Delhi District Court
Sh. Ravinder Kumar vs M/S Intellvisions Software Limited on 29 October, 2021
IN THE COURT OF SH. PAWAN KUMAR MATTO,
(ADDITIONAL DISTRICT & SESSIONS JUDGE) PRESIDING
OFFICER, LABOUR COURT NO. 02, ROUSE AVENUE DISTRICT
COURTS: NEW DELHI
LIR No. 2711/16
Date of institution 02.11.2015
Date of Award 29.10.2021
Sh. Ravinder Kumar
S/o Sh. Dalvir Singh
R/o Village or Post Dehpa
District Sambal, Uttar Pradesh
C/o Indian Steel & Metal Workers Union
1800/9, Govindpuri Ex.,
Main Road, Kalkaji,
New Delhi 110019
Mb. No. of the workman 8958387502
.... Claimant/workman
Sh. Shashwat Singh Gaur, AR for the workman
Mb.No. of the AR for the workman 9810300323
email of the AR for the workman [email protected]
Vs.
M/s Intellvisions Software Limited
B-7, West Patel Nagar
New Delhi 1100008
..Management
Sh. Kamal Kant Tyagi, AR for the management.
Mb. No. of the AR for the management 9313907096
Email: [email protected]
AWARD
1.This award of mine will dispose off the reference sent to this court by the office of the Dy. Labour Commissioner, District West, Labour Department, GNCT of Delhi, F Block, Karampura, New Delhi 110015, arising between the parties as named herein above, vide notification No.F.3 (225)/Ref./WD/Lab/15/779 dated LIR No. 2711/16 1/32 19.10.2015 with the following terms of reference:-
"Whether the services of Sh. Ravinder Kumar s/o Sh. Dalvir Singh have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. The claimant has filed statement of claim stating therein that he was working with the management w.e.f. 16.10.2005 on the post of Hardware Engineer and his last drawn salary was Rs. 11643/- per month. It is also stated that he was merely branded by the management as Hardware Engineer, whereas the principle nature of workmen's duties were clerical, technical and manual i.e. to maintain record of operation, coordination between various branches of operation and submission of periodical reports etc. to the company from time to time. The claimant has also stated that he never had any supervisory and managerial role in the management. The claimant has also stated that he has no power to appoint or dismiss anyone with or in the management. He has no power to sign cheques on behalf of the management and he was working at the lowest level of the management without any subordinates working below him and the claimant reported to owner of the management. Hence, the claimant is workman as defined in Section 2(s) of the Industrial Disputes Act. The claimant has further stated that his record of service was neat and clean. There was no complaint of any kind on behalf of the claimant and more than 2000 employees were working with the management and the management is an Industry.
3. The claimant has alleged that at the initial stage of his employment, the management got some blank papers, vouchers, LIR No. 2711/16 2/32 proformas, provident fund withdrawal forms, full and final receipts and blank appointment letter signed from the claimant, but, did not provide the copies of the blank signed papers to the claimant and the management can misuse the said documents against him.
4. The claimant has further stated that he was appointed by the management at it's office at 35/2, West Patel Nagar, New Delhi 110008 and the claimant worked at the said address and he used to report to Mr. Ujjal Chetia, Operations Incharge at the abovesaid address of the management. The claimant has further stated that he was not provided the legal facilities viz. Attendance card, leave book, weekly off, festivals off, conveyance, festival holidays and leave encashment and he was demanding these legal facilities orally from the management and in view of the same, the management wanted to terminate his services.
5. The claimant has also stated that the management ultimately terminated his service on 04.07.2008 by way of oral refusal of duties and prevented him from entering in his place of employment and the same was done without issuing any show cause notice, chargesheet and without displaying the seniority list etc. and the act of the management of terminating the services of the claimant is illegal and unjustified and the claimant had worked for more than 240 days in an year prior to his illegal termination. He has also stated that after the termination of his services by the management, he approached to the Labour Department and requested to get the service of the claimant reinstated, but, the management did not cooperate with the Labour Department.
LIR No. 2711/16 3/326. He has also stated that he had shown his willingness to join his duties, but, the management did not take him back on his duties, despite the requests of the Labour Officer. He has also alleged that the management did not pay the earned wages to him.
7. The claimant has further stated that he is unemployed, since the day, his services have been illegally terminated by the management, despite his best efforts to secure alternative gainful employment. He has also stated that he has no source of income to maintain himself, as well as, his family members and he is dependent on his friends, acquaintances and relatives for his sustenance.
8. He has also stated that he was left with no option, so, through his Trade Union, he had sent a legal demand notice to the management and the same was duly served to the management, but, the management gave a false and evasive reply to the said legal demand notice, sent by the claimant.
9. The claimant has also stated that the management had created a false story of resignation in the said reply to the legal notice, whereas, the claimant has never resigned from his services rather his services were terminated illegally by the management.
10. He has also stated that without prejudice to his rights and contentions, he is still ready to join the services in the management. He has also stated that after passing of sometime, he was surprised, when he received his provident fund money deposited with the management, in his account, whereas, the claimant has never LIR No. 2711/16 4/32 withdrawn the said amount and it was the management, who misused the blank signed papers obtained by the management.
