Delhi District Court
Sh. Dev Nath Tiwari S/O Late Sh. Saryoog ... vs (1) Ms/ Travel Corporation (India) Pvt. ... on 30 August, 2014
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 182/09
Date of Institution of the case : 30.05.2007
Date on which reserved for Award : 07.08.2014
Date on which Award is passed : 30.08.2014
Unique ID No. 02402C0466622007
Sh. Dev Nath Tiwari S/o Late Sh. Saryoog Tiwari,
R/o 217/6, Rajeev Gali, Gali No.3,
Shankar Marg, Mandawali Fazalpur,
Delhi110092. .................Workman
Versus
(1) Ms/ Travel Corporation (India) Pvt. Ltd.
Through Its Managing Director,
504505, Vth Floor, New Delhi House,
27, Barakhamba Road, New Delhi110001.
(2) Sh. J.A. Sachdeva/At present Sh. Anil Garg,
Vice President (FIN. & ADMIN.) N I,
504505, Vth Floor, New Delhi House,
27, Barakhamba Road, New Delhi110001. ...............Management
AWARD
The workman Sh. Dev Nath Tiwari, raised an industrial
dispute regarding the termination of his services by the management
of M/s Travel Corporation (India) Pvt.Ltd.. Direct statement of claim
was filed by the workman in the Court. In the statement of claim filed
by the workman, it was stated by the workman that the workman
joined the management vide his appointment letter dated 12.05.1976
D.I.D. No. 182/09 Page 1 out of 47
as Peon with the management with details as contained in
appointment letter, bearing employee code 00501 in the department of
Travel Operation; that the workman had been serving with the
management with utmost discipline and regularity upto the
satisfaction of the management of the company as it had also been
admitted by the management in their intimation letter dated
02.03.2007 issued to the workman for his forceful and illegal
retirement from 18 day of April, 2007 at the age of 55 years; that to
this effect, the workman Sh. Dev Nath Tiwari had met and requested
many higher officials of the management for extension of his
retirement age to 60 years as he was mentally and physically sound as
well as capable of continuing his services with satisfaction but all in
vain; that the workman seeing no way out left for him also got a letter
received by the management on dated 17th of April, 2007 mentioning
all his complaints and grievances for extension of his retirement age
but the management completely violated the set service rules and
norms and overlooked his requests; that, however, in this connection,
it was further observed that there were many persons in the
management who had this opportunity and chance or luck to retire at
the age of 60 years or above and some of such persons were Mr.
B.D.Rao, Mr. Nand Singh and many more; that this was out and out a
complete violation of service laws and rules by the management; that
the workman was also pressurized to surrender his attendance
punching card/I. Card and the scooter provided to him by the
management when he tried to continue his job at the office of the
management as well as his regular work place by way of punching his
D.I.D. No. 182/09 Page 2 out of 47
attendance card; that in natural course the workman should have
retired only on completion of his 60 years of age as has been
envisaged in the Industrial Employment (Standing Orders) Act, 1946
(as amended upto date) but in total violation of the said statutory
provisions the management had forcefully and illegally retired the
workman only at the age of 55 years and before five years in advance
and this had caused serious prejudice to his legal rights; that thus this
action of the management was absolutely discriminatory in nature
because the others employees of the organization namely S/Sh.
Swaran Singh, C.L.Sharma, Hasan Ali and Bhagwan Dass etc. had
retired on attaining the age of 60 years as per the records maintained
and held at the offices of the management, but there was no
jurisdiction as to why the workman had been forced to retire so early
at the age of 55 years only; that the workman was medically fit to
perform his assignments anywhere in India and there was no cause of
action to retire him at the age of 55 years and this had deprived the
workman of his legal rights to serve the organization for another 5
years or more as per the settled norms and traditions of the
management; that such illegal and wrongful act of the management
had rendered the workman unemployed and jobless and as such was
without any legal sanctity and was liable to be recalled forthwith; that
without prejudice to his other claims the workman was legally entitled
to be reinstated and taken back into his services without any break in
services with full seniority and continuity in service, with full back
wages and all service benefits as he was drawing at the time of his
illegal retirement/termination forthwith. Hence, the workman has
D.I.D. No. 182/09 Page 3 out of 47
claimed for his reinstatement in service with full back wages,
continuity of his service and all consequential benefits.
Notice of the filing of the statement of claim was sent to the
management which had appeared and contested the statement of claim
of the workman by filing its written statement. In the written
statement filed by the management, it has taken the preliminary
objections that the claimant had approached this Hon'ble Court under
Section 2 (A) of the Industrial Disputes Act, 1947 wherein it was
provided that
"Where any employer discharges, dismisses,
retrenches or otherwise terminates the services of an individual
workman, any dispute or difference between the workman and his
employer connected with, or arising out of, such discharge, dismissal,
retrenchment or termination shall be deemed to be an industrial
dispute notwithstanding that no other workman nor any union of
workman is a party to the dispute."
whereas the present industrial dispute was a case
simplicitor of the claimant attaining the age of superannuation in
terms of the contract of employment and thereupon receiving his dues
in full and final settlement; that as the case at hand was one of
superannuation, it did not come within the parameters of Section 2
(A) of the Industrial Disputes Act, 1947, as set out hereinabove; that
hence, the alleged industrial dispute raised by the claimant on
attaining the age of superannuation under Section 2 (A) was wholly
misconceived, untenable and without basis or foundation; that the
alleged dispute deserved to be summarily dismissed; that the claimant
D.I.D. No. 182/09 Page 4 out of 47
on attaining the age of superannuation had since received all his dues
in full and final settlement including gratuity under the provisions of
Payment of Gratuity Act, 1972; that as he had received all his
terminal dues, the present industrial dispute was untenable in law, and
therefore, deserved to be summarily dismissed; that the claimant in
the present industrial dispute was not a workman within the meaning,
scope and definition of Section 2 (s) of the Industrial Disputes Act,
1947, in as much as the nature of duties performed by him were of a
supervisory and administrative nature; that he was maintaining
independent liaison with various domestic airlines and was fully
empowered to independently act on behalf of the company in respect
of booking/purchasing of domestic airline tickets in respect of
customers and clients of the management; that hence, the claimant
wielded enormous financial powers and could hold the company
liable and responsible to pecuniary claims running into lakhs of
rupees, based on his actions; that the management, in order to
facilitate the claimant to independently discharge his duties provided
him with transport including free fuel and maintenance of vehicle at
Company expense in total; that such facilities and benefits were only
extended and available to supervisory, administrative and managerial
personnel employed in the company; that accordingly, the work, duty
and performance assigned to the claimant were not those of a
workman, consequently, he was not a workman as was defined in the
Section 2 (s) of the Industrial Disputes Act, 1947. On merits it was
stated that the claimant joined the services of the management in
1976; that he had put in 31 years' service; that at the time he joined
D.I.D. No. 182/09 Page 5 out of 47
the services of the management, he was issued an appointment letter
dated May, 12, 1976, wherein the terms and conditions of
employment were duly set out; that he was appointed to the post of a
Peon, but at the time he stood superannuated from the services of the
management, he was employed as a Senior Executive and was
