Delhi District Court
Between The vs The on 3 January, 2023
IN THE COURT OF AJAY GOEL, PRESIDING OFFICER-06,
LABOUR COURT, ROUSE AVENUE DISTRICT COURT, D.D.U.
MARG, NEW DELHI.
LID No. 125/16
Date of Filing 09.04.2015
Date of Award 03.01.2023
BETWEEN THE WORKMAN
Sh. Naveen Sharma, Age: 35 Years, S/o Sh. Om Prakash Sharma, R/o F-
212, Katwaria Sarai, New Delhi-110016, Mobile No. 8810127172.
AND
THE MANAGEMENT OF
M/s. Tata Consultancy Services,
PTI Building, 04, Parliament Street, New Delhi-110001.
AWAR D
1. By this award I shall dispose off statement of claim of workman
filed by him directly before the court under section 2A (2) of the Industrial
Disputes Act, 1947 against the management.
2. On perusal of record it is revealed that the present case is a direct
Industrial dispute and same is not LC. However, record reveals that in the
order sheet w.e.f. 08.02.2019, till date, the case is being listed under the
heading of LC instead of ID. Though since beginning it is LID. Correction
be made accordingly.
3. Brief facts as stated by the workman in his amended statement of
claim are that workman had been working with the management since the
year 2007 as an Assistant System Engineer initially and lateron promoted
LID No. 125/16 Page 1 of 23
as an IT Analyst. He started to work at a package of Rs. 4.5 lacs per
annum, which in his last year of employment raised to Rs. 8.67 Lac per
annum through yearly increments for his exceptional work and dedication;
that that during his services with the management, the workman got his
C4-C5 disk damaged and was not able to hold his head upright and his
neck movement was also restricted; that a part of that broken disk pushed
a certain nerve which also lead to partial paralysation of the workman's
right hand; that inspite of all physical and mental challenges, workman
worked hard and performed well in all his last project; cven after physical
challenge, workman was relocated to another city on deputation for project
work; that the nature of work of the workman was skilled and technical;
he did not have any managerial responsibilities nor did he supervise the
work of any other employee; his nature of work was clerical; that the
workman was under the constant supervision of his seniors occupying
managerial positions; that he was not responsible for hiring or firing,
initiating any disciplinary action nor could take any independent decision;
that he was supervised and controlled by people in managerial posts; that
the workman always worked with full sincerity, dedication and devotion;
that there was no complaint regarding the performance of his duties; that
the management even issued number of letters of appreciation which are
in possession of the management since his computer system was
confiscated without handing over his documents at the time of termination;
that the workman had been working with the management since year 2007
continuously and without any break and is more than 240 days; that the
services of the workman were illegally terminated by the management
without any just cause vide letter dated 19.12.2014 which was received by
an email attachment dated 29.12.2014 when workman was on leave; a
second termination letter was issued subsequently on 31.01.2015 which
LID No. 125/16 Page 2 of 23
referred to an illusionary resignation letter dated 13.01.2015, which
workman never submitted; that on protesting, the same email was resent
by deleting the work "resignation"; that the services of the workman were
terminated on the pretext of unallocation, which is an internal process
having no bearing on the services of the workman; that the management
has retained the persons much junior to the workman and has violated the
principal envisaged under Section 25 G of Industrial Disputes Act, 1947;
that the workman is unemployed since the date of his termination; that he
could not get any alternative employment despite best efforts made by
him; that he has no source of income to support his family.
Lastly, it has been submitted that the action of the management is
illegal, anti labour and in violation of principal of natural justice and the
same is liable to be set aside and the workman is entitled for reinstatement
in services with full backwages, continuity of services and all other
consequential benefits and entitlements as well as litigation cost.