11. He has also stated that he had complained through his trade union before the Dy. Labour Officer, Pushpa Bhawan, Pushp Vihar, New Delhi and also filed statement of claim and in pursuance thereof, the management was summoned by the Labour Authority. He has also stated that he kept on going to the premises of the management on regular basis after the termination of his services. However, the management's concerned officials flatly refused to take him back on his duties and warned him to never come back.
12. He has also stated that he had approached to the concerned Conciliation Officer at District Labour Office of Dy. Labour Commissioner, situated at Karampura, New Delhi, but, the management did not cooperate with him and did not take him back on his duties and further stated that Delhi Government was pleased to make a reference pertaining to illegal termination of his services.
13. He has also stated that since the termination of services of the claimant is illegal, unjustified, not valid, void ab initio, as, despite of repeated requests of the claimant, the management has not allowed him to re-join his services and the act of termination of services of the claimant is in violation of Section 25F, G, H, N of Industrial Disputes Act. Therefore, he has prayed for directing the management to settle all the claims of the claimant, to reinstate him with full back wages and continuity of services with all consequential benefits and to pay interest @ 18% per annum.
LIR No. 2711/16 5/3214. The notice of the statement of claim was issued to the management and on completion of the services, the management had filed the written statement stating therein that by virtue of order dated 30.01.2015, the Hon'ble High Court of Bombay was pleased to approve the scheme of amalgamation of Intellvisions Software Ltd. With Aurionpro Solutions Ltd. and the merger has come into effect from 01.08.2015.
15. The management has also stated that the statement of claim filed by the claimant is false and frivolous and the story concocted by the claimant is an afterthought. It is also stated that the claimant had left the service of the management after tendering his resignation, so, the question of termination of service of the claimant does not arise. It is also stated that the claimant had joined the service in the management on dated 16.11.2005 and he stopped reporting for duties w.e.f. 05.07.2008 and after remaining absent from duties since 05.07.2008, he had sent a undated letter of resignation, which was received by the management on dated 10.02.2009 and the said resignation letter is the hand written, wherein, he has described his association with the management, as memorable and he expressed his sincere appreciation for guidance and counseling by the management. So, the contention raised in the statement of claim by the claimant is of no merit that he was refused duty w.e.f. 04.07.2008.
16. The management has also stated that after receiving the letter of resignation, the management, vide it's letter dated 16.02.2009, informed to the claimant that his resignation, as requested by him, was accepted and he would be relieved with retrospective effect LIR No. 2711/16 6/32 from 04.07.2008 i.e. the date when the claimant started absenting from his duties without any authorization. It is also stated that after accepting the resignation letter of the claimant, his full and final settlement was carried out on dated 06.05.2009, vide cheque no. 443974 dated 06.05.2009 for Rs. 9062/- drawn on HDFC Bank and the same was credited in the account of the claimant on dated 11.05.2009 and the said amount was received by the claimant without any protest and he was fully aware that he has received the said full and final settlement amount, being his all legal dues, on his resignation.
17. The management has also stated that after receiving of the legal dues by the claimant, he had applied for withdrawl of PF contribution on form-19 and form-10-C and the same was submitted to the PF Authorities on dated 02.07.2009 and his account was also settled by the PF authorities, particulars whereof are as under:
PF form-19 : Amount Rs. 4,926 vide cheque No. 437406 dated 27.05.2010 PF Form No. 10-C: Amount Rs. 1,886/-, Cheque No. 518086 dated 27.05.2010.
The aforesaid cheques were duly encashed by the claimant.
18. The management has also stated that the claimant had resigned from the services in the management and took full and final amount. He had also withdrawn the money from the PF and he did not raise any plea of refusal of duty for a considerable time.
19. It is also stated by the management that firstly, the claimant LIR No. 2711/16 7/32 had started absenting from duties himself and thereafter, he had submitted resignation which was accepted by the management with retrospective effect from the date of his absenting from his duties and he took the cheque and got them encashed.
20. It is also stated that the claimant stopped reporting duties without any intimation from 05.07.2008 and he had sent a letter of resignation without date, which was received by the management on dated 10.09.2009, which was accepted with retrospective effect on 16.09.2009 from the date, he absented from duties i.e. 05.07.2008 and the claimant had taken his full and final settlement amount on 06.05.2009 as the said amount was credited in the bank account of the claimant on dated 11.05.2009 and the claimant has also settled his PF Account, which goes to prove that the claimant had resigned and left the services of the management voluntarily.
21. It is also stated that the claimant has raised the dispute which is highly belated, as he had raised the dispute for the first time in Conciliation in October, 2013 after passing of more than 5 years.
22. The management has also stated that this claimant was employed as Hardware Engineer and he was drawing the salary of Rs. 11,764/- per month and in the capacity of Hardware Engineer, he was performing supervisory duties, as such, he is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Therefore, this court has no jurisdiction to adjudication upon the present matter.
23. Replying to the statement of claim on merit, the management LIR No. 2711/16 8/32 has not denied that the claimant was working in the management since, 16.10.2005, as Hardware Engineer and his last drawn wages were Rs. 11,643/-. The management has denied that the claimant was merely branded as Hardware Engineer or that his duties were merely clerical, technical or manual. The management has also stated that the claimant was working as Hardware Engineer in the management and he was performing supervisory duties.
24. The management has also stated that since, the claimant was performing supervisory duties, so, he is not workman under Section 2 (s) of the Industrial Disputes Act.