performing supervisory and administrative duties independently; that
his last drawn gross monthly salary was Rs.14,721/(Rupees Fourteen
Thousand Seven Hundred Twenty One only); that it was admitted that
the claimant had served the management with utmost discipline and
regularity to their fullest satisfaction; that in fact, due to this reason,
the claimant while in the employment of the management, was
favourably considered for suitable increments and promotions; that
as stated hereinabove, while the claimant joined the services of the
management on the post of a Peon, but at the time he attained the age
of superannuation, he was designated as Senior Executive and was
performing supervisory, administrative and managerial duties; that
admittedly, the management issued the letter dated March, 02, 2007,
whereby it was duly communicated that the claimant would retire on
attaining the age of 55 years, and that based on the records available
with the company, he would stand retired effective April, 18, 2007;
that the management duly recorded their appreciation of the services
of the claimant; that they advised him to settle his dues expeditiously,
as also to hand over charge to Mr. Navneet Sahni, the then Branch
Manager, Travel; that it was further specifically repudiated that the
action of the management was either forceful or illegal as alleged; that
on the contrary, the management acted strictly in accordance with the
D.I.D. No. 182/09 Page 6 out of 47
contract of employment dated May,12, 1976; that furthermore, all
employees in the organization were superannuated on their attaining
the age of 55 years; that hence, the claimant could not allege
discrimination on this account; that it was admitted that the claimant
requested the higher officials of the management for his extension in
service and for his retirement at the age of 60 years; that however, his
such request was duly considered and thereupon he was specifically
advised that it was not possible to accede to his such request; that in
the circumstances, he was advised to collect his dues in full and final
settlement as he had attained the age of superannuation as per the
conditions of service applicable to him as set out in Clause 11 of his
Appointment Letter dated May, 12,1976; that it was denied that the
management violated any service rules or norms or conditions of
service as alleged; that hence, the claimant was put to strict proof in
this regard; that on the contrary, the management vide their letter
dated April, 25, 2007, responded to the alleged letter dated April, 17,
2007, and duly informed the claimant "We do not have any
employee in your category who had attained the age of 55 years and is
continuing in our services"; that he was, therefore, advised to collect
his dues in full and final settlement on his having attained the age of
superannuation as per Clause 11 of his Appointment Letter dated
May, 12, 1976; that Mr. B.D. Rao, retired from the services of the
Company on March 31, 2001 and Mr. Nand Singh, retired from the
services of the Company on November 30, 2000; that these two
employees on attaining the age of superannuation i.e. 55 years were
continued in the employment of the Company for the reason that at
D.I.D. No. 182/09 Page 7 out of 47
that juncture, the management considered that there was a
requirement for their expertise; that in such circumstances, the
services of these two employees was continued even after their
attaining the age of 55 years; that the claimant on attaining the age of
superannuation was required to surrender his Attendance Punching
Card including his Identity Card, as also the vehicle i.e. Scooter
provided to him by the management; that these were all properties of
the Company; that there was absolutely no requirement to retain him
in employment on his having attained the age of superannuation; that
the provisions of the Industrial Employment (Standing Orders) Act,
1946, were wholly inapplicable to the Establishment of the
Management that was covered by the provisions of the Delhi Shops &
Establishments Act, 1954; that in the circumstances, the reference to
the Industrial Employment (Standing Orders) Act, 1946, as amended
up to date was wholly misconceived and untenable; that the reference
to M/s Swaran Singh, C.L. Sharma, Hasan Ali and Bhagwan Das;
these employees were employed as Drivers and that their respective
dates of retirements from the services of the Company were:
(i) Mr. Swaran Singh March 31, 2001
(ii)Mr. C.L. Sharma March 31, 2001
(iii)Mr. Hasan Ali November 30, 2000
(iv)Mr. Bhagwan Das October 31, 2001
that hence, as on date, there was no employee retained in the
services of the Company who had attained the age of 55 years and
was continuing in the employment of the Company; that it was
reiterated that the services of the claimant were superannuated on his
D.I.D. No. 182/09 Page 8 out of 47
attaining the age of 55 years in terms of his contract of employment;
that there was no legal right vested in the claimant to continue in the
services of the management for a further period of five years i.e. up to
the age of 60 years as demanded in the corresponding paragraph of
the statement of claim; that it was specifically repudiated that the
action of the management in superannuating the claimant was either
illegal or wrongful as alleged; that further, his claim that he was
unemployed and jobless was irrelevant to the facts and circumstances
of the case as his contract of employment specifically provided that
he would continue in the services of the management till the age of 55
years; that notwithstanding, the claimant was put to strict proof of his
claims and contentions that he was unemployed and/or jobless; that it
was denied that the claimant was legally entitled either to be
reinstated or to be taken into service either with or without any break
in service and/or with full seniority and/or continuity in service and/or
with full backwages and/or all service benefits as he was drawing at
the time of his superannuation from service; that the claimant was not
eligible and/or entitled to any relief whatsoever; that the alleged
industrial dispute was patently misconceived and untenable. All other
allegations were denied. Hence, it was prayed that the statement of
claim be dismissed.
In rejoinder to the written statement of the management, all
the averments of the written statement of the management were
denied and that of the statement of claim were reaffirmed by the
workman.
On the pleadings of the parties, vide order dated 16.10.2007,
D.I.D. No. 182/09 Page 9 out of 47
the following issues were framed:
(i) Whether the workman is not workman under the I.D. Act?
(ii)Whether the workman is entitled for entire dues under I.D.
Act?
No other issue arose or pressed for and the case was
adjourned for workman evidence.
In support of his case, workman himself appeared as WW1
in workman evidence, tendered his affidavit by way of evidence
Ex.WW1/X as also relied upon the documents Exts.WW1/A to
WW1/D, on record.
After examining WW1, evidence on behalf of workman
has been closed, on record.
In support of its defence, the management has examined
Ms. Sonal Sachdev, Manager (HR) of the management as substituted
MW1 in management evidence, who has tendered her affidavit by
way of evidence Ex.MW1/A in the same as also relied upon
documents already Exts.WW1/M1 to WW1/M41, on record.
After examining MW1, evidence on behalf of the
management has been closed, on record.
Final arguments have been heard. Written submissions
have also been filed on behalf of the parties, on record, as also AR for
the management has relied upon citations viz. Binny Ltd. and
another, Appellants Vs. V.Sadasivan and others, Respondents, AIR
2005 SC 3202; Shri L.M. Khosla, Appellant Vs. Thai Airways International Public Company Limited and Anr., Respondents, D.I.D. No. 182/09 Page 10 out of 47 MANU/DE/3868/2012; Judgment dated 05.02.2014 of the Hon'ble High Court of Delhi passed in Writ Petition (C) No. 4354/2013 titled M/s Bhawani Dass Rameshwar DuttPetitioner Vs. Bali KaranRespondent; M/s British Paints (India) Limited Appellant Vs. Its Workmen Respondents, AIR 1966 SC 732; Shri K.A. Mohandas Vs. National Centre for the Performing Arts (NCPA) & Anr., 2013 LLR 609, Bombay High Court; Radhey Shyam and Anr. Vs. State of Haryana and Anr. (1998) II LLJ 1217 PH and Bharat Heavy Electricals Ltd. Vs. Anil and Ors. AIR 1995 SC 1715 in support of his submissions on behalf of the management.