4. Thereafter, notice was issued to management. Management appeared
and contested the present claim by filing the amended WS wherein it has
been stated that the claimant is an Engineering Graduate from RGPV,
Bhopal, in Electronics and a Master in Business Administration (MBA), in
Finance; that vide Appointment Letter dated 02.04.07 the claimant was
appointed in the Officer/Executive Cadre and designated as Assistant
Systems Engineer at the gross salary of Rs. 37,440/- per month with
additional benefits of Rs. Rs.10,137/- per month i.e. a total compensation
package of Rs. 47,577/- per month; that before being employed by the
management, the claimant had been working as Software Engineer with
Tera Informatics Pvt Ltd, Mumbai and before Tera Informatics Pvt Ltd, the
claimant was working with E Biz Technocrats Pvt Ltd as a
LID No. 125/16 Page 3 of 23
Technocrat/Software Engineer; that after the claimant worked for about 2
½ yrs with the management he on 01.01.10 was promoted to IT Analyst at
a gross annual salary of Rs. 5,86,238/-; that during the period of about 7 ½
yrs that the claimant was employed with the management the claimant was
discharging Consultancy and managerial functions; that being a Technocrat
Software Engineer and developer, the claimant contributed technically too
in the said projects along with other team members over whom he
exercised managerial functional and professionals of the client whom he
liaised with and managed; that being in the executive cadre, the claimant
never performed any manual work; that on the managerial side, the
claimant was leading and managing his team for effective discharge of
deliverables assigned to him by the management; that the claimant, besides
his duties as a Developer was assigned the larger role/position of Project
Manager w.e.f 18.04.2011; that his primary functions in this position, and
henceforth till his termination, were to manage project execution through
initiation, planning, implementation and closure; that the claimant was to
prepare and submit progress reports of his team; that the claimant was to
identify and assign appropriate roles to team members; that the claimant
has always accepted and acknowledged his managerial and administrative
functions/roles.
It had been further stated that the claimant was un-utilized and
redundant, but drawing full salary, for a period of nearly one year till his
termination from service; that as per practice, the claimant was given a full
opportunity and a long period to get a project assigned to himself for a
gainful engagement, however, the claimant was not successful despite the
opportunity and time; that the claimant also did not acquire any skill
enhancement during this period which all employees are encouraged to do;
that the skill development programs/modules are available free of cost on
LID No. 125/16 Page 4 of 23
the management's portal; that the management could ill-afford to pay full
salary to the claimant without work.
It has been further stated that the service of the claimant was
terminated invoking the provision of clause 10 of the Terms of Offer of
Employment dated 22.02.07. The claimant was given one month advance
notice by the management. Additionally, the claimant was paid one
month's salary as ex-gratia. Thus, in effect the claimant was accorded the
benefit of 2 month's notice out of a maximum of 3-months admissible.
The management duly settled and paid the gross salary the claimant was
entitled for the period of notice along with all other benefits admissible on
separation; that full and final Settlement (FFS)was processed on 23.01.15
and the full amount towards FFS was credited to the account of the
claimant on 27.01.15. Vide letter dated 31.01.15 the claimant was also
formally informed that his account had been credited with a sum of Rs.
2,53,321/-. The workman did not reject or dispute the quantum of payment
of arrears and had accepted the credit. Thus, there is no outstanding
amount or arrears to be paid to the claimant by the management.
The management has taken the preliminary Objections in WS that
the claimant is not a workman within the meaning of Section 2 (S) of the
ID Act. The claimant was employed in the Officer/Executive cadre of the
management. The claimant was discharging mainly administrative and
managerial functions leading the Team; that the fact that the claimant got a
promotion to the designation of IT Analyst w.ef. 01.01.10, and the fact that
the claimant became senior to the Assistant System Engineer, who reported
to him in his Team, and over whom the claimant exercised managerial and
administrative authority, would by itself dis-entitle the claimant to claim to
be a workman under the definition; that the claimant cannot raise an
Industrial Dispute; that admitted factum of promotion itself would
LID No. 125/16 Page 5 of 23
establish that the claimant cannot urge that he is a "workman" with the
meaning of Section 2(S) of the ID Act Act; that the Terms of Offer of
Employment dated 22.02.07 governs the employment terms of the
claimant. The appointment of the claimant was terminable under the terms
of his employment. Clause No. 10 of Terms of Offer of Employment dated
22.02.07 clearly provides that appointment could be terminated by either
the claimant or the management without assigning any reasons, by serving
the notice or payment of salary in lieu of the notice period; that the
appointment of the claimant was terminated by the management and he
was relieved from service vide letter dated 19.12.14, without assigning any
reason, in accordance with the terms of contract of service/appointment;
that the claimant's employment with the company was contractual in
nature and terminable by the parties at will; that the claimant cannot be
heard to first accept to serve the notice period pursuant to the letter of
termination dated 19.12.14; accept the payment for the said notice period
served; and further sums of Rs. 72,264/-(towards additional one month
notice period- ex gratia payment), Rs. 88,615/- (Gratuity), Rs. 51,491
(Leave Encashment)- aggregating to Rs. 2,54,287/- net of taxes, and then,
after almost 1 ½ months from the date of termination, cry foul; that there is
not a whisper of objection from the claimant against his termination
between 19.12.14 (the date of his termination) and 31.01.15 (the date of
the letter formally confirming his full and final settlement); that the
claimant's objections to the termination was afterthought as he began to
raise objection after 43 days of his termination and once a sum of Rs.
