Delhi District Court
The National Capital Territory Of Delhi ... vs Siporex India Ltd. And Another on 3 May, 2008
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 324/06
BETWEEN
The workman
Sh. K.V. Sankaran
R/o C-48/Y-4,Dilshad Garden,
Delhi-95
AND
The Management of
M/s B.C. Components India,
Pvt. Ltd. 16, Okhla Industrial Area,
Phase-IV, New Delhi-20
M/s Philips India Ltd.
Amba Deep building, K.G. Marg,
New Delhi
M/s. Vishay Components India Pvt. Ltd.
(formerly known as B.C. Components India
Private Limited)
10,Community Centre,East of Kailash,
New Delhi-110065.
DATE OF INSTITUTION OF THE CASE : 30.06.2003
DATE OF RESERVING THE AWARD : 22.04.2008
DATE OF ANNOUNCEMENT OF AWARD : 03.05.2008
AWARD
1. The National Capital Territory of Delhi through its Secretary (Labour)
vide reference no. F.24(1475)/2002/Lab.4139-43 dt. 06.06.2003 referred
the dispute for adjudication between the management of M/s B.C.
Components India, and its workman Sh. K.V. Sankaram in the following
terms of reference:-
"Whether Sh. K.V. Sankaran has settled his
account in full and final or his services have
been terminated illegally and/or unjustifiably by
the management, if so to what relief is he
entitled and what directions are necessary in
this respect?"
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2. Workman has filed statement of claim stating therein that he was
employed with the management of M/s Philips India Ltd. w.e.f. 01.11.1972
as Typist-cum-clerk in grade-I. The terms and conditions of the
employment of the workman in the said company were governed by the
letter of appointment letter dt. 24.10.1972 and Clause-2 of the said
appointment letter provided that after completion of a 6 months of the
probation period from the date of appointment, the workman shall be
confirmed in writing as a permanent staff of the company subject to his
satisfactory performance during the probation period and workman was
given a letter of confirmation in writing immediately after 6 months of his
probation period, whereby his services were confirmed as a regular
employee. As per Clause-9 of the said appointment letter, the workman
was to retire from service of aforesaid company at the age of 60 years and
it was stated that the official record of age will be treated as final record.
The workman continued to work with the management of M/s. Philips India
Ltd. without any interruption in the service and he was given repeated
promotions and in the year 1993-94 the workman was working as Senior
Assistant in Grade-IV in the company and he was performing the duties
such as order processing, maintaining sales records of customers etc.
which were clerical in nature. The Grade-IV was the last grade in clerical
cadre, therefore on 03.06.1994, the workman was promoted to MG-7
grade as a part of its strategy to reduce headcount in unionized staff and to
avoid any stagnation and a letter of promotion dt. 03.06.1994 was issued
to the workman but the workman continued to perform the same duties as
were assigned to him prior to his promotion. By a letter dt. 04.08.1997 the
management of M/s. Philips India Ltd. altered the terms of appointment in
relation to retirement wherein it was stated that the conditions regarding the
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retirement age in the letter of appointment dt. 24.10.1972 was changed
from 60 years to 58 years with the discretionary power of the management
to extend it up to the earlier retiring age. The aforesaid change in the
retirement age was affected by the management of M/s. Philips India Ltd.
without any concurrence of the workman in an arbitrary and unjustifiable
manner. The workman continued working with the management and was
given another promotion to the MG - 6 level in the year 1997 but the
nature of duties of the workman remained the same. While the workman
was working with M/s. Philips India Ltd. he was given a letter dt.
29.11.1999 whereby he was informed that w.e.f. 01.12.1999, the
undertaking relating to Non Ceramic Passive Components business of the
company i.e. the department in which the workman was working was being
transferred to B.C. Components India Pvt. Ltd. and it was also informed
that the employment of the workman shall also stand transferred to the
management of the transferee company with the safeguards that the
existing terms and conditions of his employment will continue to apply and
shall not be less favourable than those applicable immediately prior to
transfer and on transfer his services will be deemed to be continuous and
without any interruption. Thereafter, the workman continued his further
employment with the management of M/s B.C. Components/Mgmt.1 and
the workman was performing duties such as date entry of customer orders
in the computer driven invoice generating menu and releasing the holdover
orders of such customers, to attend to the customers inquiries and forward
the same to the sales management for action, follow up with the logistics
department of the factory of the company about the order status of
customers, to take physical inventories of the stock and follow up of the
movement of stocks with the warehouse C & F Agent, preparing and
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generating various reports on computers as to sales and other statistics.
Thereafter, suddenly a letter dt. 31.05.2002 was given to the workman
whereby the management invoking powers under Clause 5 of the letter dt.
03.06.1994, terminated the services of the workman without assigning any
reason. The workman made presentation to the management but the
same was not considered by the management. On 28.06.2002, workman
sent a notice to management through his counsel. The management has
illegally terminated the services of the workman by giving him only three
months salary in lieu of notice, in order to effect the termination
immediately and the workman was paid other accrued benefits which the
workman was entitled to such as gratuity, un-availed leave enacashment
etc. No compensation was made to the workman for bringing an end to his
service prematurely. The workman filed claim before the conciliation officer
but the settlement was not arrived due to adamant attitude of the
management. It is stated that services of the workman have been
terminated without issuing any charge-sheet and without conducting any
enquiry. It is stated that the workman has remained unemployed till date. It
is prayed that an award be passed thereby reinstating workman in service
with continuity of service.
