Delhi District Court
Sh Suresh Arora vs Shri Kishan Chander Sharma on 23 October, 2021
IN THE COURT OF SH. PAWAN KUMAR MATTO:
(ADDITIONAL DISTRICT & SESSIONS JUDGE) PRESIDING
OFFICER, LABOUR COURT NO. 02, ROUSE AVENUE
DISTRICT COURTS:
NEW DELHI
LCA NO. 1413/16
DATE OF 25.10.2013
INSTITUTION
DATE OF AWARD 23.10.2021
Sh Suresh Arora
s/o Shri Ram Kishan
R/o House No. 47-B, Raghu Nagar
Gali no.3, New Delhi 110045.
(ph. no. of workman: 8800257795, email: [email protected])
(ph . no.of AR of workman: 9899237988, email: [email protected])
........ Applicant
Vs.
Shri Kishan Chander Sharma
Proprietor of
M/s Yashansh Constructions
At H.20, Basement
Bali Nagar, New Delhi 110015
(ph. no. of AR of management: 9818417075, email:
[email protected]) ....Management.
ORDER
1. This order of mine will dispose off the application U/Sec.
33 (C) of Industrial Disputes Act, filed by Sh. Suresh Arora against M/s Yashansh Constructions (Proprietor whereof Shri Kishan Chander Sharma).
2. The applicant has stated that the management is engaged in the business of constructions, trenching and laying of cables and other related works etc. The management rendered services LCA no. 1413/16 page no. 1/28 for the government institutions and private companies under the name & style of M/s Yashansh Constructions having it's office at H-20, Basement, Bali Nagar, New Delhi.
3. He has also stated that he is an employee of the management and he is working as permanent employee of the management since 2009 and he was performing his duties diligently and honestly and his last drawn salary was Rs. 20,000/- per month.
4. He has also stated that he was assigned the work of signing bills, store challan, collection of payments, liaison with the officials of Railtel Corporation of India Limited and other related authorities, to sign other documents relating to work under Tender for Trenching & Laying of OFC in Duct for last mile connectivity Bhopal city area by the management vide Power of Attorney dated 07.04.2009.
5. The applicant has also stated that he had completed his work as assigned by the management and he was performing his work regularly, as per instructions of the management. It is further stated that the management has failed to make payment of earned wages/salary of the applicant for the last so many months and the applicant requested to the management to make the payment of his earned wages/salary, but, the management did not pay any heed to the request of the applicant. It is also stated that feeling aggrieved with the acts of the management, the applicant filed a complaint dated 07.03.2012 through Labour Union, to the Assistant Labour Commissioner (Central), Sansad LCA no. 1413/16 page no. 2/28 Marg, New Delhi and requested to make the payment of Rs. 3,02,000/- to the applicant towards the arrears of his earned wages/salary, but, despite of services of the notice from the office of Assist. Labour Commissioner, the management intentionally and deliberately did not appear before the Ld. Assistant Labour Commissioner.
6. The applicant has also stated that in the first week of August 2012, the management called the applicant to settle the disputes and handed over two post dated cheques of Rs. 1,00,000/- each dated 15,08,2012 and 25.08.2012 respectively, drawn on Union Bank and also made payment of Rs 50,000/- cash to the applicant.
7. The applicant has further stated that on dated 28.08.2012, the management through Power of Attorney had again assigned a work for signing of bills, store challans, collection of payments, Liaison with the officials of the Railtel Corporation of India Ltd, and other related authorities and to sign other documents relating to the work of Trenching & Laying of OFC in Duct of last mile connectivity in Bhopal City area, covering all major area, to the applicant. He has also stated that he had performed his duty as per instructions of the management, but, again same thing happened with the applicant and the management did not pay salary to the applicant. He has also stated that the management had told to the applicant not to deposit the abovesaid two cheques, earlier given to him. He has also stated that he had approached to the management in the 3 rd week of September 2012 and returned two cheques of Rs. 1,00,000/- each and the LCA no. 1413/16 page no. 3/28 management made the payment of Rs. 60,000/- in cash to the applicant and also handed over two post dated cheques dated 25.09.2012 and 10.10.2012 amounting to Rs. 1,00,000/- and 40,000/- respectively, which were drawn on union bank, but, the cheque bearing no. 18017 dated 25.09.2012 of Rs. 1,00,000/- was dishonoured on it's presentation.