2,54,287/- was made to his credit on 27.01.15.
Rest of the contents of the claim were categorically denied and it
has been prayed that claim of the workman be dismissed
LID No. 125/16 Page 6 of 23
5. The workman thereafter filed rejoinder wherein all the contents of
the written statement were denied and the facts of the statement of claim
were reiterated and reaffirmed as correct and it has been prayed that an
award be passed in favour of the workman in terms of prayer made by him
in statement of claim.
6. On pleadings of the parties, following issues were framed vide
order dated 04.04.2016:
1) Whether the claimant is a workman as defined under Section 2 (s)
of the industrial Disputes Act, 197 (as amended upto date)?
2) Whether the services of the claimant/workman were terminated
by the management in terms of clause 10 of the terms of offer of
employment dated 22.02.2007, if so, its effect? OPM
3) Whether the claimant/workman accepted his full and final
settlement of account aggregating to Rs. 254287/- from the
management towards full and final settlement of his claim, if so, its
effect? OPM
4) Whether the services of the claimant/workman were terminated
by the management illegally and unjustifiably as claim by the
workman?
5) Whether the claimant/workman is entitled to relief claimed in the
statement of claim? OPW
6) Relief.
and thereafter, matter was adjourned for workman evidence.
7. In the meanwhile on 20.03.2017, an application u/s 6 Rule 17 R/w
Section 151 CPC was filed on behalf of the workman seeking amendment
LID No. 125/16 Page 7 of 23
in para No. 28 of the claim as under:
"28. that the workman is still unemployment & willing to
serve the management with the same level of dedication
and caliber. He could not get any alternative employment
despite best efforts made by him to secure an alternative
employment. He has no other means/source of income to
support his immediate family and ailing parents who are
senior citizen and in need of constant care and medical
support."
and vide order dated 09.08.2017 the said application was allowed and
workman was permitted to amend para No. 28 of his statement of claim as
prayed for. Thereafter, amended statement of claim was filed on behalf of
the workman and amendment WS was also filed on behalf of the
management and thereafter matter was listed for filing of rejoinder,
documents, admission denial of documents and framing of issues.
Since, on 27.03.2013, the parties submitted that issues in the matter
have already been framed vide order dated 04.04.2016, no additional
issue is required to be framed and no rejoinder to amended WS is required
to be filed, matter was listed for WE.
8. In workman evidence, the claimant examined himself as WW1. He
tendered his evidence by way of affidavit Ex WW1/A and relied upon
documents i.e. Ex WW1/1, Ex WW1/2, Ex WW1/3, Mark WW1/5, Mark
WW1/7, Mark WW1/8, Ex WW1/9, Mark WW1/10 to Mark WW1/22
and Ex WW1/23. He was also cross-examined by the management and on
20.02.2020, workman closed his evidence.
9. Thereafter, opportunity was given to the management to lead its
evidence. In ME, management examined Sh. Naresh Dash, Assistant
General Manager-Human Resources, of the management as MW1 in
LID No. 125/16 Page 8 of 23
chief. The said witness tendered his evidence by way of affidavit Ex
MW1/A and relied upon documents Ex MW1/1 and Ex MW1/12 and also
Mark A to Mark E.
This management witness was not cross-examined on behalf of the
workman despite several opportunities and accordingly, his cross-
examination, on behalf of the workman was treated as Nil (opportunity
granted). On 09.11.2022, management closed its evidence.
10. Since none appeared on behalf of the workman w.e.f. 14.09.2022 till
the matter was fixed for arguments and adjourned for orders, arguments
were heard on behalf of the management only and matter was listed for
orders.
11. I have perused the record. My issue wise findings are as under:
Issue No. 1. Whether the claimant is a workman as defined under Section
2 (s) of the industrial Disputes Act, 1947 (as amended upto date)? Issue
No 2 Whether the services of the claimant/workman were terminated by
the management in terms of clause 10 of the terms of offer of employment
dated 22.02.2007, if so, its effect? OPM Issue No. 3 Whether the
claimant/workman accepted his full and final settlement of account
aggregating to Rs. 254287/- from the management towards full and final
settlement of his claim, if so, its effect? OPM Issue No. 4. Whether the
services of the claimant/workman were terminated by the management
illegally and unjustifiably as claim by the workman? Issue No. 5.
