Delhi District Court
Sh. Bhupinder Singh Bhaita vs M/S Chelmsford Club Ltd on 19 January, 2019
IN THE COURT OF SH. RAKESH KUMARI
PRESIDING OFFICER LABOUR COURTX
DWARKA COURTS, DELHI.
Ref. No. : F.24(12)/07/Lab./316064
Dated : 17.03.2008
LIR No.3312/2016
Sh. Bhupinder Singh Bhaita,
S/o Sh. Trilok Singh Bhatia,
R/o A33, M.I.G. Flats,
Qutab Enclave, Katwaria Sarai,
New Delhi - 110016. ......... Workman.
AND
M/s Chelmsford Club Ltd.,
1, Raisina Road, New Delhi-110001. ........ Management.
Date of Institution of the case : 20.03.2008
Date on which reserved for Award : 14.12.2018
Date on which Award is passed : 19.01.2019
:A W A R D:
The workman raised an industrial dispute before
the Labour Department against the termination of his services
by the management claiming that his services have been
terminated by the management illegally and unjustifiably and
the appropriate Government on being satisfied with regard to
L.I.R. No.3312/16 Page No. 1 out of pages 41
existence of an industrial dispute between the parties,
referred the dispute to the Court for adjudication under
Section 10 (I) (c) and 12 (5) of the Industrial Disputes Act
vide Ref. No.:F.24(12)/07/Lab./316064 dated 17.03.2008
with the following terms of reference:
"Whether dismissal of Sh. Bhupinder
Singh Bhaita S/o Sh. Trilok Singh
Bhatia from service by the
management is illegal and / or
unjustified and if yes, to what relief is
he entitled?"
The workman filed his statement of claim stating
therein that he had been working with the management in the
pay scale of Rs.1,500 - 2,625/ in the Accounts Department
as an Accounts Officer from 19.10.1987. After completion of
the Probation Period, the claimant was confirmed on
18.04.1998 and also granted an increment of Rs.500/. The
claimant was performing his duties honestly and diligently
with the management and same was duly appreciated by the
management of the Club. He never gave any chance to the
management to blame him for any lapse. The claimant was
granted increment from time to time and was also receiving
L.I.R. No.3312/16 Page No. 2 out of pages 41
attendant benefits commensurate with workmen category of
employees. It is also stated that though the claimant was
working an an Accounts Officer, however, the duties of the
workman were clerical in nature. The designation was merely
on the papers and just to cheat the workman and he was not
having powers of management control or of the superiors.
The workman had never been vested with any powers related
to sanctioning or rejecting leaves to any staff members or
writing annual performance report of any staff members of
appointing or interviewing any candidate for filing up the posts
or exercising control or supervision over the duties of any
staff members or calling for explanation of any staff members
or taking disciplinary action for minor or major misconduct
committed by any staff members. As far as claimant's duties
and status were concerned, same remained of clerical in
nature at the club. The pay scale of the post was also
Rs.1,500 - 2,625/ and the gross salary drawn by the
workman was Rs.2,500/ per month at the time of
appointment in 1987 and at the time of illegal termination of
his services, he drew monthly gross salary of Rs.7,000/
besides payment of overtime allowance applicable to
workmen category. Inspite of such clean background and
L.I.R. No.3312/16 Page No. 3 out of pages 41
service record, the claimant was placed under suspension on
27.04.1999 and dismissed on 19.02.2000 on frivolous and
baseless grounds. It is quite clear from the suspension order
that details of the allegations or imputations were not
conveyed to the claimant while placing him under suspension
with immediate effect, only it was stated that some charges of
misconduct against him were appearing and therefore, the
claimant was placed under suspension on 27.04.1999 vide
letter dated 28.04.1999. Further no inquiry was ordered by
the management and no opportunity was granted to the
claimant to rebut the allegations and without adopting the due
process of law. Further the management submitted a charge
sheet on 06.05.1999 and copy thereof was given to the
workman. All the allegations levelled in the charge sheet
were/are false, frivolous and have no legal sanctity and based
on surmises and conjectures of the management. The
claimant had also filed a reply dated 11.05.1999 to the
aforesaid charge sheet but the management did not pay any
heed to it and management instead of adopting the proper
procedure of law, adopted the unlawful means to remove the
workman from the services. The claimant received a letter
dated 19.02.2000 vide which he illegally terminated from
L.I.R. No.3312/16 Page No. 4 out of pages 41
service with immediate effect. The penalty dated 19.02.2000
established that no disciplinary/domestic inquiry was
conducted by the management into the matter and no show
cause notice was issued to him before issuing charge sheet
and also at the stage of inflicting punishment thereby illegal
terminating the services of the workman. The Disciplinary
Authority never granted any personal hearing in the matter of
suspension or charge sheet or illegal termination of the
workman. The claimant has been representing his case with
the management since long duly highlighting their illegal,
arbitrary, discriminatory unjustified, baseless and malafide
actions. The management ultimately also realized the
truthfulness in claimant's representations and kept him
assuring of favourable decision but the claimant kept on
waiting for the same. The claimant sent a Demand Notice to
the management on 13.01.2001 but the management neither
replied the notice nor complied the demand of the workman.
