Delhi District Court
Sh. Rajiv Chauhan vs Safdarjung Club on 20 August, 2019
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
ROUSE AVENUE COURTS : NEW DELHI
LIR No: 409/16
Sh. Rajiv Chauhan
S/o Late Sh. G.L.Chauhan
R/o: 179, Surya Niketan
Delhi - 110092
....WORKMAN
VERSUS
Safdarjung Club
Through its General Secretary
Safdarjung Enclave
New Delhi
....MANAGEMENT
Date of institution of the case : 15.12.2008
Date of passing the Award : 20.08.2019
AWARD
1.This is a petition filed by the workman under Section 10(4)(A) of the Industrial Disputes Act, 1947 averring therein that he was appointed at the post of "Catering Supervisor (B & F)" vide appointment letter dated 12.03.1995 for a probation of period of three months commencing from 15.03.1995. Vide his confirmation letter dated 20.07.1995, he was confirmed at the said post and his revised salary was Rs. 3,000/ per month. Gradually, the workman was promoted to the post of Asst. Manager (F&B) and was also granted an increment of Rs. 1,100/ per month vide letter LIR No: 409/16 Page 1 of 27 dated 29.03.2006 which was to come in to effect from 01.10.2005.
It has been stated further that the bonus/ incentive of the workman had fallen due since 01.10.2006 and thus he had sent a representation to the management on 05.05.2007 but the management had failed to pay any heed to the said representation. Again a representation dated 17.06.2008 was made to the President of the management, but it had also met with the same fate and on 18.06.2008 itself, the workman was placed under suspension while leveling false charges against him. Workman had also received a show cause notice dated 27.07.2008 containing false allegations against him which was also duly replied by him on 04.08.2008. However, the management with its malafide intention and acting in an arbitrary manner had issued him another show cause notice dated 08.08.2008 which was again replied by him vide his reply dated 14.08.2008. Similarly, third show cause notice dated 13.09.2008 was also served upon the workman after which the workman had also appeared before the Inquiry Committee and sought three days time to file reply to the show cause notice which was also granted to him but the Inquiry Committee had denied to supply him the copy of service rules/ standing orders.
On 26.09.2008, the workman had filed his reply LIR No: 409/16 Page 2 of 27 to the show cause notice but the same did not find any favour with the Inquiry Committee and the management, acting in an illegal and arbitrary manner had terminated his services on 01.11.2008 in utter violation of provisions of I.D.Act.
It was stated further that the workman was dismissed from his service pursuant to the recommendations made by the Inquiry Committee regarding proposed punishment in respect of the workman though it had no right or authority to make any such recommendation.
Conciliation proceedings had also failed which was communicated to the workman by the Conciliation Officer vide his letter dated 03.11.2008 and accordingly, on 18.11.2008 a representation was sent by the workman to the management in respect of the aforesaid illegal termination but the management had neither replied nor complied with the same. It was therefore prayed by the workman that he was entitled to be reinstated back in service with full back wages and all other consequential benefits arising therefrom.
2. Notice of this claim was issued to the management who was duly served with the same and management had also appeared to contest the claim of workman on merits and filed its written statement on record wherein, it had challenged the locus of the workman to file present statement of claim as he was admittedly working in LIR No: 409/16 Page 3 of 27 the post of Manager/ Supervisor and therefore was not covered within the purview of definition of 'workman' as provided under Section 2(s) of the I.D.Act. Workman was also stated to be guilty of concealment of the material facts.
On merits all other paras of statement of claim which were neither specifically admitted nor essentially and purely constituted the matter of record were denied by the management as wrong and incorrect.
3. Workman had also filed his replication/ rejoinder to the written statement, wherein he had denied the contents of WS as wrong and reiterated the contents of his statement of claim as correct.
4. Based upon the pleadings of the parties, ld. Predecessor of this Court, vide order dated 29.08.2009, had framed the following issues :
1. Whether claimant was a workman as per definition of the word U/s 2(s) of I.D.Act? O.P.W.
2. If answer to issue no. 1 is against the claimant then what the effect of the same.
3. Whether service of the claimant was terminated? If show, whether termination was illegal and/ or unjustified? O.P.W. LIR No: 409/16 Page 4 of 27
4. Relief.
5. It shall be pertinent to mention here that after framing of the issues, the management had stopped appearing in this case and was thus proceeded exparte vide order of ld. Predecessor dated 12.11.2010 and an exparte award dated 28.02.2011 was also passed by the then ld. Predecessor of this Court in favour of the workman and against the management directing reinstatement of the workman with 60 percent back wages and all other consequential benefits.