8. He has further stated that thereafter on dated 22.04.2013, the applicant again made complaint before the Regional Labour Commissioner, (Central), Sansad Marg, New Delhi and on hearing, a notice dated 02.07.2013 vide letter no. IEO-I/45 (21)/2013 was issued to the management, vide which, the management was directed to appear on dated 11.07.2013 at 3:15 PM, but, the management did not appear. Thereafter, a final notices was sent to the management to appear on 22.08.2013 at 3:00 PM, but, the management intentionally and deliberately did not appear before the Regional Labour Commissioner despite of it's service.
9. The applicant has also stated that the applicant is entitled to recover the arrears of his earned wages/salary from the management to the tune of Rs. 5,42,000/- till August 2013 @ Rs, 20,000/- per month.
10. The applicant has further stated that he had sent the legal demand notice dated 05.09.2013 through his counsel vide registered post, as well as, speed post, which were duly served to the management, as, the A.D. card was also duly acknowledged by the management. As, the same was received back by the LCA no. 1413/16 page no. 4/28 counsel for the applicant and even after receiving the said demand notice the management neither made the payment of arrears of salary of applicant nor replied the said legal demand notice.
11. The applicant has also stated that the management has withheld his earned wages/salary willfully and intentionally and the management has failed to comply with the provisions of Natural Justice and he has prayed for passing award for directing to the management to make the payment of Rs. 5,42,000 being wages/salary, in favour of the applicant and against the management.
12. The notice of the application was issued to the management and on completion of service, management has appeared through it's Authorized Representative and filed the written statement of the application under Section 33 (C) of the Industrial Disputes Act and stated that the applicant does not fall in the category of "workman" under the Industrial Disputes Act and stated that the the applicant was special power of attorney holder of the management, but, he did not perform his duty diligently and satisfactorily and caused a huge loss to the management, due to which, the Railtel and BSNL have withheld the contractual amount of the management.
13. It is also stated that the applicant used to remain absent from the site and due to which, the Railtel has issued letter dated 31.08.2012 that he is not coming to site, due to which, the project on the site could not be completed and the department LCA no. 1413/16 page no. 5/28 has withheld the amount of the management.
14. The management has also alleged that this applicant has also committed cheating at the Bhopal by giving sub-contract and illegally took amount from Sh. Rakesh Patel S/o Sh. Vishvanath Patel R/o H. No. 55/14, Gautam Nagar, Nishatpura, Bhopal, M.P. on account of earnest money/security of subcontract, but, no such amount has been paid or shown by the applicant to the management and thus, he has embezzled the funds of the management and cheated the local persons by getting amount illegally and the said person, who was cheated by the applicant, had sent the legal notice to the management, wherein, he has levelled allegations.
15. The management has also stated that as per the everments in the said notice, the said person claimed that the BSNL had released the payment to the applicant, but, the applicant has not deposited the same with the management and embezzled the amount illegally, for which, the management reserves it's right to file criminal complaint against the applicant.
16. The management has also stated that the applicant had settled the disputes with the management for a sum of Rs. 2,50,000/- and it was agreed upon between the parties that the applicant would get the amount released, which was withheld by the Railtel, within the period of 15 days and for the same purpose, the applicant was authorized person and further stated that the documents related to the contract were lying with the applicant and the management had paid a sum of Rs. 50,000/- to LCA no. 1413/16 page no. 6/28 the applicant in cash on dated 01.08.2012 and two post dated cheques of Rs. 1,00,000/- each dated 15.08.2012 and 25.08.2012 in favour of applicant and the applicant had assured that he would get the amount released and then only he would present the said cheques.
17. The management has also stated that the management had appointed the applicant as Authorized Representative to deal with the Railtel and other agency for clearance of the withheld amount, but, the applicant kept on demanding money and the management paid a sum of Rs. 70,000/- on dated 22.09.2012 after settlement and Rs. 45,000/- was paid to the applicant on dated 06.11.2012, on the request of the applicant. The management had deposited the petty cash amount 2-3 times in different accounts, as desired by the applicant through SMS, but, the applicant made no efforts to get the amount released from the Railtel and the outstanding amount is still lying unpaid by the Railtel. It is also stated that the documents relating to the contract with the Railtel are also in possession and custody of the applicant. Therefore, the management could not get the said amount released and thus, the applicant has caused loss to the management by his such conduct, so, he is not entitled for any payment, as he failed to perform his duties diligently.