Further the workman is unemployed since the date of his
illegal termination despite his best efforts to get alternative
employment and suffering hardship and on verge of
starvation. Over the illegal termination of the services, the
workman is left with no alternative to approach the Court, as
L.I.R. No.3312/16 Page No. 5 out of pages 41
per the provisions of law. It is prayed that an award may be
passed in favour of the workman and against the
management whereby directing the management to reinstate
the workman in duty with full back wages, continuity of
services, consequential benefits and all other relevant
benefits.
Notice of the statement of claim was issued to the
management. The management appeared and filed its written
statement wherein it raised many preliminary objections. The
main contentions of the management are that the claimant is
not a workman as envisaged by the legislation and as
contemplated by the Industrial Dispute Act. The claimant
clearly falls outside the purview of the Labour Enactments.
The claim of the claimant is ill conceived and is grossly
intended to abuse this welfare legislation. The claimant
herein had been serving the establishment as Accounts
Officer and his duties were governed with the performance of
managerial/supervisory duties. The entire claim has been
deliberately camouflaged so as to give a semblance of an
industrial dispute which is being raked up by some aggrieved
workman. On the contrary, claimant is grossly accused of
criminal misappropriation of management's funds and qua the
L.I.R. No.3312/16 Page No. 6 out of pages 41
same, criminal proceeding was initiated. The claimant was
suspended by suspension letter dated 28.04.1999 and was
effected eventually dismissed from services on 19.02.2000.
On merits, it is claimed that claimant had never
enjoyed any benefit which in any case was the exclusive
privilege of the workman category. The claimant being a
senior officer of the institution had been signing the
settlement on behalf of the management. The claimant had
sanctioned the loan applications of Sh. Om Prakash, Sh.
Ram Kishan and Sh. Ramesh Kumar, vide order sheets
dated 05.06.1993, 28.05.1993 and 18.04.1995 respectively.
The claimant has also appeared in the Income Tax
Department and signed the papers related to wealth tax,
income tax and Registrar Income Tax Appellate Tribunal
respectively. Further the claimant had committed serious
acts of misconducts and was guilty of fraud, embezzlement,
cheating forgery and misappropriation of club funds to the
tune of Rs.15 Lakhs approximately. The charges of gross
dereliction of duty besides others were levelled against the
claimant and as such it was not possible for the Club to
response any further trust and confidence and consequently
the claimant was dismissed from the services w.e.f.
L.I.R. No.3312/16 Page No. 7 out of pages 41
19.02.2000. The claimant had categorically accepted his guilt
and had even deposited a sum of Rs.1,00,000/ vide receipt
No.13069 dated 29.05.1999, Rs.50,000/ vide Receipt
No.13165 dated 01.06.1999, Rs.1,50,000/ vide Receipt
No.13166 dated 01.06.1999, Rs.20,000/ vide Receipt
No.1404 dated 02.06.1999 and Rs.20,000/ vide Receipt
No.14271 dated 26.06.1999.
The replication to the Written Statement was filed
by the workman wherein he has reiterated and reconfirmed
the averments made in the Statement of claim and denied
and controverted the averments made by the management in
the Written Statement.
From the pleadings of the parties, the following
issues were framed on 21.07.2009:
(i). Whether the claimant is not a workman
under Section 2 (s) of I. D. Act?
(ii). As per terms of reference.
(iii). Relief.
No other issue arose or pressed for and thereafter,
the case was fixed for leading of workman evidence.
In his evidence, the workman has tendered his
evidence by way of affidavit as Ex.WW1/1, wherein he
L.I.R. No.3312/16 Page No. 8 out of pages 41
reiterated the contents of his statement of claim. He also
placed reliance upon the documents Ex.WW1/A (Colly.),
Ex.WW1/B, Ex.WW1/C, Ex.WW1/D and Ex.WW1/E.
Ex.WW1/A (Colly.) are the photocopies of letter of
appointment dated 30.09.1987 and a letter of increment
dated 19.04.1989 Ex.WW1/B is the photocopy of letter of
suspension; Ex.WW1/C is the photocopy of charge sheet;
Ex.WW1/D is the copy of of termination letter and Ex.WW1/E
is the copy of Demand Notice.
During the course of his cross examination, WW1
stated that as Accounts Officer he used to report to the Chief
Admn. Officer and to the Executive Secretary. There was no
one else in the department senior to me. He clarified that he
used to work with others working in his department who were
parallel with him. There was no other accounts officer in the
department besides him. He, however, clarified that the
accounts department was however controlled by the
Executive Secretary. He denied that he was not getting his
salary or the other increments as per workman category. He
conceded that the workman used to draw their salary and
other benefits from the periodical wage settlement entered
between the management of the club and the workers and he
L.I.R. No.3312/16 Page No. 9 out of pages 41
was not covered in that settlement for the purposes of his
salary and other benefits. He further conceded that the
workers used to get periodical DAs announced by the Delhi
Admn. and he was not getting the DAs. He also conceded
that other officers of the club also were not enjoying the
salaries and other facilities from the wage settlement and
they were not getting the DAs also. He conceded that like
account's department, the other departments in the club were
controlled by the Executive Secretary. He clarified that Estate
department was independently controlled by the Estate
Officer, who was passing the vouchers, passing the bills and
these powers were not enjoyed by the account's officer.
