Delhi District Court
Shri Rajesh Kumar Thakur S/O Shri Dhani ... vs Supreme CoOperative Group Housing ... on 14 August, 2012
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR/D No. 1336/2011
Unique Case ID No. 02402C0205482011
Shri Rajesh Kumar Thakur S/o Shri Dhani Ram
R/o Quarter No. 813
Sector5, R.K. Puram
Delhi110022
..............................WORKMAN
Versus
Supreme Cooperative Group Housing Society Ltd.
Supreme Enclave, Mayur Vihar
PhaseI, Delhi
.......................MANAGEMENT
Date of institution of the case : 08.07.2011
Date for which Award reserved : 30.07.2012
Date of passing the Award : 14.08.2012
A W A R D
The claimant has filed his statement of claim directly
U/S 10 (4A) of the ID Act wherein he alleged that he joined the
establishment of the management since 11.07.1988 as Assistant
Manager but always performed the work of clerical nature and his
LIR/D No. 1336/2011 1 of 7
services were illegally terminated by the management on 03.06.2011
by issuing a show cause notice dated 03.03.2011 and since then he is
unemployed. He sent a demand notice dated 15.06.2011 which was
not replied. Hence the present claim was filed with prayer to
reinstate him back in service with full back wages and consequential
benefits.
2. The management appeared and opposed the claim by
filing WS wherein it was submitted that the present claim is not
maintainable as the management is a housing society and not an
Industry.
3. The workman further filed rejoinder wherein he
countered the allegations and reinstated his claim. From the
pleadings of the parties, a preliminary issue was framed on
20.07.2012as under :
"Whether the present claim is maintainable, the management being a Cooperative Group Housing Society?"
4. I have heard Shri Aditya Aggarwal Ld. Authorized Representative for the workman and Shri Ajit Chandra Ld. AR for LIR/D No. 1336/2011 2 of 7 the Management on the preliminary issue.
5. In order to succeed in a claim under Section 10 (4A) of the ID Act, it is mandatory for the claimant to prove that he is a workman and the management is an industry.
6. It was submitted by Ld. AR for Management that the management is a group housing society which is rendering personal services with the members of the society, i.e. the flat owners. He had placed reliance upon the judgment of the Hon'ble Supreme Court in Som Vihar Apartments Owners Housing Maintenance Society Ltd. Vs. Workmen (2002) 9 SSC 652 and argued that it is not an industry and therefore, the present claim is not maintainable.
7. Ld. AR for the workman claimed that since the management is carrying an organized activity, therefore, it is an industry and the present claim is maintainable. He also placed reliance upon a number of judgments. Reliance was placed by him on the judgment delivered in Secretary S. Attayampatty Peramanur Primary Agricultural Cooperative Bank Vs. The Deputy Commissioner of Labour etc. WP No. 17073 of 2000 of Hon'ble LIR/D No. 1336/2011 3 of 7 Madras High Court ; Ram Sahan Rai Vs. Sachiv Samanya Prabandhak & anr. (2001) I LLJ 1073 SC ; Gujarat State Co operative Land Development Ltd. Vs. PR Mankad & others AIR 1979 SC 1203 ; and Talwara Coop. Credit & Service Society Ltd. Vs. Sushil Kumar JT 2008 (11) SC 1. In all these cases, the management was a cooperative society. In the instant case, the alleged management is an association of group housing society which has been differentiated by the Hon'ble Apex Court in Som Vihar's case (supra) and therefore, these authorities are not applicable. Even otherwise, they touch different aspects which are not relevant to the facts of the relevant case. In Attayampatty's case (supra) was in respect of a matter under The Minimum Wages Act. Similarly, in Ram Sahan Rai's case (supra) there was an appeal in a civil suit which came up for hearing. In Gujarat State's case (supra) which was heavily relied upon by Ld. AR for workman , the matter for determination was under Section 54(1) of Bombay Cooperative Societies Act and Section 96, 97 of the Gujarat Cooperative Societies Act and the provisions contained therein , i.e. whether the Registrar was empowered under the Act to deal with termination and reinstatement of the workman or not. Hence, this authority is also not applicable to the facts of the present case.
LIR/D No. 1336/2011 4 of 7
8. In yet another judgment relied upon by Ld. AR for workman in Dilip Singh Parocha & others Vs. Mahalaxmi Coop. Housing Society Ltd. & anr. 2002 Bom. CR 581, the Court held that the Labour Court has to decide the issue whether the employee can be held to be workman and employer an industry and thus, remanded back the matter.
9. Lastly, Ld. AR for workman relied upon the judgment delivered in Hanshree Apartments Owners' Association Vs. Hanshree Apartment Owners' Employees' Union & others (1992) II LLJ 423 Calcutta , wherein the Hon'ble Calcutta High Court in similar set of facts as in the present case treated the employees appointed by the Board to render services in respect of common areas and common facilities to be workman and Housing Society as an industry. However, as per the law of precedent the judgment delivered by the Hon'ble Apex Court in Som Vihar's case (supra) would prevail over this judgment, also being later in time.
10. In Som Vihar's case (supra), the Society was formed to maintain cleanliness in the apartments and to render certain other LIR/D No. 1336/2011 5 of 7 services personally to the apartments owners themselves and for that purpose certain persons were employed. A reference was made as to whether workmen were entitled to dearness allowance, house rent allowance, conveyance allowance and uniforms and if so, to what extent ............... It was held by the Hon'ble Apex Court while discussing the judgment in Bangalore Water Supply and Sewarage Board Vs. A . Rajappa (1978) 3 SCR 207 that :
"The whole purpose of Industrial Disputes Act is to focus on resolution of industrial disputes and the regulation will not meddle with every little carpenter or a blacksmith , a cobbler or a cycle repairer who comes outside the idea of industry and industrial dispute. This rationale, which applies all along the line to small professions like that of domestic servants would apply to those who were engaged by a group of flat owners for rendering personal services even if that group is not amorphous but crystallised into an association or a society. The decision in Rajappa's case (supra) if correctly understood is not an authority for a proposition that domestic servants are also to be treated to be workmen even when they carry on work in respect of many masters. It is clear that when personal services are rendered to the members of a society and that society is constituted only for the purposes of those members to engage LIR/D No. 1336/2011 6 of 7 the services of such employees, we do not think its activity should be treated as an industry nor are they workmen . In this view of the matter so far as the appellant is concerned, it must be held not to be an industry".
11. The judgment delivered in Som Vihar's case (supra) clinches the issue in my opinion . The present employers are also an association of that owners who have employed the claimants for rendering personal services to the flat owners and as such their claim is squarely covered in the judgment rendered in the said case. It is accordingly held that the claimant is not a workman nor the management is an industry and as such the present claim is not maintainable. The preliminary issue is accordingly decided in favour of the management and against the workman .
Let the requisite number of copies be sent to the appropriate government for publication of the award. Case file be consigned to record room.
ANNOUNCED IN OPEN COURT ON 14th day of August 2012 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR/D No. 1336/2011 7 of 7