18. Replying to the application on merit, the management has not denied that it is engaged in the business of construction, trenching and laying of cables and other related works etc. The management has denied that the applicant was a permanent employee of the management or he was doing work diligently LCA no. 1413/16 page no. 7/28 and honestly and with due care and attention. It has also denied that the last drawn salary of the applicant was Rs. 20,000/- per month. The management has admitted that the applicant was working with the management and stated that the last drawn salary of the applicant was Rs. 7500/- per month, the management has also stated that the wife of the applicant used to remain ill and he was not punctual and regular. He used to remain absent for longer period and the applicant does not possess any qualification in the field of working of Tele Communication and infrastructure development. The management has not denied that the applicant was assigned the job of signing bills etc, as claimed by the applicant in his application. The management has denied that the applicant had worked regularly and stated that the applicant has not completed the work assigned to him by the management, as he used to remain absent from the work site and he has not worked satisfactorily. It is also stated that the management took contract from the Railtel, corporation of India Ltd and the applicant had to realize payment from the Railtel for which, he was working with the management, but, he failed to realize amount from the Railtel and had spent more than the contractual amount.
19. The management has denied that the applicant was not paid money for so many months and the management has stated that the management has already paid the amount more than the work completed by the applicant, as, the applicant has failed to perform the work diligently and satisfactorily, therefore, this application filed by the applicant is not maintainable and is liable to be dismissed.
LCA no. 1413/16 page no. 8/2820. The management has not denied that a settlement was entered into between the parties in the month of August, 2012 and stated that the said agreement was entered into subject to the condition that the applicant will get all the bills cleared from Railtell, as the outstanding amount was lying unpaid by the Railtell and the applicant had assured to the management that he will get clear all the outstanding amount from the Railtell. But, the outstanding amount is still lying with the Railtell. Thus, the applicant did not perform his duties of getting the outstanding amount clear from the Railtell. It is also stated by the management that till date, the management has already paid an amount of Rs. 1,65,000/- out of Rs. 2,50,000/- towards the salary/settlement and all the claims of the applicant against the management have been settled as the management had deposited some cash 3-4 times, on the request of the applicant in his various accounts and even through SMS. It is also stated that the management is still intending to get the outstanding payment released from the Railtell, for which, the applicant is holding power of attorney for the work executed by the applicant, on which, the expenses more than bill amount have already been spent by the applicant.
21. The management has denied that it had not paid the salary to the applicant. The management has also stated that it had appeared before the Labour Commissioner and gave it's reply to the statement of claim filed by the applicant.
22. The management has denied that the applicant is entitled LCA no. 1413/16 page no. 9/28 to recover an amount of Rs. 5,42,000/-. The management has also denied to have withheld the earned wages of the applicant and after denying the other allegations, leveled by the applicant, the management has prayed for dismissal of this application with exemplary cost.
23. The applicant has filed rejoinder to the written statement of management and denied the averments made in the written statement and reiterated the contents of his application, therein.
24. On the basis of the pleadings, the predecessor of this court was pleased to frame the following issues on 20.03.2014:
I. Whether the applicant is entitled to recover a sum of Rs. 5,42,000/- as prayed for from the management ?
2. Whether the applicant is a 'workman' as defined under the provisions of Industrial Disputes Act, 1947?
3. Relief.
25. Thereafter, the matter was fixed for evidence of the applicant.
26. In order to prove his case, the applicant has examined himself as WW1 vide his affidavit Ex. WW1/A and in one way or the other, he has reiterated the contents of his application filed under Section 33-C of the Industrial Disputes Act, therein. He has relied upon the documents Ex. WW1/1 to WW1/12 and Mark A to Mark G. He was cross examined by the Ld. LCA no. 1413/16 page no. 10/28 Authotozied Representative for the management. The applicant did not examine any other witness and closed his evidence.
27. The management has examined Sh. Kishan Chand Sharma @ Kishan Chander Sharma, who is the proprietor of the management as MW-1 vide is affidavit MW-1/A. He has relied upon the document Mark A, Ex. WW1/XM1, Ex. WW1/XM2 and Ex. MW1/1. He was also cross-examination by the Ld. Authorized Representative for the applicant. The management did not examine any other witness.
28. I have heard Authorized Representative of the applicant and the management and perused the record.
29. ld. Authorized Representative for the applicant has submitted that the applicant has filed this application for recovering an amount of Rs. 5,42,000/-, as, the applicant had worked with the management and the management has withheld his salary w.e.f. February, 2009 to January 2012 and August 2012 to December 2012 and January 2013 to September, 2013 and submitted that some of the amount was paid to the applicant. He has also submitted that the photocopies of the Power of Attorney Mark A, B and C go to prove that the applicant was the employee of the management and in view of the same, the said power of attorney were executed by the proprietor of the management in his favour. He has also submitted that the power of attorneys mark A, B and C are the admitted documents by both the parties and further submitted that the management has failed to pay the salary to the applicant for the abovesaid period, LCA no. 1413/16 page no. 11/28 so, as per provision of Section 33 (C)(2) of the Industrial Disputes Act, the management may be directed to pay the said amount.
