Delhi District Court
Kamlesh Sharma vs . Ubs Publishers & Distributors Ltd. on 23 April, 2009
Kamlesh Sharma vs. UBS Publishers & Distributors Ltd.
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
DATE OF REFERENCE : 15.10.1992
DATE OF RECEIPT : 10.03.1993
ARGUMENTS CONCLUDED ON : 26.03.2009
AWARD PASSED ON : 23.04.2009
ID No. 218/08/92
IN THE MATTER OF : -
M/s UBS Publishers Distributors Ltd.
5, Ansari Road, Post Box No. 7015
New Delhi-2 ...........Management
versus
Ms. Kamlesh Sharma
C/o S. N. Gupta, Advocate
Chamber No. 517, Western Wing, Tis Hazari Courts
Delhi-54 ..........Workman
A W A R D
1.The Govt. of NCT of Delhi has referred this dispute bearing reference number F.24(3033)/92-Lab./30492-97 dated 15.10.1992, in the above matter and the terms of reference is as under :
" Whether the services of Ms. Kamlesh Sharma, have been terminated illegally and/or unjustifiably by the management and if so, to what relief is she entitled and what directions are necessary in this respect ?"
2. Upon receipt of the reference, notices were ordered to 1/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. the workman. Claim statement is filed by the workman.
CASE OF THE WORKMAN : Workman states that she joined the management initially as a Typist-Assistant and at the time of termination she was working as a Senior Supervisor. Her last drawn salary is Rs. 1,685/- per month including DA and HRA. The workman was appointed on 01.04.1978. She had blemishless record of service and was performing mostly the clerical duties even after having been designated as Senior Supervisor Purchase. She was checking, computer feeding, the receiving and checking the invoices, price checking & catalouging etc. there were none to be supervised by the workman though she was called a supervisor. She was terminated by the management on 27.04.1991. She was not paid her legal dues at that time. It is stated that the termination is illegal and unjustified since it is against the principles of natural justice and no notice pay and retrenchment compensation were paid. The workman seeks reinstatement with back wages from the date of termination. Upon notice, the management filed its written statement.
3. CASE OF THE MANAGEMENT : It is contended that by 2/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. the management that the workman was working with it initially as a Typist/Assistant. It is further contended that at the time of termination of her service on 27.04.1991, she was employed as senior supervisor (purchase) in the head office with a salary of Rs. 1,685/- per month. She was assisted by Mrs. Raman Sharma, Supervisor and one Surender Kumar Kaushal, the typist. Further, it is contended that her conduct was far from satisfaction. She was rude with her seniors. The workman was repeatedly warned and cautioned in respect of her performance and in discharging her duties.
Further, it is contended that the duties performed by her as senior Supervisor in the purchase department is that of authentication of foreign invoices ensuring that invoices received from abroad were in accordance with the order or not for which duty she was to take the assistance of two employees. Further, she was directing and supervisor corrections in the computer. She was also assigned with the duties of maintenance of latest price on the foreign books by updating the prices. She was to check the invoice with the help of the correspondence to see 3/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. whether the negotiated special price have been allowed or not and to find out the correct discounts. She was further assigned with the duty of preparing the discrepancy report as per her observation, the same was to be submitted to the purchase Manager. She was given all the independence to prepare such reports. Her duties also included collation of data regarding quoting of prices to foreign customers. She was maintaining confidential records pertaining to the foreign publishers. Therefore, she was doing the job of managerial skill. While adverting to the averment of her blemishless record as in the claim statement, the management submits that she was repeatedly advised warned and cautioned in respect of performance. Her attendance was unsatisfactory. She was informed about her unauthorised absence 49 working days and other days she had reported late for her duties on 43 working days. Besides this, her behaviour towards her superior Purchase Manager, was most unsatisfactory. In the above circumstances, she was terminated on 27.04.1991, since her indiscipline was prejudicial to the interest of the company as she was in a responsible post. Management also submits that no charge 4/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. sheet or domestic enquiry was effected since she was a senior supervisor. Rejoinder is filed by the workman to deny the allegations of the management in the WS.