2. The notice of statement of claim was issued to the managements
and the managements have filed WS/reply and have contested the same.
In the WS, management of M/s Philips Electronics India Ltd/Management-2
has stated that the Management -2 was neither a party nor was involved in
any of the conciliation proceedings and no dispute was ever raised against
management no.2 and the claim of the claimant against management no.2
is without merits and is liable to be dismissed. It is stated that there is no
relationship of employer and employee between the claimant and
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management no.2. It is stated that w.e.f. November 1999, claimant ceased
to be the employee of Management no. 2 and he accepted the employment
of Management No.1 in terms of letter dt. 29.11.99. The employment of
the claimant was transferred to Mgmt. No.1 on the same terms and
conditions. It is stated that in terms of letter dt.04.08.1997 duly accepted
by the claimant, the age of retirement of the claimant was 58 years while in
the employment of management no.2. As after November 1999
employment of claimant stood transferred to management no.1 on the
same terms and condition in terms of letter dt. 29.11.99 and no claim could
lie against the management no.2 in this regard. It is stated that claimant
was working with management no.2 as Officer in the year 1999 and was
discharging the administrative and managerial duties and the claimant was
not doing any manual, skill, technical, operational or clerical nature of job
and therefore, he was not a workman as defined under the provisions of
Section2 (s) of the Industrial Disputes Act, 1947. It is stated that the
employment of claimant with management no.2 is a matter of record. It is
stated that at the time of joining management no.2 , age of the retirement
was 60 years but the claimant was promoted from time to time and on
3.6.94 he was promoted to the officer cadre (grade MG-7) and was not a
workman under the provision of Section 2 (s) of ID Act 1947. In the year
1997, the management no.2 decided to reintroduce the retirement clause
of the officer's cadre and the same was done vide letter dt. 04.08.97 and
the said letter was duly accepted by the claimant. The claimant did not
raise any protest at that time and claimant continued working with
management no.2. In the year 1999 , the employment of the claimant
stood transferred to M/s B.C. Components India Pvt. Ltd. on the same
terms and condition and claimant accepted the same without any protest
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and continued working with M/s. B.C. Components India Pvt. Ltd. It is
stated that the claimant is not entitled to any relief from management no.2.
3. The management of M/s Vishay Components India Pvt. Ltd .
(management no.3) has filed WS to the statement of claim and has
contested the same (vide order dt. 08.11.2005 my ld. predecessor was
pleased to allow substitution of M/s Vishay Components India Pvt. Ltd . in
place of B.C. Components India Pvt. Ltd). In the WS, Management no.3
has denied that claimant was lastly working with management no.3 in the
capacity of workman as defined under Section 2 (s) of the I.D. Act, 1947. It
is stated that the claimant was placed in the management cadre-VI and he
was eligible and entitled to all facilities and benefits as are provided to
management personnel in the employment of the company . The duties
and responsibilities entrusted to the claimant were of managerial,
administrative and supervisory nature and he was employed in the
services of the company to perform such onerous duties and
responsibilities amongst others-customer orders input, i.e he was solely
responsible for the input of Purchase Orders into the system, supervise
and release of back orders. The claimant was also responsible for
scrutinizing and entering data regarding sales orders from distributors and
customers of the company. The claimant used to provide support to
customers in terms of smooth delivery of company's products to them. The
claimant was independently Incharge of the management information
system (MIS)process. The claimant was required to interpret the data
generated and/or collected by the various sales engineers including the
sales manager. The claimant was also responsible to ensure that the
logistics department that dealt with the demand , supply, schedule of the
company's products were strictly adhering to time schedules. The claimant
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closely monitored the inventory status and issued directions and
instructions regularly to ensure that there was no hassles in the supply
position of company's products to the various customers. The claimant
was also provided the assistance of Mr. Lok Nath, Commercial Official
who used to report and take instructions from the claimant. The contractual
employees at the depot were also reporting to the claimant and the
claimant was responsible for the inventory management of stocks at the
Okhla Depot. The claimant used to decide about the delivery schedule of
various customers. The claimant was also solely responsible for liasoning
between Northern Region, Delhi and the factory situated at Pune for their
product delivery. It is stated that claimant was not performing the duties as
of a workman as contemplated U/s. 2 (s) of the ID Act 1947. It is stated that
the last drawn salary of the workman was Rs. 18,830/- which included
basic salary of Rs. 12,900/-, Self Development Allowance of Rs. 1400/-
Canteen Allowance of Rs. 1000/- and conveyance allowance of Rs. 900/- .
The fact that claimant was paid self development allowance, canteen
allowance clearly distinguish the service of the claimant from a worker
employed in the company. It is denied that even after promotion to
Management Cadre Grade -7 the claimant was performing clerical nature
of duties. It is neither understood nor appreciated as to why the employer
would pay the claimant salary and allowances applicable to management
cadre employees but get clerical jobs done by the employee. It is also
denied that after promotion to Officer Cadre in MG-7 in 1997 his nature of
duties remained the same. It is stated that the conditions of service of
claimant stood amended from time to time. It is stated that management
has replied to the notice dt. 28.06.2002 of the claimant by letter dt.