Similarly, F & B manager is also being empowered to pass
the bills for F & B department. Similarly the other
departmental heads were enjoying the powers which were
not enjoyed by him. He denied that as Account's Officer he
used to take all supervisory and managerial decisions or that
he was representing the management in the wage
settlements. He clarified that he used to be the witness in
such settlements. On being confronted the witness with a
memo of settlement dated 09.05.97 Ex.WW1/M1, he admitted
his signatures in the col. of "representing the employer". He
L.I.R. No.3312/16 Page No. 10 out of pages 41
conceded that in the said settlement he had put his
signatures for and on behalf of the management. He further
conceded that the said settlement Ex. WW1/M1 does not
bear his name and signatures in the col. of witnesses. He
further conceded that accounts book used to be prepared by
bill clerks, accountants, asst. accountants, head cashier
working under him. He clarified that These persons were
working with him. He conceded that he used to recommend
the leave applications and loan applications of the aforesaid
persons. He clarified that it was his routine work. The
workman was confronted with the originals of leave
application of Ramesh Kotia: Bill Assistant, V. K. Mishra:
Asst. Accountant, details of gratuity of Ram Kishan: Waiter,
loan application of Sh. Om Prakash and loan application of
Sh. Ramesh Kumar: Glass Boy, Ex.WW1/M2 to Ex.WW1/M6
respectively, and same bearing the signatures of petitioner/
workman at points C, D, E, F & G. He conceded that the
bills which were received from other departments like store, F
& B etc. used to be verified by him before any payment was
made. He also conceded that letter dt. 28.11.98 Ex.WW1/M7
has been written by him, in the capacity of Account's Officer,
and the same bears his signature at point H. Witness was
L.I.R. No.3312/16 Page No. 11 out of pages 41
also confronted with the two original assessment letters
dated 31.03.90 & 31.03.92 Ex.WW1/M8 & Ex.WW1/M9 and
he admitted of having represented the management before
the Asst Commissioner of Income Tax as the Account's
Officer and along with Sh. A. S. Bhatia, who was a
professionally hired CA. He clarified that these are the
account matters where he had to assist the professional CA
for the club matters. Claimant was confronted with original
letter dated 24.11.93 Ex.WW1/M10 and he admitted of having
appeared and represented the management of the club
before the Commissioner of Income Tax in the capacity of
Account's Officer. The claimant is also confronted with the
original letter dated 15.10.93 Ex.WW1/M11 and he admitted
of having represented the club before the Asst.
Commissioner Income Tax and also discussed the matter on
behalf of the club. The claimant was further confronted with
the original letter dated 26.07.95 Ex.WW1/M12 and he
admitted to have called upon the Asst. Commissioner Income
Tax on behalf of the management of the club for getting the
recovery of some demands cancelled. He conceded that he
used to take vital decisions on behalf of the club in the
capacity of the Account's Officer. The claimant was
L.I.R. No.3312/16 Page No. 12 out of pages 41
confronted with originals of two letters dated 13.10.095 and
11.07.97 Ex.WW1/M13 and Ex.WW1/M14 and he admitted of
having executed and signed the documents. The claimant
admitted of having executed and signed the two letters dated
17.02.98 and 29.07.98 Ex.WW1/M15 & Ex.WW1/16. He
stated that it is not essential that the increments of all the
officers is discussed in the meetings of managing committee.
He conceded that his increment had been discussed in the
meeting of managing committee dated 25.04.89 vide minute
book (page No.53) Ex.WW1/M17. He conceded that he
never used to enjoy the facility of overtime allowance. He
clarified that he might be getting some overtime on voucher
but he is having no proof to substantiate his this contention.
The claimant is confronted with salary sheet for the month of
January, 1991 Ex.WW1/M18 and admitted his signature on
the said sheet and further admitted that the salary sheet and
the details of salaries mentioned therein including his and of
other persons shown in the salary sheets. He further admitted
that the salary given to the steno or peon, page boy, marshal,
chawkidar and cashier, asst. accountant etc. etc. as shown
in the original salary register is correct. He further conceded
that his salary was more than clerk, typist, Sr. staff and other
L.I.R. No.3312/16 Page No. 13 out of pages 41
promotees from grade III and grade IV. He clarified that the
salary registers of other years besides 1991 shown to him
might be having the salary details showing more salary of
these aforesaid persons more than him. He denied that he
was charge sheeted, suspended and dismissed from the
services as he had done criminal misappropriation of the
funds of the management of the club. He conceded that an
FIR No.43/2000 Ex.WW1/M19 was registered against him.
