Delhi District Court
2 vs S. Bandyopadhyay And Another 2004 Llr ... on 16 November, 2007
1
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
ID. NO.249/06 Date of Institution : 14.03.2005
Award reserved on : 08.10.2007
Date of Award : 16.11.2007
BETWEEN
WORKMAN
SH. RAMAKANT SINGH S/O RAJVANSH SINGH
C/O G. S. RANA & DEEPAK RANA AND MAHESH TIWARI,
CHAMBER NO. 589, PATIALA HOUSE COURT,
NEW DELHI.
AND
MANAGEMENT
P.H.D. CHAMBER OF COMMERCE AND INDUSTRY,
PHD HOUSE, THAPAR FLOOR,
OPP. ASIAN KHEL GAON,
NEW DELHI
AWARD
1. Vide Notification No. F.24(2513)/04/Lab./444347 dated 16.02.2005
Secretary (Labour), Delhi Administration has referred dispute raised by the
workman to this court for adjudication under section 10(1)(c) and 12(5) of the
Industrial Disputes Act, 1947 (hereinafter called the Act) with the following
terms of reference :
"Whether the services of Sh. Ramakant Singh S/o
Rajvansh Singh have been terminated illegally and/or
unjustifiably by the management, and if so, to what sum
of money as monetary relief along with consequential
benefits in terms of existing laws/Govt. Notifications and
to what other relief is he entitled and what directions are
necessary in this respect?"
ID NO.249/2006
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2. Facts pleaded by the applicant in the statement of claim are as under :
He was appointed by the management as 'Head Guard' in 1991 vide
annexure P1. In view of his good conduct management extended his
employment for a period of one year from 01.01.1992. His employment
continued till 01.01.2002 without any break. He worked honestly and diligently
and there was no complaint against him. He was regularized w.e.f. 01.07.1993.
His total emoluments were Rs.5300/ per month w.e.f. 01.01.2001. His services
were terminated on 30.06.2002 which is arbitrary. He sent demand notice to the
management on 05.07.2002. Management did not reinstate him. Conciliation
proceedings failed. He has prayed for his reinstatement with all consequential
benefits.
3. Management contested his claim vide its written statement. It is stated that
no industrial dispute existed between the parties so the claim is not
maintainable. It is stated that the claimant was working as Head Guard. Being a
Head Guard he was overall incharge of security of the management and his
main job was to allocate duty to security guards and issue necessary instructions
to them and also supervise security guards and sanitary staff. It is stated that he
was a supervisor drawing more than Rs.1600/ per month so he was not a
workman as defined under section 2(s) of the Act. It is further stated that he was
appointed on contract for a fixed term of six months which was extended from
ID NO.249/2006
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time to time for a fixed duration of one year and lastly extended up to
30.06.2002. It is denied that he was regularized w.e.f. 01.07.1993. It is further
stated that he was unauthorizedly entertaining outsiders in the premises of the
management at night in violation of safety, security for which he was employed,
as a result of which management lost confidence in him and it was decided not
to extend his contract beyond 30.06.2002 and accordingly management vide
letter dated 28.06.2002 informed him that he stood discharged w.e.f. 01.07.2002
and he was paid one month's notice pay in terms of section 25F of the Act. It is
stated that since he was not a workman he was not entitled to invoke section 25F
of the Act, but notice pay was paid to him by way of abundant caution. It is
stated that he is not entitled to any relief.
4. Following issues were framed :
1. Whether the claimant is a workman ? OPW
2. As per terms of reference.
3. Relief.
5. Worker examined himself as WW1 and thereafter closed his evidence.
Management examined Sh. R. K. Joshi as MW1 and thereafter closed its
evidence.
ID NO.249/2006
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6. I have carefully perused the case file and heard Ld. Authorised
Representative for the parties.
ISSUE NO.1
7. Section 2 (s) of the Act defines the workman as follows :
"Workman" means any person (including an apprentice)
employed in any industry todo any manual, unskilled, skilled
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or
implied, and for the purposes of any proceedings underthis
Act in relation to an industrial dispute, includes any such
person who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or
whose dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or
the Army Act, 1950 (46 of 1950) or the Navy Act, 1957
(62 of 1957); or
(ii)who is employed in the police service or as an officer or
other employee of a prison; or
(iii)who is employed mainly in a managerial or
administrative capacity or
(iv)who, being employed in a supervisory draws wages
exceeding one thousand six hundred rupees per mensem or
exercises, either by the nature of the duties attached to the
office or by reasons of the powers vested in him, functions
ID NO.249/2006
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mainly of a managerial nature."