Whether the claimant/workman is entitled to relief claimed in the
statement of claim? OPW.
All the above issues are inter-related as the finding of one issue has
a direct bearing on the other issues and as such all the above issues are
LID No. 125/16 Page 9 of 23
being taken up together.
The workman was required to prove that he is a workman as
defined under Section 2 (s) of the industrial Disputes Act, 1947 and his
services were terminated by the management illegally and unjustifiably
whereas, onus to prove whether the services of the claimant/workman
were terminated by the management in terms of clause 10 of the terms of
offer of employment dated 22.02.2007 and whether the claimant/workman
accepted his full and final settlement of account aggregating to Rs.
254287/- from the management towards full and final settlement of his
claim, was upon the management.
12. To begin with, who would be workman in terms of ID Act, we need
to refer to Section 2(s) of ID Act, that defines who shall be Workman to
invoke jurisdiction under ID Act, which reads as under:
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-
1) 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
2) who is employed in the police service or as an officer or
other employee of a prison; or
3) who is employed mainly in a managerial or
administrative Capacity; or
4) 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
LID No. 125/16 Page 10 of 23
attached to the office or by reason of the powers vested in
him, functions mainly of a managerial nature."
13. This question is to be determined because management has taken
the plea that the workman was working at managerial/supervisory
capacity.
Reliance is placed upon judgment titled as Kirloskar Brothers Ltd.
Vs. Presiding Officer, Labour Court, Delhi and Anr reported at 1976 ILR 1
DL 565, wherein the Hon'ble Apex Court observed that "Trial Court
should adopt a positive approach to examine whether particular employee
is a workman or not". To explain in candid term, the principle evolved and
adopted by the Hon'ble Apex Court is reproduced hereunder for ready
reference of this Hon'ble Court-
"10. In order to make a reference to a Labour Court or a Tribunal
of an Industrial dispute the first point that must engage the
attention of the appropriate Government is to decide whether the
complaining employee is a "workman". Even if reference is made
of a dispute then the Labour Court or the Tribunal must first apply
its mind to this problem for unless the employee concerned is a
workman the question of adjudication of an industrial disputes does
not arise. In my opinion the approach has to be a positive approach
and not a negative approach. In other words, what has to be seen is
whether the particular employee is a workman and not whether the
employee concerned falls within the exceptions mentioned in
Section 2(s) and if he does not fall in one of the exceptions then by
process of elimination he is held to be a "workman". A social
legislation like the Industrial Disputes Act confers certain rights
and obligations upon certain categories of persons. Those rights
and obligations must be limited to be attracted only in the case of
such persons as are covered by the statute. Certain rights are
conferred upon a "workman" as defined by Section 2(s) of the Act.
Therefore, those rights are available only to persons who can be
called workman and not to all those who are not covered by the
exceptions given in Section 2(s). To put in another way what has to
be seen is whether a person is a workman as opposed to what may
be called "non-workman and not whether he is a workman because
LID No. 125/16 Page 11 of 23
he is not a Manager or one employed in an administrative capacity.
It is possible that an employee in a given case may not be employed
in managerial and administrative capacity or in supervisory
capacity and yet he may not be a workman. If the approach is that
every employee is a "workman" but the benefits of raising an
industrial dispute is not available to those who are subject to the
Army Act, or the Air Force Act or the Navy (Discipline) Act or who
is employed in the police service or as an officer or other employee
of a prison or who is employed mainly in a managerial or
administrative capacity; or who being employed in a supervisory
capacity, draws wages exceeding five 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, then, in my opinion, the approach would be
incorrect. The proper approach in law would be to first see whether
an employee is a workman and then see whether any of the
exceptions are attracted. Reading the definition of the word
"workman" I find that it is necessary that a person must be
employed in an industry to do any skilled or unskilled manual,
supervisory, technical or clerical work for hire or reward. Thus the
first thing to find out is whether the employee concerned is
employed to do manual or clerical work, be it skilled or unskilled,
technical or non-technical. If that be so, then he would be workman
even if he is employed in a supervisory capacity line less by virtue
of being employed in supervisory capacity his wages exceed Rs.