He clarified that he had been charged U/s 489C IPC and
discharged by the Hon'ble High Court of Delhi as he was
wrongly implicated in the aforesaid section by the club. He
filed on record the copy of order dated 28.04.09 of Hon'ble
High Court Ex.WW1/F. He conceded that the trial on other
sections was going on in the Court of ACMM, Patiala House
Courts. The claimant was confronted with the letter dated
22.05.99 Ex.WW1/M20 and he admitted his handwriting and
signatures on the same. He clarified that the letter was taken
under coercion by the management. He conceded that he did
not lodge any complaint with the police in this regard that the
letter has been obtained under coercion. He further conceded
that he had issued two cheques dated 24.05.99 of
Rs.50,000/ each Ex.WW1/M21 & Ex.WW1/M22 and the said
L.I.R. No.3312/16 Page No. 14 out of pages 41
cheques issued by him got dishonoured vide Ex.WW1/M23
& Ex.WW1/24. He could not tell if after the dishonouring of
the cheques, he had deposited Rs.1 lac in cash. He clarified
that he had never deposited Rs. One lac in cash. The
claimant was confronted with original cash book for 29.05.99,
01.06.99, 22.06.99 and 26.06.99 and he refused to have
deposited any amount in lieu the said receipts. He denied that
he had deposited the said cash with the club towards the
embezzled amount. He conceded that he had issued a
cheque of Rs.1,50,000/ bearing No.027774 dated 31.05.99
in favour of Chelamsford Club and the same was encashed
by the club vide receipt Ex.WW1/M25. He clarified that he is
not aware in which account he had given the said amount to
the club. He could not tell if he had received the receipt dated
01.06.99 pertaining to the aforesaid cheque. He stated that
he had replied to the chargesheet. He further stated that he is
meeting his household expenses out of the income of his
wife, who is self employed. He stated that he has not tried to
obtained any employment from the period of his dismissal till
date. He clarified that he is doing part time job which he was
doing at the time when he was employed with the
management. He denied that he is not a workman or he hails
L.I.R. No.3312/16 Page No. 15 out of pages 41
from managerial/supervisory/ administrative capacity.
Thereafter, the Workman evidence was closed and
case was fixed for management evidence.
In its defence, initially the management examined
Sh. Bhupinder Singh S/o Sardar Bhagwan Singh, Manager of
management as MW1, who tendered his evidence by way of
affidavit Ex.MW1/A. He also relied upon the documents
Ex.MW1/1 to Ex.MW1/3.
During the course of his cross examination, he
stated that he was appointed with the management in the
year 1976 as an Assistant Storekeeper and thereafter, he
was promoted as Manager (Stores) and then as Manager. He
further stated that as Manager (Stores), he was also looking
after the accounts of the Stores. The claimant/workman had
joined the management in the year 1987 in the Accounts
Department of the management. He and the claimant/
workman were working in different departments of the
management and claimant/workman was senior in
appointment to him when he had joined the management. He
stated that he has deposed in evidence by way of affidavit
evidence Ex. MW1/A on the basis of knowledge gained from
the documents/records of the management. He could not tell
L.I.R. No.3312/16 Page No. 16 out of pages 41
as to whether during the period with effect from the year 1987
when the claimant/workman had joined the management till
the year 1999 any charge sheet or memo had been issued to
him by the management or not. He conceded that the
claimant was dismissed from his services with the
management vide letter Ex.WW1/D on account of
misappropriation club fund amounting to Rupees fifteen lacs
approximately along with other charges as mentioned vide
dismissal letter dated 19.02.2000 Ex. WW1/D. The claimant /
workman had been issued a charge sheet dated 06.05.1999
Ex.WW1/C before his dismissal by the management. He
conceded that the the charge sheet Ex.WW1/C is not
containing the allegation of misappropriation of funds of the
management of an amount of Rupees fifteen lacs. He could
not tell as to whether any document has been filed by the
management in which it has been alleged to the claimant /
workman that he has misappropriated an amount of Rupees
fifteen lacs of the management. He also could not tell as to
whether any reply had been given by the claimant/workman
to the management in respect of charge sheet Ex. WW1/C.
He conceded that no domestic enquiry had been held by the
management in respect of the claimant/workman pursuant to
L.I.R. No.3312/16 Page No. 17 out of pages 41
charge sheet Ex. WW1/C. He clarified that the management
had not thought it necessary since the claimant/ workman
had admitted the charges. He conceded that it is not
mentioned in the dismissal letter dated 19.02.2000 Ex.
WW1/D of the management to the claimant/workman that he
had ever admitted to the charges leveled by the management
vide charge sheet Ex. WW1/C against him. No proceedings
had been initiated against the claimant/workman for recovery
of the alleged misappropriated amount from him. He clarified
that an FIR bearing no.43/2000, P.S. Parliament Street,
Under Section 420/467/468/471/474/477A/489 IPC was got
registered by the management against the claimant/
workman, on which a criminal case is pending against the
claimant/workman in the Patiala House Courts, Delhi. He
conceded that the offence under Section 489 IPC vide the
subject FIR qua the claimant/workman has been struck down
by the Hon'ble High Court of Delhi in Criminal Revision
Petition No.438/2002 preferred by the claimant/workman
against the same vide its order dated 28.04.2009.