25. The management has denied that it had obtained signatures of the claimant on blank papers,vouchers, performa, PF Withdrawal Form, final settlement receipt or blank appointment letter. It is also stated that had the management obtained signatures of the claimant on such documents, he could protest against such act of the management earlier and the claimant has failed to explain any good reason as to why, he did not complain about the same to the Labour Department or to the police regarding obtaining of his signatures on blank papers and stated that there is not truth in the story of the claimant.
26. The management has denied that it had not provided the legal facilities such as identity card, leave book etc.
27. The management has also denied that it had terminated the services of the claimant on dated 04.07.2008, as alleged by the claimant. The management has alleged that the claimant is LIR No. 2711/16 9/32 absenting from duties w.e.f. 04.07.2008 and thereafter, he had submitted his resignation. It is also stated that allegations against the management have been levelled for the first time and no letter of protest was ever sent to the management and the story of the claimant is an afterthought.
28. The management has also stated that the so called demand notice sent by the trade union contained false and frivolous allegation therein. The management has also stated that it had never terminated the services of the claimant. The management has also stated that the claimant has admitted in his statement of claim that PF contribution has been received and deposited in his Bank Account and he has never protested about the payment of PF money. The claimant remained silent after receiving of the said money.
29. The management has also stated that the complaint of the claimant filed before the Deputy Labour Commissioner did not contain any truth and the reference has been made without application of mind and it is highly belated.
30. The management has also stated that since, the management has never terminated the service of the claimant, so, it has not violated any provision of Section 25(F) of the Industrial Disputes and after denying other allegation levelled against the management, it has prayed for dismissal of the statement of claim.
31. The claimant has filed rejoinder to the written statement of management and denied the averments made in the written statement and reiterated the contents of statement of claim.
LIR No. 2711/16 10/3232. From the pleadings of parties following issues were framed by my Ld. Predecessor of this court as under:
1. In terms of reference.
2. Whether the claimant is not a 'workman' as defined under Section 2(s) of the Industrial Disputes Act 1947?
3. Whether the claimant absented from the duties from 05.07.2008 and had submitted his resignation received by the management on 10.02.2009, if so, to what effect? OPM
33. In order to prove his case, the claimant has examined himself as WW-1, vide his affidavit, Ex. WW-1/A. He has relied upon the documents which are exhibited Ex. WW1/1 to Ex.WW1/9 (colly). This claimant was cross examined by the Ld. Authorized Representatives for the management. The claimant did not examine any other witness, so, the evidence of the claimant was closed.
34. The management has examined Sh. Raj Kumar Yadav as MW1, vide his affidavit Ex.MW1/A. He has relied upon the documents Ex. MW1/1 to Ex. MW1/10. He was cross examined by the ld. Authorized Representative for the claimant.
35. The management has also examined Sh. Kodakara Jayashankaran Unny as MW2, vide his affidavit Ex.MW2/A. He has relied upon the documents Ex. MW2/1 to Ex. MW2/2. He was cross examined by the ld. Authorized Representative for the claimant.
36. The management did not examine any other witness, so, LIR No. 2711/16 11/32 evidence of the management was closed.
37. I have heard ld. Authorized Representatives of both the parties and perused the record.
38. Ld. Authorized Representative of the claimant has submitted that the claimant was appointed by the management w.e.f. 16.10.2005 as Hardware Engineer, vide letter of appointment dated 29.10.2005 Ex. WW1/9 (colly) and his last drawn wages were Rs. 11645/- and his services have been illegally and unjustifiably terminated by the management on dated 04.07.2008, as the management had prevented to the claimant to join his duties w.e.f. 04.07.2008. He has also submitted that the letter of appointment was effective w.e.f. 16.10.2005. He has also submitted that the claimant was never given any leave book or attendance card by the management. He has also submitted that the post of the claimant was Hardware Engineer, but, he used to do the clerical and technical job in the management, so, he is the workman. He has further submitted that the management had violated the provisions of Section 25(F) of the Industrial Disputes Act, as, at the time of termination of services of the claimant, he was neither given any notice nor any retrenchment compensation and submitted that the claimant has examined himself as WW1, vide his affidavit Ex. WW1/A. He has relied upon the documents Ex. WW1/1, to Ex. WW1/9. He has also submitted that the management has examined it's witnesses, but, the testimonies of the witnesses of the management cannot be relied upon, as, the management has failed to prove on record that the claimant has abandoned the job or he was absenting from duties and the alleged emails Ex. MW2/1 and LIR No. 2711/16 12/32 MW2/2 relied upon by the management have never been sent by the claimant nor the same emails have been proved, so, the same cannot be relied upon and prayed for directing the management to reinstate the claimant with full back wages and continuity of services and to provide all consequential benefits along with interest @ 18% per annum.
