Delhi District Court
Sh. Harish Chander vs The Burmah Shell Management Staff on 20 April, 2011
BEFORE THE COURT OF SH RAKESH KUMAR SHARMA
PO : LABOUR COURT : KKD : DELHI
ID No. 62/10/99
Unique ID No. 02402C0015221999
IN THE MATTER OF :
M/s International Amusement Ltd.
Gate No. 4, Pragati Maidan
New Delhi-1 ..............Management
versus
Sh. Harish Chander
House No. 987/37, DDA Flats
Kalkaji, New Delhi ...........Workman/Claimant
DATE OF FILING : 08.01.1999
AWARD : 20.04.2011
AWARD
1.This is a reference sent by the Government of NCT of Delhi vide order No. F.24(5721)/98-Lab./44375-79 dated 31.12.1998, with the following terms :
"Whether the dismissal of Sh. Harish Chander, from service by the management is illegal and unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect ?"
2. It is stated in the claim by the workman that he was appointed as Electrician in the technical department by the management on 25.09.1986. He was re-designated as Deputy Manager (Store) on 01.07.1996, though no administrative, supervisory or discretionary powers were ever conferred upon him by the management. The management, in a pre-planned manner, placed 1/16 the workman and his two colleagues, namely, Shashi Arora and Zile Singh, under suspension by levelling false and fabricated charges of manipulation and making false and fabricated entries in the books against them. On 27.01.1998, a charge sheet containing 17 charges was issued by the management to the workman. The workman submitted his reply dated 12.02.1998, to the charge sheet. An eye wash and illegal enquiry was conducted by the management against the workman and both his colleagues aforesaid. The enquiry officer held the charges as proved. On 13.05.1998, the management furnished a copy of the enquiry report to the workman along with a letter asking the workman to make any representation in response to the letter if he wished. A detailed representation was submitted by the workman. However, vide its order dated 15.06.1998, the management dismissed the workman. His last drawn salary was Rs. 5,000/- per month. The dismissal is wrong, illegal and in violation of principles of natural justice. The workman has sought reinstatement with full back wages, consequential benefits and heavy compensation/damages and exemplary cost against the management.
3. The management contested the claim by filing a written statement. As preliminary objection, it is submitted that at the time of his dismissal, the workman was working as Deputy Manager (Store). His duties was managerial and supervisory in nature and he was not performing manual, skilled, unskilled, clerical, operational or technical job as his main duty. Hence, he is 2/16 not a workman as defined U/s 2(s) of the Industrial Disputes Act, 1947 (herein after "the Act"). On merits, it is submitted that the workman was appointed as Assistant Manager w.e.f. 01.04.1991, in purely supervisory and managerial category as per Clause (e) of the letter of appointment. The said terms and conditions were duly accepted by him on 08.07.1991. Since then, he was performing the managerial work with the management. With effect from 01.07.1996, he was further promoted to Senior cadre in the managerial category of Deputy Manager (Store). The enquiry conducted against the workman was valid, proper and legal and not in violation of the principles of natural justice. In case, the Court comes to the conclusion that the enquiry was not in accordance with the principles of natural justice, the management may be given an opportunity to lead evidence to prove the charges against the workman before the Court. To the best of the information available with the management, the workman is earning handsomely. The other contents of the claim are denied by the management who has sought dismissal of the claim with costs.
4. In his replication, the workman has controverted the pleas of the management and has reiterated those of his claim.
5. From the pleadings of the parties, the following issues were framed :
1) Whether a proper domestic enquiry was not conducted in accordance with principle of natural justice and if so, its effect ?
2) Whether the claimant is not workman as defined U/s 2(s) of the ID Act ?3/16
3) As per terms of reference. 6. Issue number 1 was treated as preliminary issue. After recording the evidence of both the sides on the issue and hearing them, the issue was
decided in favour of the workman and against the management vide order dated 14.09.2006. However, as prayed in the written statement by the management, an opportunity was given to the management to prove the misconduct of the workman before the Court.
7. The management examined two witnesses in support of its case whereas the workman examined himself as the only witness in support of his case.
