Delhi District Court
Deepak Vaid S/O Late Shri Vm Vaid vs M/S Software Technology Group ... on 12 March, 2012
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR No. 483/2011
Unique Case ID No. 02402C0716322005
Deepak Vaid S/o late Shri VM Vaid
R/o 34/14, East Patel Nagar,
New Delhi110 008 ..............................WORKMAN
Versus
M/S Software Technology Group International Ltd.
176, Gautam Nagar,
New Delhi 110 049 .......................MANAGEMENT
Date of institution of the case : 24.2.2005
Date for which Award reserved : 03.3.2012
Date of passing the award : 12.3.2012
Ref No. F.24 (1448)/04/Lab/454852 dated 16.2.2005
A W A R D :
Having satisfied regarding existence of an industrial dispute
between the parties, the Dy. Labour Commissioner, Government of NCT of
Delhi in exercise of powers conferred by section 10(1)(c) and 12 (5) of the
Industrial Disputes Act, 1947 (hereinafter referred as 'Act') with Labour
LIR No. 483/2011 1 of 12
Department Notification No. S11011/2/75/DK (IA) dated 14.4.1975 referred the
present dispute to this Labour Court for adjudication with the following terms
of reference:
"Whether the services of Shri Deepak Vaid
S/o Shri VM Vaid have been terminated
illegally and/or unjustifiably by the
management and if so, to what sum of money
as monetary relief along with consequential
benefits in terms of existing laws/Govt.
Notifications and to what other relief is he
entitled and what directions are necessary in
this respect?"
2. Notice of the reference was sent to the workman who appeared
and filed the claim against the management M/S Software Technology
Group International Ltd. claiming that he was in permanent employment
of the management and its sister companies for the last more than eight
years in the department of accounts and he was given designation of
Deputy Manager (Accounts) but his duties were clerical in nature which
included making of vouchers, maintenance of account books, computer
operation etc. and his last drawn salary was Rs. 19,055/ and he was
entitled to reimbursement of medical expenses. It was alleged by the
workman that the management was not in the habit of paying salary to him
on due date. He further alleged that on 10.12.2003, he requested the
management to release his salary for the month of November 2003 as he
LIR No. 483/2011 2 of 12
had to deposit the school fee of his children on which the management got
annoyed and on the same date, in the evening he was told that his services
were not required and was asked to tender his resignation to which he
refused. On 11.12.2003 he was not permitted to enter the office premises
and accordingly his services were verbally terminated on the said date.
The workman made a complaint to the Office of the Asstt. Labour
Commissioner (South) on 15.12.2003. The management was called by the
Labour Officer on 23.12.2003 but it refused to take the workman back on
duty despite intervention of the Labour Inspector. Finally, the services of
the workman were terminated vide letter dt. 26.12.2003 without issuing
any charge sheet, notice or conducting any domestic inquiry. Hence, the
present claim.
3. The management appeared and opposed the claim by filing
WS wherein all the allegations were refuted specifically and categorically.
It was submitted on behalf of the management that the claimant is not a
workman within the definition of Section 2(s) of the ID Act as he was
designated as Deputy Manager (Accounts) and as such the claim is not
maintainable. The management further took the plea that the claimant has
himself deserted the job by absenting from duty and by violating the terms
and conditions of his appointment letter. The other allegations were also
refuted specifically and categorically.
LIR No. 483/2011 3 of 12
4. The claimant filed a rejoinder denying the allegations made by
the management and reinstated the pleas taken by him in his claim.
5. From the pleadings of the parties, following Issues were
framed on 08.5.2006 :
ISSUES :
1. Whether the claimant is not a workman as pleaded in Para 3 of
preliminary objections of WS? OPM
2. As per terms of reference.
3. Whether the claimant is unemployed since 11.12.2003? (Onus on
parties as per pleadings).
4. Whether the claimant abandoned his employment by absenting
himself from duty? OPM
5. Relief.
6. The workman led his evidence and examined himself as WW1
and closed his evidence. One witness was also examined by the
management namely Shri Jaideep Sinha - Manager (Business Support) as
MW1. Affidavit of one other witness Avinash Bhatnagar - Sr. Executive
(Accounts) was also filed by the management which was tendered but the
said witness never made himself available for crossexamination and
hence, his affidavit/examinationinchief cannot be read in evidence.