39. On the other hand, ld. Authorized Representative for the management has submitted that this claimant was appointed as Hardware Engineer, vide letter of appointment Ex. WW1/9 (colly). He has also submitted that the claimant was also doing supervisory and managerial works, as, agreed upon by him, vide his appointment letter and the employment agreement Ex. WW1/9 (colly), as the duties of the claimant are mentioned in employment agreement, which reveals that the claimant had also agreed to do managerial and supervisory work, so, the claimant, who is possessing a degree of Bachelor of Engineering and who is appointed as Hardware Engineer, vide letter of appointment Ex. WW1/9 (colly) is not the workman within the meaning of under Section 2(s) of the Industrial Disputes Act. He has also submitted that this claimant had resigned from the job and he had written letter of resignation Ex. MW1/W1 and in furtherance thereof, the management had written letter Ex. WW1/M4. He has also submitted that this claimant had resigned from the job way back in the year 2009 and demand notice Ex. WW1/1 was sent to the management on 14.10.2013. He has also submitted that the contents of the demand notice go to prove that the contents thereof were absolutely false that the claimant has claimed therein that he was not given appointment letter, facility of ESI, whereas, the LIR No. 2711/16 13/32 appointment letter is placed on record by the claimant himself, as, Ex. WW1/9 (colly) and the claimant has also placed on record the copy of his pay slip Ex. WW1/7, wherein, the reference of ESI contribution is there. Thus, the contents of legal notice are inconsistent to the evidence of the claimant.
40. He has further submitted that after making resignation by the claimant, the management had written letter Ex. WW1/M.4 and asked him to collect his full and final payment. He has also submitted that thereafter the claimant has sent two emails to the management Ex.MW2/1 dated 12.01.2014 and alongwith this email, he had also sent his resume and he had also sent another email Ex.MW2/2 dated 12.10.2014 and he had also sent his curriculum vitae and the claimant had admitted in his cross examination that the said emails were sent to the management, which are addressed to Ms. Poorvi Solanki of the management, by the claimant and in the said emails, it is stated that he has experience of doing the job. He has further submitted that the claimant was under obligation to prove that he is workman within the meaning of Section 2 (S) of the Industrial Disputes Act and his services have been illegally and unjustifiably terminated by the management. The claimant has failed to bring on record any cogent evidence to prove that he is workman within the meaning of Section 2(s) of the Industrial Disputes act and his services were illegally and unjustifiably terminated by the management. He has also submitted that the claimant initially started absenting from duties and thereafter, he had sent letter of resignation to the management. He had also withdrawn his amount of PF and the claimant has admitted in his cross examination regarding the LIR No. 2711/16 14/32 receiving of amount of PF. He has further submitted that since, the claimant has resigned from the job in the management and he had taken all his dues and filed false case against the management, so, he is not entitled to get any relief and prayed for dismissal of the statement of claim.
41. I have given thoughtful consideration to the submissions made by Authorized Representative of the claimant and management and perused the record.
42. The perusal of the record reveals that the claimant has claimed that he has served in the management as Hardware Engineer since, 16.10.2005 and on dated 04.07.2008, his services have been illegally terminated by the management. The management has denied that it had terminated the services of the claimant. The management has claimed that the claimant was absenting from duties and thereafter, he had resigned from the services in the management. The management has also claimed that the claimant is not a workman as defined under Section 2 (S) of the Industrial Disputes Act.
43. The burden of proving issue No. 1 and 2 was on the claimant, whereas the burden of proving issue No.3 was on the management.
44. In order to prove his case, claimant has examined himself as WW-1 vide his affidavit Ex. WW-1/A and in one way or the other, he has reiterated the contents of his statement of claim therein. He has relied upon the documents viz. copy of demand notice dated LIR No. 2711/16 15/32 14.10.2013 Ex.WW1/1, copy of the letter dated 03.10.2013 written by Sh. Rakesh Sharma, General Secretary of the Trade Union to the management Ex.WW1/2, Courier receipts Ex.WW1/3 (Colly), copy of the letter dated 16.09.2012 written by Sh. Rakesh Sharma, General Secretary of the Trade Union to the management Ex.WW1/4, two postal receipts Ex.WW1/5 (colly), Reply dated 18.11.2013 written by the management to the claimant Ex.WW1/6, copy of payslip Ex.WW1/7, photocopies of identity cards Ex.WW1/8, photocopy of appointment letter and employment agreement Ex.WW1/9 (colly).
45. He was cross examined by ld. Authorized Representative for the management and during his cross examination, he has admitted that he is a Bachelor of Engineering since 2002. He has admitted that he can read, write and understand English. He has deposed that he is B.E. in computer Science. He has also deposed that he worked as a Teacher till 2005, after which, he had joined the management in the 2005.
46. He has denied that he was not made to sign on any blank papers, PF withdrawal forms, final settlement receipts or any other vouchers, at the time of joining by the management. He has admitted that he has not made any complaint, oral or in writing before any authority in this regard. He has admitted that he was issued an appointment letter. He has admitted that the same was not blank. He has deposed that he does not know if he was covered with PF, ESI subscription or not, by the management. This witness was confronted with salary slip Ex. WW1/7 of May 2008 at point A and Point B marked in red. Then, he had admitted that there is LIR No. 2711/16 16/32 deduction of amount of his ESI at point B in his salary slip. He has denied that there was any PF deduction in his salary. He has denied that he was covered under the PF subscription by the management vide PF subscription No. MH/94368/6 or under ESI cover vide ESI Insurance No. 11431980. He has denied that he was availing statutory leaves and other statutory benefits during his employment with the management, as per rules. He has admitted that he never made any complaint to any authority regarding any deficiency of compliances by the management, during tenure of his employment with it.