6. After coming to know about the said exparte award, the management had also filed an application for setting aside the same before ld. Predecessor of this Court but vide his order dated 19.08.2011, ld. Predecessor was pleased to dismiss the same.
Against the aforesaid order of dismissal, the management had approached the Hon'ble High Court of Delhi by way of Writ Petition (Civil) No. 7737 of 2011 which was allowed by Hon'ble Mr. Justice Suresh Kait, J., vide his lordship's order dated 31.07.2014 and the matter was remanded back to this Court for its trial on merits.
7. In order to discharge the onus of proving the issues, the workman had appeared as his own witness and LIR No: 409/16 Page 5 of 27 filed in evidence, his examination in chief by way of affidavit Ex. WW1/A, wherein he had reiterated the contents of his statement of claim on solemn affirmation. Besides this, he had also placed on record the following documents :
1. Appointment letter dated 12.03.1995 is Ex. CW1/1;
2. Carbon copy of letter dated 07.07.2000 by management marked to present workman is Ex. CW1/1A;
3. Increment letter dated 29.03.2006 received by the workman from the management is Ex.
CW1/2;
4. Letter dated 27.07.1998 addressed to workman regarding liquor purchase for the management is Ex. CW1/3;
5. Similarly analysis report of fish fillet addressed to workman is Ex. CW1/4;
6. Letter dated 25.01.2003 addressed to workman regarding wastage in the kitchen is Ex. CW1/5;
7. Meeting notice dated 07.02.2003 is Ex. CW1/6;
8. Another notice dated 10.02.2003 is Ex. CW1/7;
9. Displeasure notice dated 03.03.2003 is Ex. CW1/8;
10. Letter dated 19.07.2003 addressed to workman regarding violation of instructions issued to him earlier is Ex. CW1/9;
LIR No: 409/16 Page 6 of 2711. Another communication addressed by the workman to the management dated 21.07.2003 which is the reply to notice dated 19.07.2003 is Ex. CW1/10;
12. Warning letter issued to workman dated 20.08.2006 is Ex. CW1/11;
13. Communication dated 18.03.2005 addressed by workman to management bringing to its notice certain shortfalls in the articles required for the club is Ex. CW1/12;
14. Copy of the profit and loss account balance sheet of the management for the term 01.04.2006 to 31.12.2006 is Ex. CW1/13;
15. The Accounts Officer's Report dated 17.01.2005 is Ex. CW1/14;
16. Carbon copy of the letter addressed to Secretary of management by the workman is Ex. CW1/15;
17. Communication dated 01.10.2007 by management addressed to workman informing him about constitution of Inquiry Committee against him is Ex. CW1/16;
18. Copy of reply dated 04.10.2007 submitted by the workman to the Treasurer of the Club is Ex. CW1/17;
19. Letter dated 17.06.2008 written by the workman to the President of the Management is Ex. CW1/18;
20. The Suspension order of the workman dated 18.06.2008 is Ex. CW1/19;
LIR No: 409/16 Page 7 of 2721. Copy of representation dated 19.06.2008 made by workman to the President of the management is Ex. CW1/20;
22. Copy of another representation dated 11.07.2008 addressed by the workman to the President of the management regarding release of his due earned wages as well as subsistence allowance along with its postal receipts are Ex. CW1/21 and Ex. CW1/21A;
23. Copy of the show cause notice issued to workman on 27.07.2008 by the management is Ex. CW1/22;
24. Copy of the reply dated 04.08.2008 sent by the workman to the aforesaid show cause notice is Ex. CW1/23 along with its postal receipts Ex. CW1/23A;
25. Copy of another communication dated 08.08.2008 regarding conducting the disciplinary inquiry against the workman by the management is Ex. CW1/24 along with photocopy of its postal envelope Ex. CW1/24A;
26. Copy of reply dated 14.08.2008 sent by workman to the management in respect of said disciplinary inquiry is Ex. CW1/25 along with postal receipts Ex. CW1/26;
27. Another show cause notice dated 13.09.2008 served upon the workman by management is Ex. CW1/27;
28. Copies of letters dated 23.09.2008 written by the workman to the management committee for seeking extension of time in filing of his reply as well as for providing him with copy of the standing LIR No: 409/16 Page 8 of 27 orders/ service rules are Ex. CW1/28 and Ex. CW1/29;
29. Copy of the reply dated 26.09.2008 to the show cause notice dated 13.09.2008 is Ex. CW1/30;