My findings issuewise are as under: ISSUE NO.1 It is seen from the record that the workman has appeared as WW1 in workman evidence, tendered his affidavit by way of evidence Ex.WW1/X as also relied upon documents Exts.WW1/A to WW1/D in the same. In his affidavit by way of evidence Ex.WW1/X, he has reiterated the contents of his statement of claim to the effect that the workman had joined the management vide his appointment letter dated 12.05.1976 as Peon with the management with details as contained in appointment letter, bearing employee code 00501 in the department of Travel Operation; that the workman had been serving with the management with utmost discipline and regularity upto the satisfaction of the management of the company as it had also been admitted by the management in their intimation letter dated 02.03.2007 issued to the workman for his D.I.D. No. 182/09 Page 11 out of 47 forceful and illegal retirement from 18.04.2007 at the age of 55 years; that to this effect, the workman had met and requested many higher officials of the management for extension of his retirement age to 60 years as he was mentally and physically sound as well as capable of continuing his services with satisfaction but all in vain; that the workman seeing no way out left for him also got a letter received by the management on dated 17.04.2007 mentioning all his complaints and grievances for extension of his retirement age but the management completely violated the set service rules and norms and overlooked his requests; that, however, in this connection, it was further observed that there were many persons in the management who had this opportunity and chance or luck to retire at the age of 60 years or above and some of such persons were S/Sh. B.D.Rao, Nand Singh, Madan Kak, Mrs. Athel Fernandes (Mumbai), Harsh Dev, Bagh Singh, Murlidhar Malashi and many more; that this was out and out a complete violation of service laws and rules by the management; that the workman was also pressurized to surrender his attendance punching card/I. Card and the scooter provided to him by the management when he tried to continue his job at the office of the management as well as his regular work place by way of punching his attendance card; that in natural course the workman should have retired only on completion of his 60 years of age as had been envisaged in the Industrial Employment (Standing Orders) Act, 1946 (as amended upto date) but in total violation of the said statutory provisions the management had forcefully and illegally retired the workman only at the age of 55 years and before five years in advance D.I.D. No. 182/09 Page 12 out of 47 and this had caused serious prejudice to his legal rights; that thus this action of the management was absolutely discriminatory in nature because the other employees of the organization namely S/Sh.Swaran Singh, C.L.Sharma, Hasan Ali and Bhagwan Dass etc. had retired on attaining the age of 60 years as per the records maintained and held at the offices of the management, but there was no jurisdiction as to why the workman had been forced to retire so early at the age of 55 years only; that the workman was medically fit to perform his duty and assignments anywhere in India and there was no cause of action to retire him at the age of 55 years and this had deprived the workman of his legal rights to serve the organization for another 5 years or more as per the settled norms and traditions of the management; that such illegal and wrongful act of the management had rendered the workman unemployed and jobless and as such was without any legal sanctity and was liable to be recalled forthwith; that without prejudice to his other claims the workman was legally entitled to be reinstated and taken back into his services without any break in services with full seniority and continuity in service, with full back wages and all service benefits as he was drawing at the time of his illegal retirement/termination forthwith; that the workman also sent the legal notice dated 16.05.2006 through his counsel to the management through Registered A.D./UPC/Courier which was duly served upon the management.
Ex.WW1/A being appointment letter dated 12.05.1976 of the workman with the management; Ex.WW1/B being the letter dated 02.03.2007 of the management to the workman in D.I.D. No. 182/09 Page 13 out of 47 respect of his retirement from the services of the management on attaining the age of 55 years with effect from 18.04.2007; Ex.WW1/C being letter dated 17.04.2007 of the workman to the management against his retirement from the services of the management on attaining the age of 55 years; Ex.WW1/D Colly being copy of legal notice dated 16.05.2007 of the workman to the management along with its postal registration receipts, UPC and courier receipts.
This witness has been cross examined at length on behalf of the management in workman evidence, in which he has deposed that it was correct that he had approached this Hon'ble Court because he had attained the age of 55 years, hence, was retired from service by the management; that it was correct that he was retired from the services of the company on 18.04.2007; that it was correct that thereafter he had received from the company his gratuity amounting to Rs.1,72,426.00; that he had also received his salary upto 18.04.2007; that it was incorrect to suggest that he had received from the company all his dues in full and final; that he had to yet receive his back wages i.e. wages from 18.04.2007 the date he was superannuated; that he had to get from the management his future wages i.e. wages till his attaining the age of 60 years; that he had to receive from the management his increments and promotions in service after 18.04.2007; that besides these amounts that were due and payable for a full and final settlement, he was required to receive his provident fund dues; that it was correct that as regards the payment of provident fund was concerned, the amount was either transferred to the next employer or was paid to the employee on his D.I.D. No. 182/09 Page 14 out of 47 making an application for refund/repayment of the provident fund monies in the account of the individual employee; that it was correct that the provident fund payment could not be released by the employer without receiving an application for the payment to the employee; that it was correct that he had made no request or application to the management for refund/payment of his PF dues; that it was correct that the management had made repeated attempts and requests for the repayment of his provident fund dues but he could not be contacted due to being in his village in Bihar; that he did not remember the dates he was in his native place in Bihar; that in the event the management to offer him his provident fund dues before this Hon'ble Court, he shall not receive his provident fund dues and payment; that he was willing to accept his PF contribution accruable as on date before this Court; that he had received from the management as on date the following:
(i) Gratuity (ii) Part provident fund; that besides these two amounts, he had not received any other payment whatsoever from the management at the time/thereafter of superannuation. QPlease explain what did he mean by saying 'Part Provident Fund'? Ans. After 18.04.2007 back wages with salary increments; that as he was prematurely retired perforce the provident fund for the period that was remaining in his service was not added; that through this petition he was claiming his salary, provident fund, gratuity for the residuary period of his service, had he not been retired on 18.04.2007; that it was correct that Ex.WW1/M1 had been signed by him as Employees Data Form; that the same bears his signatures at point A; that D.I.D. No. 182/09 Page 15 out of 47 Ex.WW1/M2 was the appointment letter which was issued to him; that it bears his signature in token of acceptance at point A; that it was correct that Ex.WW1/M3 was a letter issued to him in March, 2007 that he would be superannuated on 18.04.2007; that the said letter was received by him under protest; that on 17.04.2007 he wrote a letter to the management; that same was Ex.WW1/M4; that it was correct that he received the reply from the management on 25.04.2007 which was Ex.WW1/M5; that it bears his signature at point A. Vol. He performed his duties with the management