Delhi District Court
Between vs The on 22 February, 2007
-1-
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 174/06
BETWEEN
The Workman
Sh. Pradip Kulsharestha S/o Sh. S.N. Kulsharestha
R/o 13/172, New Birla Lines, Kamla Nagar,
Delhi-110007.
AND
The Management
M/s. Birla Textile Mills,
PO. Birla Line,
Delhi-110007.
AWARD
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F.24(3986)/2001-Lab./2772-76 dt. 04.03.2002 referred the dispute for adjudication between the Managements M/s. Birla Textile Mills and its workman Sh. Pradip Kulsharestha S/o Sh. S.N. Kulsharestha in the following terms of reference:-
"Whether the services of Sh. Pradip Kulsharestha S/o Sh. S.N. Kulsharestha have been retrenched illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. The workman has filed statement of claim stating therein that he joined management w.e.f. 19.09.1992 as Spinning Assistant and his date of birth is 01.07.1954 and his last drawn salary was Rs.3510/- per month. It is stated that the workman was working sincerely and diligently to the satisfaction of -2- the management and never gave any chance of complaint to the managements. It is stated that the management had also allotted a quarter to the workman because the management was calling the workman at any time to repair any machine. It is stated that the workman was officially required to work from 07:30 AM to 04:30 PM, but the management was taking work for 12 hours to 16 hours per day from the workman. It is stated that the workman was doing manual and technical work and he was repairing machines of the management of his own hands and was also taking the assistance of helpers of the management and he was required to prepare a report regarding the work performed by him in a day and submit the same to General Manager, Technical of the Mills and he was also required to mention the defect of the machines in the Log Book and also required to mention what repair or replacement of the parts have taken place and his work was of totally skilled nature and he was falling under the definition of workman as given U/s 2(s) of the Industrial Disputes Act, 1947. It is stated that the mills has been closed on 30.11.1996 at the existing place as per the order of Hon'ble Supreme Court and has been shifted to Baddi, (Himachal Pradesh) and the Hon'ble Court has granted shifting bonus and other benefits to the workmen of the mills for which the management was required to pay, if transferring the mills' workmen to Baddi. Accordingly, the management has paid them one year shifting bonus and other benefits to the workmen as directed by Hon'ble Supreme Court, but they have not paid the same to the concerned workman. It is stated that all the workmen of Birla Textile Mills -3- have been transferred to Baddi, Distt. Solan, (Himachal Pradesh), but the present workman has not been transferred to Baddi. It is stated that the workman was continuously reporting for duties till 03.09.1997 at 12, Quarter, Birla Officer's Flat, Kamla Nagar, Delhi where Sh. O.P. Soni, Executive President and other staff were attending the office, but the workman was not allowed to sign in the register. It is stated that the workman worked in the mill upto 03.09.1997 and after that management terminated his service w.e.f. 04.09.1997 illegally and the workman was not paid notice pay, due wages, bonus, gratuity and other benefits. It is stated that on 04.09.1997 the workman received a letter dt. 03.09.1997 from the management by which services of the workman were terminated without giving any show cause notice or charge-sheet. It is stated that the termination of services of the workman is illegal and is violation of provisions of Industrial Disputes Act, 1947. It is stated that the workman filed his claim before the Conciliation Officer, but due to non-cooperative attitude of the management conciliation was not arrived. It is stated that the workman is unemployed since the date of termination of his services. It is prayed that an award be passed thereby reinstating the workman in service with full back wages and continuity of service.