4. ISSUES : After completion of the pleadings, my Ld. Predecessor had framed the following issues on 20.10.1993, as under :
1) Whether the petitioner is a workman ? 2) As in terms of reference ?
5. EVIDENCE LED : To prove their contentions on either side, on behalf of the workman she has examined herself as the lone witness and the side is closed. The management examined one witness MW 1 and the evidence is closed. Heard the Ld. AR on both the sides.
6. CONTENTIONS OF THE PARTIES : Ld. AR for the workman submits that the claimant falls under the definition of workman, though for the purposes of nomenclature, her post was called as a Supervisor. It was argued that there was none to be supervised by her. In fact she was answerable to the Purchase Manager. The management is trying to circumvent the law under the guise of nomenclature. 5/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. Further, it was argued that the workman had no control over the administration or nor she was having the powers to deal with the services of the so called subordinates. Her duties were that of an ordinary workman and she was asked to do the clerical job. She falls under the definition of workman U/s 2-S of the ID Act. Workman relied on the ruling of the Hon' Supreme Court in Anand Regional Co-op. Oil Seedsgrowers Union Ltd. vs. Shaileshkumar Harshadbhal Shah 2006 LLR 1052 SC and also 2006 LLR 1175 SC PWD . THR. Dy. Dlr. Horticulture vs. Satya Pal.
7, On the other hand, the Ld. AR for the management submitted that the claimant herein is a senior supervisor in the purchase department headed by the Purchase Manager. She was receiving and checking the invoices pertaining to the post as regards the author, publisher, title, quantity, edition and price. She had list of duties which are purely managerial and supervisory in nature in so far as she was to prepare the discrepancy report, detect the variances and to check the special price settlements, provide best price option to the export division, remove the discount portion 6/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. before sending the invoice to branches to maintain secrecy. She was assisted by Mrs. Raman Sharma. Claimant had the confidential records of the trade terms. Therefore, the claimant was a supervisor not falling under the definition of Section 2-(s) of the Act. It was further argued that the claimant was assisted by Raman Sharma, supervisor, Surender Kaushal, typist and one Ashok Kumar, record clerk. It was argued that the severance of relationship of employer and employee is justified in the circumstances as there was sufficient material to proceed so and further no enquiry or issuance of charge sheet was required as the claimant was not the workman. The management relied on the following rulings : 1) Dwarkaprasad S. Mishra, Mumbai vs. Bayer India Ltd., Thane 2008 I CLR 853 Bombay High Court 2) John Joseph Khokar vs. B.S. Bhadange and Ors. 1998 LLR 213 Bombay High Court 3) Union Carbide (India) Ltd. vs. D. Samuel and Ors. 1998 II CLR 736 Bombay High Court 4) G.M. Pillai vs. A.P. Lakhanikar, Judge 3rd Labour Court and Ors. 1998 I CLR 281 Bom. HC 5) Mamraj vs. Management of Shanti Developers and Promoters (India) Ltd. and Anr. 2005 (3) LLN, 275 Del. HC 7/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd.
6) Tata Sons Ltd. vs. Bandyopadhway and Anr. 2004 LLR 506 Del. HC 7) Narsinha Anand Joshi vs. Century Shipping & Ors. 1994 LLR 440 Bom. HC 8) Shrikant Vishnu Palwankar vs. First Labour Court and Ors. 1992 1 LLN 338 Bom. HC 9) UP State Electricity Board vs. Laxmi Kant Gupta 2009 LLR 1 SC 10) Kendriya Vidyalaya Sangathan & Anr. vs. S.C. Sharma 2005 LLR 275 SC 11) UP State Brassware Corporation Ltd. & Anr. vs. Udai Narain Pandey 2006 LLR 214 SC. With the available oral and documentary evidence, I am to answer the issues as under.
8. ISSUE NUMBER 1 : In order to answer issue number 1, I have been kept in mind the definition of Section 2-s of the ID Act. The same reads as under :
Section 2-(s) '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 of 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 -8/22
Kamlesh Sharma vs. UBS Publishers & Distributors Ltd.
i) who is subject to the Air Force Act, 1950 (45 of 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 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."
