Delhi District Court
Sh. Sheshmani Tiwari S/O Sh. Ramayan ... vs M/S Group 4 Security Services (India) ... on 29 November, 2014
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 151/11
Date of Institution of the case : 30.09.2011
Date on which reserved for Award : 25.11.2014
Date on which Award is passed : 29.11.2014
Unique ID no. 02402C0300612011
Sh. Sheshmani Tiwari S/o Sh. Ramayan Prasad Tiwari,
C/o Kamgar Madadgar Union,
A24, Nand Ram Park, Uttam Nagar,
New Delhi110059. ...............Workman
Versus
M/s Group 4 Security Services (India) Pvt. Ltd.,
16, Community Centre, Janakpuri
CBlock, New Delhi110058. ...........Management
A W A R D
The workman Sh. Sheshmani Tiwari, raised an industrial
dispute regarding the termination of his services by the management
of M/s Group 4 Security Services (India) Pvt. Ltd.. Direct statement
of claim was filed by the workman in the court. In the statement of
claim, it was stated by the workman that the workman was under the
employment of the management of M/s Group 4 Security Services
(India) Pvt. Ltd. since 27.09.1994 as a 'Head Security Guard' and he
had been paid wage monthly and his last drawn wages were Rs.
6,200/ per month; that during the services, the workman was never
provided legal facilities i.e., overtime, weekly off, leave facility etc.
D.I.D. No. 151/11 Page 1 out of 51
for which he was making demand time and again; that workman was
performing his duty with utmost satisfaction with the management and
he had unblemished and uninterrupted record of his services to his
credit; that since the month of February, 2011 the management was
harassing to the workman; that his due bonus for last 3 years had not
been paid and workman was demanding it again and again but all in
vain; that he was posted on duty intentionally and deliberately to far
from his residence; that workman was on medical leave from
12.05.2011 to 17.06.2011 and thereafter he reported for duty on
18.06.2011, the management refused to resume his duty and
terminated his services without assigning any valid reason; that action
of the management in terminating the services of the workman was
illegal, bad, unjust and malafide; that the workman was a regular and
permanent employee of the management and had unblemished and
uninterrupted record of his services to his credit; that the service of
workman was terminated for legitimate demand of legal facilities
which amounted to unfair labour practice on the part of the
management; that the workman had worked with the management
more than 240 days in each calender of month; that service of the
workman had been terminated by refusal of duties, orally and without
assigning any reason; that the work against which workman was
working was still continuing and was a permanent work; that in case
of retrenchment no seniority list was displayed and no notice was
given, no notice pay was either offered or paid to the workman at the
time of termination of his services; that the workman was not
committing any misconduct; that if any alleged misconduct had been
D.I.D. No. 151/11 Page 2 out of 51
committed by the workman, he had not been served any memo or
charge sheet, and no domestic enquiry was conducted against him and
he was not offered any opportunity to being heard; that even otherwise
the impugned termination of services was violation of Section 25 F, G,
H of the Industrial Disputes Act r/w Rule 76, 77 & 78 of Industrial
Disputes (Central) Rule 1957; that the workman was not gainfully
employed since the date of termination i.e. 18.06.2011 despite of his
best efforts; that a legal demand notice dated 08.07.2011 was served
upon the management; that no reply had been received and it was
presumed that demand had been rejected; that a conciliation
proceeding was also initiated by workman through his union and a
management representative appeared before them and had given
termination letter of the workman dated 25.08.2011; that the purpose
of conciliation resulted in failure due to adamant and non cooperative
attitude of the management. Hence, the workman has claimed for
reinstatement with full back wages, continuity of service and all his
dues.
Notice of filing of the statement of claim was sent to
the management, which had appeared and had moved an application
under Section 11 (1) of the Industrial Disputes Act for dismissal of
the claim on the ground that the instant industrial dispute as raised by
the workman against the management by way of a Direct Industrial
Dispute in this Court is not maintainable in law by virtue of the
mandatory provisions of Section 2 A(2) of the Industrial Disputes Act,
1947 (as amended upto date) governing the filing of the instant dispute
in this Court necessitating the workman to approach the Conciliation
D.I.D. No. 151/11 Page 3 out of 51
Officer of the appropriate Government for conciliation in respect of
the subject dispute before approaching this Hon'ble Court by way of a
direct statement of claim as has been done by the workman in the
instant case and which have not been complied with on the part of the
workman in the instant case to which reply has been filed on behalf of
the workman in opposition to the same, on record, controverting the
above allegations of the management and which has been disposed off
vide order dated 12.03.2013 in the instant matter, on record, with the
direction that in view of the written statement not as yet having been
filed on the part of the management in the instant statement of claim,
on record, the instant objection may be taken by the management in its
written statement to be decided at the appropriate stage of the
proceedings.
Thereafter, the management has filed its written
statement to the statement of claim of the workman. In the written
statement filed by the management, it has taken the preliminary
objections that the whole claim of the claimant was illconceived,
misconceived and the same was liable to be dismissed; that the present
claim was filed by the claimant directly under Section 10 (4A) (Delhi
amendment) of the Industrial Disputes Act, 1947; that the aforesaid
claim was not maintainable, in view of amendment of the Industrial
Disputes (Amendment) Act, 2010, as notified vide notification No. S
11012/1/20071R (PL) dated 15.09.2010; that in view of the aforesaid
amendment, after Section 2A which had been notified to be numbered
as subSection (1), subSection (2) had been inserted as under:
"(2) Notwithstanding anything contained in Section
D.I.D. No. 151/11 Page 4 out of 51
10, any such claimant as is specified in subsection (1) may, make an
application directly to Labour Court or Tribunal for adjudication of
the dispute referred to therein after expiry of fortyfive (45) days from
the date he has made the application to the conciliation officer of the
appropriate government for conciliation of the dispute, and in receipt
of such application, the labour court or Tribunal shall have powers
and jurisdiction to adjudicate upon the dispute, as if it were a dispute
referred to it by the appropriate government in accordance with the
provisions of this Act and all provisions of this Act shall apply in
relation to an industrial dispute referred to it by the appropriate
Government."