3. The notice of statement of claim was issued to the management and the management has filed WS and has contested the same. In the WS management has stated that the claimant has concealed the material facts. It is stated that the claimant was working as Supervisor Spinning (Assistant -4- Maintenance) and he was drawing a sum of Rs.3505/- per month and was doing all supervisory, administrative and managerial nature of duties in the department and he was over all incharge of the work in machine maintenance department. It is stated that he was receiving the complaints from spinning department if any machine develop any defect or not working properly and he was having his own departmental Mechanical Engineers, Foreman and other workmen who used to repair the machine under his supervision and he was issuing requisite slips to the store, if any instrument or part was required. It is stated that the claimant is not the workman as per Section 2(s) of the I.D. Act. It is stated that the present claim has been filed by the claimant with ulterior motives in Delhi, although the claimant has admitted that the entire mill, its offices or workmen have been shifted to Baddi w.e.f. 30.11.1996 as per order of the Hon'ble Supreme Court dt. 08.07.1996. It is stated that the present claim has been filed by the claimant with ulterior motives and to retain the mills officers' flat which was allotted to him for the enjoyment during his employment on licence basis by creating a pendency of this frivolous case and claimant is trying to retain the mills officers' flat for a longer period without making any payment to the mill. It is stated that the order dt. 08.07.1996 of Hon'ble Supreme Court is not applicable upon the claimant as the directions and the benefits have been given in that order to the workmen only who came under the definition of the workman as given under Section 2(s) of the I.D. Act, 1947. It is stated that similar employees approached the Hon'ble Supreme Court for the said -5- benefits by moving a CM, but the same was rejected by the Hon'ble Supreme Court vide its order dt. 21.09.1999 as they were not the workmen as per Section 2(s) of the I.D. Act, 1947. It is stated that the claimant has no right to claim the said benefits. It is stated that statement of claim has been filed only against M/s. Birla Textiles Ltd. while there was no such mill ever existed at the given address and the reference has been made against M/s. Birla Textile Mills who has filed the reply in the conciliation. It is stated that the services of the claimant were terminated by the M/s. Birla Textiles (Prop. Texmaco Ltd.) which is having its office at the given address. It is stated that the claimant was appointed on 19.09.1992 and the claimant submitted his personal bio-data wherein he has written his date of birth as 08.02.1954 and in the statement of claim he has wrongly mentioned his date of birth as 01.07.1954 with ulterior motives. It is stated that the last drawn salary of the claimant was Rs.3505/- per month. It is stated that the claimant was short tempered person and his said nature was ignored by the management. It is stated that the claimant himself requested the management for accommodation as he was not having any accommodation and as he was working in the Bamla (Bhiwani) as Maintenance Incharge and the management considered his request on humanitarian grounds and the management allotted a flat to the claimant. It is denied that the claimant was himself repairing any machine. It is stated that after receiving complaints from spinning department regarding the defective machines, the claimant was sending Engineers, Foreman and other workers. It is denied that the claimant -6- was working for about 12 to 14 hours in a day. It is stated that as per the directions of Hon'ble Supreme Court the management transferred the willing workers to Baddi, Distt. Solan (Himachal Pradesh) and the claimant neither had given any consent letter to the management nor came to report for duty to the management in this regard after 30.11.1996 and after waiting for a considerable period i.e. one year the management had no option but to terminate the services of the claimant as per his terms of appointment letter dt. 19.09.1992. It is stated that since the date of his termination the claimant never came to the management at Baddi and he was continuing to enjoy the unauthorized possession of the flat which was allotted to him by the management. It is denied that the claimant was reporting for duties at 12, Quarter, Birla Officer's Flat, Kamla Nagar, Delhi as alleged. It is denied that the services of the claimant has been terminated illegally. It is stated that the claimant is not entitled to any relief.
4. From the pleadings of parties following issues were framed by my Ld. Predecessor on 21.04.2003:-
1. Whether Pradip Kulsharestha is not covered under the definition of workman as mentioned U/s 2(s) of the I.D. Act, 1947? OPM.
2. Whether the management establishment has been shifted to Baddi (H.P.) after its closure on 30.11.1996 and if so to what effect? OPM.
3. Whether the management terminated services of workman legally and justifiably for his absence from duty? OPM.
4. As per terms of reference. OPW.
5. Relief.
5. Examination in chief of WW1/workman was recorded on 28.04.2005 -7- and his cross-examination was deferred and thereafter workman/WW1 did not appear for cross-examination on 11.01.2007 and the case was proceeded Under Rule 22 of the Industrial Disputes (Central) Rules, 1957 and WE was closed.
6. In support of its case managements examined Sh. Mahaveer Parik, Industrial Relation Officer as MW1 and ME was closed on 11.01.2007.