47. He has denied that he himself started absenting from duties of the management w.e.f. 05.07.2008 without any intimation or authorization. He has denied that he was never prevented from joining his duty on 04.07.2008 or any day thereafter, by the management. He has deposed that he made a written complaint to the management at Bombay, through Delhi Office of the management in the year 2007, when he suffered from acute depression for 2 to 2 ½ months. He has deposed that the management at Bombay made him to join at Delhi office again for which, he has no proof. This witness has produced the medical documents Ex. WW1/M1 to Ex. WW1/M3. He has deposed that he did not make any other complaint to the management, after his alleged termination in 2008. He has admitted that he has not mentioned the facts of his illness during his employment with the management, in his statement of claim or in his affidavit given in examination in chief, the fact of his illness, during his employment in the management. He has denied that he did not mention so, because he wanted to conceal the true facts of his incompetence to LIR No. 2711/16 17/32 do his duties with the management, during his years of service.
48. This witness was confronted with the copy of letter of Resignation allegedly submitted in February 2009 by the claimant, which was objected to by Advocate for claimant and the Ld. Predecessor was pleased to observe that the document could not be confronted, so, it was disallowed.
49. The claimant has admitted that he had received the letter shown to him Ex. WW1/M4 and AD card Ex. WW1/M5. He has voluntarily deposed that he met to the HR Department, but, did not make any complaint in writing. He has denied that he met the HR of Management and received his full and final settlement amount of Rs. 9,062/-. He has admitted that the amount was credited in his account directly, but, he did not know why this amount has been credited. He has voluntarily deposed that he was told that he had received the money due to difference in increased salary for the period, he worked with the management. He has denied that there was no such representation from the management to explain the credit of Rs. 9,062/- in his account.
50. He has denied that he made any request by way of written application along with cancelled cheque for withdrawal of his PF, after February 2009. He has voluntarily deposed that he never met anyone for such request and the cancelled cheque was sent by him by courier to the management in the year 2013, at their request for settlement of all his accounts. This witness was confronted with copy of the cheque of his account.
LIR No. 2711/16 18/3251. Then, he had admitted that the copy shown to him is that of a cancelled cheque from his account mark WW1/M6. He has deposed that he cannot say if the amount of Rs. 4926/- and Rs. 1886/- were credited in his account vide cheque Nos. 437406 and 518086, respectively, both dated 27.05.2010 against his PF account settlement from PF Department, in respect of the management.
52. He has admitted that on 20.05.2009, he joined the services of Cambridge Aviataion and P.D. College, Haldwani. He has voluntarily deposed that he worked at there only part time for one month. He has admitted that on 12.02.2001, he joined service with Spice BPO Services, Noida. He has voluntarily deposed that he worked only for 15 days at there, as, he had to leave for his native place at Muradabad, U.P. due to illness of his father for a month and lost his job. He has admitted that on 12.10.2014, he sent e- mail to the management management along with his C.V. mark WW1/M7. He has denied that on 12.04.2014, he was employed with Macro Aircon Engineering Service Pvt Ltd. He has voluntarily deposed that he never worked with them. He has denied that he has been in continuous employment since 05.07.2008 or that he himself is not interested in working continuously, due to his personal problems.
53. He has admitted that he was employed to render his professional services to the management during the period of his service. He has admitted that he was rendering hardware services with the management. He has denied that he was not a workman or that he was working as a Supervisor with the management. He has voluntarily deposed that he himself worked as a Trouble Shooter LIR No. 2711/16 19/32 and personally used to attend any problem in the Computer Systems installed in the management's office.
54. He has deposed that his wife, two children and one dependent nephew, whose parents have expired are dependents on him. He has denied that he has been working for gain since he left the employment of the management w.e.f. 05.07.2008. He has deposed that he was dependent on pension of his father till last year, when, he expired and his wife is an Anganwadi Worker, getting around Rs. 3000/- per month, with which, they are surviving. He has denied that his services were never illegally terminated by the management or that he has voluntarily left his services with the management. He has denied that he has filed a false and baseless claim. The claimant did not examine any other witness, so, the evidence of the claimant was closed.
55. The management has examined Sh. Raj Kumar Yadav as MW1, vide his affidavit Ex.MW1/A. In one way of the other, he has deposed on the similar lines of the written statement of the management. He has relied upon the documents viz. Photocopy of order dated 30.01.2015 passed by the Hon'ble High Court of Bombay Ex.MW1/1, photocopy of attendance sheet from June 2008 to October 2008 Ex.MW1/2, photocopy of full and final settlement alongwith the payment voucher dated 06.05.2009 Ex.MW1/3 (colly.), photocopy of bank statement of management w.e.f. 01.05.2009 to 31.05.2009 Ex.MW1/4, photocopy of PF From and Pension Scheme Ex.MW1/6 (colly.), Photocopy of email dated 01.10.2013 sent by PF consultants of management to the management Ex.MW1/7, photocopy of letter dated 09.02.2018 LIR No. 2711/16 20/32 issued by EPFO to the management alongwith photocopy of envelop Ex.MW1/8 (colly.), photocopy of attendance and leave rules of the management Ex.MW1/9, Photocopy of leave with wage register alongwith photocopy of pay slip for the month of July 2008 Ex.MW1/10.