500.00 or his duties or powers convert his employment into one
mainly of managerial nature. On the other hand, if manual or
clerical work is only small part of the duties of the person
concerned and incidental to his main work, which is not manual or
clerical then such a person would not be a workman. In
Management of M/s. May and Baker (India) Ltd. v. Their workmen
and Appellants, that court was concerned with construing Section
2(s) of the Industrial Disputes Act as it stood before the amendment
of 1956. The rule laid down was similar to the one which I have
propounded above and I think the rule still holds good despite the
substitution of clause (s) of Section 2 by the amendment Act, 36 of
1956. In the case of M/s. May and Baker, referred to above the
Supreme Court came to the conclusion that inasmuch as the main
work of the employee in that case was that of canvassing and any
clerical or manual work that he had to do was incidental to his
main work of canvassing the employee could not be regarded as a
LID No. 125/16 Page 12 of 23
person falling within the ambit of the term "workman". On good
authority, therefore, I hold that the approach has to be positive, as
said by me earlier and not negative to find out whether an
employee would fall within the ambit of the term workman."
14. It was further observed by Hon'ble Apex Court in case titled as in
ARKAL GOVIND RAJ RAO VS. CIB GEIGY OF INDIA PVT. LTD.
BOMBAY reported at 1985 (11) IL 401(403) SC wherein it was held that
"the dominant purpose of employment must be first taken
into consideration and gloss of some additional duties must
be rejected while determining the status and character of
the person."
15. From the perusal of the statement of claim filed by the workman and
document i.e. salary slip Ex WW1/2 (1-8 pages), it is clear that the
designation of the claimant was Assistant Systems Engineer in Grade C1,
who had joined at the salary of Rs. 37440/- i.e. annual package of Rs. 4.5.
lacs and lastly he was working as I.T. Analyst at annual package of Rs.
8.67 per annum.
16. As far as plea taken by the management in it WS is that vide
Appointment Letter dated 02.04.07 the claimant was appointed in the
Officer/Executive Cadre and designated as Assistant Systems Engineer at
the gross salary of Rs. 37,440/- per month with additional benefits of Rs.
Rs.10,137/- per month i.e. a total compensation package of Rs. 47,577/-
per month; that during the period of about 7 ½ yrs that the claimant was
employed with the management the claimant was discharging Consultancy
and managerial functions; that being a Technocrat Software Engineer and
developer, the claimant contributed technically too in the said projects
along with other team members over whom he exercised managerial
LID No. 125/16 Page 13 of 23
functional and professionals of the client whom he liaised with and
managed; that being in the executive cadre, the claimant never performed
any manual work; that on the managerial side, the claimant was leading
and managing his team for effective discharge of deliverables assigned to
him by the management; that the claimant, besides his duties as a
Developer was assigned the larger role/position of Project Manager w.e.f
18.04.2011; that his primary functions in this position, and henceforth till
his termination, were to manage project execution through initiation,
planning, implementation and closure; that the claimant was to prepare and
submit progress reports of his team; that the claimant was to identify and
assign appropriate roles to team members; that the claimant has always
accepted and acknowledged his managerial and administrative
functions/roles.
17. The workman during his cross-examination by Ld. AR for the
management stated that he had drawn his last wages from the present
management @ Rs. 70,000/- per month (approximately) after all legal
deductions. He admitted that he was posted at the post of Assistant System
Engineer (ASE) with the management. He was given a promotion from
his rank as ASE to IT Analysists w.e.f. 01.01.2010. To the question put to
him by Ld. AR for the management that would it be correct that post of
ASE was junior to IT Analysists, the workman replied yes it is correct. He
denied to the suggestion that after his promotion to IT Analysists, he had
been managing several ASEs or contractual employees or that they used to
report him. He further denied to the suggestion that imagination and
creativity was involved in his job profile or that research work was part of
his job. He further stated that there was no change in his nature of work
after his promotion and he remained JAVA Developer. He admitted that
LID No. 125/16 Page 14 of 23
he procure degree for MBA in Finance during his service period with the
present management. Though he further stated that he was not appointed as
project manager by the management on 18.04.2011 and he denied to the
suggestion that he was promoted to the post of project manager by the
management on 18.4.2011 but the same is against the record.
He denied to the suggestion that he was working as core consultancy
with the management w.e.f 2011 or that he was discharging his duty as
managerial capacity.
18. Management examined Sh. Naresh Dash, Assistant General
Manager, (HR) as MW1, who tendered his affidavit in evidence. The
workman has not cross-examined this witness as such, the affidavit filed
on behalf of MW 1 is take as gospel truth.