8. Authorised Representative of the management relied upon the following authorities in support of his contentions :
a) 1970 II LLJ 590 Burmah Shell Oil Storage and Distribution Co. of India Ltd. v/s The Burmah Shell Management Staff Association and Ors. ;
b) 1969 II LLJ 554 Bennett Coleman & Co. (P) Ltd. v/s Punya Priaya Das Gupta ;
c) 2005 (106) FLR 703 Mamraj v/s Management of M/s Shanti Developers and Promoters (I) Ltd. & Anr. ;
d) 2005 II AD SC (617) Management of M/s Sonepat Cooperative Sugar Mills Ltd. v/s Ajit Singh.4/16
9. I have heard authorised representatives of both the parties and have also gone through the record as well as authorities relied upon by the management. My issue-wise findings are as follows :
10. ISSUE NUMBER 1 : As noted above, this issue has already been decided vide order dated 14.09.2006, in favour of the workman and against the management.
11. ISSUE NUMBER 2 : After issue number 1 was decided in favour of the workman and against the management, on the directions of my Ld. Predecessor, evidence of the management was recorded first.
12. It is a settled law, as also held in the authorities relied upon by the management, that for the purpose of deciding whether an employee falls within the category of "workman" U/s 2(s) of the Act, he must he held to be employed to do that work which is the main work - he is required to do, even though he may be incidentally doing other types of work. In such cases, it must be ascertained as to what is the main or substantial work which he is employed to do. If it is supervisory work, it must be held, that he is employed to do supervisory work though he may also be doing some technical, clerical or manual work. If, on the other hand, the supervisory work is incidental to the main or substantial work of any other type i.e. clerical, manual or technical, the employment would not be in a supervisory capacity.
13. Hence, the question to be decided is what was the main or substantial work which the workman in the present case was employed to do. 5/16
14. The workman, in para-12 of his affidavit filed as examination in chief itself, stated that he used to put remarks on the annual confidential reports of Shashi Arora and Zile Singh. Although he added that he was not doing so being Senior in age or being Manager because he had no authority or control as Manager and that nobody worked under his control or supervision, it is not stated that in what capacity, he was putting the remarks on the ACRs of these two persons.
15. Both the witnesses examined by the management in their affidavits filed as examination in chief fully supported the case of the management and specifically stated that the total functioning of the workman was managerial and supervisory in nature and that he was not performing any manual, skilled, unskilled, clerical, operational and technical job as his main duty.
16. There is no cross-examination of MW 2 regarding the nature of work of the workman herein. It was not suggested to him that the workman was not performing any managerial or supervisory function or even that he was performing only clerical functions. Hence, the testimony of MW 2 in respect of nature of work of the workman goes uncontroverted, unchallenged and unrebutted and the same is deemed to be admitted by the workman.
17. In their separate affidavits filed as examination in chief, both the witnesses of the management relied upon several documents from Ex. MW 1/22 to MW 1/35 and Ex. MW 1/37 to 1/47. In his cross-examination, the workman admitted his signature on these documents. A perusal of these 6/16 documents reveals that the workman has signed these documents as Store Incharge. In his cross-examination, the workman admitted that he used to sign the papers as Store Incharge. He also stated that when he was in Store, all the papers used to go through him to the higher management.
18. In the cross-examination of MW 1, it has come as follows :
".....It is correct that claimant under his control when he was in the store as Incharge, there were not more than 10 persons under his control. There were 5 persons under his control........ One Mr. Zile Singh, Mr. Shashi, Mr. Baljeet, used to be under his control in the Stores at some point of time ..... It is correct that the claimant was alloted a chamber in the organisation. The duties of a Dy. Manager are to control the staff under him. .............The store Incharge controls employees under him and signed the Purchase Orders......"
19. It is clear from the suggestion given by the workman to MW 1 in his cross-examination that the workman himself admits that there were about 10 persons working under his control, when he was Incharge of the Store and that he was also alloted a chamber by the management.
20. It is extremely difficult to believe that despite being given a separate chamber, the workman was doing similar work as was being done by the other persons posted in the Stores department. The designation itself speaks about 7/16 the nature of work of the workman. There can not be any doubt that the main job of an Incharge of a department is to supervise the work of the staff working in the department. In case sometimes, the incharge does some manual work that is only incidental and ancillary and his main duty is to supervise.