that in view of the above provisions of law, the
present claim filed directly before this Hon'ble Court without taking
recourse to the conciliation machinery created under the provisions of
the Industrial Disputes Act, was not maintainable and the same was
liable to be rejected; that the abovementioned claimant joined the
services of the abovementioned company with effect from 27.09.1994
as a guard on the salary of Rs. 1,385/ per month and agreed to abide
by the contract for employment for guards dated 27.09.1994
("Employment Contract"); that as per the contract, the above named
claimant was required to work at all times with absolute integrity and
devotion and to conduct himself in the manner conducive to the best
interests and credit and prestige of the company; that the claimant had
undertaken not to work against the interest of the management and not
to do anything which was unbecoming of an employee and failing to
observe the above undertakings was agreed to be treated as
D.I.D. No. 151/11 Page 5 out of 51
misconduct against which management had the right to take
disciplinary action against the defaulting claimant as per the rules of
the company; that the aforesaid claimant was habitual of misbehaving
with his fellow guards, taking money from clients and their guests in
the name of religion, asking for food from client's servants, changing
dress in open etc. and was not performing the duties up to the required
standards; that the aforesaid claimant was accused of beating his
senior head guard and there had been several complaints against him
of insubordination and disobedience to superiors and there were
several adverse reports in his service's personal file; that the aforesaid
claimant was not attentive to his duty as he had been found sleeping
on duty on several occasions; that the claimant was issued warning
letter dated 10.01.1996 in this regard by the management; that the
aforesaid claimant was in habit of absenting from the office as per his
will, without authorized leave or/and sanction; that the claimant was
advised/warned by the management several times to improve his
ways, but he continued with his habits; that such act of remaining in
unauthorized absence was treated as subversive of discipline,
amounting to misconduct and he was suspended for two (2) days vide
letter dated 01.01.1996 as a warning that he would not repeat this
misconduct in the future; that the aforesaid claimant had no impact of
aforesaid warning/suspension letters and he chose to continue with the
same attitude compelling the management to issue termination letter
dated 14.05.1996; that however, on the plea and assurance given by
the claimant to improve his conduct, the management had withdrawn
the termination order and gave him the final warning vide letter dated
D.I.D. No. 151/11 Page 6 out of 51
25.05.1996; that in spite of above, claimant continued his habit of
absenting without intimation and again, management was compelled
to issue warning letter dated 08.01.1997; that another warning letter
was again issued to the aforesaid claimant when he was found
absenting himself from duties w.e.f..13.02.1997 to 28.02.1997; that to
utter disregard to the etiquette of duty, the claimant was found
sleeping in a room at duty hours, hence another warning letter date
17.03.1997 was issued; that various other warning letters were issued
when claimant was found without proper dress (e.g.without tie and
shave) meant for guard; that in view of the fact that the claimant was
habitual of misbehaving with his fellow guards, taking money from
the clients and their guests in the name of the religion, asking for food
from client's servants, changing dress in open etc. and not performing
the duties up to the required standards and beating up his senior head
guard in the past, having several complaints of insubordination and
disobedience to superiors and a number of adverse reports in his
personal file; that the aforesaid claimant, in utter disregards for his
duty, had stopped attending his duties with effect from 26.02.2011;
that he was sent several communications vide letters dated
07.05.2011, 16.06.2011 and 29.07.2011; that due to claimant's act of
remaining absent without information or sanctioned leave and being
aware of his previous service records and no responding to several
communications of the management; that the claimant neither applied
for leave nor intimated about his whereabouts; that thus it was taken
that the claimant had voluntarily abandoned the job and the
management had totally lost confidence in him; that under the
D.I.D. No. 151/11 Page 7 out of 51
circumstances as aforesaid, the management was constrained to
terminate the services of the claimant vide termination letter dated
25.08.2011 in terms of contract of employment; that the termination in
above circumstances was legal, justified and in full compliance with
contractual and statutory obligations; that the services of the claimant
were terminated vide letter dated 25.08.2011 after following due
process established by law when he was found guilty of serious
misconducts on multiple occasions; that the aforesaid claimant had not
been attending his duties with effect from 26.02.2011; that the
claimant neither applied for leave, nor intimated about his
whereabouts from 26.02.2011 and failed to submit any response to
several communications sent by the management; that it was taken by
management as the case of voluntarily abandonment of the job; that
thus it was taken that the claimant had voluntarily abandoned the job
and the management had totally lost confidence in him; that under the
circumstances as aforesaid, the management was constrained to
terminate the services of the claimant vide termination letter dated
25.08.2011 in terms of contract of employment; that the termination in
above circumstances was legal, justified and in full compliance with
contractual and statutory obligations; that since the services of the
claimant were terminated legally and justifiably and there were no
grounds to interfere with the same, the claim of the claimant was
liable to be dismissed on this ground itself; that the claimant was not a
claimant under Section 2 (s) of the Industrial Disputes Act; that the
claimant was admittedly working with the management as a Head
Guard which job did not fell under the category of manual, unskilled,
D.I.D. No. 151/11 Page 8 out of 51
skilled, technical, operational, clerical or supervisory in nature,
therefore he could not raise the industrial dispute under the Industrial
Disputes Act, 1947; that the claim of the claimant was illconceived
and misconceived and the same was liable to be rejected outrightly;
that the services of the claimant were terminated after he was found
guilty of various indisciplinary activities unbecoming of his position
in the respondent company i.e. sleeping on duty, negligence in duty,
absenting unauthorizedly without any intimation or leave, fighting with seniors and his fellow workmen, act of insubordination etc.; that the claimant had filed the present claim with ulterior motive of extorting the money from the management for which claimant was not entitled; that the claim of the claimant was liable to be dismissed on this ground, being not maintainable. On merits it was stated that the contents as to date of employment and designation were matter of records; that it was denied that during the services, the claimant was never provided legal facilities i.e., overtime, weekly off, leave facility etc. for which he was making demand time and again; that the management had been offering all legal facilities as per laws and regulations to its all employees including the contesting claimant; that it was denied that the claimant was performing his duty with utmost satisfaction with the management and he had unblemished and uninterrupted record of his service; that the aforesaid claimant was habitual of misbehaving with his fellow guards, taking money from clients and their guests in the name of religion, asking for food from client's servants, changing dress in open etc. and was not performing the duties up to the required standards; that the aforesaid claimant was D.I.D. No. 151/11 Page 9 out of 51 accused of beating his senior head guard and there had been several complaints against him of insubordination and disobedience to superiors and there were several adverse reports in his service's personal file; that the aforesaid claimant was not attentive to his duty as he had been found sleeping on duty on several occasions; that it was denied that since the month of February, 2011, the management was harassing to claimant and his due bonus for the last three years had not been paid despite it being demanded by the claimant again and again; that statutory bonus of all the employees of the company was paid in accordance with law and as such claimant had also been paid the same as per law; that it was denied that he was posted on duty intentionally and deliberately at far away places from his residence; that it was denied that the claimant was on medical leave from 12.05.2011 to 17.06.2011 and when he reported for the duty on 18.06.2011, the management had refused to resume his duty and terminated his services without assigning any valid reason; that the aforesaid claimant in utter disregards to his duty, had stopped attending his duties with effect from 26.02.2011; that the claimant was sent letters dated 07.05.2011, 16.06.2011 and 29.08.2011 but the claimant neither reported for duties nor submitted any response; that due to claimant's act of remaining absent without information or sanctioned leave and having failed to report for duties despite having been called upon to do so and the fact that the management had lost confidence in him, the management terminated the services of the claimant vide termination letter dated 25.08.2011 in terms of contract of employment; that termination in above circumstances, was legal, D.I.D. No. 151/11 Page 10 out of 51 justified and in full compliance with contractual and statutory obligations; that in any event, the management sought leave of this Hon'ble Court to prove the above before this Hon'ble Court; that it was denied that action of the management in terminating his services was illegal, bad, unjust and malafide; that the aforesaid claimant, in utter disregards to his duty, had stopped attending his duties with effect from 26.02.2011; that the claimant neither applied for leave, nor intimated about his whereabouts from 26.02.2011 and failed to submit any response to the various letters sent to him; that due to claimant's act of remaining absent without information or sanctioned leave and having failed to report for duties despite having been called upon to do so and the fact that the management had lost confidence in him, the management terminated the services of the claimant vide termination letter dated 25.08.2011 in terms of contract of employment; that termination in above circumstances, was legal, justified and in full compliance with contractual and statutory obligations; that in any event, the management sought leave of this Hon'ble Court to prove the above before this Hon'ble Court; that the termination in above circumstances was legal, justified and in full compliance with contractual and statutory obligations; that it was denied that the claimant had unblemished and uninterrupted record of his services to his credit; that the claimant was habitual of misbehaving with his fellow guards, taking money from the clients and their guests in the name of the religion, asking for food from client's servants, changing dress in open etc. and not performing the duties up to the required standards and beating up his senior head guard in the past, having D.I.D. No. 151/11 Page 11 out of 51 several complaints of insubordination and disobedience to superiors and a number of adverse reports in his personal file; that it was denied that service of the claimant was terminated for legitimate demand for legal facilities which amounted to unfair labour practice on part of the management; that aforesaid claimant had stopped attending his duties with effect from 26.02.2011; that the claimant neither applied for leave, nor intimated about his whereabouts from 26.02.2011 till the date of the issuance of the termination letter dated 25.08.2011 which was taken by management as the case of voluntarily abandonment of the job; that it was denied that service of the claimant had been terminated by refusal of duties, orally and without assigning any reason; that it was denied that claimant had not committed any misconduct and he had not received any charge sheet or memo and no domestic enquiry was conducted and he was not offered any opportunity of being heard; that the services of the claimant were terminated vide letter dated 25.08.2011 after following due process established by law when he was found guilty of serious misconducts on multiple occasions; that prior to aforesaid action of the management, several warning letters, memos were issued as explained above to him; that it was denied that even otherwise, the impugned termination of services was violative of Section 25 (F), (G), (H) of the Industrial Disputes Act, 1947 r/w Rules 76, 77 & 78 of the Industrial Disputes (Central) Rules, 1957; that the management had terminated the services of the claimant vide termination letter dated 25.08.2011 in terms of contract of employment; that the termination in above circumstances was legal, justified and in full compliance with D.I.D. No. 151/11 Page 12 out of 51 contractual and statutory obligations; that it was denied that the claimant was not gainfully employed since the date of termination i.e. 18.06.2011 despite his best efforts; that the fact of claimant's gainful employment was within the knowledge of the claimant which he ought to have disclosed before this Hon'ble Court; that it was denied that a legal demand notice dated 08.07.2011 was served upon the management and no reply had been received and therefore, it was presumed that demand had been rejected; that no such demand notice had been received by the management; that therefore, there was no question of it's being replied; that even otherwise mere sending of demand notice did not create any right in favour of the claimant; that it was denied that the claimant initiated conciliation proceeding through his union wherein a management representative had handed over termination letter dated 25.08.2011 to the claimant; that it was denied that the purpose of conciliation was resulted in failure due to adamant and non cooperative attitude of the management; that it was further denied that claimant had sought to file the above claim in above circumstances. All other allegations were denied. Hence, it was prayed that the statement of claim be dismissed.