In his affidavit, MW1 has state that the claimant is an engineering
Graduate from RGPV Bhopal in Electronics and has Masters Degree in
Business Administration (MBA) in Finance. Before he was employed
with the management, he had been working as Software
Engineer/Technocrat with E-Biz Technocrats Pvt. Ltd and Tera
Informatics pvt. Ltd. Mumbai; that the claimant was appointed in the
Officer/Executive Cadre and designated as Assistant Systems Analyst; that
the gross salary of the claimant at the time of his appointment was Rs.
10,137/- per month with additional benefits of Rs. 10,137 per month i.e. at
a total compensation package of Rs. 47,577 per month; that he was then
promoted to System Analyst on 01.01.10 at gross annual salary of Rs.
586000/ and with subsequent increments his CTS became Rs. 867166/-;
that the claimant was discharging consultancy and managerial function
which entailed high degree of mental inputs, creativity and imagination
and also skills at managing his subordinates teem member and
LID No. 125/16 Page 15 of 23
professionals from the Client's team. That the claimant inter-faced and
jointly worked with the clients of the management as Developer,
Functional Consultant and Project Manager; that the claimant was also
assigned the role/position of project manager w.e.f. 18.04.2011.
19. Reliance is further placed upon judgment titled as S.K. MAINI VS.
CARONA SAHU COMPANY LIMITED AND ORS.
MANU/SC/0429/1994, wherein it was held by Hon'ble Apex Court that-
"whether appellant was workman - his predominant duty
was administrative or managerial and to some extent
supervisory in nature - although some of duties undertaken
by him like maintaining accounts filling certain proformas
were clerical in nature but his major job was managerial in
nature - appellant cannot be workman within meaning of
Section 2 (s)".
20. Further, the profile of the employee falls in exception IV of Section
2(s) of ID Act, as such, the instant proceedings initiated by the workman
are nothing but abuse of process of law. Exception IV of Section 2(s) of
ID Act is reproduced herein below:-
"Workman does not include any such personal
..... (iv) who, being employed in a supervisory
capacity, draws wages exceeding (ten thousand 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."
21. Reliance is further placed upon judgment passed by Hon'ble Delhi
High Court in case of YOUNG WOMEN'S CHRISTIAN
ASSOCIATION OF INDIA VS JYOTSNA PAUL Reported at 2004
ILR 2 DL 440 wherein the Hon'ble Court observed that
LID No. 125/16 Page 16 of 23
"I am of the view that the presumption is that an employee
does the job that he or she is employed to do. This is, of
course, a rebuttable presumption, the onus being on the
employee to show that he or she was actually doing some
other work than what he or she was employed to do. In the
present case it appears to me, as mentioned above, that the
Respondent has overstated her case; in the process she has
distorted the truth, which is that she was primarily concerned with managerial and supervisory functions, clerical and manual duties being incidental and occasionally necessary. The Respondent has not been able to successfully rebut the presumption that she was doing what she was employed to do".
It is not an out of place to mention herein that in manners, in which the locus standi of the claimant is to be tested has been meticulously examined and defined by the various courts in the aforesaid judgments, including that construed by the Hon'ble Apex Court, which has to be examined from the pleadings made and the evidence lead by the parties.
22. Reliance is further placed on Divyash Pandit Vs. The Management of National Council for Cement and Building Materials LPA 297/2009 decided on 29.03.2012, wherein Hon'ble court observed as under:
"....7. A Constitution Bench of the Supreme Court in H.R. Adyanthaya and Others Vs. Sandoz (India Ltd. And Others: 1994 (5)SCC 737, inter alia, held as under:
"We thus have 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 three-judge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Bunnah Shell cases (supra) have 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 LID No. 125/16 Page 17 of 23 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 LA 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."