30. Copies of two other letters written by the workman to the Inquiry Committee dated 26.09.2008 are Ex. CW1/31 and Ex. CW1/32;
31. Carbon copy of another letter dated 26.09.2008 written by the workman to Inquiry Committee is Ex. CW1/33;
32. Copy of statement of claim filed by the workman before the Labour Office for releasing of his earned wages is Ex. CW1/34;
33. Termination letter of workman dated 01.11.2008 is Ex. CW1/35;
34. Copy of report of Labour Inspector dated 03.11.2008 is Ex. CW1/36;
35. Copy of notice/ representation dated 18.11.2008 against the termination addressed by workman to management is Ex. CW1/37;
In his cross examination conducted by ld. AR for management, he had deposed that his last drawn salary was Rs. 10,500/ per month. His family was stated to be comprising of himself, his wife and two children who were studying in Class 9th and B.Tech. He was spending Rs. 2,000/ per month on the education of his school going daughter but he was not aware of the expenses of his LIR No: 409/16 Page 9 of 27 daughter who was studying in B.Tech as his mother was bearing all expenses of his family as she was a pensioner and was getting the pension of Rs. 15,000/ per month. Even after termination of his services, the workman was stated to have not changed the school of his daughter. He had denied the suggestion that he was not a workman as provided in the definition under Section 2(s) of the I.D.Act. The workman was stated to be not having any purchasing powers in his employment, but he used to recommend the items to be purchased by the management. A suggestion put to him to the contrary was denied by him as wrong. It was deposed further by the witness that during the entire course of his employment, no internal audit report was there in existence what to call of any such report being filed against him. It was deposed further by the witness that although management had served him four memos with the allegations of indiscipline, however, no memo alleging misappropriation of funds was ever served upon by the management.
In his further cross examination conducted on 29.09.2015, it was deposed by him that no F&B manager was working with the management in the year 2008 and he being an Assistant Manager was looking after the entire work of F&B Department. It was denied by him as wrong that no consultant was hired or engaged by management as F&B Manager or that he was falsely deposing in that regard and he himself used to look after the entire department on his LIR No: 409/16 Page 10 of 27 own.
He was stated to have never prepared any roster of employees nor he was the sanctioning authority for overtime of employees and actually he only used to forward the time spent by the employees by way of overtime to the Administrative Officer through Accounts Branch. He had also admitted his signatures at pt. A on document Ex. WW1/M1 which is the photocopy of register of overtime as well as other documents pertaining to the employees which were bearing signatures of present workman at pt. A on each page thereof commencing from October 2007 till February 2008.
Approximately 3040 employees were stated to be working in the F&B Department of the management in the year 2008 when the waiters on the rolls of the management were stated to be reporting to the workman for the purpose of their duty as there was neither any Supervisor nor any F&B Manager appointed at that point of time. It was deposed further by the witness that one Sh. Rajiv Mehta, Sh. Prabhat Pabbi, Sh. Johar and one South Indian were F&B Managers but he could not remember their periods of posting as F&B manager with the management. Witness had also admitted photocopy of some bills as shown to him.
During his cross examination, documents (Purchase Bills) collectively exhibited on record as Ex.
LIR No: 409/16 Page 11 of 27WW1/M2 and also the photocopy of purchase bills Ex. WW1/M3 were put to him on which he had also admitted his signatures at point 'A' on each page. It was again denied by him as wrong that he was discharging the duties which were supervisory in nature in F&B Department of the management and thereafter subsequently he was also promoted in the management cadre by way of his promotion to the post of Asst. Manager. It was further deposed by him that even when he was working as Asst. Manager, still he was not having any purchasing powers.
