Delhi District Court
The Secretary (Labour) Govt. Of The ... vs Government Of Nct Of Delhi & Ors on 8 December, 2007
1
IN THE COURT OF SH. R.K. JAIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI.
ID NO. 262/98
BETWEEN
Its workman
Sh. B.D. Sharma,
C/o Delhi General Workers Union,
A-97, Karampura, Shivaji Marg,
New Delhi 15.
AND
The Management
M/s. CRPF Employees Education Society,
through CGO Complex, Lodhi Road,
New Delhi - 3.
AWARD
1. The Secretary (Labour) Govt. of the National Capital Territory of
Delhi has referred this dispute arising between the parties named
above for adjudication to this labour court vide notification No. F. 24
(1063)/98-Lab./5229-33 dated 24.2.98 with the following terms of
reference:-
'Whether the services of Sh. B.D. Sharma have been
terminated illegally and/ or unjustifiably by the
management, and if so, to what relief is he entitled
and what directions are necessary in this respect?"
2
2. After receipt of the reference, notice was sent to the claimant
through union who filed his statement of claim submitting therein that
the management was a society registered under the Delhi Societies Act
running educational institution for the benefit of the employees
working in CRPF. Apart from that the society had some other project
in Delhi and outside Delhi and would have in future also as per
society's welfare programme. The other projects were Hostel of ITI at
Wazirabad & CRPF School, Hyderabad.
3. It is further submitted by the claimant that the management
employed him as J.E. (Electrical) in connection with the construction
of school building and hostel and for maintenance purposes w.e.f.
1.7.91 and fixed his wages as Rs. 2500/- per month. He was in
continuous service with the management till 16.1.97 when the services
were terminated.
4. It is further submitted by the claimant that he was assigned the job
of maintaining registers, scrutinizing the bills submitted by the
contractors and look after the maintenance job pertaining to electric
installations and maintenance of appliances but he never performed
any supervisory duties or any administrative functions under the
management. The work/job was of permanent nature and integral part
3
of the functions of the society and that is why he remained in
continuous service of the management beyond the period of actual
appointment.
5. It is further submitted by the claimant that he had served the
management with his best ability, sincerely, diligently and
satisfactorily till 15.1.97 and never gave any chance of complaint to
the management during the tenure of his service. But the management
intentionally failed to enhance his wages despite long service.
6. It is further submitted by the claimant that he was neither offered
nor paid any retrenchment compensation at the time when his services
were terminated, in violation of section 25 F of I.D. Act. The work
of JE (Electrical) still existed and junior workers to the claimant were
retained in service and services of JE were also needed.
7. It is further submitted by the claimant that his service were
terminated by the management out of grudge for the demand of
revision of wages and without any cause of action which is contrary to
the provisions of the law and the management had engaged retired
person in his place and Lab. Assistant was working as maintenance-
in-charge of civil and electrical work of CRPF school and hostel
building.
8. It is further submitted by the claimant that a demand notice was
4
sent to the management on 11.2.97 but no reply was received. The
conciliation proceedings also ended in failure.
9. It is further submitted by the claimant that he was out of job since
the date of wrongful termination of his services.
10. It is prayed that the management should be directed to reinstate the
claimant in service with continuity of service and payment of full back
wages.
11. The notice of the claim was sent to the management and the
management in its written statement took the preliminary objection
that the claimant was appointed purely on temporary basis as JE
(Electrical) vide order dated 16.6.91 for limited period for the
completion of construction of building of the school only in the
capacity of Supervisor and as such his case was not covered by the
provisions of I.D. Act.
12. It was further submitted that the services of the claimant were
terminated as the construction was completed and his services were
not required further. It was submitted that he was appointed to
supervise other employees of NBCC to whom the construction work
was entrusted by the management.
13. It was further submitted that the claimant was Supervisor drawing
a salary of Rs. 2500/- per month.
5
14. On merits it was reiterated by the management that the claimant
was a Supervisor drawing salary of Rs. 2500/- per month and that he
was appointed for limited period and after the construction was over
his services were terminated.
15. It was denied that any junior to the claimant was retained in
service. It was submitted that service of any JE was not required. It
was denied that the claimant was out of job from the date of
termination of his services.
16. In rejoinder the averments made in the claim were reiterated and
those made in the written statement were denied.
17. On the pleadings of the parties, following issues were framed on
24.5.99:-
1. Whether the claimant was a workman?
2. Whether the services of the claimant were
terminated illegally and/or unjustifiably?
3. Relief.
18. The claimant examined himself as WW1 and filed his affidavit Ex.
WW1/A in support of his case. The management examined its Deputy
Commandant and Secretary of the Society as MW1 who filed his
affidavit Ex. MW1/A.
6
19. I have heard Ld. ARs for the parties and have gone through the
relevant record. My findings on the aforesaid issues are as follows.