04.07.2002. It is stated that claimant is not a workman and is not entitled to
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any relief.
4. The workman has filed rejoinders to the written statements of
management M/s Philips India Ltd. and M/s B.C. Components India Pvt.
Ltd. (Vishay Components India Pvt. Ltd.). In the rejoinders workman has
reiterated the contents of statement of claim and has controverted the
allegations of managements as stated in the WS.
5. From the pleadings of parties following issues were framed on
31.08.2006:
1.Whether Sh. K.V. Sankaran is not a workman in terms
of Section 2 (s) of the ID Act, 1947 as stated in para
-1 of W.S. of management no.3, if so its effect? OPM3.
2.Whether there is relationship of employee
and employer between the workman and
management no.2, if so its effect? OPW
3. As per terms of reference.
6. To prove his case workman has examined himself as WW1.
7. Management of Ms/ Philips India Pvt. Ltd. (Management no. 2) has
examined Sh. Yashpal Mehandiratta as M2W1 and management of M/s
M/s Vishay Components India Pvt. Ltd . has examined Sh. Lok Nath Dalai
as M3W1.
8. I have heard authorized representative for parties and carefully
perused record. My findings on specific issues are as under:
ISSUE NO. 1
9. In the statement of claim the workman has stated that he was
employed by M/s. Philips India Pvt. Ltd./management no. 2 on 01.11.1972
as Typist-cum-Clerk in Grade - I and the workman continued in service of
management no. 2 without any interruption and he was given repeated
promotions and in the year 1993-1994 the workman was working as Senior
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Assistant in Grade - IV. In para 6 of the statement of claim the workman
has stated that Grade IV was the last grade in the clerical cadre and on
03.06.1994 the workman was promoted to MG - 7 grade vide letter of
promotion dt. 03.06.1994. In para 8 of the statement of claim the workman
has stated that he was given another promotion to MG - 6 level in the year
1997 but the nature of duties of the workman remained same. In para 9 of
the statement of claim the workman has stated that the undertaking
relating to non-Ceramic Passive Components business of the company i.e
the department in which workman was working, was transferred to BC
Components India Pvt. Ltd./management no. 1 and the services of the
workman were also transferred to management no. 1 on the same terms
and conditions. The contention of AR for the workman is that he was
performing clerical nature of duties and vide letter dt. 31.05.2002 the
management by invoking power under Clause 5 of the letter dt. 03.06.1994
terminated his services without assigning any reason. In its W.S. the
management no. 2 has stated that the claimant was promoted to officer
grade by the management no. 2 in the year 1994 and it is denied that the
claimant was doing any clerical work. The plea of management no. 2 is that
in the year 1999 when the services of claimant were transferred to
management no. 1 he was discharging administrative and managerial
duties and he was not doing any manual, skilled, technical, operational or
clerical nature of job and he was not a workman under the provisions of
Section 2(s) of the I.D. Act, 1947. In its W.S. the management no. 1 and 3
has also stated that as an officer of MG - 6 level the claimant was
discharging managerial, administrative and supervisory duties and he was
entitled to all facilities and benefits which were provided to managerial
personnel in the employment of the company.
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10. As per the case of the workman he joined the services of the
management no. 2 as Typist-cum-Clerk on 01.11.1972 and in the year
1993-1994 he was working as Senior Assistant in Grade - IV and
thereafter on 03.06.1994 he was promoted to MG - 7 Grade and thereafter
in the year 1997 he was given another promotion to MG - 6 level. Hence,
as per the case of workman at the time of disengagement of his services
he was working in MG - 6 level.
11. In Vilas Dumale vs. Siporex India Ltd. and Another, 1998 LLR
380 the petitioner joined as a clerk and later on he was promoted and
when his service were terminated he was working as Senior Personnel
Assistant Officer and drawing basic salary of more than Rs.500/-, it was
held that he was working in supervisory capacity and he cannot be a
workman.
12. The contention of AR for management no. 1 and 3 is that the
claimant is not a workman as per provision of Section 2(s) of the I.D. Act,
1947 as at the time of disengagement of his services on 31.05.2002 he
was working on managerial post and he was discharging managerial,
administrative and supervisory nature of duties and he was entitled to all
facilities and benefits as provided to management personnel in the
company. AR for the management no. 2 has also contended that after
promotion of workman to MG - 7 grade in the year 1994 he was
discharging managerial, administrative and supervisory nature of duties.
But the contention of AR for the workman is that even after promotion to
managerial cadre as MG - 7 grade he was performing the clerical nature of
duties and at the time of termination of his services in the year 2002 while
he was working in MG - 6 grade he was performing clerical nature of
duties.
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13. Section 2(s) of the Industrial Disputes Act 1947 defines "workman"
as:
"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-
(i) who is subject to the Air Force Act, 1950
(45of 1950), or the Army Act, 1950 (46 of
1950), or the Navy Act, 1957 (62 of 1957); 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 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.
14. In Burmah-Shell Oil Co. v. Burmah-Shell Management Staff
Assn., [1972] 41 FJR 361, Hon'ble Supreme Court laid down that the test
of substantial work performed by the concerned employee should be
applied to find out as to whether the employee is employed to do skilled or
unskilled manual, clerical, technical or supervisory work.