In rejoinder to the written statement of the management, all the averments of statement of claim were reaffirmed and of the written statement of the management were denied by the workman.
On the pleadings of the parties, vide order dated 24.02.2014, the following issues were framed:
(i) Whether the statement of claim of the workman is D.I.D. No. 151/11 Page 13 out of 51 not maintainable in view of the preliminary objection no. 2 taken by the management in its written statement? OPM
(ii) Whether the claimant is a workman as defined under section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date)?OPW
(iii) Whether the workman has absented himself from his duties with the management and thereby abandoned his services with the management as alleged? OPM
(iv) Whether the services of the workman have been terminated illegally and/or unjustifiably by the management?OPW
(v) Relief.
No other issue arose or pressed for and the case was adjourned for workman evidence.
In support of his case, the workman himself appeared as WW1 in the workman evidence, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.WW1/1 to WW1/14 in the same, on record.
After examining WW1, workman evidence has been closed, on record.
In support of its defence, the management has examined Sh. Sanjeev Kumar Taku, General Manager (Legal) of the management as MW1 in management evidence, who has tendered his affidavit by way of evidence Ex.MW1/A in the same as also relied D.I.D. No. 151/11 Page 14 out of 51 upon documents exhibited in the cross examination of the workman on behalf of the management in workman evidence, on record.
After examining MW1, management evidence has been closed, on record.
Final arguments have been heard. Written submissions have also been filed on behalf of the workman, on record.
My findings issuewise are as under: ISSUE NO. 1 It is seen from the record that the workman has appeared as WW1 in workman evidence, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.WW1/1 to WW1/14 in the same, on record. In his affidavit by way of evidence Ex.WW1/A, he has reiterated the contents of his statement of claim to the effect that the workman was under the employment of the management of M/s Group 4 Security Services (P) Ltd. since 27.09.1994 as a 'Head Security Guard' and he had been paid wage monthly and his last drawn wages were Rs. 6,200/ per month; that during the services, the workman was never provided legal facilities i.e., overtime, weekly off, leave facility etc. for which he was making demand time and again; that workman was performing his duty with utmost satisfaction with the management and he had unblemished and uninterrupted record of his services to his credit; that since the month of February, 2011 the management was harassing to the workman; that his due bonus for last 3 years had not been paid and the workman was demanding it again and again but all in vain; that the workman had been posted on duty intentionally and deliberately to D.I.D. No. 151/11 Page 15 out of 51 far away places from his residence by the management; that the workman was on medical leave from 12.05.2011 to 17.06.2011 and thereafter he reported for duty on 18.06.2011, when the management had refused him to resume his duty and terminated his services without assigning any valid reason; that the workman was a regular and permanent employee of the management and had unblemished and uninterrupted record of his services to his credit; that the workman had worked with the management more than 240 days in each calender of month; that the services of the workman had been terminated by refusal of duties, orally and without assigning any reason; that the workman was not gainfully employed since the date of termination i.e. 18.06.2011 despite of his best efforts.
Ex.WW1/1 being copy of demand notice dated 08.07.2011 of the workman to the management through speed post/registered AD post; Ex.WW1/2 being the postal registration receipt dated 09.07.2011 in its respect; Ex.WW1/3 being copy of complaint dated 08.07.2011 of the workman through union to the Assistant Labour Commissioner, District West, Labour Office, Karampura, New Delhi110015 in respect of his allegations vide his instant statement of claim against the management i.e. of his alleged illegal termination of service on its part on 18.06.2011; Ex.WW1/4 being copy of compliant dated 28.07.2011 of the workman through union to the Bonus Inspector in respect of his alleged illegal termination of service on the part of the management on 18.06.2011 and non payment of bonus on the part of the management to him for the years 200708, 200809, 200910; Ex.WW1/5 being copy of D.I.D. No. 151/11 Page 16 out of 51 complaint dated 29.06.2011 of the workman to the S.H.O, P.S. Janakpuri, New Delhi in respect of his instant allegations against the management; Ex.WW1/6 being copy of complaint dated 07.07.2011 of the workman to the Assistant Labour Commissioner, FBlock, Karampura, New Delhi in respect of his instant allegations; Ex.WW1/7 being the identity card of the workman as Head Security Guard with the management; Exts.WW1/8 to WW1/11 being the deployment orders dated 24.02.2011, 25.02.2011, 20.04.2011 and 29.04.2011 of the management in respect of the workman; Ex.WW1/12 being the termination letter dated 25.08.2011 of the management in respect of the workman; Ex.WW1/13 being the ESIC card of the workman with the management; Ex.WW1/14 being the report of the inspecting officer Sh. Amar Deep, Office of the Deputy Labour Commissioner (West), Labour Department, Govt. of NCT of Delhi, FBlock, Karampura, New Delhi110015 bearing F.No.ALC/LAB/WD/2011/6379 dated 21.09.2011 to the union of the workman in respect of his complaint against the management in respect of his instant dispute.