After his part cross examination on 25.07.2014, the
said witness i.e. MW1 Sh. Bhupinder Singh could not be
examined further and on 26.02.2016 it was prayed on behalf
L.I.R. No.3312/16 Page No. 18 out of pages 41
of management that since MW1 Sh. Bhupinder Singh has
retired from the service of management and evidence by way
of affidavit of Sh. Prit Pal Singh has been filed on record on
behalf of management, so instead of Sh. Bhupinder Singh,
the management wants to examine Sh. Prit Pal Singh as
management witness. The said prayer for management was
opposed by AR of the workman no the ground that since
MW1 Sh. Bhupinder Singh has been cross examined at
length and his total defence has been disclosed to the
management and a serious prejudice will be caused to the
workman if evidence of MW1 Sh. Bhupinder Singh is not
read in evidence, while disposing of the present matter. The
said prayer of management was decided by my Ld.
Predecessor while permitting the management to examine
Sh. Prit Pal Singh as management witness on its behalf with
the observationthat the cross examination of MW1 Sh.
Bhupinder Singh will also be read into evidence, while
disposing of the matter.
MW2 Sh. Prit Pal Singh tendered his evidence by
way of affidavit Ex.MW2/A. He also relied upon the
documents Ex.MW2/1 and Ex.MW1/1 to Ex.MW1/3.
Ex.MW2/1 is the Authorization Letter dated 27.11.2015;
L.I.R. No.3312/16 Page No. 19 out of pages 41
Ex.MW1/1 is the photocopy of Authorization Letter;
Ex.MW1/2 is the photocopy of ledger showing that the
accounts were maintained by clerical staff, who were working
under him and Ex.MW1/3 is the photocopy of minutes of
meeting of managing committee.
During cross examination by AR of the Workman,
he stated that he was working with the management since
1983 as an Accountant. He used to report to Mr. Manocha,
Account Officer in the year 1983. He stated that he knew that
there are certain charges levelled against the workman. The
workman was issued a charge sheet. He denied that the
workman gave an explanation to the charge sheet. He could
not tell if the management ever conducted any inquiry into the
charges leveled against the workman with respect to the
above charge sheet. The charges against the workman were
of embezzlement, which was in lacs. He could not tell if the
management has filed any recovery suit against the workman
with regard to the alleged embezzled amount. He clarified
that the workman had deposited Rs.3,40,000/ with the
management. The workman had deposited two cheques for
Rs.50,000/ each in 1999, which were bounced and
thereafter, the workman deposited cash with the
L.I.R. No.3312/16 Page No. 20 out of pages 41
management in June, 1999 in his presence. The workman
had deposited cheque for Rs.1,50,000/ in June, 1999 and
Rs.50,000/ also and cash of Rs.20,000/ twice paid to the
club. He had not received the cash mentioned above,
however, the same was received by the cashier. He
conceded that whenever cash is deposited with the club the
cashier receiving the cash signs on the receipt issued to the
depositor. On 01.06.1999 one Sh. Praduman Singh, was the
cashier with the management. Anyone including account
officer or cashier could receive cash and sign on the receipt
issued to the depositor. He denied that the said receipt
thereafter, went to the Executive Secretary or CEO, who used
to sign it or that the depositor used to sign on the above
receipt. The cashier or account officer can even put his
remarks on the receipt issued by him regarding deposit of
amount. The word on the receipt Ex. WW1/M25 "Embezzled
amount" might have been written on the direction of the some
officer of the management. He denied that documents Ex.
MW2/W1 and Ex. MW2/W2 do not bear the remarks. He
could not tell the exact embezzled amount. On 29.05.1999
Sh. Alok Kumar Bhatnagar was the acting accounts officer.
He stated that he had worked with the workman Sh.