15. But, in determining the question as to whether a person is employed
in a supervisory capacity or otherwise, the mere designation is not decisive
of the nature of employment. The question whether a person is employed
in a 'supervisory' capacity or on clerical work, depends upon whether the
main and principal duties carried out by him are those of a 'supervisory'
character or of a nature carried out by a clerk. If a person is mainly doing
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'supervisory' work, but, incidentally or for a fraction of the time, also does
some clerical work, he would be deemed to be employed in a 'supervisory'
capacity. Conversely, if the main work done is of a clerical nature, the mere
fact, that some supervisory duties are also carried out incidentally or as a
small fraction of the work done by him, will not convert his employment as
a clerk into one of supervisory capacity.
16. In Anand Regional Co-op. Oil Seedsgrowers Union Ltd. vs.
Shaileshkumar Harshadbhai Shah- 2006 LLR 1052 it was held that:
15.Supervision contemplates direction and
control. While determining the nature of the
work performed by an employee, the essence
of the matter should call for consideration. An
undue importance need not be given for the
designation of an employee, or the name
assigned to, the class to which he belongs.
What is needed to be asked is as to what are
the primary duties he, performs. For the said
purpose, it is necessary to prove that there
were some persons working under him whose
work is required to be supervised. Being
incharge of the section alone and that too it
being a small one and relating to quality control
would not answer the test.
16.The precise question came up for
consideration in Anand Bazar Patrika (P) Ltd. v.
Workmen, (1970) 3 SCC 248, wherein it was
held:
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"The question, whether a person is
employed in a supervisory capacity or on
clerical work, in our opinion, depends upon
whether the main and principal duties
carried out by him are those of a
supervisory character, or of a nature
carried out by a clerk. If a person is mainly
doing supervisory work, but, incidentally or
for a fraction of the time, also does some
clerical work, it would have to be held that
he is employed in supervisory capacity;
and, conversely, if the main work done is
of clerical nature, the mere fact that some
supervisory duties are also carried out
incidentally or as a small fraction of the
work done by him will not convert his
employment as a clerk into one in
supervisory capacity..."
17. In M/s Sagari Leather (P) Ltd. vs. Presiding Officer, Industrial
Tribunal (4), Agra and others- 2006 LLR 1170 it was held that:
9. ............A person to be workman must be
employed to the work of any of the categories,
namely, manual, unskilled, skilled, technical,
operational, clerical or supervisory. A person, who
is employed as a workman and is doing the work of
the above nature is workman and is a person
employed is not doing the work of the
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abovementioned is not a workman. Clause (iv) of
section 2(s) of the Act provides that 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 does not fall within the definition
of the workman. For the purpose of clause (iv) what
has to be seen is the employment of the person in a
supervisory capacity. The main part of the definition
treat a person as a workman, who is employed as a
workman in any industry but was looking after the
supervisory work for hire or reward but if a person is
employed in a supervisory capacity by virtue of his
appointment letter he is not a workman within the
definition of section 2(s) of the Act and in my
opinion no other consideration is required to be
looked into.
18. The workman appeared in the witness box as WW1 and he adduced
evidence by way of affidavit Ex. WW1/A. In para 2 of affidavit Ex. WW1/A
the workman has stated that there were four grades in clerical cadre and
when he reached the top clerical grade C - IV in the year 1993 his nature
of duties remained the same and he was performing the job of order
processing, inventory of stocks, maintaining sales record of authorized
dealers, distributors and other manufacturers customers. The contention of
AR for the workman is that the management was recruiting all the
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employees in so-called management grade and the employees who were
so recruited, were asked to perform the duties which were clerical/manual
in nature and the unionized staff was induced to accept further promotions
in the management cadre without their jobs undergoing any change. The
contention of AR for management no. 1 and 3 is that now the
managements are functioning in the age of total computerization and they
are having paper less offices and moreover, there is no illegality if a
management does not appoint persons in clerical cadre on account of
complete computerization of offices. The contention of AR for management
no. 1 and 3 is that the contention of workman that even after promotion to
managerial grade he was performing clerical nature of duties, has no force
as a management will not make much more payment of wages to the same
personnel for discharging the same duties and provide him with all the
facilities of an officer for making him do work of a clerk only.
19. In para 11 of the affidavit Ex. WW1/A the workman has stated that at
the time of termination of his job, he was performing clerical nature of jobs
irrespective of his designation and salary grade and dominant part of his
duties was order processing, feeding of orders in the computer, to dispatch
the material involved in these orders to the regional warehouse of the
management, generating invoices, attending telephone calls, maintaining
list of outstanding dues of the customers/dealers/distributors by feeding in
the computers details of their payments etc., preparing various statements
with the help of computers to take physical inventory of the material
regularly and also performing other duties which were assigned to him by
his superiors. The workman/WW1 admitted in the cross - examination that
Ex. WW1/M6 states the key areas of responsibility entrusted to him after
his promotion. Ex. WW1/M6 reads as under:
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MR. SANKARAN K.V. -- N/R MARKETING SALES & LOGISTICS
Ex - SALARY NO. 67030
JOB TITLE : EXECUTIVE - ORDER DESK
KEY AREAS OF RESPONSIBILITY
1 Customer orders Input and releasing of back orders Supervision
and entering orders from distributors & customers
2 Customer support
3 Logistics Support
4 JdE system support
5 MIS
6 Follow up with depots > logistics
7 Inventory mgt. of stocks at Okhla depot.
20. The contention of AR for management no. 1 and 3 is that the key
areas of responsibility entrusted to an officer are not always in writing and
apart from the aforesaid areas as mentioned in Ex. WW1/M6 the claimant
was performing other duties also which were managerial, administrative
and supervisory in nature.