9. The evidence led in this case by the workman shows that she filed an affidavit at Ex. WW 1/A. She avers that she was drawing the salary of Rs. 1,685/- per month as senior Supervisor. At paragraph 4 of her affidavit, she had specifically deposed that though the deponent was designated as senior Supervisor (purchase) but the nature of duties actually performed by the deponent were mostly clerical such as computer feeding of invoices, checking the rate list, receiving and checking the foreign invoices, price checking, catalogue checking etc. The deponent was doing mostly the desk-job. There was no employee under the deponent to be supervised upon. The deponent was working under the manager purchase. The deponent was never 9/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. assisted in her duties by an employees. The foreign invoices were received through Mr. Veer and the checking was done by the deponent. Any amendment or alteration was pointed out to Mr. Veer who would then order to correct the same. The purchase manager was the person responsible for the purchase department. In cross-examination by the management, it is elicited that one Mrs. Raman Sharma, Supervisor and Surender Kumar Kaushal, worked in the same department and assisted the work of the department. It is put to her to that one D.P. Veer, had ever cautioned, advised and warned the workman. This suggestion was denied by the workman. However, she admits that it was her responsibility to see the invoices and she was required to carefully check the same before processing it. Invoices were received by D.P. Veer. She denies a suggestion that all invoices were addressed to her. Apart from her, the invoices were also being entrusted to Mrs. Malik, Mrs. Shashi, Mrs. Raman and two or three boys. It is further elicited that all these persons were senior to her and she was the junior. Again, she says that Mrs. Raman Sharma, was junior to her. It is further elicited that Raman 10/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. Sharma, was working with the computer. Raman Sharma, was also doing the amendments, alterations and rectification in respect of the invoices received by WW 1. She further admits that she used to scrutinise the invoices, dispatch of the foreign parties. She further admits that it was her responsibility to ensure the invoice received from abroad were specifically in accordance with the orders placed by the co. with the foreign publishers. To a question by the management that in the event of prices not being updated by the WW 1, the branches would sell and supply the books at the lower rates, the workman answered whenever she received the catalogue, she used to update the prices. Whenever such catalogues not received, the book might have been sold at lower rates. She admits that based on the invoices given to her, she was required to draw necessary information regarding the title, publisher, price etc. In the second instalment of cross-examination, she admits that she was checking the discount and was reporting the discrepancies. Such discrepancy reports were put to her and confronted to her at Ex. WW 1/M-1 to 1/M-10, Ex. WW 1/M-15 to 17. Likewise, the invoices were confronted at M- 11/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. 11 and M-14, M-18 and M-19. She further admits that she was given a table having three draws and she used to keep foreign invoices and was maintaining the discounts thereof under a lock and key. She also admits that she used to tear off the portion of the discounts when sending the books upon foreign invoices. She denies that her attendance was unsatisfactory and further she does not remember her absence for 49 days in the year 1990-91 and late attendance for 43 days. She admits that she was promoted to Supervisor from Senior Assistant in the year 1985 and in the year 1988, she was promoted as Senior Supervisor. The confronted documents after promotion at Ex. WW 1/M-35 and 36 and the salary slips at M-37 to 40 were admitted. She denies that she was going late while admitting that she had no good working relation with D.P. Veer. She is a graduate and denies a suggestion that she was shouting at D.P. Veer.
10. On behalf of the management, MW 1 D.P. Veer, is examined and he produced documents at Ex. MW 1/1 to 1/7. As per the affidavit of D.P. Veer, in order to establish that the claimants was a supervisor, he has enumerated the functions performed by the claimant in the organisation 12/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. which are replications of the written statement which I have briefly discussed. He avers that the claimant was a supervisor.