8. Constitution bench of Hon'ble Supreme Court in H.R. Adyanthaya v.
Sandoz (India) Ltd., 1994 LLR 737 (SC) : 1994 5 SCC 737 held as under :
"For an employee to be convered by the definition of
"workman" he must be employed in any industry to do any
manual, unskilled, skilled, technical, operational, clerical or
supervisory work. If he falls within these categories, it has
then to be seen whether he comes within any of the four
excluded categories mentioned in Section 2 (s) of the Act."
9. In Tata Sons Ltd. vs. S. Bandyopadhyay and another 2004 LLR 506 it was
held that mere designation of an employee is not of any consequence for the
purpose of determining whether he is a workman or not. What is of importance
is the nature of his duties. Particularly his primary duties or his basic duties and
the dominant purpose of his employment.
10. What does the employee say about the nature of work done by him? He says
in para 1 of his statement of claim that he was appointed by the management as
a Head Guard vide annexure P1. Annexure P1 / Mark 'A' shows his
designation as Head Guard. He has not given any specific details of his duties in
his statement of claim.
ID NO.249/2006
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11. On the other hand, case of the management in the written statement is that
he was working as a Head Security Guard and he was overall security incharge
of the premises of the management at PHD house. His main job was to allocate
duty to various security guards, to issue necessary instructions to them and
supervise them on duty. He also used to supervise the sanitary staff employed at
PHD house. He was a supervisor drawing more than Rs.1600/ per month and is
therefore not a workman. In para 3 page 2 it is reiterated that his main job was
to allocate duty to security guards, issue instructions to them and supervise their
work. It is further stated that he used to supervise the work of sanitary staff also.
12. Crossexamination of the witnesses bring out exact nature of work done by
the employee. In the beginning of his cross examination the claimant says :
"It is correct that I was appointed as Head Security
Guard' w.e.f. 01.07.1991. There were six security
guards and there were seven sweepers. All security
guards and sweepers were the employees of
contractor. Vol. I was employed by the Chamber. I
used to give duties to Security Guards and sweepers.
I used to look after the work of placement of
security guards and also the work of cleanliness
through sweepers. It is incorrect to suggest that I
used to keep the attendance record of the security
guards and sweepers. It is correct that during the
ID NO.249/2006
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night also I used to keep vigil on the security guards
to check their duties so that there is no theft etc. it is
correct that at the time of termination of my salary
was Rs.5,300/. It is correct that as security guard I
used to work as supervisor."
13. Sh. R.K. Joshi, MW1 stated in his cross examination as follows :
"His appointment was as a Head Security Guard which
impliedly is to look after the work of other security
guards and sanitary staff and also security of the
building."
14. In Mukesh K. Tripathi vs. Sr. Divisional Manager, LIC and others 2004
(103) FLR 350 it was held that the onus was on the employee to prove that he
is a workman.
"The onus was on the appellant to prove that he is a workman."
"A 'workman' within the meaning of section 2 (s) of
the Industrial disputes Act, 1947 must not only
establish that he is not covered by the provisions of
the Apprenticeship Act but must further establish
that he is employed in the establishment for the
purpose of doing any work contemplated in the
definition."
ID NO.249/2006
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15. In R. Kartik Ramchandran vs. P.O. Labour Court and another 2006 (109)
FLR 100 it was held that :
"There can be no dispute with the principles of law
laid down by the Apex Court in S.K. Maini v. Karona
Case (supra). It is well settled that the designation of
an employees is not of importance and it is the real
nature of duties being performed by the employee
which would decide as to whether an employee is a
'workman' under section 2 (s) of the Industrial
Disputes Act. The determinative factor is the main
duties performed by the employee and not the work
done incidentally. The nature of duties performed by
the workman is a question of fact. An employee is
required to set up such plea and to lead evidence in
support thereof. Only then can the Labour Court go
into the facts and circumstances of the case and
based material on record, decide as to the real nature
of duties and functions being performed by the
employee in all cases."
16. The employee has not placed any document on record which may throw
light on the nature of work he was performing. Management on the other hand
has illicited from the mouth of the claimant himself that he was working as
Head Security Guard and was supervising the work of guards and sanitary staff
ID NO.249/2006
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and also allocating duties to them. Admittedly his last drawn wages was
Rs.5300/ which is above the statutory limit. Employee has failed to show that
he was a workman within the meaning of Section 2(s) of the Act.