L.I.R. No.3312/16 Page No. 21 out of pages 41
Bhupinder Singh Bhatia for about 10 to 12 years. He
conceded that a wage settlement was arrived at between the
management and workman after every four years. He further
conceded that an employee from the Account's Department
used to represent the management in these wage
settlements. He clarified that the Account Officer used to
represent the management in these wage settlements on
behalf of Account's Department. He could not tell if the
workman represented the management in any other wage
settlement except that of 1997. He conceded that the
workman was designated as Account Officer since 1987 and
since there was no other person in the Accounts Department
in May 1997, the workman was asked to represent the
management in the wage settlement. He conceded that as
per wage settlement Ex.WW1/M5, if a workman is found
guilty of committing misconduct, he might be charge sheeted
by the management followed by a domestic inquiry. In case
the workman is suspended from services, he will be paid 50%
of his wages during the period of his suspension. He
conceded that the workman was granted PF facility during his
service tenure and his PF was deducted as per law. He
further conceded that the workman was suspended vide letter
L.I.R. No.3312/16 Page No. 22 out of pages 41
dated 28.04.1999 Ex.WW1/B and vide the said letter, it was
informed that the workman will receive 50% of his salary as
suspension allowance during the suspension period. He
stated that he will have to check the office record whether the
workman was paid the entire suspension allowance during
the suspensions period. He could not tell if the management
by any written communication or document had informed the
workman about the embezzled or misappropriated amount as
alleged. He stated that as Accountant with the management,
he prepared bills, cheques, salary and other account related
works. Even after 28.04.1999, he was working in the
Accounts department of the management. He stated that no
letter authorizing him to work as an Accountant has been
issued ever by the management to him and now, to appear in
the present case he haa been authorized as an Accountant
by the management. Earlier, he was working in the billing as
a clerk. He has been working as an Accountant for the last
1012 years. After 28.04.1999 one Sh. Alok Bhatnagar was
working as Associate Accounts Officer, who had left the
management about 810 years back. He conceded that
whenever he used to be deputed by Mr. Alok Bhatnagar for
the management work, he used to attend the duty assigned
L.I.R. No.3312/16 Page No. 23 out of pages 41
by him. He have never assigned any duty to attend the
Government departments. In any circumstance only the
Account Officer is authorized to attend the income tax office/
department for the management work. He conceded that vide
Ex.MW2/1, he was authorized by the management to appear
before any Government Authority/Tribunal as an authorized
representative of the club. He further conceded that
management used to authorized Sh. Jaspal Singh incharge
store to sign all papers and documents relating to excise and
excise permit before the Collector of Excise as per
management letter dated 03.06.2004. He could not tell if the
management used to authorize Account or Store Incharge or
Accounts Officer or any person from the accounts department
to attend the case before the Income Tax authority. He also
could not tell if the above persons, who used to go with the
C.A. of the management or consultant to attend the cases of
income tax, were not authorized to take any decision before
the Income Tax Authority and the C.A. was the final authority
to present the case before the Income Tax Department. He
had never accompanied the workman before the Income Tax
Authority. He could not tell if any decision before the Income
Tax Authority was taken by the workman. He stated that he
L.I.R. No.3312/16 Page No. 24 out of pages 41
has no knowledge if the workman used to accompany the
C.A. or consultant of the management before the income tax
authority. The workman and the recordkeeper used to
prepare the gratuity of workman Ram Kishan and the final
authority was the executive secretary. He conceded that if the
executive secretary refuses to sanction the gratuity, the same
would not be paid to Sh. Ram Kishan (Ex.WW1/M4) and if
the executive secretary refuses the advance loan as
requested vide Ex.WW1/M5 would not have been granted.
He further conceded that Sh. Ramesh Kumar was only given
an advance loan as per Ex.WW1/M6 after the sanctioning of
executive secretary as well as general secretary. He
conceded that workman was not having any power to
sanction the advance loan, gratuity, leave, increment etc. of
the worker as well as he has no power to sanction the gratuity
of the workers and it was the executive secretary who was
the sanctioning authority. He stated that he has been working
with the workman since 1987 till 1999. He showed his
ignorance if the workman took vital decision in the accounts
department in the capacity of an accountant of the
management. He confirmed that criminal misappropriation
case filed by the management against the workman is
L.I.R. No.3312/16 Page No. 25 out of pages 41
pending adjudication. He conceded that no domestic inquiry
was conducted against the workman. He could not tell if the
workman was not given any opportunity to defend himself
before the dismissal order. He clarified that workman did not
file reply to the charge sheet. He could not tell if the workman
filed reply dated 11.05.1999 to the charge sheet dated
06.05.1999. He showed his ignorance if any steps were taken
by the management to recover the alleged amount of
embezzlement from the workman till date.
Thereafter, the Management Evidence was closed
and case was fixed for final arguments.
Final arguments heard. File perused.
My issue wise discussion is as under:
:ISSUE No.(i):
Whether the claimant is not a
workman under Section 2 (s) of I.
D. Act?
In its Written Statement, the management has
taken a preliminary objection that claimant is not a workman
as envisaged by the legislation and as contemplated by the
Industrial Dispute Act. The claimant herein had been serving
the establishment as Accounts Officer and his duties were
L.I.R. No.3312/16 Page No. 26 out of pages 41
governed with the performance of managerial/supervisory
duties. It has also been claimed in the Written Statement that
the claimant being a senior officer of the institution had been
signing the settlement on behalf of the management. The
claimant had sanctioned the loan applications of Sh. Om
Prakash, Sh. Ram Kishan and Sh. Ramesh Kumar, vide
order sheets dated 05.06.1993, 28.05.1993 and 18.04.1995
respectively. He had also appeared in the Income Tax
Department and signed the papers related to wealth tax,
income tax and Registrar Income Tax Appellate Tribunal
respectively.
In rebuttal, the workman has claimed that although
the claimant was working an an Accounts Officer, however,
the duties of the workman were clerical in nature. The
designation was merely on the papers and just to cheat the
workman and he was not having powers of management
control or of the superiors. The workman had never been
vested with any powers related to sanctioning or rejecting
leaves to any staff members or writing annual performance
report of any staff members of appointing or interviewing any
candidate for filing up the posts or exercising control or
supervision over the duties of any staff members or calling for
L.I.R. No.3312/16 Page No. 27 out of pages 41
explanation of any staff members or taking disciplinary action
for minor or major misconduct committed by any staff
members. As far as claimant's duties and status were
concerned, same remained of clerical in nature at the club.