ISSUE NO. 1
20. In Sharad Kumar Vs. Government of NCT of Delhi & Ors., 2002
LLR 545, it was held by Hon'ble Supreme Court that the determination
of question as to whether the employee is 'workman' or not depended
upon type of nature of duty of employee.
21. The claimant in para 3 of his statement stated as under:-
"That the applicant/workman has been assigned
the job of maintaining registers, scrutinizing the
bills submitted by the contractors and look after
the maintenance job pertaining to electric
installations and maintenance of the appliances,
but he never performed any supervisory duties or
any administrative functions under the aforesaid
management."
22. In his affidavit Ex. WW1/A also the claimant described his duties
in para 3 of it as under:-
"That the deponent had been assigned the job of
maintaining registers, scrutinizing the bills
submitted by the contractors and look after the
maintenance job pertaining to electric installations
and maintenance of the appliances, but he never
performed any supervisory duties or any
administrative functions during service with the
management. The above referred to works/jobs
are of permanent nature and integral part of the
functions of management/society. The duties of
the deponent were of technical, skilled and
electrical. The deponent was not doing
7
supervisory, managerial or administrative duties.
He had no power to appoint, to terminate service
of the employees. He had no power to sanction
leave of the employees and also no powers to take
disciplinary action."
23. In his cross-examination the claimant stated that he used to
maintain registers and scrutinize bills. He also used to do maintenance
work of school building, electricity maintenance. He also used to go to
ITI, Wazirabad and used to do maintenance work there. He used to
take measurement of conduid pipes which were fixed in the roof of the
school. He also used to maintain the pump house.
24. In his further cross-examination the claimant stated that no
employee was working under him and he never used to inspect
anybody as no one was working under him and periodically he used to
go to ITI Wazirabad to repair faults of electricity.
25. On the other hand, MW1 in his affidavit stated on oath that the
claimant was appointed to supervise the work done by other employees
of NBCC to whom the construction contract was entrusted by the
management and thus duties of the claimant were to supervise the work
of construction and electric appliances, installations etc. He was
holding supervisory post and drawing salary of Rs. 2500/- per month
and the claimant was not 'workman'.
26. In his cross-examination MW1 deposed that the job of the claimant
8
was to inspect quantity, quality measurement and the working of
installations and to find whether the same were working as per
specifications. He admitted that the claimant used to inspect, measure
etc. the work of electric installations in the hostel, total supervision and
testing. He could not tell if the claimant was ever deputed as JE
(Electrical) at ITI.
27. Ld. AR for the claimant has contended that the duties which
claimant was performing were technical and involved skill regarding
the installations etc. as admitted by MW1 and therefore, the claimant
was 'workman'.
28. Reliance has been placed on S.K. Verma Vs. Mahesh Chandra &
another 1983 Lab. I.C. 1483 in which it was held by Hon'ble Supreme
Court that Development Officer in LIC was a workman as his duties
were found to be mainly to organize and develop business of the
corporation in the area allotted to him and that suppose to recruit active
and reliable agents drawing from different communities and walks of
life on such terms as may be stipulated by the corporation from time to
time and to train them up both canvassing new business and for
rendering such possible services as the policy-holders may be in need
of.
29. In National Engineering Industries Ltd. Vs. Sri Kishan Bhagera
9
& Others 1988(56) FLR 148 it was held by Hon'ble Supreme Court
that "A reporter or a checking clerk is not a Supervisor. The
respondent herein does not appear to us doing any kind of supervisory
work. He was undoubtedly checking up on behalf of the employer but
he had no independent right or authority to take decision and his
decision did not bind the company" and he was not a supervisor.
30. In Blue Star Limited vs. N.R. Sharma & Others 1975 (31) FLR
102 it was held by Hon'ble High Court of Delhi that supervision may
be in relation to the work or in relation to persons. The word
'Supervisory' is not used in Section 2(s) in relation to the supervision of
an automatic plant. Many machines run automatically on power.
They do not have to be run by human energy. Their running and
functioning has only to be watched and repaired in case of anything
going wrong. The person who attends to such a machine may do
either technical or manual work within the meaning of Section 2(s) .
But he does not do supervisory work merely because he looks after the
machine. The essence of the supervisory nature of the work under
section 2(s) is the supervision by one person over the work of others.
Supervision contemplates direction and control. Ordinary supervision
is not 'Supervisory' within the meaning of Section 2(s); rather
supervision of a higher type over ordinary supervision would be
10
entitled to be called 'supervisory' within the meaning of Section 2(s).
31. In Mathur Aviation vs. Lt. Governor, Delhi & Others 1998 (36)
FLR 7 it was held by Hon'ble Delhi High Court that the claimant was a
Pilot whose duty was to fly the aircrafts of employer for carrying out
aerial spray of standing crops and he has some other duties in
supervisory capacity as far as staff under his control was concerned
and it was held that the claimant was a workman.