This witness has been cross examined at length on behalf of the management in workman evidence, in which he has deposed that it was correct that he was working as Head Security Guard with the management; that it was wrong to suggest that Security Guards were lower in hierarchy to the Head Security Guard; that it was correct that on promotion a Security Guard was given the post of Head Security Guard; that it was wrong to suggest that he was given appointment letter by the management; that he had given D.I.D. No. 151/11 Page 17 out of 51 application for being appointed in the service of the management; that it was correct that ESIC and EPF subscription were being deposited in his respect by the management; that it was correct that copy of appointment letter Ex. WW1/M1 was bearing his signature at Point A; that he had represented to the management regarding non provision of legal facilities like overtime and leave facility due to him during the period of his employment with the management; that he was not having copy of any such letter written by him to the management; that it was wrong to suggest that he had not written any such letter to the management or that he was deposing falsely in this regard; that it was correct that he had not filed copy of any such letter, on record; that it was correct that he had not made any such complaint to the labour authorities during the period of his employment also; that it was correct that letters, copies of which were Exts. WW1/M2, WW1/M3, WW1/M4 and WW1/M5 were bearing his signatures at Points A thereon; that it was wrong to suggest that Mark A and B were bearing his signatures at Point A thereon; that it was wrong to suggest that it was mandatory to wear tie during performance of duty as Head Security Guard; that it was wrong to suggest that tie was given to the Head Security Guard along with uniform; that it was wrong to suggest that any warning letter had been issued to him by the management for non wearing of mandatory tie along with his uniform while performance of his duty as a Head Security Guard with the management; that it was wrong to suggest that Mark C was bearing his signature at Point A; that he could not say whether he was posted at Okhla Branch of the management in the January, 2001; that it was D.I.D. No. 151/11 Page 18 out of 51 wrong to suggest that he was not reporting for duty with the management since February, 2011 without any intimation; that it was wrong to suggest that he had not reported for duty with the management since February, 2011 despite orders being issued by the management to him in this regard; that he had not applied for medical leave for the period w.e.f. 12.05.2011 to 17.06.2011; that he had submitted the medical certificate of the concerned doctor to the management in this regard; that he had not given any letter along with the said certificate; that it was wrong to suggest that he had never been ill for the concerned period or had not submitted any medical certificate to the management in this regard; that it was wrong to suggest that he had deliberately remained absent from his duties with the management for the period w.e.f. 26.02.2011 till 25.08.2011. Vol. He had reported for duty but was not given any duty by the management; that he had written to the management in this respect during the period w.e.f. 26.02.2011 till 25.08.2011; that he was not having any copy of any such letter nor he had filed any such document, on record; that it was wrong to suggest that he was deposing falsely that he had written any letter to the management in this regard during the period. w.e.f. 26.02.2011 till 25.08.2011; that it was correct that Ex.WW1/14 was not bearing his signature on the same. Vol. The same was the report of the inspecting officer of the Labour Department; that it was wrong to suggest that since he was in the habit of remaining absent from his duties with the management unauthorizedly without any prior intimation or sanction and thus making the company suffer and because of which the company lost D.I.D. No. 151/11 Page 19 out of 51 confidence in him, his services had been terminated by the management vide letter dated 25.08.2011 Ex.WW1/12, on record; that it was wrong to suggest that his termination was legal, valid and justified in all respects; that it was correct that he had filed a direct claim before this Hon'ble court; that it was wrong to suggest that he was deposing falsely.
Ex.WW1/M1 being copy of appointment letter dated 27.09.1994 of the management in respect of the workman; Ex.WW1/M2 being copy of alleged suspension letter dated 01.01.1996 of the management to the workman; Ex.WW1/M3 being copy of alleged letter dated 10.01.1996 of the management to the workman in respect of sleeping on duty; Ex.WW1/M4 being copy of alleged letter dated 25.05.1996 of the management to the workman in respect of final warning; Ex.WW1/M5 being copy of alleged warning letter dated 08.01.1997 of the management to the workman; Mark A, B and C being copies of alleged warning letters dated 17.03.1997, undated and 11.01.2001 respectively of the management to the workman.
Thereafter, the workman evidence has been closed, on record.
In its defence, the management has led the evidence of Sh. Sanjeev Kumar Taku, General Manager (Legal) of the management, who has appeared as MW1 as also tendered his affidavit by way of evidence Ex.MW1/A and relied upon the documents exhibited in the cross examination of the workman on behalf of the management in workman evidence in the management evidence, on D.I.D. No. 151/11 Page 20 out of 51 record. In his affidavit by way of evidence Ex.MW1/A he has reiterated the contents of the written statement and has deposed that he was working as General Manager with the management company; that he was dealing with the case on its behalf and thus was well conversant with the facts and circumstances of the case and duly authorized and competent to depose this affidavit; that the present claim was filed by the claimant directly under Section 10 (4A) (Delhi amendment) of the Industrial Disputes Act, 1947; that the aforesaid claim was not maintainable, in view of amendment of the Industrial Disputes (Amendment) Act, 2010, as notified vide notification No.S 11012/1/20071R (PL) dated 15.09.2010; that the claimant was not a workman as per the definition given in Section 2 (s) of the Industrial Disputes Act, 1947 (herein after referred as Act); that the claimant was admittedly working with the management as Head Guard which job did not fall under the category of manual, unskilled, skilled, technical, operational, clerical of supervisory in nature, therefore, he could not raise industrial dispute under the Act; that the claimant was habitual of misbehaving with his fellow guards, taking money from clients and their guests in the name of religion, asking for food from client's servant, changing dress in open etc. and was not performing the duties up to the required standards; that the claimant was accused of beating his senior head guard and there had been several complaints against him of insubordination and disobedience to superiors; that the claimant was not attentive to his duty as he had been found sleeping on duty on several occasions; that the claimant was issued warning letter dated 10.01.1996 in this regard by the management; that the D.I.D. No. 151/11 Page 21 out of 51 claimant was in habit of absenting from the office as per his will, without authorized leave or/and sanctioned; that the claimant was advised/warned by the management several times to improve his ways, but he continued with his habit; that such act of remaining in unauthorized absence was treated as subversive of discipline, amounting to misconduct and he was suspended for two days vide letter dated 01.01.1996 as a warning that he would not repeat this misconduct in the future; that the claimant had no impact of aforesaid warning/suspension letters and he had chosen to continue with the same attitude compelling the management to issue termination letter dated 14.05.1996; that, however, on the plea and assurance given by the claimant to improve his conduct, the management had withdrawn the termination order and gave him the final warning vide letter dated 25.05.1996; that inspite of above, claimant continued his habit of absenting without intimation and again, management was compelled to issue warning letter dated 08.01.1997; that another warning letter was again issued to the claimant when he was found absenting himself from duties w.e.f.13.02.1997 to 28.02.1997; that to utter disregard to the etiquette of duty, the claimant was found sleeping in a room at duty hours, hence another warning letter dated 17.03.1997 was issued; that the claimant, in utter disregards for his duty, had stopped attending his duties with effect from 26.02.2011; that he was sent several communications vide letters dated 07.05.2011, 16.06.2011 and 29.07.2011; that due to claimant's act of remaining absent without information or sanctioned leave and being aware of his previous service records and not responding to several communications of the D.I.D. No. 151/11 Page 22 out of 51 management; that the claimant neither applied for leave nor intimated about his whereabouts; that thus it was taken that the claimant had voluntarily left the employment; that the acts of the claimant were clearly lead to loss of confidence; that under the circumstances as aforesaid, the management was constrained to terminate the services of the claimant vide termination letter dated 25.08.2011; that the termination in above circumstances was legal, justified and in full compliance with contractual and statutory obligations; that the services of the claimant were terminated after he was found guilty of various indisciplinary activities unbecoming of his position in the respondent company i.e. sleeping on duty, negligence in duty, absenting unauthorizedly without any intimation or leave, fighting with seniors and his fellow workmen, act of insubordination etc. In his cross examination on behalf of the workman in management evidence, he has deposed that he had joined the management in the month of August, 2003; that he had got the personal knowledge of the case of the workman; that it was correct that the workman was employed as a Security Guard with the management; that he could not tell the date of his appointment on that day; that the workman had worked with the management for about 17 years; that he had not brought the service record of the workman on that day; that the management had not received any demand notice of the workman; that the address of the management as given in Ex.WW1/1 was correct; that he could not say whether the management had received any notice from the Conciliation Officer or the Labour Authority in the instant matter; that it was wrong to D.I.D. No. 151/11 Page 23 out of 51 suggest that the contents of paragraph nos. 4 to 6 of his affidavit by way of evidence Ex.MW1/A were wrong and false; that it was correct that no domestic enquiry was conducted by the management in respect of the allegations/contents of the termination letter dated 25.08.2011 of the management in respect of the workman Ex.WW1/12, on record; that it was correct that no charge sheet was issued to the workman or domestic enquiry held by the management in respect of the allegations of misconduct against the workman; that it was wrong to suggest that he was deposing falsely being the employee of the management or that he had filed a false affidavit by way of evidence on its behalf.
