Delhi District Court
Industrial Dispute Between : vs M/S. Shri Tilak Industries on 23 February, 2012
IN THE COURT OF SATINDER KUMAR GAUTAM
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
DID No. 129/11 (Old ID No. 7/10)
Industrial Dispute Between :
Sh. Mohd. Ali @ Jainuddin S/o. Sh. Abdul Aziz,
C/o. Engineering Mazdoor Lal Jhanda Union,
C12, Ram Garh, Jahangir Puri,
Delhi 110 033.
...............Workman
AND
M/s. Shri Tilak Industries,
Plot no. 7, Badli Industrial Area,
PhaseII, Delhi110 044.
.....Management
Date of institution : 03.03.2010
Date of award : 23.02.2012
A W A R D
The workman Mohd. Ali @ Jainuddin S/o. Sh. Abdul
Aziz has filed the direct claim petition with the contention that he
worked with the management namely M/s. Shri Tilak Industries, as
DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 1 out of 15
a 'Foreman' at the monthly salary of Rs. 12,000/ and doing his
work with the management with the satisfaction and not given a
single chance of complaint whatsoever. Initially, he was
appointed at the monthly salary of Rs. 8000/ in February, 2007
but due to his hardworking, the management gave him several
increments. The claimant alleged that no appointment letter was
given to him. No proper record of wage and attendance was
maintained by the management, though about 40 workers were
employed with the management yet all facilities as applicable
under various labour laws were extended to the employee in the
establishment.
2. It is further alleged that being a senior employee, the
workman used to persuade the management to extent various
facilities to the worker and to maintain record. Being the union
member, the workman made a complaint with the PF department
and on inspection, the management started deposit PF but had
created vindictive attitude against the workman and terminated the
services of the workman on 11.1.10 without giving any notice pay
and also withheld the earned wages for the month of December,
2009 and 10 days of January, 2010. The workman served a
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demand notice through Regd. AD dated 12.1.10 to the
management but despite the service, management neither
considered the just and genuine demand of workman nor took him
back on duty. The workman unemployed from the day of his
illegal termination and still ready to serve the management and
prayed for reinstatement in service with full back wages.
3 The Management contested the claim of the workman
with the submissions that the claim of the workman is not
maintainable as the claimant is not covered under the definition of
'workman' defined under section 2 (s) of the Industrial Dispute
Act, 1947. The claim of the claimant is false and raised only to
extort money from the management. It is further alleged that the
claimant has already settled all his dues and claims against the
management and resigned from the services of the management of
his own wish.
4. The workman filed rejoinder/replication to the written
statement and contents made in the statement of claim are re
affirm as correct and denied the averments made in the written
statement of the management.
5. Out of the pleadings of the parties, the following issues
DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 3 out of 15
were framed vide order dated 13.7.10 :
1.Whether the claimant is not a 'workman' as defined under section 2
(s) of the Industrial Dispute Act.
2. Whether the workman is entitled to reinstatement with consequential benefits.
3. Relief.
6. The workman lead evidence by examining himself as WW1/A through an affidavit and relied upon the documents Ex. WW1/1 to WW1/3 and reiterated the averments made in the statement of claim.
7. The management gave an opportunity to lead an evidence in order to prove the contentions raised in the written statement. The management filed an affidavit of Mehar Singh Supervisor who has to make a statement through an affidavit as per the contentions raised in the written statement, however, the witness for the management has not came forward to tender his affidavit and for cross examinations by the workman. Therefore, the affidavit filed by the management for MW Mehar Singh will not be read in evidence against the claimant.
8. Having heard the arguments from both side and perused DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 4 out of 15 the material on record. The issue wise findings are as under:
9. Finding on Issue No. 1:
Whether the claimant is not a 'workman' as defined under section 2 (s) of the Industrial Dispute Act. The issue no. 1 with regard to that the claimant is covered under the definition of workman as defined u/s. 2 (s) of Industrial Dispute Act, 1947. The management took a preliminary objection in the written statement that the claimant is working with the management on the post of 'Foreman' since 1.4.07 and his last drawn wages is Rs. 6600 per month. The management issued an appointment letter and given administrative power. This fact also repeated in the affidavit of Mehar Singh. The claimant had denied the averment made therein and testified through an affidavit that he was employed with the management from the last three years as 'Foreman' on the last drawn wages of Rs. 12000 p.m. None of the duties is performed by him by supervisory or administrative in nature. He never supervised his coemployees. He used to make dye and fitter. The claimant in cross examination denied the signatures on the alleged appointment letter Mark A, resignation letter mark B and receipts of payments of his dues Mark X DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 5 out of 15 i.e.WW1/M1. The WW1 Mohd. Ali in cross examination stated that "....document mark B does not bear my signatures at point X... documents Ex WW1/M1 bears my sign at point X. vol. I was made to sign Ex. WW1/M1. By the management on the pretext that a person had come from PF office for filling up the form and the portions from mark X to X1 was not written at that time. I was made to sign Ex. WW1/M1 in the year 2009. All the workers working in the factory were asked to sign the form at that time....."
