispute, is wider than that of an ordinary civil Court."
In the present case the managementherein appears to have suddenly changed its opinion about the efficiency of the workmanherein when Mr. Desmond Boyle took over as the Chief Photographer in Apr. 2006. The managementherein saw too many discrepancy in the work of the workman. The workmanherein had amply explained his version in the claim herein and this tribunal is of the opinion that the contentions of the managementherein may have been motivedriven to victimize the workmanherein which is certainly unfair practice on part of the said management. The relevant portion of the crossexamination of MW1 would reveal that the Chief Photographer had no superior competence to gauge / assess the competence of the workmanherein:
"Q. Have you got any document to show that the workman was directed to report to Mr. Desmond Boylan?
Ans. I am not aware.
Q. Can you tell the percentage of photographs of photographers under Reuter being spiked?
Ans. I am not aware as I am not part of that particular department.
Q. Have you got any proof to show that Mr. Desmond Boylan was an exceptional photographer of any calibre to evaluate the work of claimant?
Ans. I am not aware of any such document available in our record."
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 20 Overall, the managementherein has not been able to show that the termination of the workman was justified.
There is another aspect of the termination relating to the competence / capacity of the Chief Photographer who had issued the termination letter to the workmanherein. It will be relevant to see that the workmanherein was appointed in the position as photographer / dark room assistant by the managementReuters Limited vide the appointment letter dated 02.02.1990 (Ex. MW1/1) under the signatures of "Michael J Neale Manager South Asia". This appointment letter was accepted by the workmanherein and counter signed the same on 06.02.1990. This letter Ex. MW1/1 specifically mentioned:
"Your employment may be terminated at one month's notice on either side."
The perusal of the Ex.WW1/5 (Letter dated 28.11.2006) mentioned :
"By this letter we are terminating your employment with Reuters India Private Limited with effect from 30th November 2006.
Desmond Boylan Chief Photographer, India"
Apparently the managementherein has not followed its own terms and condition as per the appointment letter which specified one month's notice period. The termination letter dated 28.11.2006 terminated the services of the workmanherein w.e.f. 30.11.20106. Moreover, it is the established principle that only the appointing authority - in this case it was Manager, South Asia - is competent to remove an employee. The workmanherein was removed by the Chief Photographer, India. Though the Chief Photographer was the immediate supervisor of the workmanherein , nothing has been brought on record that the Chief Photographer had the authority to remove its Deputy Chief Photographer.
It has been the case of the management itself that the position of Deputy Chief Photographer was akin to that of the Chief Photographer. It has been specifically admitted o by the MW1 in his crossexamination (relevant part only):
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 21 "Ques. What is the predominant nature of duties of Chief Photographer? Does he also go to the field for taking photograph or does he sit in office to supervise the work of junior photographers.
Ans. Amongst the other, the primary requirement of the Chief Photographer is to manage the group of stringers and photographers and to take led role in managing major assignments being fully conversant with all aspects of digital photography. It is primarily a desk job but in case the team is not available, the Chief Photographer might go to the field.
Ques. What is the predominant nature of duties of workman, Deputy Chief Photographer ?
Ans. Amongst the other, the primary requirement of the Deputy Chief Photographer is to manage the group of stringers and photographers and to take led role in managing major assignments being fully conversant with all aspects of digital photography and also assist the Chief Photographer. It is primarily a desk job but in case the team is not available, the Chief Photographer might go to the field."
The job profile of the Chief Photographer and that of the Deputy Chief Photographer is to manage the group of stringers and photographers and to take led role in managing major assignments being fully conversant with all aspects of digital photography and also assist the Chief Photographer. It is primarily a desk job but in case the team is not available, the Chief Photographer might go to the field. Thus it can be seen that the job profile of the workman herein was coextensive to that of the Chief Photographer. There is absolutely nothing adduced from the managementside that the Chief Photographer had the competence and the power to remove / dismiss / terminate the services of the workmanherein. It is a matter of record not denied by the management that the rank / status / capacity of the removing authority of the workmanherein was not the same as that of the appointing authority. In this regard certain questions were put by the counsel of the workman to the witness MW1 which will strengthen the argument of the workman that the removing authority was not having an LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 22 expressly provided power to remove the workmanherein. The relevant portion of the said crossexamination of MW1 is :
"Q. Has a Chief Photographer in India ever issued any appointment letter or termination letter to any workman in India other then issuing the termination letter dated 26.11.2006 to the workman?
Ans. I am not aware.
I am not aware if Chief Photographer was competent to issue the termination letter dated 26.11.2006 to the workman.
Court Question: What is the position now?
Ans. Currently, this process of issuing appointment letter and termination letter vests with the HR Department."
There is force in the arguments of the workmanherein that the shortcomings in his work were identified "all of sudden" in Apr. 2006. In this regard certain questions were put by the counsel of the workman to the witness MW1 which will strengthen the argument of the workman that the removing authority was not having an expressly provided power to remove the workmanherein. The relevant portion of the said crossexamination of MW1 is :
"Q. Is it true that neither any charge sheet was issued nor any domestic enquiry was held against the claimant?