21. In Parle Products Private Limited vs. C. S. Saraswati and
another, (1981) 2 LLJ 419 it was held:
28. ...................... The order of the Tribunal shows
its unusual insistence on every piece of evidence
to be in writing. In a commercial establishment
normally distribution of duties and allocation of
administrative work is not always done by orders
issued in writing as is done in a Government office.
Ultimately it is a matter of arrangement between
the top officers of a commercial concern as to how
they will distribute functions between themselves.
22. The workman has pleaded that he joined management as Typist-
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cum-Clerk in the year 1972 and although he was given various promotions
by the managements from time to time but his nature of duties remained
same and he continued to perform clerical nature of duties only. The
managements have pleaded that on promotion of workman from clerical
cadre to management cadre his nature of duties included managerial,
administrative and supervisory functions and the claimant was also getting
all the benefits which were provided to management cadre.
23. In Toshniwal Bros. (P) Ltd. vs. Delhi Administration etc., ILR
(1976) II Delhi 548 it was held that:
15. Clerical work is ordinarily understood as being
synonymous with routine, stereotype work, which
does not involve any initiative, creativity, control or
dignity. A person employed to discharge general
office duties, whether styled as an Assistant or a
General Assistant, would nevertheless, be carrying
on clerical work. A limited amount of supervision and
control over other employees would not take any
employee out of the category of a workman if he is
mainly employed for clerical work. A person,
however, could not be said to be carrying on clerical
duties if he is required to perform substantial duties
of a supervisory, directional or controlling nature,
even though at the same time carrying on duties of a
clerical nature. If, however, a person is mainly doing
supervisory work, but incidentally or for a fraction of
a time is required to do clerical work he would be
deemed to have been employed in a supervisory
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capacity. If the main work entrusted to an employee
is of a clerical nature the mere fact that there is
some element of superivision, or supervisory duties
are performed incidentally it will not convert the
employee into a supervisor. Ordinarily, a supervisor
or an officer should occupy a position of command
or be authorised to take independent decisions and
should be authorised to act in certain matters within
the limits of his authority without the sanction of a
superior. The fact that work performed by an
employee is of responsibility or of a onerous nature
would not be decisive as to the nature of duties.
24. In Abdur Rahim, Chief Chemist vs. Sasamusa Sugar Works Ltd,
1956-II-LLJ 399 it was held that a clerk is generally a person who does
routine work of writing, copying or making calculations under the direction
and supervision of an officer.
25. The workman/WW1 admitted in the cross - examination that on his
promotion to Management Group - 7 grade letter dt. 03.06.1994 Ex.
WW1/M1 was issued to him and alongwith Ex. WW1/M1 conditions of
service in Management Group - 7 Ex. WW1/M2 was also issued to him. As
per Ex. WW1/M2 on promotion to MG - 7 grade the claimant was placed
on probation for a period of 12 months and as an officer in MG -7 grade he
was entitled to education allowance and self - development allowance.
The workman/WW1 stated in the cross - examination that may be self -
development allowance was given by the management to only officials in
managerial cadre and not to the workmen. The workman has not proved
that while he was working in the clerical cadre he was entitled to or was
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being paid self - development allowance which he was getting after his
promotion to MG - 7 grade. The workman/WW1 further admitted in the
cross - examination that his salary in July 1997 was as per statement Ex.
WW1/M3. As per statement Ex. WW1/M3 dt. 07.07.1997 the workman was
promoted to MG - 6 grade w.e.f. 1.7.1997 and it was stated that his
service compensation will include basic salary of Rs.11100/- per month,
HRA Rs.2350/- per month, education allowance Rs.100/- per month, self -
development allowance Rs.315/- per month, conveyance allowance
Rs.700/- per month, leave travel allowance Rs.10,500/- per month and
medical reimbursement full.
26. The plea of the workman is that even after his promotion to
managerial grade he was performing clerical nature of duties as were
being performed by him in the clerical cadre, hence on that account he is a
workman as per Section 2(s) of the I.D. Act, 1947. The workman/WW1
admitted in the cross - examination he was authorized by the management
no. 1 to sign the cheques and other negotiable instruments as Authorized
Representative of management no. 1. Thereafter the workman/WW1
voluntarily stated in the cross - examination that he was only authorized to
sign cheques and there was requirement of signing the cheques by two
authorized signatories and in the absence of one of them he used to sign
the cheques as Authorized Representative. The workman has not pleaded
that while he was working in the clerical cadre at that time also he was
authorized to sign the cheques as Authorized Representative. The signing
of cheques by an official as Authorized Representative of a management is
a job of responsibility as if the said job is given to a junior official there is
possibility that the junior official may not be responsible in dealing with the
funds of the management and signing of cheques is an act of responsibility
:20:
and involves exercise of discretion. The workman/WW1 was specifically
put a question in the cross - examination that after his promotion to MG -
7 grade in the year 1994 whether his conditions of service were governed
by any settlement arrived between the management and
workmen/association/union and the workman replied that his condition of
service were governed by whatever the company has given him in writing.