30. On the other hand, Ld. Authorized Representative for the management has submitted that the applicant has filed the this application under Section 33 (C) of the Industrial disputes Act and claimed that he was employee of the management and he has prayed for seeking directions for the management to pay Rs. 5,42,000/- being salary, but, this applicant has failed to prove that he was ever employee of the management or that he was the workman within the meaning of Section 2(s) of the Industrial Disputes Act. He has also submitted that the applicant was merely a special attorney holder of the management and he has also submitted that the management had entered into the contract with Railtel Corporation of India Limited, BSNL and related authorities for which, this applicant was authorized to sign bills, store challan, collection of payment, Liaison with the officials of Railtel Corporation India Ltd, BSNL and other authorities and the photocopies of power of attorneys dated 07.04.2009 and 28.08.2012, filed by the applicant being Mark A, B and C.
31. He has also submitted that the applicant was authorized to do the acts, as mentioned in Power of Attorney, photocopies whereof are mark A, B and C. He has also submitted that the applicant was doing the managerial and supervisory works, as mentioned in the power of attorney, but, this applicant had started committing cheating and he had withheld the amounts of the management, which were taken from the Railtel and BSNL LCA no. 1413/16 page no. 12/28 and further submitted that this applicant had also embezzled the funds of the management and cheated the local persons of Bhopal and further submitted that this applicant had also settled the disputes with the management for a total amount of Rs. 2,0,000/- and this applicant had given in writing dated01.08.2012 Ex. WW1/XM-2 and submitted that as per the oral settlement, the applicant was to get release the remaining amount from the Railtel and BSNL and only after realization of the said amount, the applicant was supposed to present two cheques of Rs. 1,00,000/- each, as mentioned in Ex. WW1/XM-2,but, the applicant has failed to make efforts for realization of the amounts from Railtel and BSNL and submitted that this applicant had presented one cheque which was dishonoured, but, an amount of Rs. 1,00,000/-,regarding another cheque, as mentioned in Ex. WW1/XM-2 was paid by the management to the applicant. He has also submitted that the management had paid Rs. 60,000/- in cash and Rs. 40,000/-, vide cheque to the applicant and this applicant had admitted in his cross examination on dated 28.08.2015 that he had received Rs. 60,000/- in cash and Rs. 40,000/- through cheque in lieu of the said cheque, which was dishonoured. He has further submitted that since this applicant has claimed that he was workman of the management, so, it was obligatory on the part of the applicant to prove that he was workman of the management. He has also submitted that the applicant has claimed that his salary was Rs. 20,000/- per month, but, he has failed to prove on record that he was employee of the management or that his salary was Rs. 20,000/- per month or that he is entitled to recover the total amount of Rs. 5,42,000/- from the management. He has also submitted that even if the contents LCA no. 1413/16 page no. 13/28 of the photocopies of Power of attorneys mark A, B and C are looked into, even then, it is clear that this applicant was doing managerial work, as, he was also doing the work of liasioning. So, the applicant is not workman within the meaning of Section 2(s) of the Industrial Disputes Act. He has also submitted that the applicant during his cross examination, has failed to give details of the total amount and further submitted that the pleadings of the applicant are full of vagueness, as he has not mentioned the details of the amount sought to be recovered in the present application and during his cross examination, when, this applicant was asked to give the details of the amount of Rs. 3,02,000/-, as mentioned in para no.7 of his affidavit, he has failed to give any detail thereof and submitted that this applicant in his cross examination has admitted that he has not placed on record any pay slip and he has also deposed that he was having authority to give sub-contract, but, he has failed to produce any documentary proof thereof and submitted that the applicant was doing the work even beyond of the acts, as mentioned in the photocopies of the power of attorneys, placed on record being marked A, B and C. He has also submitted that applicant has relied upon the photocopies of Power of Attorneys marked A, B and C, which do not authorize to the applicant to engage any contractor or sub-contractor, but, despite of it, he indulged himself in such ultra virus acts and he has also caused great financial loss to the management and further submitted that this applicant has filed the application under Section 33 (C) of the Industrial Disputes Act, but, as there is no prior adjudication about the right of the applicant for recovering Rs 5,42,000/-, as claimed by him in his application under Section 33(C), nor the LCA no. 1413/16 page no. 14/28 said amount is admitted by the management, so, this application of the applicant is not maintainable. He has relied upon the judgment passed by their Lordship of Supreme Court in case MCD Vs. Ganesh Razak and another, 1994, LLR 82 (SC) :
(1995) 1 SCC 235.