upto 24.04.2007; that it was correct that Ex.WW1/M6 and Ex.WW1/M7 were the payslips for the months of March and April, 2007 respectively; that he had received the amount of gratuity from the management vide Ex.WW1/M8; that Ex.WW1/M9 was a receipt of the payment made towards scooter repair and maintenance provided to him by the management; that the supporting vouchers were Ex.WW1/M10 and Ex.WW1/M11; that Ex.WW1/M12 to Ex.WW1/M27 were the receipts of payment made to him for maintenance and parking charges of the vehicle by the management; that Ex.WW1/M28 to Ex.WW1/M31 and Ex.WW1/M34 to Ex.WW1/M37 were the tickets issued by him to various customers in the discharge of his duties; that the record of the tickets issued was maintained by him in his handwriting were Ex.WW1/M32 and Ex.WW1/M33; that the receipts and the request slips were Ex.WW1/M38 to Ex.WW1/M41; that it was correct that he was issued appointment letter Ex.WW1/M2; that he did not write any letter to the management regarding his appointment letter from the date of his appointment to the date of his D.I.D. No. 182/09 Page 16 out of 47 superannuation; that it was correct that the terms of his appointment had made it clear that the age of superannuation would be 55 years; that the last drawn salary was Rs. 14,721/; that it was further correct that he was working for the post of Sr.Executive in the Travel Department; that it was also correct that he used to report to Sh. Sanjeev Mahajan, Head of the Operation; that it was correct that he was working in the Domestic Operation department and there were 12 employees under him; that it was correct that his duties entailed ensuring that clients booking for Air reservations, Air tickets, Sales reports of various airlines was maintained by the staff working under his supervision; that he was also provided with the vehicle for the official work; that it was correct that he worked for more than 31 years without any blemish or any difficulty in the discharge of his duty; that it was correct that he was inducted as a Peon and thereafter he was promoted as Senior Executive finally; that S/Sh. Murli Dhar Malasi and Suresh Jugran were also inducted as Peons who had been promoted upto Asst Manager and Transport Executive respectively; that it was correct that he had given the management letter dated 17.04.2007 Ex.WW1/M4; that whatever had been stated in his letter dated 17.04.2007, the same was true and correct; that it was correct that he had stated in the said letter that he had two unmarried daughters, who were at school going age; that their names were Ms. Manorama who was aged about 24 years and Ms. Sarita aged about either 17 or 18 years old; that the elder daughter had been given up her studies but the younger was studying in Inter College in the village at Bihar; that he did not have any documentary evidence in D.I.D. No. 182/09 Page 17 out of 47 support of his said statement just now but could do so and would file the same before this Court, when it was available with him; that it was correct that his family consisted of his wife Smt. Kusum Devi who was aged about 53 years; that his son Vinod Kumar Tiwari was aged about 33 or 34 years old; that he was sitting idle at home; that he was educated upto high school; that till date he continued to remain unemployed and was at home; that he was married and had three children; that he did not know the age of his three grand children; that they were born in Bihar and were living in Bihar so he did not know their age; that his second son was Mr. Ved Prakash Tiwari; that he was not employed anywhere; that he was studying in Bihar in college but he was not married; that he had yet another son namely Manoj Kumar Tiwari, who was aged about 3032 years old; that he was unemployed and living with him in Delhi; that till date he had remained unemployed; that he had not worked anywhere; that in paragraph no.5 of his affidavit the names of employees mentioned by him had retired from the services of their company on various dates of their attaining age of 58, 60, 62 and 65; that the ages mentioned by him were the various ages on which the employees had been retired; that the designation at which the employees mentioned in paragraph no.5 of his affidavit were superannuated from service by the management were as under: (1) Mr. B.D. Rao retired as Area Manager at the age he thought 65 years.
(2) Mr. Vinod Singh, he did not know his designation or age at which he retired.
D.I.D. No. 182/09 Page 18 out of 47 (3)Mr. Nand Singh, Peon, retired at the age of 62 years. (4)Sh. Madan Kak, he did not remember the designation but he was employed on a higher post; that he retired at the age of, he did not know but may be 60 years.
(5)Mrs. Esthael Fernandes, she retired at the age of 58 years. He thought her designation was Stenographer.
(6) Mr. Harsh Dev, retired at the age of 60 years and his designation was Driver.
(7) Mr. Bagh Singh, he thought it was may be fifty eight years when he superannuated and his designation was Peon. (8)Mr. Murli Dhar Malashi, retired at the age of 58 years and his designation was Assistant Manager.
As regard the aforementioned exemployees he could only produce documentary evidence with regard to Sh. Harsh Dev and Mr. Bagh Singh; that he would file it in the Court as and when it was available to him; that hence, at present, he had no documentary evidence in support of what he had stated in paragraph no.5 of his affidavit; that it was correct that what he had stated in paragraph no.6 of his affidavit was only a verbal conversation between him and the management, he did not give any letter to the management in respect of what he had stated in paragraph no.6 of his affidavit; that his claim before the Hon'ble Court was that he had been wrongly retired and should have continued in employment till attaining the age of 60 years and that he should be paid full backwages for this entire period alongwith annual increments, bonus, PF contribution and the like; that his claim was based on the fact that the management had been retiring D.I.D. No. 182/09 Page 19 out of 47 various employees at different ages between 55 to 65 years; that hence, his claim was based on this fact in this case; that he had been retired by the management at the age 55 years; that he did not know whether the management had retired any other employee at age 55 years; that he did not have any documentary evidence in support of his statement in paragraph no. 7 of his affidavit that M/s Swarn Singh, C.L. Sharma, Hassan Ali and Bhagwan Dass had retired on attaining the age of 60 years; that he had not filed any medical certificate or medical fitness certificate in support of the fact as stated in paragraph no.7 of his affidavit; that it was correct that he had recently suffered a fracture in his right hand and that he was still in pain due to it; that while in employment he used to visit his native place once or twice in a year but last year in 2008 he visited his home town on three occasions; that as regards the year 2007 he did not remember as to on how many occasions did he visit his native place but he was in service till April, 2007; that he was presently residing at B2/70, Dayalpur, Delhi110094; that this accommodation has been taken by him on rent; that he was paying a monthly rent of Rs. 2,000/; that he could not produce any rent receipt of the same in support of his statement; that it was wrong to suggest that he was engaged in the sale of ladies suit from his house; that he was making both ends meet on the basis of loans taken by him from his friends as also from the money received by him from the company towards his PF, gratuity and other retiral dues; that he had not taken any other money from any other sources; that he could not produce any documentary evidence in support of his statement that he had taken loans from his friends as D.I.D. No. 182/09 Page 20 out of 47 they were friendly loans; that he could not tell the Court as to what his average monthly expenditure was as it was variable. Que Could he tell the court specifically the items of expenditure he spent on a month to month basis for the upkeep of himself and his family members who were all residing with him?
Ans. As and when he visited his native place they provided him with various utilities for maintaining his family; that it was wrong to suggest that he was deposing falsely.