It is seen from the record that preliminary objection has been taken on behalf of the management to the instant statement of claim filed on behalf of the claimant/workman in its written statement filed in opposition to the same, on record, to the effect that the workman has not restorted to/initiated conciliation proceedings in respect of the instant industrial dispute raised by the claimant/workman against the management, before the competent authority viz. the conciliation officer of the appropriate Government before filing the instant industrial dispute against the management directly in this Court as was mandatorily required to be observed/complied with/restorted to on the part of the workman before initiation of the instant direct industrial dispute on his part against the management in respect of the subject matter of the same viz. the alleged illegal and/or unjustified termination of the service of the claimant/workman on the part of the management in this Court, vide the provisions of Section 2 A (2) of the Industrial Disputes Act, D.I.D. No. 151/11 Page 24 out of 51 1947 (as amended upto date) governing the filing of such like direct industrial disputes on the part of the claimant(s)/workman(men) against the management(s) in this Court, viz. the instant issue.
AR for the management has relied upon definition of "conciliation officer" as also "conciliation proceeding" as given vide Section 2 (d) and (e) respectively of the Industrial Disputes Act, 1947 (as amended upto date) in this regard as also the provisions of Section 12 in respect of "Duties of conciliation officers" of the Industrial Disputes Act, 1947 (as amended upto date) in this regard.
AR for the workman has, however, argued to the contrary and has submitted that the claimant/workman had initiated conciliation proceedings qua the management in the instant matter by way of his complaint dated 08.07.2011 through union to the Assistant Labour Commissioner, District West, Labour Office, Karampura, New Delhi110015 in respect of the instant dispute as mentioned therein i.e. of his working with the management for the last 18 years on the post of a Head Guard on the last drawn salary/wages of Rs.6,200/ per month and of his being on medical leave w.e.f. 12.05.2011 to 17.06.2011 on account of being ill and of the alleged illegal termination of his services on the part of the management when he reported for his duties with the management on 18.06.2011 without any show cause notice, notice pay, retrenchment compensation, charge sheet or holding of an enquiry in this regard whatsoever and for his reinstatement in service with the management along with payment of his backwages for the period of his unemployment in the interim/till the date of his reinstatement with the management as also D.I.D. No. 151/11 Page 25 out of 51 vide complaint dated 28.07.2011 through union to the Bonus Inspector, District West, Labour Office, Karampura, New Delhi 110015 in respect of non payment of the due bonus on the part of the management to him for the years 200708, 200809, 200910 on the same allegations i.e. of his being in the employment of the management continuously for the last 18 years on the post of Head Security Guard on the last drawn wages of Rs. 6,200/ per month and of his services having been terminated illegally and/or unjustifiably on the part of the management on 18.06.2011 without compliance of due process of law/any provision of law in this regard as also without making the due payment of bonus to the workman for the abovesaid three years and that the management be asked to pay the bonus for the years 200708, 200809, 200910 due to him.
It is further the submission of the AR for the workman that on the said complaints of the claimant/workman report of the Office of the Deputy Labour Commissioner, District West, Labour Department, Government of NCT of Delhi, FBlock, Karampura, New Delhi110015 bearing the signature of one Sh. Amar Deep, Inspecting Officer bearing F.No.ALC/LAB/WD/2011/6379 dated 21.09.2011 addressed to the union of the workman has been filed and proved, on record, as Ex.WW1/14 in the workman evidence, on record, to the effect: "Complaint against M/s G4, Security India Ltd., 16, Community Centre, Janak Puri, New Delhi.
With reference to your complaint dated 28.07.2011 against above said management regarding non payment of Bonus for 200710 D.I.D. No. 151/11 Page 26 out of 51 to Sh. Sheshmani Tiwari.
Both the parties have appeared before undersigned. During the course of proceeding management representative has refused to reinstate the workman, as management has terminated the services of the workman. Management representative admitted that they have not issued any charge sheet to the workman. Management has agreed to make full and final payment, but they only want to pay one month notice & Gratuity to the workman.
However, workman wants that he shall be paid 03 month notice pay, Retrenchment compensation, Gratuity he paid than only he will accept the full & final payment. Management has shown the payment of Bonus vouchers to which workman has agreed to have accepted. Since case could not be resolved, workman is advised to file his case before appropriate authority.
Sd/ (Amar Deep) I.O."
and thus it is the submission of the AR for the workman that accordingly, the instant dispute raised by the workman against the management by way of the instant Direct Industrial Dispute in this Court has been conciliated upon by the appropriate authorities and the requirements of the provisions of Section 2 A(2) of the Industrial Disputes Act, 1947 (as amended upto date) in its respect in this regard have been complied with on the part of the claimant/workman by way of his abovesaid, proceedings/complaints proved as Exts.WW1/3, WW1/4 and WW1/14 in workman evidence, as abovesaid.
It is seen from the record that indeed the workman D.I.D. No. 151/11 Page 27 out of 51 has proved his complaint through union dated 08.07.2011 to the Assistant Labour Commissioner, District West, Labour Office, Karampura, New Delhi110015 as also his complaint through union to the Bonus Inspector, District West, Labour Office, Karampura, New Delhi110015 along with the report of the Office of the Deputy Labour Commissioner, District West, Labour Department, Government of NCT of Delhi, FBlock, Karampura, New Delhi 110015 bearing F.No. ALC/LAB/WD/2011/6379 dated 21.09.2011 to the union of the workman, as abovesaid, in respect of its subject complaints on behalf of the workman to it in respect of the subject matter/matter in issue in the same i.e. of the alleged illegal termination of the service of the workman on the part of the management on 18.06.2011 as alleged by the workman without compliance of any statutory requirements on the part of the management qua him in this regard on the said date, as Exts.WW1/3, WW1/4 and WW1/14 respectively in the workman evidence, on record, to which it is seen from the record that there is no rebuttal on the part of the management in its cross examination of the workman WW1 in workman evidence to the effect that the said complaints had in fact never been sent by the workman to the concerned authorities viz. Assistant Labour Commissioner, District West, Labour Office, Karampura, New Delhi 110015 or the Bonus Inspector, District West, Labour Office, New Delhi110015 in respect of the matter in issue in the same, which it is seen from the record is the same as that in the instant direct industrial dispute instituted by the workman against the management in this Court or that the management had never been issued any notice to it D.I.D. No. 151/11 Page 28 out of 51 by the concerned authorities in the same and in fact had never appeared before them in the instant dispute as raised by the workman before them vide his subject complaints to the said authorities, as abovesaid, or that no report bearing F.No. ALC/LAB/WD/2011/6379 dated 21.09.2011 of the Office of the Deputy Labour Commissioner, Labour Department, Government of NCT of Delhi, FBlock, Karampura, New Delhi110015 under the signature of Sh. Amar Deep, Inspecting Officer of the said Office, Ex.WW1/14 in workman evidence, on record, had been given on the part of the said authority or even that the complaints dated 08.07.2011 and 28.07.2011 of the workman to the concerned authorities, Exts.WW1/3 and WW1/4 respectively in workman evidence, on record, as also report dated 21.09.2011 of the concerned labour authority on the same, Ex.WW1/14 in workman evidence, on record, are false and fabricated documents with no origin or existence or even that the concerned authorities are not the appropriate authority as mentioned vide the provisions of Section 2 A (2) of the Industrial Disputes Act, 1947 (as amended upto date) or any evidence led on the part of the management in this regard, in its management evidence, on record.