It was however, admitted by him that management had terminated/ dismissed him from service on account of embezzlement of its funds and/ or ultimately on account of indiscipline as well.
He had denied the suggestion of management that management had conducted an inquiry before dismissing him from the service and had further deposed that he was called upon by Inquiry Officer to join the inquiry proceedings but was not allowed to take assistance of a lawyer despite his making regular requests in this regard. Inquiry Committee was stated to have asked the workman to have signed one blank paper which direction of the Committee was declined/ refused by him. Other formal suggestions were also denied by him as wrong and incorrect and thereafter the workman's evidence was closed which ultimately got concluded on LIR No: 409/16 Page 12 of 27 17.10.2015.
8. In rebuttal, management had examined its Secretary Sh. Ajay Avinashi as its own witness, who had also filed on record, his affidavit Ex. MW1/A in his examination in chief, wherein he had reiterated the stand of the management as contained in its written statement filed on record, on solemn affirmation. Besides this, the management had also placed reliance on the documents already placed on record and exhibited by the workman.
During his cross examination conducted on 24.02.2016 by ld. AR for workman, he had stated that he was Honorary General Secretary of the management and as per the constitution of the Society/ Club, he was permitted to represent them in all legal proceedings. A suggestion put to him to the contrary was denied by him as wrong. However, he could not remember if the said constitution of the Society was filed by him on record or not.
In his further cross examination conducted on 16.03.2016, he had placed on record the memorandum of association of the management as Mark MW1/W1 and as per clause 9 of the same, he was authorized to appear in this case. It was also stated by him that management had also passed the resolution authorizing him to defend the management in the present proceedings, however, he could LIR No: 409/16 Page 13 of 27 not remember the date of such meeting. The copy of said resolution was also not placed on record by him.
He had admitted the fact that he was an Advocate by profession and in the year 2008 was having Chamber No. 60 at Patiala House Courts, Delhi. Although the suspension letter was also stated to have issued by him on 18.06.2008, but he could not remember the time of its issuance. He had denied the suggestion that the said suspension letter Ex. CW1/19 was issued by him at around 1:00pm and had again stated that it was issued by him in the evening but he could not remember its exact time. The said letter was stated to have been issued by him after telephonically intimating all the members of the Managing Committee and after taking approval of the majority of them on telephone itself. However, this fact did not find its mention in the contents of Ex. CW1/19. A suggestion to the contrary regarding his noninforming the members of the Managing Committee or not obtaining their approval was denied by the witness as wrong.
It was deposed further by the witness that on 18.06.2008, he was informed about the misbehaviour of the workman by Sh. Babbar, Administrative Officer and some other employees of the club. A written complaint was also submitted with him by the said employees, however, he could not remember if the claimant was deprived of two increments LIR No: 409/16 Page 14 of 27 during the aforesaid period or that the workman had visited the office of Administrative Officer with his complaint/ representation Ex. CW1/18. Last paid wages of the workman were stated to be around Rs. 10,500/ per month or so. Accounts of the management were to be statutorily audited once in a year and were also subjected to the internal audit but he could not tell its month of audit and AGM was stated to be the appointing authority for auditors. Meeting of the management committee of the club was stated to be held within the premises of the club itself and not outside.
In his further cross examination conducted on 11.07.2016, he was stated to have joined the club in May 2007 but he could not tell the exact date. To a specific question put to him regarding the number of complaints enclosed with Ex. CW1/22, the witness had sought time to go through the record and even after going through the record, he was not able to give a proper reply to the said question for which his demeanor was also recorded by the Court and ultimately he had also expressed his helplessness to tell the number of complaints annexed along with Ex. CW1/24. Witness had again tried to evade/ not properly replying to another specific question for which he was also warned and thereafter he had replied that from the perusal of original, it appeared that a complaint was attached with the document Ex. CW1/22.
LIR No: 409/16 Page 15 of 27In his further cross examination dated 30.07.2016, it was deposed by him that workman was present in the club on 18.06.2008 when he had reached there and he had also inquired from the workman about the allegations leveled against him but the workman had started misbehaving with him as well, but the said fact was not mentioned by him in his suspension letter Ex. CW1/19. No preliminary inquiry was got conducted into the alleged conduct of the workman rather a full fledged inquiry was directed to be conducted against him.