32. In Bellish India Ltd. Vs. Presiding Officer Labour Court &
Others 2003 LLR 293 it was held by Hon'ble Delhi High Court that the
workman incidentally doing some supervisory work will not take him
out of purview of definition of workman.
33. In Yogender Kumar Vs. B.R. Kohli & Co. & Others DCLR
2004(1) Delhi 28 it was held by Hon'ble Delhi High Court that it is
clear that the impugned judgement has proceeded merely on the
nomenclature of 'supervisor' used in respect of the petitioner without
examining the nature of the principal duties entrusted to the workman.
In view of the position of law extracted above, the impugned Award
dated 6th March, 2000 is set aside and the reference is remanded back
to the Labour Court for disposal in view of the above position of law.
34. In U.P. State Sugar Corporation Ltd. Vs. The Deputy Labour
11
Commissioner Meerut & Others 1990 (60) FLR 97 it was held by
Hon'ble Allahabad High Court that the claimant was an Assistant
Engineer and his work was technical in nature and in case of break
down of machines, he was himself repairing the defects, he used to get
the work assigned by the Manager and the Chief Engineer executed
and for that purpose he used to look after the work of the workmen
working under him and the concerned machines and it was held that
his duties were not of supervisory nature and he was 'workman' within
the definition of section 2(s) of I.D. Act.
35. In S.B. Kulkarni Vs. Indian Red Cross Society & Others 1998
(56) FLR 104 it was held by Hon'ble Bombay High Court that it is not
the designation but the nature of the duties performed by or allocated
to the post which have to be examined to find out whether the work is
that of a supervisory character. To come to the conclusion that the
petitioner was working in supervisory capacity it was necessary to
prove that there were at least some persons working under him whose
work he was required to supervise.
36. In General Manage, Kores (India) Ltd. & Others vs. Presiding
Officer Labour Court Sambalpur & Another 1999 LLR 917 it was
held by Hon'ble Orissa High Court that Sr. Service Engineer was held
12
to be a workman because the job entrusted to him was installation,
servicing and repair of xerox machine.
37. In Tanojkumar B. Chatterjee Vs. Solapur Municipal Corporation
2004 LLR 108 it was held by Hon'ble Bombay High Court that mere
designation of an employee was not a sole criterion. The court has to
have due regard to the real nature of duties and functions. In so far as
Supervisor is concerned, he or she is one who can bind the employer
by taking some kind of decision on his behalf.
38. Ld. AR for management has vehemently contended that the
claimant was not a workman as he was appointed to supervise the
construction work which was entrusted to NBCC. It is submitted that
claimant was not employee of NBCC and was deputed by the
management to supervise the construction work undertaken by NBCC.
Ld. AR for the management has taken me through the documents filed
by the claimant himself to show the nature of duties which the claimant
was expected to perform and in fact was performing.
39. Ex. WW1/1 is copy of Offer of appointment. In the same the
terms and conditions of appointment are mentioned and one relevant
condition to be seen is as under:-
"You will remain on duty at site every day on
which work is carried out by NBCC for effective
supervision."
13
40. Ex. WW1/2 is copy of appointment letter in which it is stated as
under:-
"Please refer to your application for the post of
Electrical Engineer to supervise construction of
CRPF Public School building at Sector XIV, Rohini,
Delhi-85 for CRPF Employees' Educational
Society."
41. Ex. WW1/3A is a letter addressed to the claimant by the
management in which it is stated that he was engaged to supervise the
construction (by NBCC) of CRPF Public School building at Sector
XIV, Rohini, New Delhi-85 and that he was expected to perform the
duties as per guidelines. The copies of those guidelines have also
been placed on record by the management and it would be convenient
if those guidelines are reproduced here:-
"Subject - CONSTRUCTION OF CRPF SCHOOL AT
SECTOR XIV, ROHINI - SUPERVISION - DUTIES
AND RESPONSIBILITIES.
...................................................
a) They will be the representative of CRPF for the project on all technical matters.
b) AE(Civil) will be the Engineer I/C for the project from CRPF since and JEs engaged will serve under him. Yet they will be collective responsible for the project. JE(Civil) will be incharge of the project in absence of AE(Civil). 14
c) They will ensure that no articles without quality test are utilized for construction.
d) They will check the machinery and equipments brought to the site and satisfy that they are in proper working conditions.
e) They will check the actual requirement of labourers for the project and will ensure that labourers over and above the actual requirement are not engaged. The will also ensure that labourers engaged are not kept idle.
f) They will certify that the bills submitted by the NBCC on account of salary/wages to labourers are correct in all respects and they were actually on work for the period for which wage bill has been prepared.
g) They will maintain periodical statements of depreciation value of plants and machineries and vehicles etc. brought to the site and will check the same with bills no. and when submitted by the NBCC.
h) They will scrutinize the hire charged bills of plant and machinery, tools and staff vehicles etc. and certify that the charges claimed are reasonable.
i) They will scrutinize monthly bills submitted by the NBCC thoroughly and certify their correctness and point out discrepancies, if any, and submit the same to officer I/C detailed from CRPF within three days of date of receipt of bills through Engineer I/C.
j) They will maintain proper liaison with the NBCC authorities, architect and associate themselves with quality assurance call of the NBCC to ensure quality of materials and workmanship during executions.