7. I have heard Authorized Representative for the management and carefully perused record. My findings on specific issues are as under: ISSUE NO. 1 -8-
8. In the statement of claim workman has stated that he was employed as Spinning Assistant (Maintenance) w.e.f. 19.09.1992 and his last drawn salary was Rs.3510/- per month and he was doing manual and technical work and his work was totally skilled in nature. In the written statement management has stated that the claimant was working as Supervisor Spinning (Assistant Maintenance) and he was drawing a sum of Rs. 3505/- per month and he was doing all supervisory, administrative and managerial nature of duties and he was overall incharge of the work in machine maintenance department. It is stated in the written statement that the claimant was having his own departmental mechanical engineers, foreman and other workmen who used to repair the machines under his supervision and he was issuing requisite slips to the store for instruments or parts required to repair the machines and in view of the nature of duties and the last drawn salary of the claimant he is not a workman as per Section 2(s) of the Industries Disputes Act 1947.
9. Section 2(s) of the Industrial Disputes Act 1947 defines "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 reward, whether the terms of employment be express or implied, and for the purposes of any proceeding 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--9-
(i) who is subject to the Air Force Act, 1950 (45of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii)who is employed in the police service or as an officer or other employee of a prison; or
(iii)who is employed mainly in a managerial or administrative capacity; or
(iv)who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
10. In Burmah-Shell Oil Co. v. Burmah-Shell Management Staff Assn., [1972] 41 FJR 361, Hon'ble Supreme Court laid down that the test of substantial work performed by the concerned employee should be applied to find out as to whether the employee is employed to do skilled or unskilled manual, clerical, technical or supervisory work.
11. In Toshniwal Bros. Pvt. Ltd. v. Delhi Administration (1976) ILR 2 (Del.) 548, it was held that ordinarily, a Supervisor or an Officer occupies a position of command or is authorised to take independent decisions and is authorised to act in certain matters within the limits of his authority without the sanction of his supervisors.
12. But, in determining the question as to whether a person is employed in a supervisory capacity or otherwise, the mere designation is not decisive of the nature of employment. The question whether a person is employed in a 'supervisory' capacity or on clerical work, depends upon whether the main and principal duties carried out by him are those of a 'supervisory' character -10- or of a nature carried out by a clerk. If a person is mainly doing 'supervisory' work, but, incidentally or for a fraction of the time, also does some clerical work, he would be deemed to be employed in a 'supervisory' capacity. Conversely, if the main work done is of a clerical nature, the mere fact, that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him, will not convert his employment as a clerk into one of supervisory capacity.
13. In Anand Regional Co-op. Oil Seedsgrowers Union Ltd. vs. Shaileshkumar Harshadbhai Shah- 2006 LLR 1052 it was held that:
15.Supervision contemplates direction and control.
While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he, performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the section alone and that too it being a small one and relating to quality control would not answer the test. -11-
16.The precise question came up for consideration in Anand Bazar Patrika (P) Ltd. v. Workmen, (1970) 3 SCC 248, wherein it was held:
"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity..."
14. In Bennett Coleman & Co. Limited (M/s) vs. Shri Yadeshwar Kumar, 2007 LLR 62 it was held that a supervisor, supervising the security guards, sweepers, chowkidars including assigning work and recommending leave, will not be a 'workman' under Industrial Disputes Act and, as such, the -12- Labour Court has erred in holding him a workman because he was not performing administrative or managerial functions.
15. In M/s Sagari Leather (P) Ltd. vs. Presiding Officer, Industrial Tribunal (4), Agra and others- 2006 LLR 1170 it was held that:
9. ............A person to be workman must be employed to the work of any of the categories, namely, manual, unskilled, skilled, technical, operational, clerical or supervisory. A person, who is employed as a workman and is doing the work of the above nature is workman and is a person employed is not doing the work of the abovementioned is not a workman. Clause
(iv) of section 2(s) of the Act provides that who being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature does not fall within the definition of the workman. For the purpose of clause (iv) what has to be seen is the employment of the person in a supervisory capacity. The main part of the definition treat a person as a workman, who is employed as a workman in any industry but was looking after the -13- supervisory work for hire or reward but if a person is employed in a supervisory capacity by virtue of his appointment letter he is not a workman within the definition of section 2(s) of the Act and in my opinion no other consideration is required to be looked into.