56. He was cross examined by the ld. Authorized Representative for the claimant. During his cross examination, he has deposed that he is aware of the contents of his affidavit Ex. MW1/A. He has denied that he is not authorized to depose on behalf of the management. He has admitted that he has not placed on record any document to show that the management has authorized him to depose on it's behalf, in the present case. He has denied that he is not working in the management since 2005. He has deposed that he does not know whether he has placed on record any document to show that he is working in the management since 2005 or not.
57. Then, the judicial file was shown to the witness and on seeing the judicial file, the witness has admitted that he has not placed on record any document to show that he is working in the management since 2005. He has denied that the claimant has never worked under his supervision in the management.
58. This witness was asked by the ld. Authorized Representative for the claimant that whether is it correct that the claimant had joined the management on 16.10.2005, to which, this witness has replied that he does not remember, whether the claimant had joined the management on dated 16.10.2005 and further deposed that the claimant would have joined the management on dated 16.11.2005 LIR No. 2711/16 21/32 or 16.10.2005.
59. Thereafter, the ld. Authorized Representative of the claimant had shown the demand notice Ex. WW1/1 and the witness has admitted that the correct addresses of the management are mentioned thereon at points A and B.
60. The ld. Authorized Representative for the claimant has shown the complaint of the union Ex. WW1/2 and the witness has admitted that the correct addresses of the management are mentioned thereon at points A and B. Then, the ld. Authorized Representative for the claimant had shown the letter of the union Ex. WW1/4 and the witness has admitted that the correct addresses of the management are mentioned thereon at points A and B.
61. He has admitted that the management did not provide Leave book and attendance card. He has denied that the management did not provide the conveyance charges, leave encashment, weekly off and festival off to the claimant or that the claimant had demanded the legal facilities i.e. conveyance charges, leave encashment, weekly off and festival off, then, the management had illegally terminated the services of the claimant. He has admitted that till the day, the claimant worked in the management, the management had no problem from him.
62. He has denied that the management did not provide retrenchment compensation or notice pay to the claimant at the time of his retrenchment. He has voluntarily deposed that the claimant has never been retrenched by the management.
LIR No. 2711/16 22/3263. He has denied that the claimant did not abandon his job since 05.07.2008. He has deposed that the management had written letter and also sent mail to the claimant after 05.07.2008. He has denied that the management had never written any letter to the claimant after 05.07.2008. He has denied that the claimant had never resigned from the job. He has deposed that the management has placed on record the resignation letter of the claimant on record and on showing the judicial file, the photocopy of the same resignation letter was found on the judicial record and the same was Ex. MW1/W.1.
64. He has denied that Ex. MW1/W.1 is forged and fabricated document. He has denied that it has been created in order to create false record in favour of the management. He has denied that the management had ever obtained signatures of the claimant on blank papers and PF withdrawal form. He has deposed that the name of the claimant was struck off from the Muster Roll, when he had resigned from the job. He has deposed that he is not in position to say that the management is ready to take the claimant back in job or not. He has denied that all the documents relied upon by this witness are false and fabricated documents. He has admitted that the claimant was not having any power to sign any cheque on behalf of the management. He has denied that the claimant was working at the lowest level in the management. He has voluntarily deposed that the claimant was working in the management as Hardware Engineer or Service Engineer in the capacity of Supervisor. He has denied that the claimant was not having any supervisory power. He has admitted that the claimant was not having any power to appoint any person in the management or to LIR No. 2711/16 23/32 sanction the leave of any employee of the management. He has deposed that he claimant always did not oblige the orders of the senior in the management. He has deposed that sometime he used to oblige the orders of the senior, but, other time he used to refuse to oblige the orders of the Senior of the management. He has admitted that management did not give any notice in writing to the claimant for not obliging the orders of his seniors in the management. He has voluntarily deposed that the claimant was verbally asked by the management about the same.
65. He has denied that the management had never asked to the claimant regarding non-obliging the orders of his seniors. He has admitted that the post, on which, the claimant was working in the management is still in existence, but, he does not know whether it is lying vacant or not.
66. This witness has deposed that the management did not prepare any list of seniority of the claimant in the management.
67. He has admitted that the claimant had never committed any misconduct in the management or that he has deposed falsely.
68. The management has examined Sh. Kodakara Jayashankaran Unny as MW2, vide his affidavit Ex.MW2/A, wherein he has deposed that he was employed in the Division of Intellvision Software of the management. He was personally involved in the managing all the IT Infrastructure of the company. He has further deposed that the HR, all the emails related to the jobs of the applicants were marked to Ms. Purvi Solanki, Former HR of the LIR No. 2711/16 24/32 company through computer terminals in the Intellvision's Office.
69. He has further deposed that he was authorized to manage all the emails, facilities provided to the employees and computer terminals in the Intellvisions Office and computer terminals and email accounts used by Ms. Purvi Solanki were functioning normally at all the times.
70. He has further deposed that the management had filed the hard copies/printouts of the following emails:
Sr. No. Particulars
1. email dated 01.12.2014 from Sh. Ravinder Kumar to Ms. Purvi Solanki. Ex.MW2/1
2. email dated 10.12.2014 from Sh. Ravinder Kumar to Ms. Purvi Solanki. Ex.MW2/2
71. This witness has also testified that he has confirmed the contents of hard copies of these emails.
72. He has also testified that he has filed the affidavit MW2/A to certify that hard copies of emails Ex.MW2/1 and Ex.MW2/2 are the true copies/reproduction of electronic record, which was regularly fed into/transmitted through the computer terminal in the Intellvision's Office in the ordinary course of activities and all the times, the computer terminals utilized in the office were operating properly and there is not distortion in the accuracy of contents of hard copies of the emails.