15
k) In case the work is bound up after a period of time the unused material and stores shall be taken over by them and they will work out the cost/depreciation cost thereof.
l) They will supervise the execution of works at site with reference to quality as per sound engineering practice, CPWD specifications and Architect's drawings.
m) They will prepare/check details of measurements and maintain proper records and measurement books.
n) They will assist the NBCC in procurement of materials is required.
o) The will liaise with the DDA, Municipal and other statutory bodies etc. for various approvals, getting water/electricity connections etc.
p) They will get the defects/deficiencies rectified at site by the NBCC as per Architects instructions.
q) Any other work relating to the project assigned by the officer IC detailed by CRPF and/or by CRPF Employees' Educational Society.
42. Ex. WW1/4 is a letter addressed to the claimant by the management in which it is stated that according to the list of duties and responsibilities assigned he was required to prepare a check detail of maintenance and maintain proper record and measurements.
43. Ex. WW1/5 is another letter from the management to the claimant 16 by which the claimant was requested to visit CRPF ITI Wazirabad, Delhi 94 and discuss the requirement of electrification of the toilet blocks of ITI and furnish a list of items required.
44. Ex. WW1/6 is yet another letter from the management to the claimant having the title 'Supervision of work' in which it is stated that the claimant was supposed to be present at site whenever work by NBCC was going on but it was found that he was not available at site on holidays and for whole time during working days though the work is going on.
45. Ex. WW1/7 is a letter by which a committee including the claimant was set up for purchase of items required for installation of geysers by the electrician.
46. Ex. WW1/9 is a letter from the claimant himself to the management in which the claimant stated that he was appointed as Junior Engineer (Electrical) for looking after the CRPF Public School building work. In the same letter it is stated by the claimant that he got interviewed (Electrician) and on his recommendation another Electrician Kameshwar was taken into service and was made permanent employee but his own services were terminated.
47. Ld. AR for the claimant had contended that Ex. WW1/4 regarding Measurement Register proved that the claimant was required to 17 prepare/check details of measurements and maintain proper records which made him the workman.
48. I do not agree with the contention of Ld. AR for claimant because by Ex. WW1/4 the claimant was required to prepare/check details of measurements and maintain proper records. It does not reflect that the claimant used to prepare details of measurements himself. It only reflects that details of measurements were prepared for checking the details of measurements prepared by NBCC.
49. All the documents placed on record by the claimant himself show that he was appointed as Supervisor to look after the construction work of the school building. He even recommended appointment of one electrician. He was made member of a committee which was required to ascertain the items to be purchased for installation of geysers. He was expected to be present at the site for whole day and also on holidays.
50. In cross-examination of MW1 it has come that no extra amount was paid to the claimant for supervising the work on holidays. These facts clearly show that the presence of the claimant was required at the site only for supervision and he was not expected to do any work himself except to check the measurements, quality and quantity of work performed by NBCC.
18
51. In Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd., Bombay 1986 (52) FLR 19, which has been relied on by AR for claimant himself, it was held by Hon'ble Supreme Court of India that where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of a person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant. It was further held that the test that one must employ in such a case is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should 19 not detract from the truth.
52. In the present case if the claimant was performing any extra duties which were expected from a 'workman' even then the claimant does not become 'workman' within the meaning of section 2(s) of I.D. Act.
53. The entire documentary evidence and oral evidence lead only to one conclusion that the claimant was not a 'workman'.
54. The issue, accordingly, is decided in favour of the management and against the workman.
ISSUE NO. 2
55. While deciding issue no. 1 it has already been held that the claimant was not a 'workman'. So the jurisdiction of this court is ousted and it is futile to decide whether his services have been terminated illegally and/or unjustifiably by the management. RELIEF
56. In view of my findings on issue no. 1, I hold that the claimant is not entitled to any relief. No directions are necessary in this respect.
57. The reference is answered, accordingly. Copy of award be sent to Secretary (Labour) Govt. of NCT Delhi.
Dictated in the open court on 8.12.2007 (R.K. JAIN) Presiding Officer 20 Labour Court No. IX Karkardooma Courts, Delhi