32. I have given thoughtful consideration to the submissions made by the Ld. Authorized Representative for the applicant and perused the record.
33. The perusal of the record reveals that the applicant has filed the application under Section 33-C of the Industrial Disputes Act and sought to recover an amount of Rs. 5,42,000/- being salary @ Rs 20,000/- per month. The management has denied it's liability to pay the said amount. The management has denied that the applicant is workman within the meaning of the Industrial Disputes Act.
34. The burden of proving both the issues was on the applicant. In order to avoid repetition, both the issues have been together for discussion.
35. In order to prove his case, the applicant has examined himself as WW1 vide his affidavit Ex. WW1/A, in one way or other, he has reiterated the contents of his application under Section 33-C of the Industrial Disputes Act, therein. He has relied upon the documents viz. copy of the legal notice Ex. WW1/1, two postal receipts Ex. WW1/2 and Ex. WW1/3, acknowledgement card Ex. WW1/4, photocopy of show cause LCA no. 1413/16 page no. 15/28 notices dated 02.07.2013 Ex. WW1/5 and Ex. WW1/6, cheque dated 25.09.2012 of amount of Rs. 1 lac Ex. WW1/7, cheque dated 10.10.2012 of an amount of Rs. 40,000/- Ex. WW1/8, cheque return memo regarding the dishonour of the cheque Ex. WW1/9, agreement dated 15.09.2009 Ex. WW1/10, agreement dated 11.06.2010 Ex. WW1/11, photocopy of final bill Ex. WW1/12, photocopy of power of attorney dated 07.04.2009 mark A, photocopy of power of attorney dated 07.04.2009 mark B, photocopy of power of attorney dated 28.08.2012 mark C, photocopy of complaint dated 07.03.2012 addressed to Asst. Labour Commissioner, Central, mark D, photocopy of complaint addressed to the Labour Commissioner, Cenral mark E, photocopy of cheque dated 15.08.2012 of amount of Rs. 1 lac mark F, photocopy of another cheque dated 25.08.2012 of amount of Rs. 1 lac mark G. He was cross examined by the ld. Authorized Representative for the management.
36. During his cross examination, he has deposed that he is 10th class pass. He has further deposed that he has no experience regarding the construction of Overlay Access Network.
37. He has deposed that his job was to get the duct and cable drums lifted and laying with the help of labour, to submit the bills in BSNL office at Bhopal and Bombay and to get them processed.
38. He has also deposed that he was also engaged for liaison work with the Railtel and BSNL.
LCA no. 1413/16 page no. 16/2839. He has denied that he was possessing with him the original bills/documents concerning the work of liaison/getting the same processed. He has admitted that he has not filed on record any pay slip showing that he was getting the salary of Rs. 20,000/- per month.
40. He has deposed that he possessed the authority to give sub contract to anybody else for getting the work of management done.
41. He has deposed that it is not mentioned in any of the power of attorneys filed by him that he was having the authority of engaging the labour through contractor/sub contractor and getting the work done.
42. He has denied that his job was to manage all the business activities on the spot/site on behalf of the management.
43. He has also deposed that he has filed the complaints Mark D and E before the Assistant Labour Commissioner against M/s Yashansh Construction Ltd and notices Ex. WW1/5 and Ex. WW1/6 were also addressed to M/s Yashansh Construction Ltd.
44. When, he was asked to tell as to for what period, he has claimed salary to the tune of Rs. 3,02,000/- as mentioned in para no.7 of his evidence affidavit, then he has deposed that it is salary for the period from February, 2009 to March 2012 @ Rs. 20,000/- per month.
LCA no. 1413/16 page no. 17/2845. He has also deposed that in between certain payments were made to him by the management, but, he cannot tell as to how much salary for this period was paid.
46. He has also deposed that he has not filed on record the details to show his entitlement to the tune of Rs. 3,02,000/- .
47. He has also deposed that he used to get payment from the management in cash, as well as, through cheque and he used to acknowledge the receipt of payment from the management on voucher, in case of payment in cash, but, in the case of payment through cheque no voucher/any other documentary proof was prepared. He has also deposed that the documents Ex. WW1/XM1 bears his signatures at points A,B,C and D.