It is further seen from the record that the abovesaid documents viz. Exts.WW1/3, WW1/4 and WW1/14 in workman evidence, as abovesaid, have not only been not disputed by the management but even the contents of the said documents/exhibits have not been disputed by the management in its cross examination of the workman WW1 in workman evidence, on record. In view of the same, I find from the record that the workman has been able to prove D.I.D. No. 151/11 Page 29 out of 51 by way of his deposition by way of affidavit by way of evidence Ex.WW1/A in workman evidence along with Exts.WW1/1 to WW1/14 in the same, as abovesaid, specifically vide Exts.WW1/3, WW1/4 and WW1/14 in the same, as abovesaid, that the provisions of Section 2 A(2) of the Industrial Disputes Act, 1947 (as amended upto date) necessarily requiring him to initiate the conciliation proceedings before the concerned authority viz. conciliation officer of the appropriate Government for conciliation of the instant dispute before filing of the instant direct industrial dispute against the management in respect of the same in this Court have been substantially complied with on his part in the instant proceeding, on record, and accordingly, the instant issue is decided in favour of the workman and against the management.
ISSUE NO. 2.
It is seen from the record that the workman in his statement of claim as also by way of his affidavit by way of evidence Ex.WW1/A and Exts.WW1/1 to WW1/14 in workman evidence, as abovesaid, has alleged that he was working as Head Security Guard with the management since 27.09.1994 on the last drawn wages of Rs. 6,200/ per month and thus was a workman as defined under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date).
It is further seen from the record that though the management has taken the objection vide the instant issue of the claimant/workman being not a workman as defined under Section 2
(s) of the Industrial Disputes Act, 1947 (as amended upto date) by D.I.D. No. 151/11 Page 30 out of 51 virtue of his employment as Head Security Guard with the management, which job did not fall under the category of manual, unskilled, skilled, technical, operational, clerical or supervisory in nature as alleged, however, no evidence in this regard has been led by the management either in the cross examination of the workman WW1 on behalf of the management in workman evidence or even in its management evidence in the instant proceeding, on record, to the effect that the workman was employed in any supervisory or managerial capacity with the management.
It is further seen from the record that no suggestion whatsoever has been put on behalf of the management to the workman in the cross examination of the workman WW1 on behalf of the management in workman evidence to the effect that he was not performing duties of manual, unskilled, skilled, technical, operational, clerical or supervisory in nature with the management by virtue of his appointment as Head Guard with the management as alleged or in fact was performing/exercising any supervisory and/or managerial duties/functions/powers with the management.
It is further seen from the record that no evidence has been led on the part of the management whatsoever in the instant proceeding, on record, in support of its objection/allegation of the claimant being not employed as a workman with it or as to the nature of his duties/functions with it in the face of the allegation of the claimant of his being a workman by virtue of his employment as Head Security Guard with the management on the last drawn wages of Rs. 6,200/ per month with the management.
D.I.D. No. 151/11 Page 31 out of 51 It is further seen from the record that the last drawn wages of Rs. 6,200/ per month as alleged by the workman in his employment as a Head Security Guard with the management at the time of the alleged illegal termination of his services on the part of the management viz.18.06.2011 as alleged in the instant statement of claim have not been specifically denied/disputed by the management in the relevant para of its written statement filed in opposition to the same and which it is further seen is much below the upper limit of Rs. 10,000/ per month fixed for a person being employed in a supervisory capacity to qualify as a workman under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date), vide exception (iv) to the same.
By now the law as to who constitutes a workman under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date) is well settled/has been laid down with great clarity. It has been held vide the Hon'ble Supreme Court of India vide citation viz. All India Reserve Bank Employees Association v. Reserve Bank of India, AIR 1966 SC 305: MANU/SC/0240/1965: "31. It may be mentioned here that Mr. Chari attempted to save the employees in Class II from the operation of the exceptions in Clause (iv) by referring to their duties which he said were in no sense 'supervisory' but only clerical or of checkers. He also cited a number of cases, illustrative of this point of view. Those are case dealing with foremen, D.I.D. No. 151/11 Page 32 out of 51 technologists, engineers, chemists, shift engineers, Asstt. Superintendents, Depot Superintendents, godownkeepers etc. We have looked into all of them but do not find it necessary to refer to any except one. In Ford Motor Company of India v.
Ford Motors Staff Union, [1953] 2 L.L.J. 444 the Labour Appellate Tribunal correctly pointed out that the question whether a particular workman is a supervisor within or without the definition of 'workman' is "ultimately a question of fact, at best one of mixed fact and law. ..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organisational setup of the particular unit of industry and like factor". The Labour Appellate Tribunal pertinently gave the example that "the nature of the work in the banking industry is in many respects obviously different from the nature and type of work in a workshop department of an engineering or automobile concern." We agree that we cannot use analogies to find out whether Class II workers here were supervisors or doing mere clerical work. No doubt, as Mr. Chari stated, the work in a Bank involves layer upon layer of checkers and checking D.I.D. No. 151/11 Page 33 out of 51 is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision. In Llyods Bank Ltd. V. Pannalal Gupta [1961] 1 L.L.J. 18, the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn. It is pointed out there that before a clerk can claim a special allowance under Para 164 (b) of the Sastry Award open to Supervisors, he must prove that he supervises the work of some others who are in a sense below him. It is pointed out that mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision and the work done in the audit department of a bank is not supervision.
32.The Reserve Bank has placed on record extract from the manuals, orders, etc., relative to all class II employees and on looking closely into these duties we cannot say that they are not of a supervisory character and are merely clerical or checking. These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely D.I.D. No. 151/11 Page 34 out of 51 clerical. Without discussing the matter too elaborately we may say that we are satisfied that employees in class II except the personal assistants, were rightly classed by the national tribunal as employed on supervisory and not on clerical or checking duties. In view of the fact that all of them now receive even at the start "wages" in excess of Rs. 500 per month, there is really no issue left concerning them, once we have held that they are workings in a supervisory capacity."
The High Court of Bombay in the case of Vilas Dumale v. Siporex India Ltd. and Anr., MANU/MH/0316/1997: 1998 LLR 380 has held as under : "6. The Counsel for the petitioner has also relied on a judgment given in case of S.K. Maini v. M/s Carona Sahu Company Limited and others, reported in 1994 2 CLR 359. In this case, the Supreme Court has laid down the principles for the determination of the question as to whether a particular employee falls within the definition of workman. In the said case it has been observed as under:
"Whether or not an employee is a workman under Section 2 (s) of the Industrial Disputes Act is D.I.D. No. 151/11 Page 35 out of 51 required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2 (s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the concerned employee and not D.I.D. No. 151/11 Page 36 out of 51 some works incidentally done. In other words, that is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as defined in Section 2 (s) of the Industrial Disputes Act."