10. In view of the averments made by the parties, the section 2 (s) of the ID Act defines the workman as "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or regard, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(i)who is subject to the Air Force Act, 01950 (45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or
(ii)who is employed mainly in a managerial or administrative capacity; or DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 6 out of 15
(iii)who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of teh duties, attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Definition would show that workman means a person employed in an industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. A school of though that somebody who does not fall under the exceptions enumerated under Section 2(s) of the Act shall be a workman was being followed. In H. R. Adyanthaya and others v. Sandoz (1) Limited and others, (1994) 5 SCC 737, Supreme Court analysed all the previous judgments and held that it was not sufficient for a person to be a workman that he does not fall within the exceptions given in Section 2 (s). In order to be a workman the specific nature of work as given under Section 2 (s) the Act must be shown to be the one being done by the person. There may be employees who do not do any supervisory or administrative work but may be out of the scope of the definition. Supreme Court reiterated the approach it had taken in May & Baker India Co. Ltd. v. Their Workmen, AIR 1964 SC 472 and Burmah Sheel Oil Storage & Distributing Co. of Association and others, AIR 1971 SC 922. While summarizing the legal position, DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 7 out of 15 Supreme Court held as under: "We thus have three three Judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories, viz., manual, clerical supervisory or technical and two two Judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three threeJudge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Burmah Shell cases have been taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act.
These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation......"
11. In Mukesh Kumar Tripathi V. Sr. divisional Manager LIC and Others, 2004 (103) FLR 350:2004 LLR 993 (SC), observed that Apprentices Development officer cannot be equated DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 8 out of 15 with the Development Officer and therefore, can not be termed as workman.
In case of LIC of India vs. R. suresh, 2008 (H8) FLR 1189 (SC), it is held that "29. A Development Officer has been held , to be a "workman" in SK Verma. We, however, are not unmindful of a decision of a threeJudge Bench of the Court in Mukesh K. Tripathi V. LIC, 2004 (103) FLR 350; 2004 LLR 993 (SC), wherein the question was as to whether an apprentice would be a workman within the meaning of the provisions of section 2 (s) of the Industrial Dispute Act, 1947. It is not a case where case of an apprentice is involved."
12. The alleged appointment letter mark A does not specify any nature of duty the word 'Foreman' was written after deleting the word clerk , Supervisor, Manager or physical Worker. There is no evidence from the management as to whether the claimant was doing any managerial or administrative work. The claimant through his affidavit testified that he used to make dye and fitter. This version has not been cross examined nor any suggestion was made by the management to the workman. The nature of his duties while employed with the management as such that he was outside the purview of section 2 (s) of Industrial Dispute Act, 1947 r.w.s.
(iv) thereof. It is not as if his supervisory work was on single DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 9 out of 15 occasions as contended. It is also admitted that earning salary of Rs. 6600/ p.m. The claimant also filed the photocopy of the ESI card showing the date of appointment is 15th June 2007. The management did not prove the authenticity of the document as rely upon by leading the evidence.
13. In view of the aforesaid discussion and the law cited it is proved that the claimant is workman as defined under section 2
(s) of the Industrial Dispute Act, 1947. Accordingly issue no. 1 is decided in favour of the workman and against the management. 14. FINDING ON ISSUE NO. 2
ISSUE NO. 2 : Whether the workman is entitled to reinstatement with consequential benefits. The management through the written statement submitted that the management never terminated the workman from the service rather the workman himself gave his resignation on 10.1.10 from the service of the management and management accepted his resignation letter and paid him Rs. 10,500/ as full and final payment. The earned wages for the month of December, and 10 days of January and Bonus for November and December are including in this amount. The management since had not led DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 10 out of 15 any evidence in order to prove the authenticity and genuineness of the document as relied upon.