21. Further, in his examination in chief itself, the workman relied upon Ex. MW 1/8, which is the enquiry proceeding. In the enquiry proceeding conducted on 17.03.1998, on page number 2, the workman admitted that as Store Incharge, it was his duty to 'supervise' and check the work of his 'subordinate staff' as to what the staff was doing and on what basis.
22. During the arguments, emphasis was laid by the ARW on the fact that MW 1 in his cross-examination, admitted that the nature of work of the workman was technical. It was contended that in view of the admission of MW 1, the workman is covered U/s 2(s) of the Act. I do not find any force in the contention. Neither in the claim nor in his affidavit filed as examination in chief, it is the case of the workman himself that his job was technical. Hence, the contention is rejected.
23. Keeping in view the totality of the facts and circumstances of the case, the admitted facts that (a) the workman was given a separate chamber (b) about 10 persons were working under him in the Store (c ) he used to write annual confidential reports of Zile Singh and Shashi Arora, and that the duty of the Store Incharge and Deputy Manager was to control his subordinate staff, I 8/16 have no hesitation in holding that the main function of the workman was supervision.
24. Since admittedly, he was earning Rs. 5,000/- per month at the time of his termination, he was not a workman U/s 2(s) of the ID Act. Issue number 2, is accordingly, decided in favour of the management and against the workman.
25. ISSUE NUMBER 3 : Since, as noted above, while deciding issue number 2, I have held that the claimant is not a workman as defined by the Act,, this Court does not have the jurisdiction to try and decide this Industrial Dispute. In fact, there is no Industrial Dispute under the Act, for simple reason that the claimant herein is not covered under the definition of 'workman'.
26. However, since issue has already been framed regarding the terms of reference and both the parties have also led their respective evidence on this aspect, as per the provision of CPC, I am required to give my findings on the issue. This is also necessary for the reason that in case the appellate Court comes to the contrary conclusion regarding status of the claimant , it can proceed to decide the matter as per the findings given by me on issue number
3.
27. Since, as noted above, the enquiry issue was decided in favour of the workman and against the management, the management was given an opportunity to lead evidence before the Court to prove the misconduct of the workman.
9/16
28. The charge sheet dated 27.01.1998, is admitted between the parties which was proved on record as Ex. MW 1/7. The charge sheet is as follows :
During the course of internal audit of stores in August-October, 1997, the following discrepancies were observed:-
1. In several cases, Issue INDENTS without any basis, were found to have been prepared resulting in financial loss to the Company. A few instances are given below:-
S. No. INDENT NO. DATE NO. OF ITEMS
DEPTT.
1. 301/IV 189 20.2.96 H.K/CIVIL 16
2. 336/IV 210 23.03.96 H.K/CIVIL 22
3. 337/IV 211 24.03.96 H.K/CIVIL 21
4. 338/IV 212 25.03.96 H.K/CIVIL 19
2. In a number of cases either items without any basis had been inserted or had been inflated on Issue slips and those entries had been put through in the Ledgers as per details given below:-
_______________________________________________________________________ S.N. Issue Slip Item Items as Items as Remark No. & Date (Inserted/ per IV/ per issue I nflated) Local slips Register ________________________________________________________________________
1. Issue slip No. Diesel No entry Diesel Addition is only on E/8/96-321 dt 2000ltrs. 200 ltrs. the first copy only 04th May 1996 while 2nd & 3rd copies do not contain this addition
2. Issue slip No. Bearing No entry Bearing In all copies it is 120dt. 01.7.96 6303-4 No. 6303-4 inflated
3. Issue slip No. Bearing No entry Bearing In Ist & 2nd copies 127dt 11.07.96 N. 6206-6 N. 6206-6 it is 6 while there is no entry in the 10/16 3rd copy.
4. Issue slip No. Bearing No. 1 Bearing In Ist & 2nd copies 132dt 17.07.96 6203-3 No. it is 4 while in third 6203-3 copy it is 1 only.
5. 1. Slip No. 86 a) Hellogan No entry a)Hellogan Addition is only on dt 9.1.97 to Tube 1000 1000 V-2n on the Ist copy of 12.1.97 V-2 b)Starter4 the issue slip No
b) Starter-4 entry on 2nd & 3rd copies
6. I. Slip No. 87 Starter-4 No entry Starter-4 Addition is only on Dt 13.1.97 the 1st copy of the issue slip No entry on the 2nd and 3rd copies it is 2 only.