However, the workman/WW1 admitted in the cross - examination that his
conditions of service till his promotion to MG - 7 grade were governed by
settlement arrived between the Philips Employees Trade Union and the
management. The plea of the workman is that he was given promotions in
order to reduce the unionized staff, but the workman has not proved that
he accepted promotion to MG - 7 grade under protest by stating that his
promotion to management grade is only an eye wash and the same is
being done in order to reduce the unionized staff. The workman/WW1
admitted in the cross - examination that after 3.6.1994 he was not a
member of trade union. The workman has not explained that if even after
promotion to MG - 7 grade he continued to be a workman then why he did
not take up membership of any trade union after his promotion to MG - 7
grade.
27. The workman/WW1 admitted in the cross - examination that
Performance Appraisal Forms Ex. WW1/M8 to Ex. WW1/M14 bear his
signatures. In the Performance Appraisal Form Ex. WW1/M14 which is dt.
23.02.2001 the workman has mentioned key areas of his responsibilities i.e
to supervise and enter distributors, other customers' orders, release of
back orders etc. However, AR for workman has contended that while filling
the Performance Appraisal Forms the workmen always try to exaggerate
their areas of responsibilities and their performance and moreover, the said
:21:
Performance Appraisal Forms besides workman, are also signed by
Manager and next level Manager which shows that there were Managers
functioning above the workman.
28. In Glaxo India Ltd. vs. C. Gupta & Anr., 1999 I CLR 969 it was
held:
50. In case of disciplinary proceedings, industrial
Relations Executive plays an important part in
setting out either the charges or in keeping an eye
over the progress of the enquiry. In the process he
may help collection of evidence, production of
evidence as also advising the company on which
type of evidence and what evidence should be
produced. This is being done with a view to
strengthen the position of the management and to
bring about a favourable result for the
management. Otherwise, it will result in loss of
face for the management.
51. Of necessity, therefore, the entire team with
the typical hierarchy of Managing Director or
Executive Director at the top and Personnel
Manager and other staff members down upto
Industrial Relation Executive like the employee in
the instant case would be part and parcel of the
management.
52. This is not to say that this managerial team will
not have workman working with them. They will be
having an assistance of clerk, stenographer and
:22:
other employees to run their office. They would
certainly be the workman. However, on and from
the stage that the steps are initiated, proposals are
mooted or suggestions are made affecting the
managerial policy in relation to the conduct of the
company towards its employee having direct effect
on the Industrial Relations, persons who are doing
this work with expertise in law ordinarily would fall
in the category of managerial staff.
...........................
...........................
61. In my opinion the aforesaid activities would clearly indicate that he was representing the management in the very important task of maintaining industrial peace and assisting the company's lawyer in conducting cases to obtain favourable result for the company. In this background, as per exception No. 3 of Section 2(s) he would certainly be falling into the administrative or managerial capacity. To run harmoniously a factory by maintaining proper industrial relation is definitely a part of administration. Because of his expertise, the employee was the first rung in the ladder of management laid down by the company.
That in no way will take him out of the position of being employed in managerial or administrative capacity.
:23:
28. Hence, in view of decision in Glaxo India Ltd. vs. C. Gupta & Anr. (Supra), even if in the hierarchy of officials the claimant is working below and Manager and next level Manager, the same will not make the claimant a workman in terms of Section 2(s) of I.D. Act, 1947.
29. The contention of management is that the workman was working on Entrepreneurial Resource Planning System/Programme-Sales Module (ERP Program) and on the basis of said program he could decide at that quantity of products were to be supplied to which distributors and he was also deciding the priority for delivery of company's products to distributors and customers and even the production at the factory of management no. 1 and 3 at Pune was dependent on the advice given by the claimant. The workman/WW1 admitted in the cross - examination that in discharge of his duties he was dealing with factory of management no. 1 situated at Pune and warehouse situated at Okhla, Phase - II, New Delhi and he was working on ERP Program. Thereafter, the workman/WW1 volutarily stated in the cross - examination that he was not a Computer Programmer . Thereafter, the workman/WW1 admitted in the cross - examination that on the basis of ERP Program he could decide that which distributor is to be supplied what quantity of products. The workman/WW1 further stated in the cross - examination that he was partly deciding the priority for delivery of company's products to distributors and customers. The workman has not proved that while he was working in the clerical cadre at that time also he had the authority to decide that which distributors are to be supplied what quantity of products and he had also the authority of deciding the priority of delivery of company's products to distributors and customers. The plea of the management is that the claimant was discharging important :24: administrative functions and even production of management at its factory was dependent upon the advice furnished by the claimant. The workman/WW1 was put a question in the cross - examination by the management to the effect that planner at Pune factory used to be instructed by him to expedite supply of company's product to customers to which workman stated that he was partly doing the same. Another plea of AR for the management no. 1 and 3 is that the warehouse of management no. 1 and 3 situated at Okhla, Phase - II, New Delhi was also working under the direction, supervision and control of the claimant. The workman/WW1 stated in the cross - examination that warehouse situated at Okhla, Phase - II, New Delhi was not being run by the management no. 1 and 3 and it was being run by service provider and as per his knowledge four employees were working in the warehouse situated at Okhla, Phase - II, New Delhi. The workman/WW1 admitted in the cross - examination that the material which were received at warehouse at Okhla was within his knowledge and the dispatch of material from