As such, it can not be said that he does not fall within the
ambit of definition of a workman as prescribed in Section 2 (s)
of the Industrial Disputes Act, 1947.
By now the law regarding as to who constitutes a
workman under the provisions of Section 2 (s) of the
Industrial Disputes Act is well settled. Vide citation AIR 1966
SC 305 All India Reserve Bank Employees Association
and Anr. Appellants Vs. Reserve Bank of India and Anr.
Respondents it has been held that:
"The definition of workman in Sec.2(s), Industrial Disputes Act, 1947, as amended in 1956 includes inter alia an employee employed as a supervisor. There are only two circumstances in which such a person ceases to be a workman. One is when he draws wages in excess of Rs. 500/ per month and the other is when he L.I.R. No.3312/16 Page No. 28 out of pages 41 performs managerial functions by reason of a power vested in him or by the nature of duties attached to his office".
"The word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of the context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the manual work of others."
" The question whether a particular workman is a supervisor within or without the definition of workman is ultimately one of fact, at best one of mixed fact and law. The question is really depend upon the nature of the industry the type of work in which he is engaged the organizational set up of the particular unit of industry and like L.I.R. No.3312/16 Page No. 29 out of pages 41 factor. The work in a Bank involves layer upon layer of checkers and checking is hardly supervision. Where however, there is a power of assigning duties and distribution of work there is supervision. Mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision. The work done in the audit department of a bank is not supervision. 19611 Lab LJ 18(SC) Ref. to"
Irrespective of the wages paid, the test to determine whether a person is a workman or not is laid down by the Hon'ble Supreme Court in Arkal Govind Raj Rao Vs. Ciba Giegy of India Ltd., Bombay, reported in 87 Bom. L.R. at page 344 (AIR 1985 SC 985). The Supreme Court has held "Whether a particular employee is a workman within the meaning of the expression as defined in S.2 (s) of the Industrial Disputes Act, 1947 or a L.I.R. No.3312/16 Page No. 30 out of pages 41 person employed in a supervisory capacity the test that one must employ is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth. The definition of the expression workman clearly shows that the person concerned would not cease to be a workman if he performs some supervisory duties but he must be a person who must be engaged in a supervisory capacity."
It has further been held in the same "Where an employee has multifurious duties and a question is raised whether L.I.R. No.3312/16 Page No. 31 out of pages 41 he is a workman or some one other than a workman, the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person."
It has been held in 2001 LLR 1083 Supreme Court of India; Hussan Mithu Mhasvadkar Vs. Bombay Iron & Steel Labour Board that: "No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is L.I.R. No.3312/16 Page No. 32 out of pages 41 the nature of his duties and the powers conferred upon as well as the functions assigned to him."
Similarly, it has been held in 2004 LLR 108 Bombay High Court Tanojkumar B.Chatterjee Vs. Solapur Municipal Corporation that: "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, AIR 1988 SC 329: 1988 Lab IC 384. 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 L.I.R. No.3312/16 Page No. 33 out of pages 41 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. Samuel, (1998) 2 Cur LR 736; 1999 LLR 21. In the Bombay Dyeing and Manufacturing Company Ltd. Vs. R.A. Bidoo, 1989 (2) Cur 248: 1990 Lab IC 116. 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 L.I.R. No.3312/16 Page No. 34 out of pages 41 corrective steps if a subordinate errs in work assigned to him."
By way of examining MW1 Sh. Bhupinder Singh (who was partly cross examined by the workman) and MW2 Sh. Prit Pal Singh in Management Evidence, the management has discharged its onus as they have reiterated in their evidence by way of affidavits that claimant was serving the management club as Accounts Officer and was primarily performing the duties which were supervisory and administrative in nature. The claimant as an Accounts Officer used to report to the CAO and executive Secretary of the Club and he was drawing the salary and other increments as per the officers category, whereas the workman of the club used to draw and they still draw their salary and other benefits from the periodical wage settlement entered between the management of the club and workers, and the officers including the claimant were not included in the said settlement. Likewise the officers, including the claimant, were/ are not entitled to the dearness allowance which is periodically announced by the Delhi Administration. The functions of the claimant were all supervisory / managerial in nature so much so that he was representing the management L.I.R. No.3312/16 Page No. 35 out of pages 41 in the wage settlement which were/are executed between the management and workman Ex.WW1/M1. The claimant has never done any clerical work and as such the accounts books etc. used to be prepared by the bill clerks, accountants, assistant accountants and Head Cashier. The ledger Ex.MW1/2 showing that the accounts were maintained by clerical staff, who were working under the claimant. As an Accounts Officer, the claimant used to enjoy full authority on the aforesaid staff members and he used to recommend their leave application, their loan applications and also used to sanction the gratuity of the employees, who had retired, Ex.WW1/M2 to Ex.WW1/M6, a function which is primarily managerial one in its soul and substance. Further the claimant also used to appear in the Income Tax Department/appellate tribunals and sign the papers relating to Wealth Tax, Income Tax Ex.WW1/M12, Ex.WW1/M14, Ex.WW1/M15 & Ex.WW1/M16.