LIR No. 483/2011 4 of 12
7. I have heard Shri Rajesh Vaid - Ld. AR for the workman and
Shri JS Rawat - Ld. AR for the Management. My issuewise findings are
as under :
ISSUE No. 1 :
8. The onus to prove this issue was upon the management. The
management relied upon the appointment letter Ex.WW1/M1 vide which
he was appointed on the post of Deputy Manager (Accounts). The resume
of the workman was also relied Ex.WW1/M2 wherein he mentioned his
education qualification as M. Com and specialization in Business
Administration . He further mentioned himself as having a Post Graduate
Diploma in Industrial Relations & Personnel Management. In his work
experience he mentioned that he had earlier worked as Manager
(Accounts) and Administrative Officer in different organizations. It was
argued that the claimant was having a designation of Deputy Manager and
was having a supervisory control and hence, he is not covered within the
definition of workman .
9. On the contrary, it was submitted on behalf of the claimant
that though his designation was that of Deputy Manager but the work
which he was undertaking was that of a skilled worker. Ld. AR for the
workman relied upon several judgments to show that the designation or
LIR No. 483/2011 5 of 12
the nomenclature cannot be relied upon to determine whether the claimant
is a workman or not but the actual nature of his job is to be looked into.
The decision of the Constitutional Bench of the Hon'ble Apex Court in
HR Adyanthaya and ors. vs. Sandoz (India) Ltd. and ors. 1994 (5) SCC
737 was relied upon wherein it was held that an employee is a workman
under the Act if he is employed to do the work of any of the categories,
viz., manual, unskilled, skilled, technical, operational, clerical or
supervisory. In other words, if the work of a person did not fall within
any of the categories of manual, clerical, supervisory or technical, he
would not qualified to be a workman .
10. In South India Bank Ltd. Versus AR Chacko AIR 1964 SC
1522 , the question was whether the respondent, an accountant with the
Bank , was the workman or not. It was held that the admitted position was that his mere designation as a Accountant would not take him out of the category of the workman .
11. In SK Maini Vs. M/S Carona Sahu & Co. Ltd. (1994) 3 SCC 510, it was held that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee.
LIR No. 483/2011 6 of 12
12. In the instant case, the workman in his affidavit deposed that though he was given a fancy designation of Deputy Manager (Accounts) but his duties were clerical in nature which included maintenance of accounts books, computer operation , making of vouchers in his own hands, reconciliation of bank accounts, party accounts, and all other clerical account jobs and that he was not performing any supervisory job at all nor anyone was working subordinate to him. He deposed the same nature of duties in his crossexamination and also admitted the nature of duties as incorporated in notice dt. 23.12.2003 Ex.WW1/5 issued by the management to the Labour officer. In that letter as well a number of duties have been mentioned including the above mentioned jobs which have no bearing of the duties of a manager or a supervisor. He denied the suggestion that he was working in supervisory capacity. Thus, there was no denial by the workman to the nature of duties as mentioned by him in his examinationinchief and there was absolutely no crossexamination regarding his designation or the nature of duties performed by him.
13. Similarly, in the crossexamination of MW1, he admitted that the claimant was performing the same nature of work as deposed by him but further deposed that he had no personal knowledge if he was writing the books, ledgers etc. He failed to name any junior or subordinate staff LIR No. 483/2011 7 of 12 appointed by the management during the tenure of the claimant.
14. Thus, it is clear from the appreciation of the evidence led by the parties that on one hand, the claimant was performing all kind of clerical work like preparing account books, reconciliation of accounts etc. and on the other hand, the management failed to show that he was having any kind of supervisory control over any employee who was working directly under him. Ld. AR for management pointed out that there was no crossexamination of MW1 on Para 2 of his affidavit wherein he had deposed that the job of claimant was of managerial and supervisory nature and was given salary of managerial cadre and two other employees were under him and report to him for daily progress. As already observed, no such employees were ever named and as discussed, by simply designating him as Manager would not be sufficient to bring him out of the definition of workman . MW2, whose affidavit was tendered in evidence, was supposed to prove that he was working under the workman but he failed to make himself available for crossexamination and hence, the evidence of this witness is of no help to the management. Thus, there is little hesitation to hold that the claimant will be covered within the definition of the workman within the definition of workman under Section 2(s) of the ID Act. Hence, this issue is decided in favour of the workman and against the management.