8. The appellant before us admittedly is an engineering graduate. As per his own statement before the Tribunal he had been carrying out research work in process engineering field related to cement industry. He claims to have special knowledge in research work. It has also come in the deposition of Shri K.Suryanarayana and Shri R.P. Sharma that the appellant was supervising the employees working for routine, manual and stereotype work. The appellant was receiving wages of Rs.1600 p.m. even in the pre-revised scale. It has been noted by the Labour Court that the appellant was placed in the pre-revised scale of Rs.2200-4000 (revised pay scale of Rs.8000-13500). Therefore, we see no reason to interfere with the view taken by the Labour Court and the learned Single Judge in this regard. Considering the nature of the work which the appellant was performing, it cannot be said that he was doing any manual, unskilled, skilled, technical, operational or clerical work within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. The very nature of scientific research, which the appellant was carrying out, runs counter to his being a manual, unskilled, skilled, technical, operational or clerical worker within the meaning of Section 2(s) of the Act. We fail to appreciate how a scientist, who is a qualified engineering graduate and, is engaged in research work as well as supervising the work of other employees can be said to be a „workman‟ when a teacher has been held not to be a „workman‟. We, therefore, are in complete agreement with the view taken by the learned Single Judge with respect to the status of the appellant...."
23. Reliance is also placed on Tata Sons Ltd. Vs S. Bandyopadhyay CW No. 2523 of 1998 Decided on 17 March, 2004 wherein it has been observed as under:
"...2. The case law on the subject of how to determine whether an employee is a workman or not has been discussed by me in considerable detail in K.H. Pandhi Vs. Presiding Officer, CW No. 1224 of 1978 decided LID No. 125/16 Page 18 of 23 on 5th February 2004. It is not necessary for me, therefore, to repeat the case law or the discussion therein.
3. Suffice it to say that the Constitution Bench of the Supreme Court in H.R. Adyanthaya and Others Vs. Sandoz (India) Ltd., held that for an employee to be covered by the definition of "workman", he must be employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work. If he falls within these categories, it has then to be seen whether he comes within any of the four excluded categories mentioned in Section 2(s) of the Act. The Constitution Bench noticed certain earlier decisions where the initial determination was whether an employee falls within any of the excluded categories. If he did not fall within any excluded category, then it was held that he was a workman within the meaning of Section 2(s) of the Act. The Constitution Bench found this approach to be incorrect..."
"...19. The word "skilled" as in Section 2(s) of the Act has to be construed ejusdem generis, as held in Adyanthaya. So construed, it means skilled work, whether manual or non-manual, which is of a genre of the other types of work mentioned in the definition. The documentary evidence on record clearly shows that the work of the employee was that of a highly qualified and specialized consultant, in the field of risk management. By no stretch of imagination can he be called a skilled workman doing manual or non-manual work.."
"...21. I am aware that a writ court should not normally interfere with a finding of fact arrived at by the learned Labour Court. But, as discussed in Pandhi, the question whether an employee is a workman or not is a mixed question of law and fact. In the present case, the learned Labour Court having followed an approach not approved by the Supreme Court in Adyanthaya, a clear question of law does arise. A misunderstanding of the legal position caused the learned Labour Court to commit an error in concluding that the employee is a workman within the meaning of Section 2(s) of the Act. Under these circumstances, it has become necessary to interfere with the conclusion arrived at by the learned Labour Court, which is based on an incorrect appreciation of the law and facts.."
24. From the above discussion, it is clear that the claimant was highly educated Engineer having MBA Degree and was working as Assistant System Engineer (ASE) and thereafter as IT Analysists with the LID No. 125/16 Page 19 of 23 management. That the claimant was working in a managerial/supervisory capacity and is not a workman. Further the last drawn salary of the claimant, is much more than the slab fixed by the Statute, as such he is is not qualified to be Workman in terms of the Act. Thus, it is crystal clear that the nature of profile was not clerical but was managerial in nature which does not falls in the ambit of Workman as defined in Section 2 (s) of the ID Act.
25. That in the present case, admittedly, the relationship of employer and employee has not been denied by either of the party but the claimant is not workman as observed above and thus, Issue No. 1 is decided against the workman. So, in these circumstances, Issue No. 2, 3, 4 and 5 are not to be adjudicated but passing remarks are hereby made and some of the contentions are also discussed.