73. This witness was cross examined by the ld. Authorized LIR No. 2711/16 25/32 Representative for the claimant. During his cross examination he has deposed that he is aware of the contents of his affidavit Ex.MW2/A. He has denied that the management had never authorized him to depose on behalf of the management, in the present case. He has also deposed that he is having personal knowledge of the present case. He has further deposed that he had joined the management on dated 01.03.2000. He has admitted that he is having access the email of all the employees of the management, but he has never opened any email of any employee. He has denied that the documents relied upon by him are false and fabricated. He has deposed that he did not take the printouts of Ex.MW2/1 and Ex.MW2/2. He has voluntarily deposed that the printouts of the same was taken by the HR department of the management. He has deposed that he is aware, as to from which computer, the printouts of Ex.MW2/1 and Ex.MW2/2 were taken. He has further deposed that he does not know the email address of the claimant. He has denied that he has deposed falsely.
74. The management did not examine any other witness, so, evidence of the management was closed.
75. The perusal of the statement of claim reveals that the claimant has claimed that he is workman as defined under Section 2
(s) of the Industrial Disputes Act and his services have been illegally terminated by the management. Whereas, the management has taken the plea that the claimant was working as Hardware Engineer and he was also performing supervisory duties and claimed that the claimant is not the workman. The management has also denied that it had terminated the services of the claimant illegally and claimed that initially the claimant started absenting LIR No. 2711/16 26/32 from duties w.e.f. 05.07.2008 and thereafter, he has resigned from the job.
76. The burden of proving that the claimant is workman, as defined under Section 2 (s) of the Industrial Disputes Act and his services were illegally and unjustifiable terminated by the management was on the claimant. Thus, the burden of proving issue No.1 and 2 was on the claimant, whereas, the burden of proving that the claimant was absenting from duties w.e.f. 05.07.2008 and he had resigned from the job was on the management and thus, the burden of proving issue No.3 was on the claimant.
77. The claimant has pleaded in his statement of claim that he was working in the management as hardware Engineer and he was workman under Section 2 (S) of the Industrial Disputes Act. The claimant has relied upon the appointment letter dated 29.10.2005 and employment agreement Ex.WW1/9 (colly). The perusal of the appointment letter reveals that the claimant was appointed as Hardware Engineer by the management, whereas, the perusal of the para No.3 of employment agreement (which is part of Ex.WW1/9 (colly)) reveals the Duties & Responsibilities of the claimant, which are as under:
"Pursuant to work assignment, programming information and other data, which shall be provided by Intellivisions and/or its clients, employee shall analyse, review, program, process and design systems, as may be necessary or as specified by intellvisions/clients using the available hardware and software tools. Employee hereby agrees that in his/her performance, hereunder, he/she shall at all times adhere to the highest standards generally applied to similar professionals in the software industry."
Employee further agrees to provide his/her services under this Agreement on a full-time basis. Full-time LIR No. 2711/16 27/32 constitutes at least the normal workweek as prescribed by Intellvisions. He/She shall not provide similar services for, or become concerned with any other party in the same or similar business as Intellvisions during the period of service with Intellvisions and thereafter, as per the terms and conditions of this agreement.
And further the Employee agrees that:
i. From time to time he/she may be asked to work extra hours to ensure client critical work is completed satisfactorily. Further he may be required to work away from the office to ensure that the client's requirements are met.
ii. His/her's designation is merely indicative of the responsibilities which he/she is required to carry out, intellvisions shall be entitled to require him, at any time; to perform any other adminstrative, managerial, supervisory, or other functions and he will be bound to carry out such functions.
iii. He/she will be required to submit on a daily basis the time chart for the activities as per the prescribed format, failure to do so shall attract action for the non- compliance of instruction.
78. Thus, from the contents of employment agreement, which is part of the Ex.WW1/9 (colly). Makes it clear that th is claimant was required to analyse Review, the programme, process and design systems, as may be necessary as specified by the management or it's client by using the available hardware and software tools and the claimant had also agreed vide this agreement that he would perform other administrative, managerial and supervisory functions. It is worthwhile to mention here that at the time of cross examination, this claimant has admitted that he was employed to rendered his professional services to the management and he was he rendering hardware services to the management.
79. No doubt that this claimant during his cross examination has denied that he was not a workman. He has also denied that he was working as Supervisor in the management,but as, the contents of the employment agreement, relied upon by the claimant, Ex.
LIR No. 2711/16 28/32WW1/9(colly) make it clear that this claimant was to perform Administrative, Managerial and Supervisory functions and this claimant during his cross examination has voluntarily deposed that he worked as Trouble Shooter and personally used to attend any problem in the computer systems installed in the management, therefore the contents of Ex. WW1/9(colly) and such statement of the claimant cannot be ignored. It is also pertinent to mention here that the management has examined Sh. Raj Kumar Yadav as MW1,vide his affidavit Ex. MW1/A and this witness in para no.10 of his affidavit has testified that "the claimant was rendering professional services to the management, as well as, to the clients of the management. The claimant used to manage his territory independently, have discussion with clients, resolved their problems independently. The claimant used to perform highly professional services of installing and maintaining automated machines using artificial intelligence viz. CCTVs, automated kiosks and digital signage" and this witness of the management was cross examined by the Ld. AR for the claimant, but, he did not rebut the above contents of the testimony of MW1. Thus, the testimony of MW1 has gone unrebutted and unimpeached from which, it is proved that this claimant was rendering professional services to the management and he used to manage it's territory independently and he used to resolve the problems independently.
