Delhi District Court
Sh. Tara Chand Sharma S/O Sh.Miti Ram ... vs M/S Ashok Country Resorts on 22 December, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX KARKARDOOMA
COURTS, DELHI.
Ref. No. :F.24 (2638)/2003/Lab./188488
Dated :23.10.2003
I.D.No. :134/09
Unique Case ID no. No. 02402C0103822003
Sh. Tara Chand Sharma S/o Sh.Miti Ram Sharma,
R/o D352, Krishna Park, Delhi Road,
Khanpur, New Delhi110062 .................Workman
Versus
M/s Ashok Country Resorts,
Kapas Hera, Rajokri Road,
New Delhi110041 ...............Management
Date of Institution of the case : 08.11.2003.
Date on which reserved for Award : 06.11.2012.
Date on which Award is passed : 22.12.2012.
A W A R D
The workman Sh. Tara Chand Sharma, raised an industrial
dispute regarding the termination of his services by the management of
M/s Ashok Country Resorts. The appropriate Government on being
satisfied regarding the existence of Industrial Dispute between the
parties, made a reference for adjudication. The said reference is as
I.D No. 134/09 PAGE NO.1 OF 35
under.
"Whether Sh.Tara Chand Sharma S/o Sh.Miti Ram has
resigned from the services voluntarily & settled his
accounts or his services has been terminated illegally and
or unjustifiably by the management and if so to what sum
of money as monetary relief alongwith 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?"
Thereafter, statement of claim was filed by the workman.
It is stated by the workman in his statement of claim that he had been
working with the management since 07.10.1999 at the post of
maintainer at the monthly salary of Rs. 8,000/; that the workman had
been working with the management sincerely, honestly, diligently and
whole heartedly and have not given any chance of any complaint
regarding his services during his service tenure to the management at
all; that the management had been taking 12 hours of duties from the
workman daily and had been paying Rs. 8,000/ per month only; that
the management had debarred the workman from his overtime in spite
of several requests and demands made by the workman to the
management; that the management has deprived the workman from the
lawful benefits such as bonus, leave benefits, overtime, etc. etc. in
I.D No. 134/09 PAGE NO.2 OF 35
spite of several requests and demands made by the said workman and
on demand the management has illegally and unlawfully terminated
the services of the workman from the management without due
process of law on dated 17.09.2002; that the termination of the
services of the said workman on dated 17.09.2002 by the management
is highly illegal, unlawful and without due compliance of law; that the
workman finding no chance to materialize the matter with the
management, the said workman has sent a demand notice to the
management by speed post on dated 03.10.2002 but the management
did not give any reply to the same; that the workman has filed a
statement of claim before the conciliation officer, New Delhi wherein
the said management has appeared but due to non cooperating attitude
of the management, the said matter in dispute was not materialized and
the same is referred for the adjudication by the appropriate
Government and the same is pending before this Hon'ble Court.
Hence, he has claimed reinstatement with full back wages and
continuity of his services.
Notice of the filing of statement of claim was sent to the
management. The management had appeared and contested the claim
filed by the workman by filing its written statement. In the written
statement filed by the management, on merits, it has stated that the
present claim is out rightly liable to be rejected on the sole ground that
the workman himself had voluntarily tendered his resignation to the
I.D No. 134/09 PAGE NO.3 OF 35
management due to some personal reasons; that the workman has also
requested the management in his resignation letter dated 17.09.2002
that he be relieved from his duties with immediate effect and settle his
dues; that the management on the same day i.e. on 17.09.2002 had
accepted the resignation of the workman and settled the dues of the
workman fully and finally and accordingly paid Rs. 3,947/ to the
workman and the workman duly accepted the same; that the present
claim of the workman is also liable to be dismissed on the ground that
the workman has admitted in his claim petition that he was working
with management at a monthly salary of Rs. 8,000/ per month which
renders the workman ineligible to raise any claim under Industrial
Disputes Act; that it is stated that the workman was in fact employed
with management as Engineering Supervisor at a monthly salary of Rs.
8,000/ per month and not as Maintainer, which is evident from the
resume filed by the workman and the application for employment with
the management filled and filed by the workman; that the workman
was doing his job as per the duty schedule/roster and the workman has
never worked overtime; that the management paid to the workman all
his lawful dues; that it is denied that the management had illegally and
unlawfully terminated the services of the workman from the
management without due process of law on dated 17.09.2002; that the
workman himself voluntarily tendered his resignation to the
management and the management accepted the same; that the
I.D No. 134/09 PAGE NO.4 OF 35
management appeared before the Conciliation officer and opposed the
claim. All other allegations are denied. Hence it is prayed that the
claim be dismissed.
In rejoinder all the averments of the statement of claim are
reaffirmed and of the written statement are denied by the workman.
On the pleadings of the parties vide order dated 05.02.2005
following issues were framed:.
(i) Whether the claimant is not a workman under the
definition of Industrial Disputes Act?
(ii) Whether the claimant has voluntarily tendered his
resignation as alleged by the management?
(iii) As per terms of reference.
No other issue arose or pressed and the case was adjourned
for workman evidence.
In support of his case, the workman himself has appeared
as WW1, tendered his affidavit by way of evidence Ex. WW1/A. He
has relied upon the documents Exts.WW1/1 to WW1/5, on record.
After examining WW1, evidence on behalf workman has
been closed, on record.
In support of its defence, the management has examined
Sh.Vipin Kumar, Manager (Accounts) of the management as MW1 in
its management evidence, who has tendered his affidavit by way of
I.D No. 134/09 PAGE NO.5 OF 35
evidence as Ex.MW1/A. He has relied upon documents Exts. MW1/1
to MW1/7, on record.