Further in the case of G.M.Pillai v. A.P. Lakhanikar, Judge, III Labour Court & Ors., MANU/MH/0781/1998: 1998 LLR 310 High Court of Bombay has held as under: "In determining the question whether a person employed by the employer is workman under Section 2 (s) of the Industrial Disputes Act or not, the Court has principally to see main or substantial work for which the employee has been employed and engaged to do. Neither the designation of the D.I.D. No. 151/11 Page 37 out of 51 employee is decisive nor any incidental work that may be done or required to be done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employee over the employees of lower ladder without any control may not by itself be sufficient to bring that employee in the category of Supervisor, yet if the principal job of that employee is to oversee the work of employees who are in the lower ladder of the hierarchy and he has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. Each case would depend on the nature of the duties predominantly or primarily, performed by such employee and whether such function was supervisory or not would have to be decided on facts keeping in mind correct principles. In John Joseph Khokar v. B. S. Bhadange and two others 1997 (77) FLR 900, I observed, "Whether the employee possess the power of assigning duties and distribution of work such authority of employee may be indicative of his D.I.D. No. 151/11 Page 38 out of 51 being supervisor doing supervision. In a broad sense Supervisor is one who has authority over others:someone who superintends and directs others. An employee who in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it correctly in accordance with norms shall certainly be a Supervisor. A supervisory work may be contra distinguished from managerial and administrative work and, so also a supervisor from manager and administrator. Supervisor's predominant function is to see that work is done by workers under him in accordance with the norms laid down by the management: he has no power to take any disciplinary action." The said observations clearly fit in the facts of the present case where the employer has been successful in proving before the Labour Court that the petitioner under him had five B grade Inspectors and the petitioner was overseeing and controlling work done, by those subordinate five employees. The work of the petitioner as Superintendent, Quality Control, predominently is to supervise the work in the D.I.D. No. 151/11 Page 39 out of 51 Quality Control Department of the employer. He also had powers to take independent decision about the quality control of the material received from the vendors after obtaining report from the group of Inspectors working under him. There is also evidence to the effect that the petitioner was sanctioning leave to the employees working under him. All in all, the finding recorded by the Labour Court that the petitioner was not workman cannot be said to be perverse or grossly erroneous warranting interference by this Court in extraordinary jurisdiction. The Labour Court has on consideration of the entire evidence on record reached the conclusion that the petitioner was not workman and this Court in exercise of extraordinary jurisdiction shall not, on re appreciation of the evidence, come to the conclusion otherwise when the finding recorded by the Labour Court is supportable from the evidence on record."
Similarly, it has been held vide citation Tanojkumar B.Chatterjee Vs. Solapur Municipal Corporation, MANU/MH/0570/2003: 2004 LLR 108 Bombay High Court: "5. Now, it is well settled in this branch of law, as in D.I.D. No. 151/11 Page 40 out of 51 many others, that designations are not dispositive. The court has to have due regard to the real nature of the duties and functions. In so far as supervisor is concerned, he or she is one who can bind the employer by taking some kind of decision on his behalf. National Engineering Industries Ltd. Vs. Shri Kishan Bhageria, MANU/SC/0447/1987:
(1988) 1 LLJ 363 SC. A supervisor is one who has authority over others to superintend and direct. A supervisor may possess the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them or to adjust their grievances or effectively to recommend such action.
The work of a supervisor is distinguished from work which is of a clerical nature by the exercise of independent judgment. The decision of the Supreme Court as well as of this court have been considered in a judgment of Mr. Justice Rebello, speaking for this Court, in Union Carbide (I) Ltd. Vs. D.Samuel and Ors., 1998 II CLR 736. In the Bombay Dyeing and Manufacturing Company Ltd. Vs. R.A. Bidoo and Ors., 1989 (2) CLR 248, a Division Bench of this Court held that a supervisor is an overseer. A D.I.D. No. 151/11 Page 41 out of 51 person can be said to be a supervisor if there are persons working under him over whose work he has to keep a watch. A supervisor is empowered to take corrective steps if a subordinate errs in work assigned to him."
In view of my observations and findings, as above, I find that the claimant/workman has been able to discharge the onus which was upon him in respect of the instant issue viz. as to whether the claimant/workman is a workman as defined under Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date). The same is hereby accordingly, decided in favour of the claimant/workman and against the management.
ISSUE NO. 3.
It is seen from the record that it is the case of the management vide its written statement filed in opposition to the instant statement of claim of the workman as also vide its termination letter, Ex.WW1/12, dated 25.08.2011 in workman evidence, on record, that it was the workman who had been absenting from his duties with the management w.e.f. 26.02.2011 till 25.08.2011, the date of the termination letter of the management in respect of the workman in this regard, Ex.WW1/12, as abovesaid, on record, and in which regard letters dated 07.05.2011, 16.06.2011 and 29.07.2011 had been written to the workman asking him to report for his duties with the management; that it was presumed that he had abandoned his employment with the management and his services terminated vide letter dated 25.08.2011 of the management to the workman in this D.I.D. No. 151/11 Page 42 out of 51 regard, Ex.WW1/12, in workman evidence, on record. However, it is seen from the record that no such letters of the management to the workman intimating to him that he was unauthorizedly absenting himself from his duties with the management w.e.f. 26.02.2011 to 25.08.2011 as alleged and calling upon him to resume his duties with the management have been either filed or proved on the part of the management either in the cross examination of the workman WW1 in workman evidence or even in its management evidence, on record, in support of its abovesaid allegations against the workman i.e. of his having unauthorizedly absented himself from his duties with the management with effect from the date alleged in this regard and till the date alleged in this regard i.e. with effect from 26.02.2011 till 25.08.2011 and thereby having abandoned his employment with the management, the sole ground of termination of the services of the workman on the part of the management vide its termination letter dated 25.08.2011 in respect of the workman, Ex.WW1/12, in workman evidence, in this regard, as abovesaid, as is evident from the same.
Admittedly, abandonment of service of the management on the part of the workman, the instant issue, being a conscious decision on the part of the workman as also in view of the settled position in law to the effect that abandonment being not a temporary absence but being a total and complete giving up of duties so as to indicate an intention not to resume the same (emphasis supplied) as held by the Hon'ble Supreme Court of India vide citation G.T. LAD and others, Appellants vs. M/s Chemical and D.I.D. No. 151/11 Page 43 out of 51 Fibres of India Ltd., Respondent AIR 1979 SC 582 as also abandonment being admittedly also a facet of misconduct necessitating holding of an enquiry as held by the Hon'ble Supreme Court of India vide citation D.K. Yadav Appellant vs. J.M.A. Industries Ltd. Respondent MANU/SC/0529/1993 : JT 1993 (3) SC 617 as also by the Hon'ble High Court of Delhi vide citations Anil Chuttani, Appellant vs. The Oil and Natural Gas Corporation, Respondent 2010 (117) DRJ 433; Hindustan Associates Engineers Pvt. Ltd. vs. Sh. K.K. Aggarwal 2010 LLR 312; Shakuntla's Export House (P) Ltd. vs. Secretary (Labour) MANU/DE/0541/2005; Mount Carmel School vs. The Presiding Officer, Labour Court No X, Karkardooma Courts, Delhi and Others MANU/DE/1988/2011, which factum viz. holding of an enquiry into the alleged absence of the workman from his duties with the management, as above said, I find from the record has neither even been alleged/averred by the management in the instant proceeding nor proved in the same, on record, it being further seen from the record that it has been admitted by the MW1 Sh. Sanjeev Kumar Taku, General Manager (Legal) of the management in his cross examination on behalf of the workman in management evidence viz. It was correct that no domestic enquiry was conducted by the management in respect of the allegations/contents of the termination letter dated 25.08.2011 of the management in respect of the workman Ex.WW1/12, on record. It was correct that no charge sheet was issued to the workman or domestic enquiry held by the management in respect of the D.I.D. No. 151/11 Page 44 out of 51 allegations of misconduct against the workman (emphasis supplied) and accordingly, I find that the management has not been able to discharge the onus which was upon it in respect of the instant issue viz. the alleged unauthorized absenteeism of the workman from his duties with the management for the period alleged by the management in this regard viz. w.e.f. 26.02.2011 till 25.08.2011, the date of termination of the services of the workman on the part of the management vide its termination letter dated 25.08.2011 to the workman in this regard, Ex.WW1/12, on record, and thereby of the workman having abandoned his service/employment with the management as alleged by the management. The instant issue is accordingly, decided against the management and in favour of the workman.