To a specific question put to him, he had deposed that initially the workman was appointed as Food and Beverage Supervisor and subsequently he was promoted as Asst. Manager and thereafter as Manager but he could not tell the date of his promotion from the post of Asst. Manager to Manager and all of his aforesaid statements were correct. WS was stated to have been signed by him after going through its contents.
In his further cross examination dated 24.09.2016, he had stated that he had not brought the letter of promotion of claimant from the post of Asst. Manager to Manager and had voluntarily stated that same was already on record in the form of Ex. CW1/3, wherein, the present workman was addressed as Manager (F&B) by the management's AO.
LIR No: 409/16 Page 16 of 27Witness was also shown the document Ex. CW1/27 and was asked to tell about the signatures appearing thereon at pt. X and Y. He had stated that signatures appearing at pt. X were of Accounts Officer Sh. Basu and signatures appearing at pt. Y were of Administrative Officer but he could not tell the name of said Officer. It was also admitted by him as correct that there was a case of financial embezzlement to the tune of Rs. 30 lakhs against the said Mr. Basu for which the FIR was also lodged against him.
In his further cross examination dated 17.12.2016, he had deposed that Management's Committee constituted of 16 members and two coopted members and approval of Management Committee was obtained for appointment of internal auditors. It was admitted to be correct by the witness that Sh. Anil Makhija was a practicing Advocate who was also the member of the Inquiry Committee. Ex. CW1/27 was stated to have been issued under his signatures and issues referred to the said Inquiry Committee were the same as mentioned in Ex. CW1/24 and Ex. CW1/27 respectively.
Witness could not remember if the workman was paid subsistence allowance and earned wages during period of his suspension or not as the same was the domain of Accounts Department supervised by the Management LIR No: 409/16 Page 17 of 27 Committee of which, the witness himself was also a member. He had though denied the suggestion that being a member of the Management Committee, he was aware of each and every fact of Accounts Department but was not intentionally disclosing true facts before the Court. It was also denied by him that there was no complaint against the workman with respect to his conduct prior to his suspension.
It was admitted to be correct by the witness that complaints against the workman pertained to 19.07.2018, 31.07.2008 and one dated 'Nil'. However, it was denied by him as wrong that those complaints were fabricated by the management so as to order the termination of services of the workman.
It was also not within his knowledge as to whether the workman was paid his subsistence allowance and earned wages after having been so ordered by the office of Labour Commissioner nor he had any knowledge about pendency of any conciliation proceedings before the Conciliation Officer, Hari Nagar on the date of termination of workman.
Though workman was stated to have been terminated on the basis of the report of the Inquiry Committee but it was admitted by the witness that personally he had never appeared before the Inquiry Committee or participated LIR No: 409/16 Page 18 of 27 in the Inquiry proceedings. It was also admitted by him that members of the Inquiry Committee were also the members of the Managing Committee and no Presenting Officer was appointed by the Management Committee in presenting the matter before the Inquiry Committee. However, it was denied as incorrect by the witness that members of the Inquiry Committee themselves were also representing the management in those proceedings.
Lastly in his cross examination dated 07.06.2017, it was deposed by the witness that no report from Internal Auditor of the management was received before issuance of suspension letter to the workman. Permission from Managing Committee had already been taken for preparation of the internal audit report which was obtained in the meeting of the Committee as was also recorded in its minutes. However, the minutes of the said meeting were not placed on record by him. He had further denied the suggestion that copy of the Inquiry Report was not given to the workman before his termination but he could not tell the exact date when the said report was supplied to him. He had no knowledge if the statements of complainants namely Sh. Raj Kumar, Sh. Basu, Sh. Rajinder Kumar Tandon and Sh. Ashok were recorded or not during the said inquiry.
It was again admitted by him that Inquiry Committee had recommended the punishment for workman LIR No: 409/16 Page 19 of 27 on the basis of which, his services were terminated by the Management Committee. However he could not remember, if the report of the Inquiry Committee recommending the punishment for workman was submitted on 31.10.2008 on the basis of which, his services were terminated by the Management Committee on the second day of receipt of said report. It was again denied by him as wrong that no opportunity was given to the workman to make a representation against that report. It was admitted by the witness that no recovery suit was filed by the management against the workman and also he could not remember the amount allegedly embezzled by the workman. The witness could not identify his signatures at pt. X on document Mark MW1/DA being a photocopy.