Thereafter, workman evidence has been closed, on record. In the management evidence the management has led the evidence of Ms. Sonal Sachdev, Manager (HR) of the management, who has appeared in the management evidence as substituted MW1, tendered her affidavit by way of evidence Ex.MW1/A as also relied upon the documents already Exts.WW1/M1 to WW1/M41 in the same, on record. In her affidavit by way of evidence Ex.MW1/A she has reiterated the contents of the written statement of the management and has deposed to the effect that she had joined the services of the Company with effect from September 03, 2012, on the post of ManagerHR; that she had carefully perused the records of the case and that of the company and was deposing before this Hon'ble Court on the basis of documents available with the company in respect to this case; that she stated on the basis of records that the claimant, on attaining the age of superannuation i.e. 55 years, ceased to be in their employment and had since received all his dues in full and final settlement including gratuity under the provisions of the Payment of Gratuity Act 1972; that as he had received all his terminal dues, the D.I.D. No. 182/09 Page 21 out of 47 present industrial dispute was untenable in law and, therefore, deserved to be summarily dismissed; that the claimant joined the services of the management in 1976; that he put in 31 years' service; that at the time he joined the services of the management, he was issued an appointment letter dated May 12,1976 wherein the terms and conditions of his employment were duly set out and prior to his joining their services he had filled the Employee Data Form; that at the time the claimant stood superannuated from the services of the management, he was employed as a Senior Executive; that he was performing supervisory and administrative duties independently; that his last drawn gross monthly salary was Rs.14,721/ (Rupees Fourteen Thousand Seven Hundred Twenty One only); that the claimant, while in the services of the management, worked with utmost discipline and regularity; that due to this reason, the claimant, while in the employment of the management, effectively progressed and was favourably considered for suitable increments and promotions from time to time and was, therefore, entrusted with onerous duties and responsibilities of a supervisory and administrative nature; that the claimant was maintaining independent liaison with various Domestic Airlines; that he was fully empowered to independently act on behalf of the Company in respect of booking/purchase of Domestic Airline tickets in respect of customers and clients of the management; that he wielded enormous financial powers and could hold the company liable and responsible to pecuniary claims running into lakhs of rupees, based on his actions; that the management, in order to facilitate the claimant to D.I.D. No. 182/09 Page 22 out of 47 independently discharge his duties, provided him with transport including free fuel and maintenance of vehicle at Company expenses in total; that such facilities and benefits were only extended and available to supervisory, administrative and managerial personnel employed in the Company; that the management issued the claimant a letter dated March 2, 2007, whereby it was duly communicated that he would retire on attaining the age of 55 years, and that based on the records available with the company, he would stand retired effective April 18, 2007; that on that occasion, the management duly recorded their appreciation of the services of the claimant; that they advised him to settle his dues and to hand over charge to Mr. Navneet Sahni, the then Branch Manager, Travel; that hence, the management acted strictly in accordance with the Contract of Employment dated May 12, 1976; that all employees in their organization were superannuated on their attaining the age of 55 years; that, hence, the claimant could not allege discrimination on this account; that admittedly, the claimant had requested the management for grant of extension in service vide his letter dated April 17, 2007; that however, his such request was duly considered and thereupon he was specifically advised that it was not possible to accede to his such request vide management reply dated April 25, 2007; that in the circumstances, he was advised to collect his dues in full and final settlement as he had attained the age of superannuation as per the conditions of service applicable to him as set out in Clause 11 of his Appointment Letter dated May 12, 1976; that the provisions of the Industrial Employment (Standing Orders) Act, 1946, were wholly inapplicable to the D.I.D. No. 182/09 Page 23 out of 47 establishment of the management that was duly registered under the provisions of the Delhi Shops & Establishments Act, 1954; that in the circumstances, the reference to the Industrial Employment (Standing Orders) Act, 1946 was wholly misconceived and untenable; that the claimant had no legal right vested in him to continue in the services of the management on his attaining the age of 55 years in terms of his Contract of Employment; that in the circumstances, the alleged industrial dispute raised by him was both misconceived and untenable; that he was not eligible and/or entitled to any relief of any nature whatsoever.
Ex.WW1/M1 being the Employee Data Form in respect of the workman with the management; Ex.WW1/M2 being the appointment letter dated 12.05.1976 of the management in respect of the workman on the post of a Peon on a consolidated remuneration of Rs. 145/ per month in the grade of Rs.1455170/ with effect from 14th May, 1976 on the terms and conditions of service as mentioned therein; Ex.WW1/M3 being the letter dated 2nd March, 2007 of the management to the workman retiring him at the age of 55 years with effect from 18.04.2007; Ex.WW1/M4 being letter dated 17.04.2007 of the workman to the management against his retirement from his service with the management on attaining the age of 55 years on 17.04.2007; Ex.WW1/M5 being letter dated 25.04.2007 of the management to the workman in response to his letter dated 17.04.2007; Exts.WW1/M6 and WW1/M7 being pay slips of the management in respect of the workman for the months of March, 2007 and April, 2007 respectively; Ex.WW1M8 being a receipt dated D.I.D. No. 182/09 Page 24 out of 47 01.05.2007 in respect of an amount of Rs. 1,72,426/ vide cheque No. 001353 dated 26.04.2007 drawn on BNP Paribas, Mumbai of the workman towards gratuity settlement; Ex.WW1/M9 being a receipt of the payment made towards scooter repair and maintenance provided to the workman by the management; Exts.WW1/M10 and WW1/M11 being the supporting vouchers thereof; Exts.WW1/M12 to WW1/M27 being the receipts of payment made to the workman for maintenance and for the parking charges of the vehicle by the management; Exts.WW1/M28 to WW1/31 and Exts.WW1/M34 to WW1/M37 being the tickets issued by the workman to the various customers in the discharge of his duties; Exts.WW1/M32 and WW1/M33 being the record of the tickets issued as maintained by the workman in his handwriting; Exts.WW1/M38 to WW1/M41 being the receipts and the request slips of the Airlines tickets prepared/booked by the workman.
This witness has been cross examined at length on behalf of the workman in management evidence in which she has deposed that it was correct that in view of her having joined the management as Manager (HR) on 03rd September, 2012, she had got no personal knowledge of the case of the workman and was deposing on the basis of official records; that it was correct that all employees of the management were retiring on attaining the age of 55 years; that there was no written policy of the management in respect of the retirement age of the employees. Vol. The retirement age of the employee was mentioned in the terms and conditions of his appointment letter; that it was correct that in all the appointment letters of the employees, the D.I.D. No. 182/09 Page 25 out of 47 retirement age was mentioned as 55 years; that it was correct that the retirement of the employees of the management at the age of 55 years was the policy of the management since the beginning; that it was wrong to suggest that employees namely S/Sh. Nand Singh, Bagh Singh, and Harsh Dev of the management had retired on attaining the age of 58 years; that it was wrong to suggest that employee by the name Sh. Sharad Saxena, Deputy Manager was in the employment of the management at the age of 59 years; that it was correct that there was a scheme of the management of giving pension to its retired employees; that she could not tell as to when the pension was first paid to the workman by the management. Vol. The subscription towards EPF and EPS was made by the employer and the employee to the concerned authority which was subsequently paid by the authority concerned; that she could not said whether the workman was first given his pension by the authority concerned on attaining the age of 58 years; that she could not say whether any other employee had submitted any application for extension of their service; that it was wrong to suggest that any employee had worked with the management after attaining the age of 55 years; that it was wrong to suggest that an employee namely Sh. Harsh Dev had worked with the management till the age of over 60 years and was retired w.e.f. 31st March, 1998; that it was wrong to suggest that she was deposing falsely.