11. In the cross-examination by the workman, MW 1 admits that he was looking after the purchase department. The purchase department is controlled by the Manager Purchase. He admits that he was allotting the work to the officials including senior supervisor. He further admits that overall control and the supervisation over the officials were of him. The leave used to be sanctioned by the Manager upon the recommendation of Senior Supervisor. He denies a suggestion that Senior Supervisor never used to recommend the leave. Senior Supervisor used to report the misconduct. He further admits that the list of duties were not in writing for the senior supervisor or to the junior supervisor. He further admits that the termination of the claimant was due to her rude behaviour towards the colleague and to him. He further deposes that she was disobedient and insubordinate, not punctual and arrogant. He is unable to tell the duties of senior supervisor. He was not having the trade secrets with him. 13/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd.
12. From the evidence available, it is clear that there are no list of duties prepared by the company in respect of senior supervisor. The overall control and sanctioning of leave etc. including supervisation was with the General Manager. The purchase department in which the claimant worked was headed by the Manager purchase.
13. From the admissions on the part of WW 1 that she used to look into the aspects of allowing or disallowing discounts, upgrading the prices, dispatch of books according to the invoices, I will have to look whether this amounts to the functions which are purely managerial or purely administrative in nature. It was argued by the AR for the workman that since the claimant was performing her duties which are primarily clerical in nature, the same can not be termed as supervisory or managerial.
14. In Anand Regional Co-op. Oil Seedsgrowers Union Ltd. (supra), the Hon'ble Supreme Court had observed the following :
13. The ingredients of the definition of 'workman' must be considered having regard to the following factors :
(i) Any person employed to do any skilled or unskilled work, but does not include any 14/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd.
such person employed in any industry for hire or reward.
(ii) There must exist a relationship of employer and employee.
(iii) The persons inter alia excluded are those who are employed mainly in a managerial or administrative 'capacity'.
14. For determining the question, as to whether a person employed in an industry is a workman or not ; not only the nature of work performed by him but also terms of the appointment in the job performed are relevant considerations.
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 be longs. 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.
15. In the light of the above ruling, the section headed by the workman is being very small and the nature of work involving pricing and allowing discounts based on pre- furnished catalogue had not vested any independent authority in the workman to take a decision with regard to vary the discount or to do away with the discount. Though, 15/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. she was termed as senior Supervisor, from the admission of MW 1, the overall control and administration of the purchase department was headed by a purchase manager. The senior Supervisor was answerable to the purchase manager who used to distribute the invoices for further processing. It was not the workman who used to be vested with the invoices directly and with further powers to distribute it further among her junior staff. In the light of the above ruling and also in light of the admissions coming forth from the evidence of MW 1, I find that the test laid down by the Hon' Supreme Court in Anand Regional Co-op (supra) would tilt in favour of the workman to bracket her within the definition of Section 2(s) of the ID Act.
16. The rulings relied by the Ld. Counsel for the management are 1) Dwarkaprasad S. Mishra, Mumbai vs. Bayer India Ltd., Thane 2008 I CLR 853 Bombay High Court 2) John Joseph Khokar vs. B.S. Bhadange and Ors. 1998 LLR 213 Bombay High Court 3) Union Carbide (India) Ltd. vs. D. Samuel and Ors. 1998 II CLR 736 Bombay High Court 4) G.M. Pillai vs. A.P. Lakhanikar, Judge 3rd Labour Court and Ors. 1998 I CLR 281 Bom. HC 5) Mamraj vs. Management of Shanti 16/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. Developers and Promoters (India) Ltd. and Anr. 2005 (3) LLN, 275 Del. HC 6) Tata Sons Ltd. vs. Bandyopadhway and Anr. 2004 LLR 506 Del. HC 7) Narsinha Anand Joshi vs. Century Shipping & Ors. 1994 LLR 440 Bom. HC 8) Shrikant Vishnu Palwankar vs. First Labour Court and Ors. 1992 1 LLN 338 Bom. HC 9) UP State Electricity Board vs. Laxmi Kant Gupta 2009 LLR 1 SC 10) Kendriya Vidyalaya Sangathan & Anr. vs. S.C. Sharma 2005 LLR 275 SC 11) UP State Brassware Corporation Ltd. & Anr. vs. Udai Narain Pandey 2006 LLR 214 SC. The rulings at serial numbers 1 to 4, 7 and 8 are of the Bombay High Court which has only persuasive value.