warehouse was also within his knowledge. Thereafter, the workman/WW1 admitted in the cross - examination that he was issuing delivery notes. Thereafter, the workman/WW1 further voluntarily stated in the cross - examination that he was only filling the delivery notes, but Manager/Administrator was issuing authority. The workman/WW1 also admitted in the cross - examination that Sh. Lok Nath Dalai had joined the management. Sh. Lok Nath Dalai appeared in the witness box as M3W1 and he denied in the cross - examination that the claimant was generating invoices on the basis of orders received & he voluntarily stated that the claimant authorizing to generate invoices. In the cross - examination of M3W1 no suggestion was given to the effect that the claimant was not authorizing to generate :25: invoices. M3W1 denied suggestions of workman in the cross - examination to the effect that a copy of the invoice is also sent to the warehouse. M3W1 stated in the cross - examination that invoices are generated in warehouse, hence there is no question of sending the copy of the same to warehouse. The contention of AR for management no. 1 and 3 is that apart from supervising the functioning of warehouse situated at Okhla, Phase - II, New Delhi the claimant was assigned another very important function i.e the claimant had the authority to issue invoices in case of orders of the distributors whose accounts went into outstanding. The workman/WW1 stated in the cross - examination that it was not within his discretion to disallow supply of product of the company to defaulting customers. A suggestion was given by workman to M3W1 in the cross - examination to the effect that the distributor whose account went into outstanding was automatically debarred by the computer regarding raising of invoices. In the cross - examination M3W1 stated that only the claimant had authority to issue invoices in case of orders of distributors whose accounts went into outstanding and the claimant had the necessary authority through his computer to issue invoices to the distributors whose accounts went into outstanding. Thereafter, M3W1 voluntarily stated in the cross - examination that it was loaded through password. In the cross - examination of M3W1 no suggestion was given to the effect that the claimant did not have necessary authorization through a password whereby the claimant could issue invoices in case of orders of distributors whose accounts went into outstanding. The workman has not proved that while he was working in clerical cadre at that time also he had the necessary authority through his computer to issue invoices to the distributors whose accounts went into outstanding. The authority given to :26: the claimant by the management no. 1 and 3 to issue invoices to the distributors whose accounts went into outstanding cannot be said to merely a clerical function as it involves exercise of discretion in a prudent manner so that the revenue of the managements is protected and no loss is caused to them. Moreover, the workman/WW1 himself admitted in the cross - examination that promotion from clerical cadre to managerial cadre, the management was following the policy of requirement of four to five years of service in the grade immediately before promotion. Rather, this shows that for promotion to managerial cadre the person who is to be promoted should have necessary knowledge and expertise so was that he can discharge the managerial duties to be assigned to him on the basis of experience which he has acquired and the faith of the management which he has earned during the course of his service for the said period of 4/5 years and thereafter only the said person can be entrusted with the responsibilities whereby he could protect the interest and revenue of the management.
30. In para 7 of the affidavit Ex. WW1/A the workman has stated that in the year 2002 a new employee namely Sh. Lok Nath was employed in MG
- 7 grade and his duties were being solely and gradually assigned to the aforesaid employee. The management examined the said employee Sh. Lok Nath Dalai as M3W1 who adduced evidence by way of affidavit Ex. M3W1/A and in paras 6 and 7 of affidavit Ex. M3W1/A Sh. Lok Nath Dalai has stated about the authority which was given to the claimant to decide about the quantity of goods to be supplied to the distributors and authority to decide to give credit extension and also the claimant had the necessary password by which he could permit supplies to the defaulting customers who have been debarred by the ERP Program. In para 9 of affidavit Ex. :27: M3W1/A Sh. Lok Nath Dalai has reiterated that the contractual employees in the depot situated at Okhla, Phase - II, New Delhi were directly reporting to the claimant and the claimant was responsible for the inventory management of stocks at the Okhla Depot, New Delhi and he was solely responsible for liaisoning between the Northern Region, Delhi and the factory situated at Pune to ensure their product delivery as per schedule. In para 12 of the affidavit Ex. M3W1/A Sh. Lok Nath Dalai has stated that the claimant used to recommend his leave for approval to the Regional Manager and for all administrative purposes he used to seek his permission for sanction and approval and he used to work under the supervision, control and directions of the claimant. In the cross - examination M3W1 stated that Sh. Sanjay, Depot Manager, Sh. Rohit, Sh. Radha Krishnan were working under the claimant, who were dong the physical verification work in the warehouse. M3W1 further stated in the cross - examination that on promotion from MG - 7 grade to MG - 6 more or less the nature of job of the claimant remained the same but in addition he got one officer to assist him and after disengagement of the claimant from management no. 3 he was looking after the work which being performed by him. Thereafter, M3W1 voluntarily stated in the cross - examination that he was previously assisting the claimant. M3W1 stated in the cross - examination that when he was looking after the job which was being performed by the claimant after his disengagement, he was assisted by Sh. Loveleen who was contractual employee. Moreover, the workman himself had admitted in the cross - examination that his duties were gradually assigned by the management to Sh. Lok Nath Dalai (M3W1). The contention of AR for the management no. 1 and 3 is that it is for workman to prove that even after promotions he continued to perform pre-dominantly :28: clerical nature of duties, but the workman has failed to prove that even after promotions he was performing pre-dominantly clerical nature of duties and the managerial, administrative and supervisory duties which were being performed by him after his promotions to management cadre were only incidentally performed by him.