48. When, he was asked that whether he had settled all his disputes with the management on 01.08.2012 against a sum of Rs. 2,00,000/- payable to him by the management vide documents Ex. WW1/XM2 which bears his signatures at point A. He has admitted that the document Ex. WW1/XM2 bears his signature at point A. He has deposed that as per the settlement, a sum of Rs. 2,50,000/- was payable by the management and he was paid Rs. 25,000/- in cash at one time, after three days he was paid Rs. 20,000/- thereafter within the same month, he was paid Rs. 15,000/- more and a new agreement (Vide mark (C) was made, out of this sum of Rs. 15,000/- paid to him, Rs. 10,000/- was towards expenses for going to Bhopal and then to Bombay and coming back to Bhopal and Rs. 5000/- were paid to him. He has deposed that he was also given two post dated cheques of Rs.
LCA no. 1413/16 page no. 18/281,00,000/- each. One of the cheque was bounced on presentation and the other cheque was not presented for encashment as requested by the management, as, it was told to him that payment shall be made in cash, but, the said payment was not made in cash. Thereafter, he was asked to return the unpresented cheque for Rs. 1,00,000/-, which he returned to management, in lieu thereof, he was paid Rs. 60,000/- in cash and a cheque for Rs. 40,000/- was given to him and Rs. 10,000/- as expenses were given to him for going to Bombay. He has deposed that he did not present the cheque for Rs. 40,000/.- as management continued to assure him to make the payment, but, it did not make the payment. He has also deposed that he knows Mr. Rakesh Patel at Bhopal and voluntarily deposed that he was contractor.
49. When he was asked that whether he had given sub contract to Mr. Rakesh Patel. He had replied that Mr. Rakesh Patel used to make arrangements for the Labour and used to get the work of management done.
50. He has denied that he had taken earnest money from Mr. Rakesh Patel. He has voluntarily deposed that he had taken Rs. 12,000/-, Rs. 13000/- for going to Bombay. He has denied that he had taken Rs. 25,000/-, as earnest money from Mr. Rakesh Patel or that he spent Rs. 25,000/- on himself, which was received from Mr. Rakesh Patel, as earnest money on behalf of the management and he had also spent the money without intimating Mr. Kishan Chander Sharma, proprietor of the management. He has admitted that while he was working at LCA no. 1413/16 page no. 19/28 Bhopal, his wife, was residing at Delhi and she used to remain unwell. He has voluntarily deposed that she was having problem in spinal cord. He has denied that on account of unwellness of his wife, he used to come Delhi to Bhopal frequently and vice versa.
51. When, he was asked that whether there was any other person looking after the affairs of management at Bhopal on behalf of the management. He had replied that one Mr. Sudesh Verma was there, who was an Architect and used to make the drawing and conducted road survey. He has denied that on account of his frequent visit between Delhi and Bhopal, he was not able to do the work of Railtel and BSNL properly.
52. He has admitted that he had the responsibilities to get cleared the bills from the Railtel at Mumbai.
53. When, he was asked that he failed to get clear the bills from Railtel, to which, he replied that his responsibility was only submit the bills.
54. He has denied that he had taken money from the management for getting the bills from Railtel cleared. He has denied that nothing is due from the management towards him. He has denied that he was not permanent employee of the management and he was employed on contractual basis on the basis of per dealing/transaction of the management with other parties. He has denied that he failed to discharge his obligations towards the management for work performed with BSNL & LCA no. 1413/16 page no. 20/28 Railtel. He has voluntarily deposed that he had got cleared three bills from BSNL, Bhopal and two bills from Railtel, which is having head office at Mumbai. He has denied that he has filed a false case against the management and he has deposed falsely.
55. The management has examined Sh. Kishan Chand Sharma @ Kishan Chander Sharma, who is the proprietor of the management as MW-1 vide is affidavit MW-1/A. He has deposed on the similar lines of the written statement of the management. He has relied upon the photocopy of legal notice dated 06.11.2013 Mark A. He also relied upon the documents which were already filed and exhibited as Ex. WW1/XM1 and Ex. WW1/XM2. He has also relied upon the copy of the reply to the complaint Ex. MW1/1, which is not mentioned in his evidence affidavit. He was also cross-examination by the Ld. Authorized Representative for the applicant.