7. I. Slip No. 88 Bulbs 60W 2 Bulb 12 Bulbs 12 bulbs on the dt 18.1.97 to -10 1st copy while in 2nd 25.197 & 3rd copies it is 2 only.
____________________________________________________________________________
3. In one case three entries had been put through in the ledgers showing to have issued those items vide Indent No. 59 dated 18.07.97. A perusal of the records has revealed that there was in fact no Indent No. 59 and the entries had been passed without any basis knowingly and wilfully. Instances are given below:-
____________________________________________________________________________ S. No. Item I.V. No. L.F. QTY. AS PER LEDGER ____________________________________________________________________________
1. Acid 59 1 19 Ltrs.2. Hellogen fittings - 81 03
500 wt.11/16
3. Brease 136 4 Kgs.
4. In certain cases the quantities shown in the Local Register, Issue Slips and the Ledgers differ. A few instances are given below:-
____________________________________________________________________________ __ S. No. Date Particulars L.F. Qty. as Qty. as Qty. as per Local per issue per Register slips Ledger ____________________________________________________________________________ __ 1. 2.4.97 Bearing 6205 L4/60 01 01 06 2. 21/22.5.97 Bearing 6203 L4/56 04 12 12
3. 17/18.4.97 Oil Hydrolic L4/159 03Ltrs 12Ltrs 12Ltrs ____________________________________________________________________________
5. Detailed stock position as on 31.3.97 showing the balances as per Ledgers vis-a-vis physical verification was given to the Accounts Department. The figures shown in the statement when compared with the records made available to us differ.
6. In the case of one item, viz., Thyrester, the balance in the Ledger was shown as six. when the Vice President asked you to produce the item for verification, you told that six pieces (size 96/14) had been kept with Sh.
Thomas, Maintenance Deptt. You were asked to bring those pieces for verification. You alongwith Shri Johri brought only two pieces saying that four pieces had been used in the ride On physical verification of those pieces it was found that the size of those two pieces was 96/12 and not 96/14.
7. In a number of cases, items were shown to have been issued and the relevant entries had been made in the Ledgers. On perusal of Indent and Local Register it was found tht no item was issued on that day. A few instances are given below:-
____________________________________________________________________________ __ S.No. Date Item L.F. Qty. issued as per Ledger
1. 23.3.96 Resin L3/105 150 Kg.
2. 6.11.96 Cement Primer L3/198 8 Ltr's
3. 25.3.97 Cement L3/206 37 Bags 12/16
4. 30.5.97 Cooler Pump L3/21 6 No's
8. In one Indent Form No. 1770 dated 23.7.96, there was no demand of G.c. Sheet although the words G.C. sheet were written there. The columns ' Demand' and Issued' were blank. A perusal of the ledger (L3/169) has revealed that an entry for 705 Kgs. of G.C. Sheet was put through in the ledger to bring the balance of the aforesaid item to ' NIL'. There is no entry in the Local Issue Register.
9. In P.O. Nos. IAL/ 96/STORES/14 and LAL/MAINT./177 DATED 30.12.95 and 06.4.96, respectively certain items were inserted knowingly and wilfully after the purchase Indents had been approved by the then CGM as per details given below:-
____________________________________________________________________________ __ S.No. P.O. No. Date Items Qty.
____________________________________________________________________________ __
1. LAL/96/ Stores/14 30.12.95 Mugs 6pcs.
2. LAL/MAINT./177 6.4.96 Bearing 30304 4 Nos.
10. On 11th May, 1997, Shri Hoshia Pawar, Dy. Manager, vide Indent Form No. 408 dated 11.5.97 had demanded 3 bags of cement. Thereafter an entry of 22 bags was inserted, without any basis, increasing the figure to 25 bags and the entry of 25 bags was put through in the ledger. On scrutiny of the Local Register, it was found that ony three bags were issued.