It was further admitted to be correct by the witness that management was having a separate Accounts Department. All payments were released through vouchers by it which were signed by the official concerned of the Accounts Department and the official concerned. Signing authority of the cheque(s) was the Treasure and the Secretary or President of the Club. Signatures of the Treasurer were stated to be a must, however, second signatory could have been either the President or the Secretary as per their availability. He was stated to be the Secretary at the time of termination of services of the workman and they were also having separate Administrative LIR No: 409/16 Page 20 of 27 Officer who used to keep an account of the leaves of the workmen as well as their sanction. He had no knowledge about the person issuing purchase orders on behalf of the management in the year 2008.
However, it was admitted by him that whatever goods were supplied to the management, same were checked by security guards and thereafter they were stored in the store room.
He had denied the suggestion that workman had not been enjoying any administrative powers including the power of purchasing or that he had no power to issue purchase orders or that he had not embezzled any amount/ thing belonging to management. Other formal suggestions were also denied by him as wrong. Thereafter management's evidence was also closed.
9. In support of its arguments and contentions, management had also placed reliance on the following judgments :
1. Birla Corpn. Ltd. V/s Rajeshwar Mahato and Ors., Civil Appeal No. 4482 of 1998 Supreme Court of India (2001) 10 SCC 611;
2. DCM Shri Ram Consolidate Ltd. V/s B.K.Gupta and Ors., W.P.(C) No. 3705/2000 High Court of Delhi 2015 (148) DRJ 664;
LIR No: 409/16 Page 21 of 273. Management of Sonepat Cooperative Sugar Mills Ltd. V/s Ajit Singh, Civil Appeal No. 845354 and 8455 of 2002 Supreme Court of India, AIR 2005 SC 1050;
4. Mukesh K. Tripathi v/s Sr. Divisional Manager, L.I.C and Ors. Civil Appeal No. 1208 1209 of 2001, Supreme Court of India, AIR 2004 SC 4179;
5. Hardwari Lal Sharma v/s Pustak Mahal Publishers, LPA No. 616/2012, High Court of Delhi, 234 (2016) DLT 558;
6. H.R.Adyanthaya and Ors. V/s Sandoz (India) Ltd. And Ors., Civil Appeal No. 235 of 1983, Supreme Court of India, AIR 1994 SC 2608;
7. Modern Food Industries (I) Ltd. V/s Laljee Yadav and Ors., W.P. (C) No. 2615/2011 and C.M.No. 5588/2011, High Court of Delhi, decided on 31.01.2013;
8. A.Sundarambal v/s Government of Goa, Daman and Diu and Ors., Civil Appeal No. 1776 (NL) of 1984, Supreme Court of India, AIR 1998 SC 1700;
9. Bharat Bhawan Trust v/s Bharat Bhawan Artists Association and Ors., Appeal (Civil) 5614 of 2001, Supreme Court of India, AIR 2001 SC 3348;
10. K.George Chacko v/s The Secretary (Labour) and Mr. Ashok Kumar Jain, W.P.(C) No. 7500/2003, High Court of Delhi, decided on 08.12.2006;
LIR No: 409/16 Page 22 of 2711. Mr. C.Gupta v/s Glaxo Smith Klin Pharmaceutical Ltd., Civil Appeal No. 6543 6544 of 2004, Supreme Court of India, decided on 25.05.2007;
12. Pepsico India Holding Pvt. Ltd. V/s Krishna Kant Pandey, Civil Appeal No. 28 of 2015, Supreme Court of India, decided on 06.01.2015;
13. State of Bombay v/s K.P.Krishnan and Ors., Civil Appeal No. 37 and 38 of 1957, Supreme Court of India, decided on 18.08.1960;
14. Sh. Yadeshwar Kumar v/s M/s Benett Coleman and Co. Ltd., LPA No. 2367/2006, High Court of Delhi, decided on 03.09.2007;
15. S.K.Maini v/s M/s Carona Sahu Company Limited and Ors., Civil Appeal No. 1581 of 1994, Supreme Court of India, decided on 08.03.1994;
10. It shall be further pertinent to point out here that today, an application was moved on behalf of the workman under Order 14 Rule (1) and (5) r/w Sec. 151 CPC for framing of additional issues on the ground that issue pertaining to fairness and propriety of inquiry held against the workman ought to have been framed by this Court which was accidentally omitted from being framed and thus the interest of justice required that said issue be also framed.
