Delhi District Court
Court No. V : Karkardooma Courts : Delhi vs D. Samuel & Ors. 1998 Ii Clr 736 on 18 February, 2008
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IN THE COURT OF SHRI SANJAY GARG : PRESIDING OFFICER : LABOUR
COURT NO. V : KARKARDOOMA COURTS : DELHI.
DID No. 181/05
Workman Sh. Ram Kumar
Through Shri R.S. Chauhan, Mahamantri,
Janta Labour Union, Delhi,
D-16/308, Sector-3, Rohini, New Delhi-110085
R/o. Indra Colony, Krishna Nagar, Bagu, Ghaziabad, U.P.
Versus
Manager M/s. Om Shree S.S Tubes
Manufacturing Pvt. Ltd.,
487/2, School Road, Peera Garhi,
New Delhi-110087.
DATE OF INSTITUTION : 06.08.05
DATE OF CONCLUDING ARGUMENTS : 18.02.08.
DATE OF AWARD : 18.02.08
AWARD
By this order I shall dispose of claim filed by the workman U/S
10(4)(A) of I.D. Act.
2. Brief facts as alleged by workman in his statement of claim are that
he was working as a Mistri Mechanic with the management since 1.7.96 on
the last drawn wages of Rs. 8200/-. He was not paid overtime and was made
to work during night. When he demanded overtime, the management got
annoyed and terminated him on 18.6.05 without giving any
notice/chargesheet. He sent a demand notice dated 6.7.05 to the
management which was not taken by management. Demand notice was also
sent by UPC but it was not replied. Workman has prayed to be reinstated with
full back wages and continuity of service.
3. The management contested the claim and filed written statement
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taking preliminary objection that claimant is not workman as he was appointed
as supervisor. Further objection has been taken by management that claimant
has not worked for 240 days. On merits, it is stated that claimant was
appointed as a supervisor on monthly salary of Rs. 4500/- It is stated that
claimant left the job at his own and has taken all his dues from the
management. It is stated that claimant is not entitled to any relief.
4. The workman filed rejoinder reiterating his contention of statement
of claim and refuting the submissions made by management in its written
statement.
5. Vide order dated 13.2.06, the following issues for trial were framed-:
(1)Whether the claimant is workman as u/s. 2(s) of I.D. Act?
(2) Whether the claimant has worked for 240 days continuously in
the preceding year of his alleged date of termination?
(3) Whether the claimant has left the job of his own after taking the
dues from the management?
(4) Relief.
6. In his evidence workman examined himself as WW1. He filed his
examination-in-chief by way of affidavit Ex.WW1/A and relied upon documents
Ex.WW1/1 to Ex.WW1/7. Workman also examined WW2 Sh. Rajesh Kumar,
Officer of the Corporation Bank. He filed resolution of the management and
copy of the account opening form as Ex.WW2/1 and WW2/2. The
management examined its director Sh. Rohit Sachdeva as MW1. He filed his
examination-in-chief by way of affidavit Ex.MW1/A. He relied upon documents
Ex.WW1/M-1 to WW1/M-3.
7. I have heard arguments of Sh. R.S. Chauhan, Ld. AR for workman
and Sh. Anil Kumar, Ld. AR for management. He also filed written
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submissions. Perused the record.
8. On my due consideration of material on record; submissions made
by AR for parties and relevant legal provisions and case law; my findings on
issues are as follows:-
ISSUE NO. 1
9. The burden to prove this issue lay upon the workman. In his
statement of claim and his affidavit Ex.WW1/A workman has stated that he
was appointed as Mistri Mechanic. Whereas as per the management claimant
was appointed as a supervisor.
10. During his cross-examination workman has admitted that he has no
documentary proof to show that he was working as a Mistri with the
management. During cross management has put appointment letter
Ex.WW1/M-1 to the claimant and he admits his signatures on it at point A.
11. Workman has relied upon document Ex.WW1/6, a certificate stated
to have been given by management dated 19.9.99 stating that claimant is
working as a mechanic in their industry. This document filed by claimant is the
photocopy. During the course of arguments Ld. AR for workman has
submitted that in the year 1999 workman had to apply for issuance of Railway
Pass and on his request management had issued this certificate to him and he
had submitted this certificate with the Railway Authorities. The Ld. AR for
workman has further submitted that since this document was submitted by him
with the Railway Authorities in 1999 and in his opinion such records beyond
three years is not maintained by the Railway Authorities, due to this reason he
has not summoned the original of it from the Railway Authorities. However,
since management has disputed this document, claiming it to be forged and
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fabricated, workman has summoned the account opening form and resolution
submitted by management while opening an account with the Corporation
Bank. The official of the Corporation Bank was examined as WW2. WW2 Sh.