56. During his cross examination, he has deposed that the management firm is running, but, there is no work. He has deposed that he had opened this firm in the year 1998. He has deposed that the nature of work of his firm is civil construction, telecommunication, interior etc. He has deposed that he does not remember that when, the applicant came in his contact. He has deposed that he cannot say whether applicant Suresh Arora came to join him in the year 2009. He has deposed that he does not remember upto what time the applicant worked with him. He has admitted that the Power of Attorney dated 07.04.2009 Marked A is executed by him in favour of applicant and he had assigned the work to the applicant accordingly. He has deposed that in the LCA no. 1413/16 page no. 21/28 year 2009, he came to him for the work. But, he cannot tell in which month of 2009, he came to him. He has deposed that the applicant was working on contract basis, therefore, he had executed Power of Attorney on dated 07.04.2009 and also executed attorney dated 28.08.2012 marked C, in favour of applicant. He has admitted that after 07.04.2009, when the work was assigned by him, thereafter the applicant was looking after work at Bhopal and Delhi also. He has admitted that after assigning the work, whatever remuneration fixed between him and workman, sometimes, he used to pay and sometimes it remained outstanding. The applicant was not regularly working with him from 07.04.2009 to 28.08.2012. He has deposed that he had executed Power of Attorney dated 28.08.2012 in favour of the applicant as the work had already been completed and the documents thereof were in possession of the applicant and he had executed Attorney in his favour to get release the outstanding amount from Railtell Corporation India Ltd. He has admitted that he had received a notice from Assistant Labour Commissioner, Central in furtherance of letter dated 07.03.2012 Mark D. He has voluntarily deposed that he is not sure that the said notice was issued by Assistant Labour Commissioner on 07.03.2012. He has admitted that he had not appeared before the Assistant labour Commissioner. He has voluntarily deposed that his CA had appeared before the Assistant Labour Commissioner on his behalf. He has deposed that his CA Mr. Sahil Gupta had filed reply Ex. MW1/1 before the Assistant Labour Commissioner. He has denied that the applicant was drawing a salary of Rs. 20,000/- per month since 2009.
LCA no. 1413/16 page no. 22/2857. He has deposed that he is the proprietor of the management. He has deposed that he has named the management in the name of his son Yashansh. He has deposed that he had never served any show cause notice to the applicant. He has deposed that the management was not maintaining any attendance register. He has deposed that he did not lodge any FIR against the applicant.
58. When, he was asked whether is it correct that earlier in the year 2012, he had terminated the services of the applicant and in the year 2013, he had reinstated to the applicant in the management, to which, he has denied and voluntarily deposed that he does not remember, whether the work was completed in the year 2012 or in the year 2013, as the Suresh Arora was a contractual worker.
59. He has deposed that he does not remember that when the applicant was again engaged in the management. He has deposed that he is not facing any trial of fraud. He has denied that he has deposed falsely.
60. The management did not examine any other witness.
61. Ld. Authorized Representative for the applicant has submitted that the management has failed to pay the arrear of salary to the tune of Rs. 5,42,000/-, so, he is entitled to recover the said amount of Rs. 5,42,000/-.
LCA no. 1413/16 page no. 23/2862. The perusal of the record reveals that the management has denied that the applicant is entitled to recover the said amount and stated that the applicant was the Special Attorney Holder and he did not perform his duty diligently and satisfactorily and he has caused big loss to the management and in view of his such conduct, Railtell and BSNL withheld the contractual amounts of the management.
63. The ld. Authorized Representative for the management has submitted that the applicant was not the employee of the management nor he was workman within the meaning of Section 2(s) of the Industrial Disputes Act. Since, perusal of the reply Ex. MW1/1 reveals that the management had filed the reply before the Labour Enforcement Officer, Central on dated 07.11.2013 and in para no.1 thereof, the management had admitted that the applicant was the employee of the management. Similarly, the management had admitted in para No.2 of it's written statement that applicant was working in the management and his last drawn salary was Rs. 7,500/- per month. In view of such admissions, made by the management in Ex.Mw1/1 and in it's written statement, I am inclined to hold that the applicant was the employee of the management and the Ld. Authorized Representative for the management has tried to mislead the court at the time of final arguments, while submitted that the applicant was not the employee of the management.
64. The applicant has claimed that his salary has been withheld, so, he has filed the present application under consideration. During his cross examination, he has failed to LCA no. 1413/16 page no. 24/28 explain properly the period for which, he has claimed the salary to the tune of Rs. 3,02,000/- in para no.7 of his affidavit. The applicant has also deposed in his cross examination that he was having authority to engage the Labour through contractor/sub- contractor for getting the work done and this applicant has also deposed in his cross examination that he was having authority to give sub-contract to anybody for getting the work of the management done. The applicant during his cross examination has admitted that he had given sub-contract to Sh. Rakesh Patel and Sh. Rakesh Patel used to make arrangements for the labour and used to get the work of the management done.