11. On the 11th May, 1997, yet another entry of 25 bags of cement vide I. V. No. 16 had been put through in the Ledger. On scrutiny of I.V. No. 16 it is observed therefrom that only 5 bags of cement were issued in the name of Sh. S. C. Arora. Further the date of I. V. No. 16 is 12th July, 1997 and not 11th May, 1997. Again there is no entry of 25 bags of cement in the Local Register.
12. On 18.04.96 as per Ledger Lr there is any entry of 8 Ltrs. of orange colour issued whereas the quantity shown in the Local Register is only 4 liters.
13. As per Issue Slip No. 184 dated 25.1.96, one Main Switch which was earlier written there was cancelled while the same had been shown as "issued" in the Ledger. In the Local Register there is no such entry 13/16
14. 300 mtrs of 95 mm cable was shown to have been received by the Electrical Department vide IV No. 76/8. No. 391 darted 19.11.96 to 24.11.96 while as per Local Register quantity issued was only 5 mtrs. on 22.11.96. On perusal of the issue slip, it is observed that initially quantity issued was only 5 mtrs. but subsequently the figure 5 was struck off and in its place figure 300 mtrs. was inserted only on the first copy of the issue slip whereas second and third copies remain unchanged.
15. Despite repeated reminders, oral/ in writing, you had not provided the Local Register for the period April to July 1995 to the Vice President for reasons best known to you.
16. The above mentioned lapses on your part are only illustrative but not exhaustive. Your negligence has caused huge loss to the company. You were holding a responsible position and being incharge of stores it was not expected of you to perform in such a deliberate manner. Your acts cited above clearly show that you handled the stores with the intention to cause heavy loss to employers properly
17. You are, therefore, called upon to show reasons as t why suitable action should not be taken against you for your willful acts of omissions/ commissions Your satisfactory explanation must reach the undersigned within seven days of the receipt of this letter. In the event of your failure to comply with it, it will be presumed that you accept the charges and have no explanation to offer."
29. A perusal of the charge sheet shows that the entire case of the management is based on documents. However, none of the documents mentioned in the entire charge sheet was placed on record, much less proved, by the management.
30. However, significantly, in his examination in chief itself, the workman, as noted above, relied upon the enquiry proceedings which was proved before the Court as Ex. MW 1/8.
31. In the enquiry proceedings conducted on 18.03.1998, the workman 14/16 specifically admitted that he had directed Smt. Shashi, to mark bogus entries and indents etc. He further specifically admitted that the bogus issue entry of 705 kg. GC sheet, made on LF-169 of ledger L-3. 96-97 was in his hand writing. Similarly, he also stated that an unauthorised inflated entry was made by Smt. Shashi, which was in his knowledge. During the enquiry on that day, the workman was asked to clarify why he had given such directions which caused caused loss to the management. The workman replied that the same was done by him to make up for the articles issued without record.
32. It is clear from the admission and the statements made by the workman in the enquiry as stated in the charge sheet, that not only he himself made certain bogus entries, he also directed his subordinate Smt. Shashi, to make certain other bogus entries and that some other unauthorised entries made by Shashi, were in his knowledge but no action was taken by him. Making bogus entires itself is an offence punishable under Indian Penal Code. Hence, the misconduct of the workman stands proved on record.
33. The next question to be decided is whether the management was justified in terminating the services of the workman for the misconduct. Since, as noted above, some bogus entries were prepared by the workman himself which amounts to an offence even under Indian Penal Code, this, in itself, in my view, was sufficient for the management to terminate the services of the workman. The termination, on this ground alone, in my view, is neither excessive nor disproportionate nor unjustified. Significantly, in the cross- 15/16 examination of MW 1, a suggestion was given by the workman himself that the claimant was given most of the warnings orally. It is clear that the claimant admits that he was warned many times in the past also. Keeping in view, this past conduct of the workman, the termination of his services by the management for the misconduct was fully justified. Accordingly, it is held that the dismissal of the workman by the management is neither illegal nor unjustified. Hence, the workman is not entitled to any relief.
34. In view of the above discussion, the claim is dismissed. No costs. The reference is answered accordingly. A copy of this award be sent to the appropriate government for publication. File be consigned to Record Room. Announced and Dictated to Stenographer in the open Court on 20.04.2011 (RAKESH KUMAR SHARMA) POLC/KKD/DELHI/XVII 16/16 17/16