Rajesh Kumar filed two documents on record. Ex.WW2/1 is the resolution
passed by Board of Directors of the management dated 15.9.04. Ex.WW2/2 is
the account opening form signed by Sh. R.N. Sachdeva whose signatures are
disputed by management on Ex.WW1/6.
12. The Ld. AR for workman has submitted that signatures of Sh. R.N.
Sachdeva on Ex.WW1/6 can be compared with Ex.WW2/2 and the similarity in
signatures shows that the certificate Ex.WW1/6 was issued by Sh. R.N.
Sachdeva on 19.9.99. Whereas Ld. AR for management has contended that
Ex.WW1/6 cannot be taken as proof by the workman since its original has not
been produced and accordingly question of comparison of signatures of Sh.
R.N. Sachdeva on Ex.WW1/6 and WW2/2 does not arise. The Ld. AR has
asserted that Ex.WW1/6 is forged and fabricated document. Under Indian
Evidence Act, the best possible evidence should be brought before the Court.
The Ld. AR for workman has submitted that since original of this letter was
submitted by workman before the Railway Authorities in the 1999 and as per
him this record must have been destroyed and due to this reason he has not
summoned the original from the concerned Railway Authorities. The record
pertaining to year 1999 must have been destroyed is the only presumption of
AR for workman. No certification from Railway Authorities has been brought
on record to this affect by workman. However, in spite of all these
shortcomings in Ex.WW1/6, on comparison of signatures Sh. R.N. Sachdeva
on Ex.WW1/6 and Ex.WW2/2, a great deal of similarities are found. But in my
opinion this similarity in signatures cannot be taken as conclusive rather it will
be taken as corroboration to other evidence led by the workman to bring home
his point.
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13. An other most important evidence brought on record by workman is
the attendance register Ex.WW1/8. This register contains attendance of the
workman for the period starting from October '2000 to August '2002. Every
page of this register bears stamp of the management. The management has
disputed the genuineness of this attendance register. Ld. AR for management
has contended that it is a forged and fabricated document and cannot be
considered in favour of the workman. During cross-examination WW1 has
admitted that document Ex.WW1/8 does not bear the signatures of the
management or of any workman anywhere. During cross-examination
workman has denied the suggestion that Ex.WW1/8 is false, fabricated and
manipulated document. The management witness MW1 Sh. Rohit Sachdeva
has filed copy of the attendance register Ex.WW1/M-2 for the month of
June'05. Even as per MW1 the claimant started working w.e.f. 1.2.05. Then
why attendance register starting from February till June was not filed by the
management on record. On the other hand the attendance record of the
workman for the period October'2000 till August'2002 appears to be genuine
and trustworthy. The bare perusal of the register shows being maintained in
the routine course of business and routine weathering of its pages with the
passage of time. Moreover, it also bears the stamp of the management.
Regarding its source of procurement Ld. AR for workman has submitted that a
co-worker still working with the management has given this register to the
workman. The Ld. AR for workman further submits that he cannot disclose the
identity of that co-workman as it will jeopardies his relationship with the
management. I find no reason to disbelieve this register i.e. Ex.WW1/8.
14. Though Ex.WW1/8 stands accepted in evidence but it is silent
about the designation and capacity in which claimant was working with the
management. Even the attendance register Ex.WW1/M-2 produced by
management for the month of June'05, the designation of the workman is also
not found mentioned. Workman has admitted his signatures on appointment
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letter Ex.WW1/M-1. It is not the plea of the workman that either he signed it
blank or his designation was subsequently filled on it by the management.
From Ex.WW1/M-1, it stands established that claimant was appointed as
supervisor by the management. The law is settled that it is the nature of
duties being performed by a person which either takes him within the purview
of definition of workman or take him out of it. Mere designation of supervisor
will not suffice and take him out of the scope of section 2(s) of Industrial
Disputes Act. Mostly it has been found that the designation given to a person
is a camouflage and does not suggest the actual work being done by that
person in the commercial establishment.