16. Workman has filed his affidavit in the form of evidence and in the affidavit Ex. WW1/A workman has stated that he was doing manual and technical work and he was repairing machines of the mills by his own hands and was taking assistance of departmental helpers and he was also required to prepare a report regarding his work performed in a day and submit the same to General Manager (Technical) of the mills. Although the workman has filed his affidavit Ex. WW1/A in the form of evidence but the workman did not appear for cross-examination and WE was closed and the affidavit filed by him is of no consequence. The management examined Sh. Mahaveer Parik, Industrial Relation Officer as MW1 who adduced evidence by way of affidavit Ex. MW1/A . In affidavit Ex. MW1/A it is stated by the management that the claimant was working as Supervisor Spinning (Assistance Maintenance) and was drawing Rs. 3505/- per month and he was doing all supervisory, managerial and administrative duties and he was overall incharge of the work, machine maintenance in his department and the claimant was disposing complaints received from the employees of Spinning Department and he was having his own mechanical engineers, foremen and other workmen who used to repair the machines. It is further stated in the affidavit -14- Ex. MW1/A that the claimant was sending requisition slips to the store if any instrument or parts required to repair machine and the claimant was also participating in decision making of working system and placing the employees from one place to another within the department as per work requirement. It is stated in para 3 of affidavit Ex. MW1/A that claimant was competent to appoint temporary workers and he was recommending promotion of his department employees and he was also sending complaints to take disciplinary action if any employees committed employment misconducts and he was full competent to issue gate pass to the employee and he was also competent to recommend leave to the employees and he was also competent to sanction loan to the employees of his department. The contention of AR for management is that the claimant had submitted his application Ex. MW1/1 to the management for job and in the same the claimant has mentioned his work experience as he has worked as Maintenance Supervisor for about 8 years with M/s Banswara Syntex Ltd., Banswara and he was working as Maintenance incharge at the staff of M/s Rama Fibers (P) Ltd. Bamla (Bhiwani) for more than one year. The contention of AR for management is that when the claimant had applied for the job with the management in the year 1992 he was already working as Maintenance Incharge with M/s Rama Fibers (P) Ltd. Bamla (Bhiwani) and a person who was already working in the supervisory capacity will not accept a manual and technical nature of work in the subsequent job. In his affidavit Ex. MW1/A the MW1 has stated that nature of duties of the claimant were -15- supervisory, managerial and administrative. The workman has not appeared to cross-examine MW1 and entire testimony of MW1 has remained unrebutted.
17. In All India Reserve Bank Employees Association and Anr. vs. Reserve Bank of India and Anr., AIR 1966 SC 305 the Apex Court was dealing with the definition of workman in Section 2(s) and while construing the word 'supervise' observed that the word supervise and its derivaties are not of precise import and most oftenly construed in the light of the context for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of manual work of others.
18. In Vinayak Baburao Shinde vs. I. S. R. Shinde and others 1985-I- CLR 318 it was held that the word 'supervise means to oversee i.e. to look after the work done by other persons, and, the word 'supervision' occurring in Section 2(s) of the Industrial Disputes Act means supervision in relation to the work or in relation to the persons. According to Division bench, the essence of supervision consists in overseeing by one person over the work of others and this also involved power in the person overseeing to direct and control the work done by the person over whom he was supervising.
19. The testimony of MW1 to the effect that the claimant was doing supervisory, managerial and administrative duties and he was participating in decision making of working system and he was competent to appoint/engage temporary workers, recommending promotions of his department employees -16- and was competent to recommend leave and that the workman was supervising the work of the persons working in his department has remained unrebutted. The claimant Sh. Pradip Kulsharestha has failed to prove that he is a workman as per Section 2(s) of the Industrial Disputes Act 1947. This issue stands answered accordingly.
ISSUE NO. 2 & 3.
20. As both these issues involve common discussion of facts and law hence for the sake of brevity both these issues are being taken up together. In findings on issue no.1 above it has been held that Sh. Pradip Kulsharestha is not a workman as per Section 2(s) of the I. D. Act. As Sh. Pradip Kulsharestha is not a workman as per Section 2(s) of the I. D. Act hence both these issues are not required to be answered.
ISSUE NO. 4 & 5.
21. In findings on issue no.1 above it has been held that workman Sh. Pradip Kulsharestha is not a workman as per Section 2(s) of the I. D. Act. As Sh. Pradip Kulsharestha is not a workman hence his claim is not maintainable under the Industrial Disputes Act 1947 and he is not entitled to the reliefs as claimed. Reference stands answered accordingly. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 22.02.2007.
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(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI -18- ID 174/06 22.02.2007 Present: None.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law.
File be consigned to Record Room.
POLC/22.02.2007