17. The question whether the employee was a workman or not should be
decided at the threshold because it is a jurisdictional issue.
18. In management of Bharat Kala Kendra Pvt. Ltd. v. R.K. Bawaja 1981 Lab
IC 893, 896 (Del) (DB), per Ranganathan J. our own Hon'ble High Court held
that :
"The jurisdiction of the labour court to make an
award in the dispute would depend upon the correct
finding as to whether he is a workman or not. In
other words, this is a jurisdictional issue to be
decided by the tribunal before it can assume
jurisdiction to make the award in the dispute
referred to it."
19. In LKP Merchant Financing Ltd. vs. Government of NCT, Delhi & Ors.
2003 LLR 367 the question arose whether respondent no.2 was a workman or
not. Our Hon'ble High Court held as follows :
"I, however, direct the Labour Court to frame a ID NO.249/2006 10 preliminary issue on the question as to whether or not respondent no.2 is a workman and decide the same before deciding the dispute on merits."
20. In Hussan Mithu Mhasvadkar vs. Bombay Iron & Steel Labour Road 2001 LLR 1083 Hon'ble Apex Court clearly held that disputed status of the claimant as workman should be decided at the threshold, and if the finding is recorded against the claimant, the Court should refrain from adjudicating upon other issues. I quote the relevant observations :
5. "On a careful consideration of the respective submission of the learned counsel on either side, we are of the view that in a case of the nature where the Labour Court as well as the High Court entertained doubts about the status of the appellant as a workman within the meaning of Section 2(s) of the I.D. Act, instead of embarking upon an adjudication in the first instance as to whether the respondent Board is an industry or not so as to attract the provisions of the Industrial Disputes Act, ought to have refrained from doing so and taken up the question about ID NO.249/2006 11 the status of the appellant for adjudication at the threshold and if only the finding recorded was against the appellant refrained from adjudicating on the larger issue affecting the various kinds of other employees, as to the character of the Board, as an industry or not. The larger issue should have been entertained for consideration only in case where it is absolutely necessary and not when the claim before it could have been disposed of otherwise without going into the nature and character of the Undertaking itself. For the said reason and also having regard to the submission made by the learned senior counsel for the respondents itself that the question as to whether the appellant falls within the definition of 'workman' may itself be considered on the supposition that the Board is an industry, we propose to deal with the status of the appellant as to whether he is a workman or not at the first instance and if necessitated on account of our decision on that issue, undertake the larger issue for our consideration and decision." (Emphasis added) ID NO.249/2006 12
21. In Bennett Coleman & Co. Limited vs. Shri Yadeshwar Kumar, 2007 LLR 62 the facts of the case were similar to the present case. The claimant was promoted as Night Supervisor. He was charged with misconduct. His services were terminated. The management pleaded that he was not a workman as he was working in supervisory capacity and there were number of watchmen working under him. Our own Hon'ble High Court observed as under :
"Obviously, the approach of the Labour Court has been contrary to the law laid down by the Supreme court in a series of judgments. In order to decide whether a person is a workman or not, the dominant and main functions are to be considered. A person can be called a supervisor if he is entrusted with the job of supervising other workmen who work under him. There is no dispute that the respondent was not only designated as Night Supervisor but he was having job of supervision over security guards, chowkidars and sweepers. He used to forward over time claims of the persons working under him after verifying the same. He used to recommend leave of the persons working under him. He was in charge of the security of the property of petitioner and used to supervise the work of security guards etc. It ID NO.249/2006 13 is not necessary that a supervisor has to be top cadre management person. A supervisor may occupy a lower position in the organization chart of the company where in the descending order may be CMD, MD, General Managers, Deputy Managers, Managers, Administrative Officer and Supervisor etc. It has been laid down by the Supreme Court that in order to be a workman a person must be performing one of the functions as specified in section 2(s) of the Act and it was not sufficient that he was not performing administrative or managerial function."
22. Admittedly the claimant was appointed as Head Security Guard. He was allocating duties to security guards. He was supervising the work of security guards and sweepers. His wages was Rs.5300/ per month. As such he is not a workman.
23. Since the employee is not a workman within the meaning of section 2 (s) of the Act this court has no jurisdiction to adjudicate upon his claim on merits. Ordered accordingly. Reference is answered accordingly. Appropriate government be informed. File be consigned to record room.
Announced in open court PRESIDING OFFICER
on 16.11.2007 LABOUR COURT NO. XIII
KARKARDOOMA COURTS
ID NO.249/2006
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DELHI
ID NO.249/2006