Thereafter, management evidence has been closed, on record. It is seen from the record that the workman has admitted in his cross examination as WW1 on behalf of the management in workman D.I.D. No. 182/09 Page 26 out of 47 evidence "The last drawn salary was Rs.14,721/. It is further correct that I was working for the post of Sr. Executive in the Travel Department. It is also correct that I used to report to Sanjeev Mahajan, Head of the Operation. It is correct that I was working in the Domestic Operation department and there were 12 employees under me. It is correct that my duties entailed ensuring that clients booking for Air reservation, Air tickets, Sales reports of various airlines was maintained by the staff working under my supervision. I was also provided with the vehicle for the official work. It is correct that I worked for more than 31 years without any blemish or any difficulty in the discharge of my duty. It is correct that I was inducted as a Peon and thereafter I was promoted as Senior Executive finally. Murli Dhar Malasi and Suresh Jugran were also inducted as Peons who had been promoted upto Asst. Manager and Transport Executive respectively."(emphasis supplied) It has been held vide the Hon'ble Supreme Court of India vide citation viz. All India Reserve Bank Employees Association v. Reserve Bank of India, AIR 1966 SC 305: MANU/SC/0240/1965: "31. It may be mentioned here that Mr. Chari attempted to save the employees in Class II from the operation of the exceptions in Clause (iv) by referring to their duties which he said were in no sense 'supervisory' but only clerical or of checkers. He also cited a number of cases, illustrative of this D.I.D. No. 182/09 Page 27 out of 47 point of view. Those are case dealing with foremen, technologists, engineers, chemists, shift engineers, Asstt. Superintendents, Depot Superintendents, godownkeepers etc. We have looked into all of them but do not find it necessary to refer to any except one. In Ford Motor Company of India v.
Ford Motors Staff Union, [1953] 2 L.L.J. 444 the Labour Appellate Tribunal correctly pointed out that the question whether a particular workman is a supervisor within or without the definition of 'workman' is "ultimately a question of fact, at best one of mixed fact and law. ..." and "will really depend upon the nature of the industry, the type of work in which he is engaged, the organisational setup of the particular unit of industry and like factor". The Labour Appellate Tribunal pertinently gave the example that "the nature of the work in the banking industry is in many respects obviously different from the nature and type of work in a workshop department of an engineering or automobile concern." We agree that we cannot use analogies to find out whether Class II workers here were supervisors or doing mere clerical work. No doubt, as Mr. Chari stated, the work in a Bank D.I.D. No. 182/09 Page 28 out of 47 involves layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision. In Llyods Bank Ltd. V. Pannalal Gupta [1961] 1 L.L.J. 18, the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn. It is pointed out there that before a clerk can claim a special allowance under Para 164 (b) of the Sastry Award open to Supervisors, he must prove that he supervises the work of some others who are in a sense below him. It is pointed out that mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision and the work done in the audit department of a bank is not supervision.
32.The Reserve Bank has placed on record extract from the manuals, orders, etc., relative to all class II employees and on looking closely into these duties we cannot say that they are not of a supervisory character and are merely clerical or checking. These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the D.I.D. No. 182/09 Page 29 out of 47 duties which are supervisory and not merely clerical. Without discussing the matter too elaborately we may say that we are satisfied that employees in class II except the personal assistants, were rightly classed by the national tribunal as employed on supervisory and not on clerical or checking duties. In view of the fact that all of them now receive even at the start "wages" in excess of Rs. 500 per month, there is really no issue left concerning them, once we have held that they are workings in a supervisory capacity."
The High Court of Bombay in the case of Vilas Dumale v. Siporex India Ltd. and Anr., MANU/MH/0316/1997: 1998 LLR 380 has held as under : "6. The Counsel for the petitioner has also relied on a judgment given in case of S.K. Maini v. M/s Carona Sahu Company Limited and others, reported in 1994 2 CLR 359. In this case, the Supreme Court has laid down the principles for the determination of the question as to whether a particular employee falls within the definition of workman. In the said case it has been observed as under:
"Whether or not an employee is a workman under D.I.D. No. 182/09 Page 30 out of 47 Section 2 (s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2 (s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. The designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative D.I.D. No. 182/09 Page 31 out of 47 factor is the main duties of the concerned employee and not some works incidentally done. In other words, that is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as defined in Section 2 (s) of the Industrial Disputes Act."
Further in the case of G.M.Pillai v. A.P. Lakhanikar, Judge, III Labour Court & Ors., MANU/MH/0781/1998: 1998 LLR 310 High Court of Bombay has held as under: "In determining the question whether a person employed by the employer is workman under Section 2 (s) of the Industrial Disputes Act or not, the Court has principally to see main or D.I.D. No. 182/09 Page 32 out of 47 substantial work for which the employee has been employed and engaged to do. Neither the designation of the employee is decisive nor any incidental work that may be done or required to be done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employee over the employees of lower ladder without any control may not by itself be sufficient to bring that employee in the category of Supervisor, yet if the principal job of that employee is to oversee the work of employees who are in the lower ladder of the hierarchy and he has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. Each case would depend on the nature of the duties predominantly or primarily, performed by such employee and whether such function was supervisory or not would have to be decided on facts keeping in mind correct principles. In John Joseph Khokar v. B. S. Bhadange and two others 1997 (77) FLR 900, I observed, "Whether the D.I.D. No. 182/09 Page 33 out of 47 employee possess the power of assigning duties and distribution of work such authority of employee may be indicative of his being supervisor doing supervision. In a broad sense Supervisor is one who has authority over others:someone who superintends and directs others. An employee who in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it correctly in accordance with norms shall certainly be a Supervisor. A supervisory work may be contradistinguished from managerial and administrative work and, so also a supervisor from manager and administrator. Supervisor's predominant function is to see that work is done by workers under him in accordance with the norms laid down by the management: he has no power to take any disciplinary action." The said observations clearly fit in the facts of the present case where the employer has been successful in proving before the Labour Court that the petitioner under him had five B grade Inspectors and the petitioner was overseeing and controlling work done, by those subordinate five employees. The D.I.D. No. 182/09 Page 34 out of 47 work of the petitioner as Superintendent, Quality Control, predominently is to supervise the work in the Quality Control Department of the employer. He also had powers to take independent decision about the quality control of the material received from the vendors after obtaining report from the group of Inspectors working under him. There is also evidence to the effect that the petitioner was sanctioning leave to the employees working under him. All in all, the finding recorded by the Labour Court that the petitioner was not workman cannot be said to be perverse or grossly erroneous warranting interference by this Court in extraordinary jurisdiction. The Labour Court has on consideration of the entire evidence on record reached the conclusion that the petitioner was not workman and this Court in exercise of extraordinary jurisdiction shall not, on re appreciation of the evidence, come to the conclusion otherwise when the finding recorded by the Labour Court is supportable from the evidence on record."
Similarly, it has been held vide citation Tanojkumar B.Chatterjee Vs. Solapur Municipal Corporation, D.I.D. No. 182/09 Page 35 out of 47 MANU/MH/0570/2003: 2004 LLR 108 Bombay High Court: "5. Now, it is well settled in this branch of law, as in many others, that designations are not dispositive. The court has to have due regard to the real nature of the duties and functions. In so far as supervisor is concerned, he or she is one who can bind the employer by taking some kind of decision on his behalf. National Engineering Industries Ltd. Vs. Shri Kishan Bhageria, MANU/SC/0447/1987:
(1988) 1 LLJ 363 SC. A supervisor is one who has authority over others to superintend and direct. A supervisor may possess the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them or to adjust their grievances or effectively to recommend such action. The work of a supervisor is distinguished from work which is of a clerical nature by the exercise of independent judgment. The decision of the Supreme Court as well as of this court have been considered in a judgment of Mr. Justice Rebello, speaking for this Court, in Union Carbide (I) Ltd. Vs. D.Samuel and Ors., 1998 II CLR 736. In the Bombay Dyeing and D.I.D. No. 182/09 Page 36 out of 47 Manufacturing Company Ltd. Vs. R.A. Bidoo and Ors., 1989 (2) CLR 248, a Division Bench of this Court held that a supervisor is an overseer. A person can be said to be a supervisor if there are persons working under him over whose work he has to keep a watch. A supervisor is empowered to take corrective steps if a subordinate errs in work assigned to him."