65. The perusal of the record reveals that the management has relied upon the photocopy of legal notice Mark A, which was addressed by Sh. Ram Maheshwari, Advocate to Sh. Kishan Chand Sharma (proprietor of the management) and Sh. Suresh Arora, Manager of the management (who is the applicant herein). Thus, from the cross examination of the applicant, the contents of the photocopies of power of attorney mark A, B and C and photocopy of legal notice Mark A, it is clear that the applicant was doing the work of managerial and supervisory in nature and in view of the same, the applicant Sh. Suresh Arora was addressed as Manager of the management by Sh. Ram Maheshwari, Advocate in the legal notice Mark A.
66. The perusal of the contents of the photocopies of power of attorney Mark A, B and C reveal that the applicant was appointed, nominated and authorized by the management for signing of the bills, store challans, collection of payments, LCA no. 1413/16 page no. 25/28 liaison with the officials of Railtell Corporation of India Ltd. and other related officers to sign other documents relating to the work under tender for trenching and laying of OFC in Duct for last Mile connectivity in Bhopal City Area covering all Manor Area of and tender no. RailTel/Tender/OT/WR/HQ/200- 09/103(R ) dated 20.01.2009 and to Liaison with officials of BSNL other related authorities to sign other documents relating to the work under tender for OFC laying work, for making OFC Ring no. M.P. BPL- 220 in Bhopal SSA and tender No. GMTB/Plg/S-53/T No. 1184/08-09 dated 25.08.2008 at Bhopal, OFC Laving work for making OFC Ring No. M.P. BPL- 221 in Bhopal SSA and Tender No. NO. GMTB/Plg/S-53/T No. 1185/08-09 dated 25.08.2008 at Bhopal and to Liaison with the officials of Railtel Corporation of India Ltd and other related authorities, to sign other documents relating to the work of trenching and laying of OFC in Duct for last Mile connectivity in Bhopal City Area covering all major areas as per the tender no. RailTel /Tender/OT/WR/HQ/2008-09/103(R ) dated 20.01.2009.
67. Their Lordship of High Court of Delhi in case Mamraj vs Management of M/s Shanti Developers and Promoters 2005 LLR 556 was pleased to hold that dominant nature of work is to be seen to find out if it is managerial and supervisory. Similarly, in Kirloskar Electric Company vs Govt. of NCT of Delhi 2010 LLR 6, their Lordship of High Court of Delhi has held that the nature of duties and not the designation of an employee is the main criterion to determine, as to whether he is workman or not.
68. In case, Narshinha Anand Joshi vs Century LCA no. 1413/16 page no. 26/28 Shipping and ors. 1994 LLR 440, it was held that when the nature of work of the petitioner/employee, the various duties performed by him, his status and position in the company, his ranking, all clearly go to show that he was employed mainly in the Administrative capacity and the work, which can be termed as work of clerical nature done by him, was only incidental to his employment in the Administrative Capacity, he was on the facts of the case, was not a workman.
69. Thus, from the above stated contents of photocopies of the Power of Attorney Mark A, B and C, it is crystal clear that the applicant was also appointed to sign the documents relating to the tender for trenching and laying of OFC In Duct for which, he was to take decision and to use discretion, which required planning, execution and foreseeing, so that, such projects could be completed within stipulated period and burden of the same rested on the applicant. Thus, the discharge of such duties by the applicant required Administrative abilities, managerial skill and supervisory qualities. Thus, from the above discussion, it is proved on the record that the nature of the duties of the applicant come within the purview of the managerial or administrative in nature. So, the applicant does not come within the definition of workman given under Section 2 (s) of the Industrial Disputes Act. Therefore, issue no. 2 is decided against the applicant and in favour of the management.
70. Since, the Industrial Disputes Act is Special Act dealing with the classified persons, who come within the definition of workman or employer and as this court has given findings on LCA no. 1413/16 page no. 27/28 issue no.2 against the applicant and in favour of the management, because, the applicant does not come within the definition of the workman as given under Section 2(s) of the Industrial Disputes Act, being excluded by virtue of clause (iii) of the Section, therefore, the claim of the applicant becomes non- est nest as issue no.1 has lost it's substratum, therefore, issue no.1 is decided accordingly.
RELIEF
71. In view of my findings on the issues, the application of the applicant under Section 33 (C) of the Industrial Disputes Act is hereby dismissed being beyond the purview of Industrial Disputes Act 1947. However, the applicant is left at liberty to raise such claim before the appropriate forum, in accordance with law.
72. File be consigned to record room.
Announced on PAWAN KUMAR MATTO through video conference (ADDITIONAL DISTRICT & SESSIONS JUDGE) by using cisco webex PRESIDING OFFICER, LABOUR COURT-02 23.10.2021 ROUSE AVENUE DISTRICT COURT,NEW DELHI-
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