15. The claimant through an affidavit tender in evidence vide Ex. WW1/A has reaffirm the contents made in the statement of claim and denied the averments made in the written statement as well as in the cross examination though admitted his signatures on Ex. WW1/M1 but denied its contents and the handwriting. In these circumstances, the onus is shifted upon the management to prove the authenticity and genuineness of the document in questions by examining Sh. Mehar Singh as well as the handwriting experts but the management has not to do so. Therefore, the contentions of the management that workman himself has resigned vide Ex. WW1/M1 does not carry any substance. Even for a moment if it is assume that the document Ex. WW1/M1 is being executed, the amount of Rs. 10,500/ as alleged to be paid to the workman is not calculated towards the earned wages for the month of December and 10 days of January and bonus for the month of November and December, 2009. Therefore, the authenticity and the genuineness of Ex. WW1/M1 is also a doubtful and does not inspire any confidence. DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 11 out of 15
16. With the aforesaid discussion, that the workman himself voluntarily resigned from the service is not tenable and is entitled for reinstatement with consequential benefits. Accordingly this issue is decided in favour of the workman and against the management.
17. FINDING ON ISSUE NO. 3
Relief.
The issue no. 1 and 2 are decided in favour of the workman and against the management and it is evident that the claimant himself has not resigned from the duty though his services were terminated by the management and was not allowed to continue with the service as a Foreman. The refusal of the management tantamount to the termination of his service without any show cause notice or inquiry. The workman is entitled for his reinstatement.
18. So far as in respect of claim of the full back wages and continuity of service and all the accruing benefits, the workman has not given any evidence that he made any efforts for his re employment though the petitioner is technical hand and can get the other employment as there is no shortage of employment to DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 12 out of 15 the Foreman and can get the reemployment and easily earn the livelihood but no efforts have been made nor produced any evidence that he is not gainfully employed after the termination of his services. Therefore, the workman is not entitled for full back wages. The only issue is left regarding reinstatement and there are catina of jugements if the faith of management has been lost with the workman and there is a great rift between the parties it will be better to meet ends of justice to award an amount of compensation in lieu of reinstatement.
19. In 2011 LLR 581 Chhattisgarh High Court WP (L) Nos. 4374 and 4377/2010, State of Chhattisgarh & Anr. Versus Umendi & Ors. it was held that : "..in lieu of reinstatement and back wages a daily wager worked for 240 days terminated without payment of retrenchment compensation as provided U/s. 25 F of the Industrial Disputes Act. The retrenchment held illegal, reinstatement is not a necessary consequence, monetary compensation of Rs. One lakh as compensation in lieu of reinstatement would be appropriate, just and equitable. This incident of reinstatement, the monetary compensation would serve the end of justice".
In Soundararajan V. Versus Presiding Officer Labour Court, Coimbatore and Another, 2010IIILLJ736 (Mad) it is DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 13 out of 15 held that : "Compensation instead of reinstatement awarded to workmen who were badlis was held proper in the circumstances of the case".
20. The workman has been contested the cases from several years together and being faced the great hardship. The court is not inclined to enter into detailed exercise as to how much loss workman suffered in monetary terms due to the such act of management. Therefore, it deemed fit under the facts and circumstances of the case instead of reinstatement of the workman, be awarded a some amount as compensation it implicit which cover the right of the workman to receive retrenchment & reinstatement compensation.
21. The workman is awarded Rs. 1,00,000/ (Rs. One lac) as retrenchment compensation in lieu of reinstatement, from the day of publication of award, failing which the management is required to pay the interest @ 9% p.a. on the sum awarded as compensation.
22. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication and to the Sr. Civil Judge, Central DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 14 out of 15 District for execution in accordance with the procedure laid down for execution of order and decree of the civil court under order 21 of Code of Civil Procedure, 1908, as per rules. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room.
Announced in the open Court On 23rd February, 2012.
(Satinder Kumar Gautam) Additional District & Sessions Judge Presiding Officer : Labour Court Karkardooma Courts : Delhi.
DID No. 129/11 Mohd. Ali @ Jainuddin Vs. M/s. Shri Tilak Industries Page No. 15 out of 15