31. In Harish Ghularam Zode vs. Managing Director, M/s Vacuum Plant and Instruments Manufacturing Co. (P) Ltd. and Others, 2000 LLR 742 it was held that:
3. .................... On the point of the Petitioner being a workman he has not led any satisfactory evidence before the Labour Court to show that he was continuing to do the work of machinist and that he squarely fell within the four corners of the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947. He ought to have produced his promotion order and also ought to have narrated in detail the work which he was doing to show that his duties did not attract the exceptional part of the definition of workman and that his predominant duties were that for a workman only. On the contrary the employer Company has produced documentary evidence and had also examined one witness to prove that the Petitioner was holding the post in a supervisory capacity.
32. The workman has pleaded that even after his promotion from clerical cadre to management cadre I.e. MG - 7 grade in the year 1994 he continued to predominantly perform the duties of the clerical nature of job. :29: The management has pleaded that duties which the workman was performing after promotion to managerial grade were not being performed by him while he was in the clerical cadre and predominant nature of duties of the claimant after his promotion were managerial, administrative and supervisory in nature and the powers by which the claimant had discretion to supply the quantity of products of management to distributors and defaulting customers and the claimant had the authority whereby the claimant could issue invoices in case of orders of distributors whose accounts went into outstanding by way of password which he had in the computer and then the warehouse situated at Okhla was also functioning under the supervison and control of the claimant and that the claimant was one of the autohrized signatories of the cheques of management no. 1 and 3 and the production schedule of the factory of the management at Pune was also scheduled as per advice of the claimant and in the circumstances, the predominant nature of duties of the claimant were not clerical and rather the same were administrative, managerial and supervisory. AR for management has relied on decision in Tata Sons Ltd. v. S. Bandyopadhyay and Anr., 2004 LLR 506, wherein our own Hon'ble High Court held that an employee, engaged in a senior position e.g. Dy. Manager (Engineering) and being highly qualified, cannot claim to have the status of the workman under Section 2(s) of the Industrial Disputes Act when his nature of work clearly involved considerable amount of mental inputs, creativity and imagination hence the Labour Court has erred in passing an award in holding that the respondent is a workman under the Industrial Disputes Act.
33. As per the case of workman, he was given repeated promotions by the management and on 03.06.1994 he was promoted to managerial cadre :30: i.e MG - 7 grade and in the year 1997 he was promoted to MG - 6 level and as per Ex. WW1/M2 on promotion to MG - 7 grade the claimant was receiving allowances which were education allowance, self - development allowance etc. which he was not getting while he was in the clerical cadre and as per Ex. WW1/M3 the said allowances of the claimant were revised on his promotion to MG - 6 level and after promotion of claimant to managerial cadre i.e MG - 7 level the workman ceased to be any member of trade union. As per evidence adduced on record the claimant was one of the authorized signatories of the cheques of management no. 1 and he had discretion to decide the quantity of products to be supplied to the distributors and he had also the discretion to supply goods to the defaulting customers who have been debarred by the computer on account of default, by way of password which he was having in his computer and the said discretions were not used by workman while he was working in the clerical cadre. It is evident from the evidence adduced on record that the claimant was supervising the functioning of the warehouse situated at Okhla, Phase
- II, New Delhi and the supplies from the factory of management situated at Pune were also dependent upon the schedule furnished by the claimant and the claimant was deciding the priority of delivery of company's products to distributors and customers. The claimant was predominantly during the aforesaid functions which cannot be termed as merely clerical nature of duties i.e which involved routine stereotype work. The evidence adduced on record proves that the claimant was predominantly performing the supervisory, managerial and administrative functions as substantially he was doing work which required considerable amount of mental inputs, creativity, imagination and taking independent decision by exercising discretion. Accordingly, the claimant is not workman as per Section 2(s) of :31: the Industrial Disputes Act, 1947. This issue stands answered accordingly. ISSUE NO. 2 AND 3
34. Since both these issues involve common discussion of facts and law hence for the sake of brevity both these issues are being taken up together. In findings on issue no.1 above it has been held that Sh. K.V. Sankaran is not a workman under Section 2(s) of Industrial Disputes Act, 1947. As Sh. K.V. Sankaran is not a workman as per Section 2(s) of I. D. Act 1947 hence his claim is not maintainable under Industrial Disputes Act, 1947 and his is not entitled to any relief. Reference stands answered accordingly. Copies of award be sent to appropriate Govt. for publication as per law.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 03.05.2008.
` (HARISH DUDANI)
PRESIDING OFFICER
LABOUR COURT NO. XVII
KARKARDOOMA COURTS,
DELHI
:32:
ID No. 324/06
03.05.2008
Present:- None.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room.
POLC/03.05.2008