80. Their Lordship of High Court of Delhi in case Mamraj vs Management of M/s Shanti Developers and Promoters 2005 LLR 556 was pleased to hold that dominant nature of work is to be seen to find out if it is managerial and supervisory. Similarly, in Kirloskar Electric Company vs Govt. of NCT of Delhi 2010 LLR 6, LIR No. 2711/16 29/32 their Lordship of High Court of Delhi has held that the nature of duties and not the designation of an employee is the main criteria to determine as to whether he is workman or not.
81. In case, Narsinha Anand Joshi vs Century Shipping and Ors.
1994 LLR 440, it was held that when the nature of work of the petitioner/employee, the various duties performed by him, his status and position in the company, his ranking, all clearly go to show that he was employed mainly in the Administrative capacity and the work, which can be termed as work of clerical nature done by him, was only incidental to his employment in the Administrative Capacity, he was in facts of the case, was not a workman.
82. In case Shri Divyash Pandit ... v. The Management Of Na...
Writ Petition (Civil) No. 8451/2009, the claimant was Graduate Engineer and he was also doing research work and the Ld. Labour Court was pleased to hold that the claimant was not a workman as defined under Section 2 (s) of the Industrial Disputes Act and their Lordship of High Court of Delhi, while upheld the findings of the Ld. Labour Court was pleased to hold that:
"10. On the basis of the aforesaid analysis of evidence done by the learned Labour Court and its finding that the petitioner is not a workman, this Court cannot sit as Court of appeal and re-appreciate the evidence and come to a contrary finding which on the face of it seems to be totally absurd position that a graduate engineer trainee working in an industry is held to be a workmen within the definition of Section 2(s) of the Industrial Disputes Act, 1947.
11. I am in full agreement with the finding of the learned Labour Court and hold that there is no perversity, illegality or violation of any rule and regulation of principle of natural justice so far as the award of the learned Labour Court is concerned, LIR No. 2711/16 30/32 accordingly, the writ petition is totally meritless and the same is dismissed."
83. Thus, from the contents of letter of appointment and employment agreement Ex.WW1/9 (colly). It is clear that this claimant was appointed as Hardware Engineer and his duties and responsibilities are not of only clerical, but, to analyse, review, programme, process and to design the systems and the claimant had also agreed vide employment agreement to perform administrative, managerial and supervisory functions and from the unrebutted and unimpeached testimony of MW1, it is also proved on the record that the claimant was rendering professional services and he was doing managerial work. Since, the claimant has also admitted in his cross examination that he is processing degree of Bachelor of Engineering . He has also admitted that he was issued appointment letter which is relied upon by him being Ex.WW1/9 (colly.). He has voluntarily deposed that he had worked as trouble shooter. Thus, he used to take decision by way of using his discretion, which require planning, execution and foreseeing, so that, any type of trouble in the hardware of the management could be removed and burden of removing such troubles in the computers rested on the claimant. Thus, the discharge of such duties by the claimant required Administrative abilities, managerial skill and supervisory qualities. Thus, from the above discussion, it is proved that the claimant was appointed as Hardware Engineer. He had also agreed to perform administrative, supervisory and managerial functions vide employment agreement Ex.WW1/9 (colly) from the duties mentioned in the said agreement, it clear that the nature of duties of the claimant come within the purview of the managerial or administrative in nature. So, the claimant is not a workman as LIR No. 2711/16 31/32 defined under Section 2 (s) of the Industrial Disputes Act, 1947. Therefore, issue no. 2 is decided against the claimant and in favour of the management.
84. Since, the Industrial Disputes Act is Special Act, which is dealing with the classified persons, who come within the definition of workman or employer and as this court has given findings on issue no.2 against the claimant and in favour of the management, because, the claimant does not come within the definition of the workman as given under Section 2(s) of the Industrial Disputes Act being excluded by virtue of clause (iii) of the Section, therefore, the claim of the claimant becomes non-est as issue no.1 and issue No.3 have lost their substratum, therefore, issue no.1and issue No.3 are decided accordingly.
85. In view of my findings on the issues, as discussed herein above, the statement of claim filed by the claimant is hereby dismissed being beyond the purview of Industrial Disputes Act, 1947. However, the claimant is left at liberty to raise such claim before the appropriate authority/forum, in accordance with law. In the abovesaid terms, the reference is answered accordingly.
86. An attested copy of this Award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication, as per rules and judicial file be consigned to Record Room as per rules.
Announced in the open court
on 29.10.2021 PAWAN KUMAR MATTO
(ADDITIONAL DISTRICT & SESSIONS JUDGE)
PRESIDING OFFICER, LABOUR COURT-02
ROUSE AVENUE DISTRICT COURT,
NEW DELHI-dr
LIR No. 2711/16 32/32