17. As regards Mamraj (supra), our High Court was dealing with the case of a site Engineer. The same is distinguishable on facts.
18. In the case of Tata Sons Ltd. (supra), the documents produced suggested that the employee was highly educated being a chartered Engineer was definitely doing any manual work. Manual work may have been incidental to his work but that will not make him a workman. Here is a case where the qualification of the claimant is that she was a graduate. She was primarily doing the job of processing 17/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. the invoices as per the set norms of the management under the catalogue. She was recruited as a Typist/Assistant and later got promoted. She was answerable to the purchase Manager, hence, this ruling is not helpful to the Management.
19. In UP State Elec. Board (supra), deals with law concerning the reinstatement with back wages ;- which has become no longer a normal rule.
20. In Kendriya Vidyalaya Sangthan (supra), again, it was held that where the employee had not pleaded that he was not gainfully employed, the granting of back wages does not arise.
21. In UP State Brassware Corp. Ltd. (supra), the Hon' Supreme Court had observed as under.
17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the curt realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period 18/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd.
that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
22. In view of above position of law and from the evidence led on both the sides, it can be safely said that the claimant falls under the definition of workman U/s 2(s) ID Act, though, it was designated as senior supervisor by the co.
23. ISSUE NUMBER 2 : MW 1 clearly admits that there was no charge sheet and the enquiry and the claimant was removed due to her rude behaviour to the purchase Manager and also to her. He further deposed that she was disobedient in subordinate, not punctual and arrogant. The management has not conducted any enquiry and no opportunity was given to her to explain her stand, therefore, it can be safely said that the termination is not justified under the law.
24. The workman had sought for reinstatement. In the ruling of our High Court in Parmod Kumar and another Vs. Presiding Officer and another, 123, DLT 509, DB, has held 19/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. at para 11 as under:-
Para 11. In a number of matters, this court has also examined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of re-instatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma Vs. Nehru Yuva Kendra Sangathan, 96 (2002) DLT 412 (DB) and K. H. Pandhi Vs. The Presiding Officer, Addl. Labour court and another, 110 (2004) DLT 101 and Pal Singh Vs. NTPC Ltd. 96 (2002) DLT 877.
25. In a recent ruling reported in 2009 (I) LLJ 326 SC in the matter of Talwara Co-operative Credit & Service Society Ltd. Vs. Sushil Kumar, the Hon'ble Supreme Court noted as under:-
Para 11. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial courts while exercising their power under section 11-A of the Industrial disputes Act, 1947, are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc, should be taken into consideration.
26. In view of the above rulings and considering that there 20/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd. has been a long lapse after termination, I find that it is not advisable to order for reinstatement of the workman.
27. In J.M. Akhtar vs. Management of Markfed Agro, 2006 (8) AD (Delhi) 33 our High Court has held that workman was entitled such compensation which would commensurate with the denial of reinstatement. As per the law laid down in Talwara Co-op. Credit and Service Society (supra) while awarding the compensation, there should be a balance in equity. The courts have to consider the standing of the industry and its financial position. Equity between the parties are to be adjusted. Keeping in view of the above, the claimant having worked with the management for nearly 13 years, she is entitled for a compensation towards her length of service which is calculated @ 15 days salary for each completed year taking it as Rs. 11,050/- and further a compensation of a sum of Rs. 90,000/- towards her unjustified termination. Thus, I award a total sum of Rs. 1,01,050/- towards compensation to the workman against her unjustified removal.
21/22 Kamlesh Sharma vs. UBS Publishers & Distributors Ltd.
A W A R D
The termination of the services of the
workman passed by the management is held as unjustifiable.
Consequently the workman is awarded a compensation of Rs. 1,01,050/- (Rs. ONE LAC ONE THOUSAND FIFTY ONLY) payable by the management within one month after publication of the award, failing which the management shall pay interest @ 12% per annum from the date of award till realization.
Reinstatement, back wages, consequential benefits not ordered.
Reference is answered accordingly.
Let the requisite number of copies be sent to the appropriate government for publication and the file be consigned to RR.
23rd April, 2009 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 22/22