Admittedly, even though the definition of workman vide Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date) includes a person doing supervisory work, however, vide exception (iv) to the same such person viz. who being employed in a supervisory capacity, draws wages exceeding Rs.10,000/ per month is excluded from the definition of a workman under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date), as abovesaid.
Admittedly, in view of the admission of the claimant/workman in his cross examination as WW1 on behalf of the management in workman evidence, as abovesaid, viz. to the effect that his last drawn salary was Rs.14,721/ [i.e. much above the statutory upper limit of Rs.10,000/ per month as fixed in respect of a person doing supervisory work vide exception (iv) to the definition of a workman under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date) in order to come under the ambit of the same, as abovesaid] as also that he was working on the post of a D.I.D. No. 182/09 Page 37 out of 47 Sr.Executive in the Travel Department reporting to one Sh. Sanjeev Mahajan, Head of the Operation as also it was correct that he was working in the Domestic Operation department and there were 12 employees under him; that it was correct that his duties entailed ensuring that clients booking for Air reservations, Air tickets, Sales reports of various airlines was maintained by the staff working under his supervision; that he was also provided with the vehicle for the official work; that it was correct that he worked for more than 31 years without any blemish or any difficulty in the discharge of his duty; that it was correct that he was inducted as a Peon and thereafter he was promoted as Senior Executive finally; that S/Sh.Murli Dhar Malasi, and Suresh Jugran were also inducted as Peons who had been promoted upto Asst. Manager and Transport Executive respectively as also in view of the definition of a "workman" under the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date) along with its exceptions specifically exception no. (iv) as abovesaid and the case law on the subject, as abovesaid, I find from the record that the claimant/workman is employed in a supervisory capacity with the respondent/management as admitted by him in his cross examination as WW1 on behalf of the management in workman evidence, as abovesaid, and accordingly, find that the claimant/workman has not been able to discharge the onus which was upon him in respect of the instant issue viz. whether the claimant/workman is a "workman" under the Industrial Disputes Act, 1947 (as amended upto date), I accordingly, decide the instant issue against the claimant/workman D.I.D. No. 182/09 Page 38 out of 47 and in favour of the respondent/management.
In view of the provisions of citations Sh. R.Muthuswami Vs. The management of M/s Bhor Industries Ltd., MANU/DE/3410/2012, I proceed to decide the issue no.2, as follows: ISSUE No.2.
It is seen from the record that though the claimant/workman has raised the instant Industrial Dispute in respect of the alleged illegal termination of the services of the claimant/workman on the part of the respondent/management on attaining the age of 55 years by the claimant/workman on 18.04.2007 on the ground that he was entitled to continue in service with the respondent/management upto the age of 60 years/till attaining the age of 60 years along with all consequential benefits in the shape of salary/pay and allowances and attendant benefits like annual increments, bonus, PF contribution etc., for the said period, however, I find from the record that the claimant/workman has not been able to establish/prove his claim for the same by way of his affidavit by way of evidence Ex.WW1/X, as abovesaid, in workman evidence alongwith Exts.WW1/A to WW1/D, as abovesaid, in the same by leading of any cogent, relevant and admissible evidence in this regard in his workman evidence, on record, in the face of proving of the appointment letter dated 12.05.1976 in respect of the claimant/workman on the part of the parties viz. as Ex.WW1/A by the claimant/workman in workman evidence and Ex.WW1/M2 in the cross examination of the D.I.D. No. 182/09 Page 39 out of 47 claimant/workman WW1 on behalf of the respondent/management in workman evidence, duly admitted by the claimant/workman as bearing his signature at point A on the same in token of his acceptance of the terms and conditions of his service with the respondent/management as mentioned in the same viz. "Ex.WW1/M2 is the appointment letter which was issued to me. It bears my signature in token of acceptance at point A" wherein clause No.11 of the same, it is mentioned/stipulated that the claimant/workman will retire from the services of the respondent/management on his attaining the age of 55 years in which regard I find from the record that it has been further admitted on the part of the claimant/workman that it was correct that he was issued appointment letter Ex.WW1/M2; that he did not write any letter to the management regarding his appointment letter from the date of his appointment to the date of his superannuation; that it was correct that the terms of his appointment had made it clear that the age of superannuation would be 55 years.
I further find that even though it has been alleged on the part of the claimant/workman that certain employees as mentioned in para nos. 5 and 7 of his affidavit by way of evidence Ex.WW1/X in workman evidence viz.S/Sh. B.D. Rao, Nand Singh, Madan Kak, Mrs. Athel Fernandes (Mumbai), Harsh Dev, Bagh Singh, Murlidhar Malashi, Swaran Singh, C.L. Sharma, Hassan Ali and Bhagwan Dass etc. of the management being retired on attaining the age of 60 years as per the records maintained and held at the offices of the respondent/management, however, no evidence in this regard has D.I.D. No. 182/09 Page 40 out of 47 been led on the part of the claimant/workman, on record, and on the contrary it has been admitted by the claimant/workman in his cross examination as WW1 on behalf of the respondent/management in workman evidence that "As regards the aforementioned ex employees I can only produce documentary evidence with regard to Sh. Harsh Dev and Mr. Bagh Singh. I will file it in the court as and when it is available to me. Hence, at present, I have no documentary evidence in support of what I have stated in paragraph No. 5 of my affidavit." as also "I do not have any documentary evidence in support of my statement in paragraph No. 7 of my affidavit that M/s Swaran Singh, C.L. Sharma, Hassan Ali and Bhagwan Dass had retired on attaining the age of 60 years."
I further find from the record that in fact the claimant/workman is claiming extension of his retirement age from 55 years to 60 years on the part of the respondent/management as is evident from the contents of para nos. 3 of his statement of claim and affidavit by way of evidence Ex.WW1/X in workman evidence, on record, along with the contents of his legal notice dated 16.05.2007 as allegedly issued to the respondent/management by registered AD post, courier/UPC as alleged, Ex.WW1/D Colly, on record, in respect whereof no basis or entitlement has been proved on the part of the claimant/workman qua the respondent/management in his workman evidence, as abovesaid, in the instant proceeding, on record, as already observed hereinabove, in the face of the age of retirement stipulated in his respect as 55 years vide clause No. 11 of appointment letter dated 12.05.1976 of the respondent/management in his respect filed by the claimant/workman D.I.D. No. 182/09 Page 41 out of 47 in the workman evidence as Ex.WW1/A in the same, on record, as also admitted on his part in his cross examination as WW1 on behalf of the respondent/management in workman evidence, on record, as being Ex.WW1/M2 bearing his signature at point A on the same in token of his acceptance of the contents thereof, as abovesaid, thereby the claimant/workman having not been able to prove, on record, that he had any vested right to his said claim viz. being entitled to be in service with the respondent/management along with all the attendants benefits till the age of 60 years in opposition to having attained the age of his superannuation in his service with the respondent/management at the age of 55 years as alleged by the respondent/management in the instant case.