26. The workman in his cross-examination by Ld. AR for the management stated that he was not served any notice by the management or any compensation in lieu thereof. He Again said that management had given him only one month salary in lieu of three months notice of termination of his service. He denied that management had also served him one month notice. He further stated management has paid him one month salary only. But the management did not serve him notice as per clause 10 of my appointment letter. He denied the suggestion that management had paid him one month salary in lieu of notice or that management had served him one month advance notice. He admitted that management had not issued him any appreciation letter after 2011. He further admitted that his performance during last four years was not satisfactory. He further admitted that he was rated as C as per document Ex.WW1/8. He denied the LID No. 125/16 Page 20 of 23 suggestion that rating C means performance below satisfactory. He further admitted that he was not served for any occupational/accidental problem during his working hours. He further admitted that management had paid Rs.45,000/-, Rs.1,27,000/- and Rs.37,000/- to the hospital for his treatment against Health Insurance Policy. He denied the suggestion that management had not forced him for his resignation or that he was terminated after one month notice. He denied the suggestion that he could not develop technical skill to serve the foreign clients within last seven months of his service. He denied the suggestion that termination letter sent by post was served to him on 19/12/2014 or that same was refused, "as acknowledged on postal envelop" by him or that on his refusal of aforesaid letter, management had sent him another termination letter dt 29/12/2014. He denied the suggestion that management had terminated his services only on 19/12/2014 or that thereafter there was no termination of his service by the management.
He admitted that he was released effectively on 13/01/2015. He denied the suggestion that he had received Rs.72264/- as ex-gratia in addition to his one month salary. He admitted that he had received Rs.2,54,287/- by account transfer by the management as full and final settlement.
27. The management in its WS has taken the plea that a sum of Rs. 2,54,287/- was made to credit of the workman on 27.01.15 towards full and final settled of the matter. It has been further pleaded that the service of the claimant was terminated invoking the provision of clause 10 of the Terms of Offer of Employment dated 22.02.07. The claimant was given one month advance notice by the management. Additionally, the claimant was paid one month's salary as ex-gratia. Thus, in effect the claimant was LID No. 125/16 Page 21 of 23 accorded the benefit of 2 month's notice out of a maximum of 3-months admissible. The management duly settled and paid the gross salary the claimant was entitled for the period of notice along with all other benefits admissible on separation; that full and final Settlement (FFS) was processed on 23.01.15 and the full amount towards FFS was credited to the account of the claimant on 27.01.15. The workman did not reject or dispute the quantum of payment of arrears and had accepted the credit. Thus, there is no outstanding amount or arrears to be paid to the claimant by the management.
28. Since the workman has himself admitted during his cross- examination that he had received Rs. 2,54,287/- by account transfer by the management as full and final settlement, no question of termination of services of the claimant illegally or unjustifiably arises. To this effect, the reliance is placed upon AIR 1960 SC page 100 and Section 58 of the Indian Evidence Act, which clearly states that "admission is the best piece of evidence".
Moreover, the workman has not returned the said full and final settlement amount if he disputes his termination. I find support for this view from judgment passed by Hon'ble Supreme Court on 08.07.2008 in case titled as Ramesh Sankhala Vs. Vikram Cement etc. 2008 (14) SCC 58 wherein it was observed that workman cannot retain benefit if he want to prosecute claim petition instituted by him with Labour Court.
Further it has been held by Hon'ble High Court of Delhi in its judgment having titled as Shree Ji Sarees Vs. Ved Prakash Sharma, in Writ Petition (C) 2767 of 2012, decided on 21.05.2015 as under:
"..19. It is now settled law that a person who, approached court for enforcement of his legal rights must come to the court with clean hands LID No. 125/16 Page 22 of 23 and disclose all the facts to the court. Even when approaching a court of equity such as the High Court, invoking its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, the claimant should do so not only with clean hands but also with clean mind, clean heart and clean objective. Undoubtedly, the courts have to weight interest of justice vis-a-vis the private interest. However, a petition containing misleading and inaccurate statement(s), if filed to achieve an ulterior purpose, amounts to an abuse of process of the court. The court is not a forum to achieve an oblique purpose. Although, a beneficial legislation is to be given a liberal view and interpreted to the advancement of the class for which it is enacted. However, the court, cannot under the garb of the purpose which the enactment seeks to achieve, turn a blind eye and grant relief even in cases where the relief prayed is not established by evidences brought on record.."
29. So eventhough, issue No. 1 has not been proved, there is no need of adjudication of issue No. 2, 3, 4 and 5. But in the above circumstances, when the workman has been paid the full and final amount, which has been accepted by him, there is no illegal termination of the claimant.
30. Issue No. 6 Relief:- In view of the findings of the court on all the above issues, is held that the workman is not entitled to relief as claimed against the management and claim of workman stands rejected and award to that effect is hereby passed.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules. PRONOUNCED IN OPEN COURT ON 03.01.2023 (AJAY GOEL) PRESIDING OFFICER:LABOUR COURT-06 ROUSE AVENUE DISTRICT COURT NEW DELHI.
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