It is the case of workman that although the claimant was working an an Accounts Officer, however, the duties of the workman were clerical in nature.
The perusal of the record reveals that the workman has brought no material on record to substantiate the said L.I.R. No.3312/16 Page No. 36 out of pages 41 claim as neither he has led any evidence by way of examining any fellow employee or colleague to confirm that he was actually performing the work of clerical nature nor he produced any documentary material in this regard. In his cross examination claimant WW1 Sh. Bhupinder Singh Bhaita has categorically admitted that there was no other accounts officer in the department besides him. He conceded that the workman used to draw their salary and other benefits from the periodical wage settlement entered between the management of the club and the workers and he was not covered in that settlement for the purposes of his salary and other benefits. He also conceded that the other officers of the club also were not enjoying the salaries and other facilities from the wage settlement and they were not getting the DAs also. The document put to the claimant during the course of his cross examination Ex.WW1/M1, which is the Memo of Settlement dated 09.05.1997, find mentions the name of claimant under the heading "Representing the Employer" and claimant admitted his signature on the said document at point A. Further on one occasion, he stated that he used to be witness in such settlement, but on the subsequent part of his cross examination he admitted that the said settlement Ex.
L.I.R. No.3312/16 Page No. 37 out of pages 41WW1/M1 does not bear his name and signatures in the column of witnesses. The aforesaid admission on the part of claimant also defeats the claim of claimant that he was a workman. The claimant has further conceded in his cross examination that accounts book used to be prepared by bill clerks, accountants, asst. accountants, head cashier working under him and he used to recommend the leave applications and loan applications of the aforesaid persons. The claimant was confronted with the originals of leave application of Ramesh Kotia: Bill Assistant, V. K. Mishra: Asst. Accountant, details of gratuity of Ram Kishan: Waiter, loan application of Sh. Om Prakash and loan application of Sh. Ramesh Kumar:
Glass Boy, Ex.WW1/M2 to Ex.WW1/M6 respectively, and same bearing the signatures of petitioner/workman at points C, D, E, F & G. He also conceded that the bills which were received from other departments like store, F & B etc. used to be verified by him before any payment was made. During the course of his cross examination, the claimant was also confronted with the two original assessment letters dated 31.03.90 & 31.03.92 Ex.WW1/M8 & Ex.WW1/M9 and he admitted of having represented the management before the Asst Commissioner of Income Tax as the Account's Officer L.I.R. No.3312/16 Page No. 38 out of pages 41 and along with Sh. A. S. Bhatia, who was a professionally hired CA. He was further confronted with original letter dated 24.11.93 and 15.10.93 Ex.WW1/M10 Ex.WW1/M11 and he admitted of having appeared and represented the management of the club before the Commissioner of Income Tax in the capacity of Account's Officer and also discussed the matter on behalf of the club. He further conceded that he used to take vital decisions on behalf of the club in the capacity of the Account's Officer. He conceded that his increment had been discussed in the meeting of managing committee dated 25.04.89 vide minute book ( page No.53) Ex.WW1/M17. He although claimed that it was not essential that the increments of all the officers is discussed in the meetings of managing committee but it is not the claim of the claimant that the increment of workers were also used to be discussed in the such meetings. It suggests that claimant was holding the post of administrative/supervisory nature.
In view of above, it can not be said that claimant is a workman within the ambit of the definition of workman as propounded under Section 2 (s) of the Industrial Disputes Act, 1947 (as amended up to date), consequently, the claim of the claimant is not maintainable under the Industrial Disputes Act, L.I.R. No.3312/16 Page No. 39 out of pages 41 1947 (as amended up to date). Issue no. 1 is, accordingly, decided against the workman.
:ISSUE No.(ii): "As per terms of reference."
In the present matter, following reference has been received for adjudication: "Whether dismissal of Sh. Bhupinder Singh Bhaita S/o Sh. Trilok Singh Bhatia from service by the management is illegal and / or unjustified and if yes, to what relief is he entitled?"
In view of my findings on Issue No.(i) that workman does not fall within the ambit of Section 2 (s) of I. D. Act, so there is no need to give finding on the said issue. Issue stands decided accordingly.
:Relief: In view of above discussion, I am of the considered opinion that the claimant is not entitled to any relief. The claim of the claimant is rejected. Award is passed accordingly and the reference is answered accordingly. Requisite number of L.I.R. No.3312/16 Page No. 40 out of pages 41 copies of the award be sent to the competent authority for publication.
File be consigned to the Record Room after completion of necessary formalities. Announced in the open Court on 19.01.2019 (RAKESH KUMARI) Presiding Officer Labour CourtX Dwarka Courts, Delhi.Digitally signed by RAKESH
RAKESH KUMAR Date: KUMAR 2019.01.23 15:23:25 +0530 L.I.R. No.3312/16 Page No. 41 out of pages 41