15. A person either doing managerial work or supervisory or
administrative functions is not a workman as per the definition enshrined in
section 2 (s) of the Industrial Disputes Act. The nature of duties being
performed by a person are sine-qua-non to determination of his designation in
the establishment. The reliance is placed upon Union Carbide India Ltd. Vs.
D. Samuel & Ors. 1998 II CLR 736, Anand Regional Co-operative Oil
Seedsgrowers Union Ltd. Vs. Shaileshkumar Harshadbhai Shah 2006 III
LLJ 767 and Tata Sons Ltd. Vs. S. Bandyopadhyay & Anr. 2004 LLR 506.
16. Interestingly, both the parties except deposing about the
designation as per their respective plea has not bothered to explain the nature
of duties being performed by the claimant. Even cross-examination of
workman as well as management witness are silent to this aspect. Qua this
deficiency both the parties are standing at the same pedestal. The Industrial
Disputes Act is a beneficial legislation. As already discussed since either of
the party has not brought on record the details of the nature of duties being
performed by the workman, it is presumed in favour of the workman that he
has been able to establish that he was working as a mistri mechanic and not
as a supervisor with the management. This issue is accordingly decided in
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favour of the workman and against the management.
ISSUE NO.2
17. The burden to prove this issue lay upon the workman. The reliance
is placed upon 2007 LLR 1260 case titled Ganga Kisan Sahkari Chini Mills
Ltd. Vs. Jaivir Singh.
18. The Ld. AR for management has submitted that workman has
admitted his signatures on Ex.WW1/M-1 which is an appointment letter dated
1.2.05 which shows that workman has not completed 240 days in the preceding year. There is specific and clear admission on the part of the workman regarding his signatures on appointment letter Ex.WW1/M-1. No such plea has been taken by the workman that either his signatures were taken on blank appointment letter or his designation was subsequently filled by the management on it.
19. The Ld. AR for workman has contended that Ex.WW1/8 is the attendance register from October'2000 to August'2002 which shows that workman has worked for more than 240 days with the management till his termination on 18.6.05. While deciding issue No.1 in the above paras the attendance record produced by workman has been held to be genuine and trustworthy. But at the maximum Ex.WW1/8 establishes the employment of the workman with the management till August'2002. Whereas alleged date of termination is 18.6.05. There is absolutely no proof brought on record by workman to establish his employment in between August'2002 to the alleged date of termination. Since workman has admitted his signatures on appointment letter Ex.WW1/M-1, it is presumed that workman get re-employed with the management from 1.2.05 being the date mentioned on the appointment letter. Though this is not the plea of the management that 8 workman worked with it in the year 2000 to 2002 and left the service and again joined in February'05 but the combined reading of Ex.WW1/8 and Ex.WW1/M-1 suggest this as the only harmonious interpretation of these two documents. In view of the aforesaid reasons it thereby stands established that workman joined the management on 1.2.05 and his alleged date of termination is 18.6.05. Thereby workman has not completed 240 days of the service in the preceding year. This issue is decided against the workman and in favour of the management.
ISSUE NO.3
20. The burden to prove this issue lay upon the management. As per MW1, workman worked with it upto June'05 and left the job at his own after taking his dues of Rs.3260/-. Ex.WW1/M-3 is the receipt filed by management stated to have been signed by the workman. But the workman has denied his signatures on Ex.WW1/M-3 and has called this document as forged and fabricated. Ex.WW1/M-3 is stated to have been signed by two witnesses namely Ganesh and Ramesh. Who are these witnesses neither their addresses are found mentioned, if they were employees of the management nor their designation is found mentioned on it. I thereby do not find Ex.WW1/M-3 as genuine and acceptable. Ex.WW1/1 and WW1/2 are the demand notices sent by workman to the management by registered post. If the workman had settled his accounts, there was no occasion before him to send the demand notices disputing his termination to be illegal.
21. In view of the aforesaid reasons, I hold that management has failed to prove that workman left his job at his own after taking the dues from the management. This issue is accordingly decided in favour of the workman and against the management.
9ISSUE NO.4
22. In view of the findings on issue No.2, the workman is not entitled to any relief as claimed by him. Reference is answered accordingly.
23. Award is passed in the above terms. Six copies of the award be sent to the appropriate Government. File be consigned to record room.
Dated : 18.2.2008 ( SANJAY GARG )
PRESIDING OFFICER :
LABOUR COURT-V:
DELHI.