Ans. It is correct.
Q. I put it to you that at the time of termination of service of workman Sh. Desmond Boylan had no power to appoint or terminate the services of any employee in the company. What have you to say?
Ans. I am not aware whether Mr. Desmond Boylan at the particular point of time had the aforesaid power or not."
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 23 In Anoop Sharma v. Executive Engineer, Public Health Division No. 1 Panipat[(2010) 5 SCC 497]as under:
"13..... 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 days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25F(a) and (b) of the Act is mandatory and noncompliance thereof renders the retrenchment of an employee nullity State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22, State Bank of India v. N. Sundara Money (1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340, Mohan Lal v. Management of M/s. Bharat Electronics Ltd. (1981) 3 SCC 225, L. Robert D'Souza v. Executive Engineer, Southern Railway (1982) 1 SCC 645, Surendra Kumar Verma v. Industrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v.
Niranjan Das (1984) 1 SCC 509, Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. 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, 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 Section 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."
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 24 The perusal of the Ex.WW1/5 (Letter dated 28.11.2006) mentioned :
"By this letter we are terminating your employment with Reuters India Private Limited with effect from 30th November 2006.
Desmond Boylan Chief Photographer, India"
It is a matter of record that the appointing authority in the present case was Manager South Asia but the said authority was not the removing authority. The management has not been able show that Mr. Desmond Boylan (Chief Photographer) was competent to remove the workmanherein. No show cause notice was issued and no enquiry was done. The removal of the workman appears arbitrary and unjustified.
Thus the ISSUE No.2 (As per terms of reference) is decided in favour of the workman and against the management.
14. RELIEF:
The workmanherein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits.
The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "re instate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'. In cases of wrongful termination of service, reinstatement with continuity and back wages is the normal rule.
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 25 Held by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors. (2013) 10 SCC 324. The concept of reinstatement was also discussed therein:
"17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer."
The ruling in Deepali Gundu Surwase (supra) relied on at least three larger, three judge bench rulings :
1. Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Pvt Ltd AIR 1979 SC 75;
2. Surendra Kumar Verma v. Central Government Industrial Tribunalcum Labour Court AIR 1981 SC 422;
3. General Manager, Haryana Roadways v. Rudhan Singh (2005) 5 SCC591) .
The relevant discussion in Deepali Gundu Surwase (supra) is as follows:
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 26 before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact.
In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [(2013) 10 SCC 324] it was held by this Court as under:
"The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 27
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised.
It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position visàvis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra)....." (Emphasis laid by this Court) The workmanherein has averred in his claim that his last drawn salary was around Rs.1,08,000/ (Rupees One Lakh & Eight Thousand only) per month. The management herein in the Written Statement has not expressly denied it and responded by saying that it was a matter of record. Nothing has been brought on record to show that this was not the salary of the workman. The only assertion from the side of the management was that the salary of the workmanherein was above Rs.16,000/ per month. However, the workman herein is entitled to the relief as per the "last drawn" salary and the management ought to pay accordingly at the rate of the "last drawn" salary.
The workmanherein has been able to prove his case. The management has not produced any evidence therefore the averments of the workman has to be believed. The claim is thus allowed. The workman is found entitled to full back wages and the consequential relief of continuity alongwith benefit.
The services of the workman Shri Kamal Kishore son of Shri Kishore Chand Kamboj has been terminated illegally and / or unjustifiably by the management and Shri Kamal LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 28 Kishore son of Shri Kishore Chand Kamboj is entitled to reinstatement with full back wages alongwith consequential benefits in terms of existing laws and government notification issued from time to time with respect to the Justice Majithia Wage Board Recommendation.
The ISSUE No.3 pertaining to RELIEF is decided in favour of the workman and against the managementherein with the following directions :
(I) Relief of reinstatement with full back wages granted / ordered from the 30.11.2006 till date as per the "last drawn" salary;
(ii) Relief of the continuity of service alongwith all the consequential benefits are also granted / ordered w.e.f. the last working day 30.11.2006 as per the "last drawn" salary;
(iii) Relief of all the benefits w.e.f. 30.11.2006 in terms of existing laws and government notification issued from time to time.
15. The present case reference is decided in favour of the workman in above terms accordingly. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court.
Dated:20022020 ( VEENA RANI )
Presiding Officer Labour Court
Rouse Avenue Courts,New Delhi
Judge Code : DL0271
Note: Digital Signature Expired.
Applied for New one.
LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 29 IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT, ROUSE AVENUE COURTS: NEW DELHI LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd., 20022020 Present : Workman with AR.
AR for the management.
The present case reference is decided in favour of the workman vide my separate detailed Award. Requisite number of copies of the order be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court.
Dated:20022020 ( VEENA RANI ) Presiding Officer Labour Court Rouse Avenue Courts,New Delhi Judge Code : DL0271 LIR No.2899/16, Sh. Kamal Kishor Vs. M/s Reuters India Pvt. Ltd.,