I further find that even the application moved on behalf of the claimant/workman for summoning of the appointment letter/retirement records of the persons as named therein viz. S/Sh. Madan Kak, Murlidhar Malashi, G.K Sharma and Nand Singh does not go towards proving the instant claim of the claimant/workman of his being entitled to continue in service with the respondent/management even after attaining the age of 55 years which is the age of his superannuation from his service/employment with the respondent/management as mentioned in the appointment letter of the claimant/workman with the respondent/management Ex.WW1/A in workman evidence as also Ex.WW1/M2 in the cross examination of the claimant/workman WW1 on behalf of the respondent/management in workman evidence duly admitted by the claimant/workman as bearing his signature at point A thereon in token D.I.D. No. 182/09 Page 42 out of 47 of his acceptance of the terms and conditions of his service/employment with the respondent/management as mentioned therein including the age of his superannuation in service with the respondent/management vide clause No.11 of the same which is to the effect "11. You will retire from the services of the Company on your attaining the age of 55" to which it is admitted by the claimant/workman in his cross examination as WW1 on behalf of the respondent/management in workman evidence, as abovesaid, that it was correct that he was issued appointment letter Ex.WW1/M2; that he did not write any letter to the management regarding his appointment letter from the date of his appointment to the date of his superannuation; that it was correct that the terms of his appointment had made it clear that the age of superannuation would be 55 years (emphasis supplied) as also it has been submitted by the respondent/management in reply to the subject application that the appointment letter/retirement records of the aforesaid four persons whose records are sought to be summoned in the subject application were not traceable/available with the respondent/management, however, the management could produce the appointment letters and also the letters issued on superannuation to the employees in the company on attaining the age of 55 years which has been disposed of vide the relevant order passed in this regard, on record, with the observation that since the record of these four employees are not available/traceable with the respondent/management no direction for production of the said record could be passed, however, the impact of D.I.D. No. 182/09 Page 43 out of 47 nonproduction of these records shall be considered on the merits of the case.
I find that in view of the admitted terms and conditions of service of the claimant/workman with the respondent/management vide his appointment letter in this regard Ex.WW1/A as also Ex.WW1/M2 in workman evidence, on record, wherein the age of superannuation of the claimant/workman with the respondent/management has been mentioned in no uncertain terms on his attaining/reaching the age of 55 years to the knowledge of the claimant/workman with effect from the date of issue of the same till the date of superannuation of the claimant/workman in his employment with the respondent/management on his attaining the age of 55 years on 18.04.2007 till which date admittedly no representation has been given by the claimant/workman to the respondent/management in respect of the same as admitted by the claimant/workman in this regard in his cross examination as WW1 on behalf of the respondent/management in workman evidence viz. that it was correct that he was issued appointment letter Ex.WW1/M2; that he did not write any letter to the management regarding his appointment letter from the date of his appointment to the date of his superannuation; that it was correct that the terms of his appointment had made it clear that the age of superannuation would be 55 years, as abovesaid, as also in view of the admission of the claimant/workman in his cross examination of the MW1 Ms. Sonal Sachdev, ManagerHR of the respondent/management in D.I.D. No. 182/09 Page 44 out of 47 management evidence/deposition of the said MW in management evidence to the effect that it was correct that all employees of the management were retiring on attaining the age of 55 years; that there was no written policy of the management in respect of the retirement age of the employees. Vol. The retirement age of the employee was mentioned in the terms and conditions of his appointment letter; that it was correct that in all the appointment letters of the employees, the retirement age was mentioned as 55 years; that it was correct that the retirement of the employees of the management at the age of 55 years was the policy of the management since the beginning; that it was wrong to suggest that employees namely S/Sh. Nand Singh, Bagh Singh, and Harsh Dev of the management had retired on attaining the age of 58 years; that it was wrong to suggest that employee by the name Sh. Sharad Saxena, Deputy Manager was in the employment of the management at the age of 59 years;........ that it was wrong to suggest that any employee had worked with the management after attaining the age of 55 years; that it was wrong to suggest that an employee namely Sh. Harsh Dev had worked with the management till the age of over 60 years and was retired w.e.f. 31 March, 1998; that it was wrong to suggest that she was deposing falsely, the claimant/workman has not been able to prove/establish his entitlement to be in the employment of the respondent/management till attaining the age of 60 years along with all attendant benefits D.I.D. No. 182/09 Page 45 out of 47 thereof as alleged/claimed by him in the instant proceeding.
I further find no force in the argument on behalf of the claimant/workman that he was entitled to serve upto the age of 58/60 years with the respondent/management under the provisions of Industrial Employment (Standing Orders) Act 1946 or the rules framed thereunder, in view of it being stipulated in clause (3) of Schedule 1B in respect of "AGE OF RETIREMENT" therein "The age of retirement or superannuation of a workman shall be as may be agreed upon between the employer and the workman under an agreement or as specified in a settlement or award which is binding on both the workman and the employer. Where there is no such agreed age, retirement or superannuation shall be on completion of 58 years of age by the workman." from which it is evident that the age of retirement/superannuation of the claimant/workman in his employment with the respondent/management would be 55 years as mentioned in the terms and conditions of his contract of service with the respondent/management vide his appointment letter with the respondent/management in this regard Ex.WW1/A as also Ex.WW1/M2 in the workman evidence, on record, admitted by the claimant/workman to bearing his signature on point A on the same in token of his acceptance of the terms and conditions governing his employment with the respondent/management as mentioned in the same in his workman evidence in the instant proceeding, on record.
I further find that even no evidence has been led on the part of the claimant/workman in respect of the respondent/management being an "industrial establishment" under the provisions of Section 2 D.I.D. No. 182/09 Page 46 out of 47
(e) of the Industrial Employment (Standing Orders) Act 1946 or the same being applicable to the respondent/management by virtue of the provisions of subSection (3) of Section 1 of the same qua the respondent/management.
In view of my above observations and findings, I find that the claimant/workman has not been able to discharge the onus which was upon him in respect of the instant issue viz. his entitlement to the benefits of his service with the respondent/management upto the age of 60 years in opposition to his cessation of service with the respondent/management on his reaching the age of superannuation of his service/employment with the respondent/management at 55 years vide his appointment letter Ex.WW1/A as also Ex.WW1/M2 in workman evidence bearing his signature at point A thereon in token of his acceptance of its terms and conditions of service including the age of retirement as 55 years governing his employment with the respondent/management as mentioned in the same, as alleged by him. The instant issue is accordingly, decided against the claimant/workman and in favour of the respondent/management.
In view of my above observations and findings, I thus find that the claimant/workman is not entitled to any relief.
The Award is passed. The Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to the Record Room.
Announced in the open Court (Chandra Gupta)
on 30.08.2014 Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
D.I.D. No. 182/09 Page 47 out of 47