The claimant/workman having been held to be a workman as defined under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date) in the instant proceeding vide issue no.2, as abovesaid, in the same, it being not in dispute as is evident from the contents of para nos. 3 (a) of the preliminary objections of the management in its written statement, on record, as also Ex.WW1/M1 the appointment letter of the management in respect of the workman, on record, that the workman had been in the employment of the management since 27.09.1994 as alleged till the date of his alleged termination of services on the part of the management viz. 18.06.2011 as alleged by the workman and 25.08.2011 as alleged by the management vide its termination letter of the said date, Ex.WW1/12, in this regard, in workman evidence, on D.I.D. No. 151/11 Page 45 out of 51 record, the provisions of Industrial Disputes Act, 1947 (as amended upto date) specifically Sections 25 F, G, H and J of the same are attracted to the terms and conditions of the service of the workman with the management and thus I find no force in the submission of the management that the services of the workman had been terminated by the management vide its termination letter dated 25.08.2011 in respect of the workman, Ex.WW1/12, in workman evidence, on record, on the ground of the alleged abandonment of the employment of the management on the part of the workman as alleged in the same by taking recourse to clause4 of his appointment letter dated 27.09.1994 issued to him, Ex.WW1/M1, on record, by giving him notice of one month or salary in lieu thereof as also alleged in the same, it being already, observed hereinabove, that the allegations of misconduct as leveled by the management qua the workman i.e. of his being allegedly and unauthorizedly absent from his duties with the management for the period alleged viz. w.e.f. 26.02.2011 till the date of issue of the subject termination letter in his respect viz. 25.08.2011 and thereby having abandoned his employment with the management having nowhere been proved on the part of the management against the workman by virtue of admittedly no chargesheet having been issued to the workman in this regard or holding of any domestic enquiry on the part of the management qua the workman in this regard which was mandatorily required to have been done on the part of the management in the nature of the allegations, as abovesaid, against the workman and as required vide the provisions of citations as cited, hereinabove.
D.I.D. No. 151/11 Page 46 out of 51 I further find that the reliance of the management on the alleged past misconduct of the workman vide its allegations against the workman in this regard vide the contents of paragraph no. 3 (b) (c) (d) (e) along with (f) of the preliminary objection in its written statement filed in opposition to the statement of claim of the workman as also vide the contents of paragraph nos. 4 to 6 of the affidavit by way of evidence of its MW1 Sh. Sanjeev Kumar Taku, General Manager (Legal) of the management along with the contents of Exts.WW1/M2 to WW1/M5 and Mark A to C in respect of the alleged suspension dated 01.01.1996, sleeping on duty, final warning letters in respect of the workman for the alleged acts of misdemeanor, omissions and commissions/misconduct alleged against the workman in the same is misplaced as admittedly no charge sheet has been issued on the part of the management to the workman in this regard or any action taken by the management against him in this regard including holding of any domestic enquiry against the workman on the part of the management in this regard.
ISSUE NO. 4.
It is seen from the record that the date of appointment of the workman in his service with the management as a Security Guard viz. w.e.f. 27.09.1994 is not disputed on the part of the management, on record, as already observed, hereinabove, specifically vide copy of appointment letter dated 27.09.1994 of the management in respect of the workman filed on behalf of the management in the cross examination of the workman WW1 on behalf of the management in workman evidence in this regard, Ex.WW1/M1, on D.I.D. No. 151/11 Page 47 out of 51 record, admitted by the workman to bearing his signatures at point A on the same as also vide paragraph no. 3 (a) of the preliminary objections of the management in its written statement filed in opposition to the statement of claim of the workman, on record, as also it is seen from the record that it has been admitted by the MW1 Sh. Sanjeev Kumar Taku, General Manager (Legal) of the management in his cross examination on behalf of the workman in management evidence that the workman had worked with the management for about 17 years, termination of the services of the workman on the part of the management being alleged on its part vide its termination letter dated 25.08.2011 to the workman in this regard, Ex.WW1/12, in workman evidence, on record, with no allegation having been taken by the management in the instant proceeding that the workman had not worked for/completed service of a period of 240 days with the management in the year preceding the date of his alleged termination on its part viz. 25.08.2011, as alleged, it is evident that the workman having completed 240 days of service with the management preceding the date of his alleged termination on its part in the instant proceeding, as abovesaid, is entitled to the protection of the provisions of Section 25 F of the Industrial Disputes Act, 1947 (as amended upto date) as on the said date, which by virtue of the management's stand/case in the instant case of the workman having allegedly absented himself unauthorizedly from his duties with the management in the instant case w.e.f. the date viz. 26.02.2011 till the date 25.08.2011 as alleged in this regard in the same, on record, and thereby having abandoned his employment with the management as D.I.D. No. 151/11 Page 48 out of 51 alleged leading to the alleged termination of the services of the workman on the part of the management vide its letter dated 25.08.2011 to the workman in this regard, Ex.WW1/12, in workman evidence, on record, vide issue no.3 in the instant case, which has been decided against the management and in favour of the workman, as abovesaid, have admittedly not been complied with on the part of the management qua the workman on the said date viz.25.08.2011 the date of termination of the service of the workman on the part of the management as alleged by the management in this regard vide its termination letter dated 25.08.2011 qua the services of the workman, Ex.WW1/12, in workman evidence, on record, and accordingly the termination of the services of the workman on the part of the management on 18.06.2011 as alleged by the workman/25.08.2011 as alleged by the management in the instant case, as abovesaid, is held to be illegal. The instant issue is accordingly, decided in favour of the workman and against the management.
ISSUE NO.5.
It is seen from the record that the workman has alleged in no uncertain terms in his statement of claim as also in his affidavit by way of evidence Ex.WW1/A in workman evidence, on record, that he was not gainfully employed since the date of termination of his services on the part of the management i.e.18.06.2011 despite his best efforts to which there is no effective controversion and/or rebuttal on the part of the management in its written statement filed in opposition to the statement of claim of the workman except for a bald denial or even in its cross examination of D.I.D. No. 151/11 Page 49 out of 51 the workman WW1 in workman evidence, so much so that it is seen from the record that not even a suggestion has been put on the part of the management to the workman in its cross examination of the workman WW1 in workman evidence to the effect that he had been gainfully employed during the period w.e.f. the date of the alleged termination of the services of the workman on the part of the management as alleged on the part of the parties, as abovesaid, in the instant proceeding, on record, till any date or any evidence led on the part of the management in controversion/rebuttal of the said allegation of the workman in its management evidence, as abovesaid, on record, so much so that it is further seen from the record that it has not even been alleged by the management in the affidavit by way of evidence of its MW1 Sh. Sanjeev Kumar Taku, General Manager (Legal) of the management that the workman had been gainfully employed during the period in question.
It is thus seen from the record that it is not the case of the management that the workman had been gainfully employed in any manner whatsoever during the period w.e.f. the date of his alleged termination of services on the part of the management as alleged by the parties in the instant case, as abovesaid, till any date, the onus of proving of which was admittedly upon the management, the initial onus in this regard having been discharged by the workman in the instant proceeding, as abovesaid, and accordingly, in the above facts and circumstances of the case, it is felt appropriate that the relief of reinstatement in service, however, along with 50% of backwages and continuity of service be awarded to the workman against the D.I.D. No. 151/11 Page 50 out of 51 management since it cannot be held that the workman has remained totally unemployed during the period with effect from the date of termination of his services on the part of the management as alleged till the date of passing of award.
The Award is passed. The Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to the Record Room.
Announced in the open Court (Chandra Gupta)
on 29.11.2014 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
D.I.D. No. 151/11 Page 51 out of 51