LIR No. 483/2011 8 of 12 ISSUE No. 2 and 4 :
15. The plea of the management is that the workman himself absented from duty and as such his services were terminated. His services were terminated vide letter dt. 26.12.2003 Ex.WW1/7 wherein it has been mentioned that he had been absent from office since 11.12.2003 without any prior information/intimation and without obtaining any prior leave.
16. Admittedly, the workman attended his duties till 10.12.2003. It is the case of the workman that on 11.12.2003 when he reached his office at 9 AM, he was not allowed to enter the office premises. He attributed this act of the management as the HRD of the management Ms. Alka Kaul got annoyed with him when he asked for the release of his salary on 10.12.2003. He mentioned these facts in his affidavit but there was absolutely no crossexamination on these facts by the management. The workman has also placed on record a letter addressed to the Asstt. Labour Commissioner dt. 15.12.2003 regarding his illegal termination Ex.WW1/4. This letter finds mention in the reply of the management to the Labour Officer's notice dt. 15.12.2003 which is Ex.WW1/5 and wherein the management had admitted the receipt of letter of the workman dt. 15.12.2003. The workman has further relied upon the letter of the Labour LIR No. 483/2011 9 of 12 Inspector dt. 26.12.2003 Ex.WW1/6, apprising the workman that he visited the management on 24.12.2003 but the management though admitted him its employee but refused to reinstate him. This means that the management was fully aware that the workman had approached the Labour Officer on 15.12.2003 and the proceedings were pending till 26.12.2003 when his services were terminated. Ex.WW1/6 further shows that the management had refused to take the workman on job which falsifies the stand taken by the management that the workman willfully absented from duties. MW1 admitted this document in his cross examination . The management, on the other hand, failed to independently prove that the workman absented himself and abandoned the job . Failure on his part to crossexamine the workman regarding the facts as deposed by him regarding the incident dt. 10.12.2003 further falsifies its stand. MW1 deposed that he had no personal knowledge if the workman was not allowed to enter the office on 11.12.2003. Further more, MW1 failed to produce the actual attendance register of the company despite directions which would only lead to an adverse inference in favour of the workman . Thus, it is held that the claimant never abandoned his employment or absented himself from duty but it was the management which forced him out of the office and denied him to resume his duties and during the pendency of the proceedings before the Labour Officer, it terminated its services.
LIR No. 483/2011 10 of 12
17. It is not a disputed fact that the claimant was a permanent employee of the management. It was deposed by MW1 that he was terminated because of his unauthorized absence and because of his misconduct. However, in his crossexamination he was unable to depose about any irregularities committed by the workman while on duty. He also admitted that no memo, charge sheet was issued to the workman prior to his termination nor any domestic inquiry was conducted before his termination . Even if it is presumed that the workman absented himself without permission or intimation , it is not such a gross misconduct which would call for such a major penalty and at least a charge sheet should have been issued to him and a domestic inquiry should have been conducted which was not done in the present case. Hence, it is clear that the services of the claimant were illegally terminated. Accordingly, Issues No. 2 and 4 are decided in favour of the workman and against the management.
ISSUE No. 3 :
18. The onus to prove Issue No. 3 was upon both the parties. The workman pleaded that he is unemployed since 11.12.2003 and in his cross examination he deposed that he is dependent upon his working wife who is a teacher and earning Rs.37000/p.m. On the other hand, MW1 in his LIR No. 483/2011 11 of 12 crossexamination deposed that he was not aware whether the workman was employed or not. It was incumbent upon the management to prove that the workman was gainfully employed but it miserably failed to do so. Hence, it is held that the workman is unemployed since 11.12.2003. This issue is accordingly decided in favour of the workman and against the management.
ISSUE No. 5/RELIEF :
19. In view of my findings while deciding Issues No. 1 to 4 and since it could not be proved by the management that the workman was gainfully employed after his services were terminated, therefore, the workman is entitled to reinstatement of service with full back wages and other consequential benefits.
Reference is accordingly answered. Let a copy of this Award be sent for publication . Case file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 12th Day of March 2012 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR No. 483/2011 12 of 12