LIR No: 409/16 Page 23 of 27However, as observed in my separate order of even date, the workman had miserably failed to satisfy the Court as to what had prevented him in moving this application at an earlier stage, especially when all the proceedings had taken place in his presence. A bare perusal of the statement of claim filed on record itself revealed that workman had only expressed his grievance against the Inquiry Committee for not allowing him to be represented through an Advocate or granting him an adjournment as per his request. The Inquiry Committee had also not acceded to his request for release of earned wages and the subsistence allowance. Merely, on the basis of these allegations, it could not be concluded that inquiry committee was prejudiced or biased against the workman especially when the management had chosen not to appoint any Presenting officer to represent itself before the Court, thus there was no need and occasion for the Inquiry Committee to have permitted the workman to be represented through an Advocate as his Defence Assistant.
Furthermore, Inquiry Committee's jurisdiction was confined to holding the inquiry itself and issue of directions for release of the subsistence allowance or earned wages was beyond its scope, ambit and jurisdiction. Furthermore, it was under no obligation to have accommodated the workman on each and every occasion in respect of adjournments being granted to him suiting to his convenience.
LIR No: 409/16 Page 24 of 27Therefore, I do not find any merits in this contention of the workman and thus the application as filed has already been dismissed vide separate order of even date.
11. In the light of the aforesaid testimonies of the parties as well as on the basis of the material available on record, my issuewise findings are as under : Issue no. 1 - Whether claimant was a workman as per definition of the word U/s 2(s) of I.D.Act? O.P.W. Admittedly, the workman's case has been that initially he was appointed at the post of Supervisor, Food and Beverage and ultimately had risen to the post of Asst. Manager having his last drawn salary of Rs. 10,500/ per month.
It is the settled preposition of law that a decorative rank conferred upon an employee would not ipso facto take him out of the purview of the definition of Section 2(s) of the I.D.Act. However, it is again a settled preposition of law that a person designated as a Manager or Supervisor is also required to explain the nature of duties or job actually performed by him to show that the designation conferred upon him was only ornamental or decorative in nature LIR No: 409/16 Page 25 of 27 whereas he was actually discharging and performing the functions and duties of an ordinary "workman" as defined under Section 2(s) of I.D.Act.
However, the workman in the present case has miserably failed to explain the nature of job, duties and functions actually performed by him, so as to bring him within the purview of definition of a 'workman' as provided under Section 2(s) of the I.D.Act. Not only his designation but also the salary paid to him were beyond the prescribed limit of the definition of the workman and thus I have no hesitation in holding that present "workman" was not covered within the definition of a "workman" as provided under Section 2(s) of the I.D.Act.
Issue is accordingly answered in negative and decided in favour of the management and against the workman.
Issue no. 2 If answer to issue no. 1 is against the claimant then what the effect of the same and Issue no. 3 - Whether service of the claimant was terminated? If show, whether termination was illegal and/ or unjustified? O.P.W. Both the above mentioned issues are taken up together for disposal. In view of my findings to above LIR No: 409/16 Page 26 of 27 mentioned issue no. 1, both the issues are also answered in negative and decided in favour of the management and against the workman.
Issue no. 4 Relief - In view of my findings to the issues above, the statement of claim as filed by the workman is dismissed being devoid of any merits.
Award is passed accordingly. Copy of this award be sent to the Labour Commissioner for publication. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT DATED : 20.08.2019 Digitally signed by LOKESH LOKESH KUMAR KUMAR SHARMA Date: 2019.08.22 SHARMA 15:17:52 +0530 (LOKESH KUMAR SHARMA) ADDL. DISTRICT & SESSIONS JUDGE PRESIDING OFFICER - LABOUR COURT XIX ROUSE AVENUE COURTS : NEW DELHI LIR No: 409/16 Page 27 of 27