The management has also examined Sh.Deepak Jain,
Handwriting and Finger Print Expert as MW 2 in its management
evidence, who has tendered his affidavit by way of evidence as
Ex.MW2/A. He has relied upon documents Ex. MW2/1 (handwriting
report, Ex. MW2/2 (Colly) Photographs 1 to 8, Ex. MW2/3 (Colly)
negatives 1 to 8.
An application has been moved on behalf of the
management under Section 340 Cr.PC, on record.
After examining MW2, evidence on behalf of the
management has been closed, on record.
Final arguments have been heard. ARs for the parties have
also filed written submissions, on record. My findings issuewise are
as under:
ISSUE No. 1.
It is seen from the record that the workman has appeared in
his workman evidence as WW1, tendered his affidavit by way of
evidence Ex. WW1/A as also relied upon documents Exts. WW1/1 to
WW1/5. In his affidavit by way of evidence Ex.WW1/A he has
reiterated the contents of his statement of claim to the effect that he
had been employed with the management sincerely, honestly,
diligently and whole heartedly and have not given any chance of any
I.D No. 134/09 PAGE NO.6 OF 35
complaint regarding his services during his service tenure to the
management at all; that the workman had been working with the
management since 07.10.1999 at the post of maintainer at monthly
salary of Rs. 8,000/; that the management had been taking 12 hours of
duties from the workman daily and had been paying Rs. 8,000/ per
month only; that the management had debarred the claimantworkman
from his overtime, in spite of several requests and demands made by
the claimantworkman to the management; that the management has
deprived the workman from the lawful benefits i.e. bonus, leave
benefits, overtime etc. etc. in spite of several requests and demands
made by the claimantworkman and on demand the management has
illegally and unlawfully terminated the services of the claimant
workman from the management without due process of law on dated
17.09.2002; that the termination of services of the workman on dated
17.09.2002 by the management is highly illegal, unlawful and without
due compliance of the law; that the act of the management regarding
the termination of the said workman on dated 17.09.2002 is highly
illegal, unlawful and without compliance of due process of law and by
the act of illegal termination by the management the claimant
workman has become unemployed and has been suffering from
unemployment; that the workman finding no chance to materialize the
matter with the management, the workman has sent a demand notice to
the management by speed post on dated 03.10.2002 but the
I.D No. 134/09 PAGE NO.7 OF 35
management did not give any reply to the same; that the claimant
workman has filed a statement of claim before the conciliation officer,
New Delhi, wherein the said management has appeared but due to non
cooperating attitude of the management, the said matter in dispute was
not materialized and the same is referred for the adjudication by the
appropriate Government and the same is pending before this Hon'ble
Court; that the claimantworkman has been suffering from
unemployment and is willing to join the services of the management;
that the workman has filed his statement of claim before this Hon'ble
Court.
Ex.WW1/1 is the copy of O.P.D. card in respect of the
workman dated 17.09.2002 of Safdarjung Hospital; Ex. WW1/2 is
copy of demand notice dated 03.10.2002 sent by the workman to the
management; Ex. WW1/3 being copy of reply dated 24.04.2003 of the
management to the Labour Officer/Conciliation Officer, Govt of NCT
of Delhi, Employment Exchange, Building, Kirbi Place, Delhi Cantt.,
New Delhi to the compliant dated 03.04.2003 of the workman to the
said authority against it; Ex. WW1/4 is the copy of ATM card of Citi
Bank in respect of the workman; Ex.WW1/5 being copy of the
statement of accounts of the pass book in respect of the workman of
Bank Of Baroda, Branch Samalkha, New Delhi Account No.006768
dated 20.02.2002.
This witness has been cross examined at length on behalf
I.D No. 134/09 PAGE NO.8 OF 35
of the management in workman evidence, in which he has deposed
that he was appointed as a Maintainer on 17.09.1999. Again said on
07.10.1999; that he was matriculate; that he was not well familiar with
English language; that he filed his affidavit after having understood
the contents mentioned in his affidavit; that he did not know from
where his affidavit was attested. Vol. The affidavit was got executed
by his AR; that it was correct that he mentioned in his affidavit that the
management used to take work from him for 12 hours in a day; that he
did not have any proof to the effect that he worked for 12 hours in a
day but the cards used to be punched at the time of joining the duty
and leaving the office; that the cards are under the possession of
management; that in presence of the security guard they used to punch
the time cards in the time office; that he could not say whether the
Ex.WW1/M1 is the same or not; that however, it is similar to the
cards used to be punched at the time of arrival and departure; that it
was wrong to suggest that the said document of attendance pertains to
him as no signature of his has been appended for the purpose of salary
which was required at the back of the attendance card; that it was
further wrong to suggest that the duty timings mentioned in the said
document pertain to his duty hours; that it was wrong to suggest that
on 17.09.2002, he gave a resignation letter signed by him; that it was
correct that he had applied for the post of Engineering Supervisor but
he was appointed at the post of Maintainer in the department of
I.D No. 134/09 PAGE NO.9 OF 35
maintenance; that he never filed any complaint with the management
as to why the management allotted him the post of Maintainer instead
of Engineering Supervisor; that verbally he had pointed out this fact to
Sh. Ravinder Sahni, the Chairman several times and it was assured
that he will be promoted in future; that it was Mr. Raj Mathur,
Engineer who had assured that the workman would be getting 20%
bonus, 15 P.L., 12 C.L. and festival leaves alongwith medical leaves;
that the said Sh. Raj Mathur left the services of the management; that
thereafter he had a direct talk with the Chairman regarding the service
conditions; that he used to meet the Chairman on daily basis as he was
present at the establishment; that the same is prevailing on that day
also; that he did not visit the Resort nowadays; that he did not
remember when Sh. Raj Mathur left the services of the management;
that he had apprised his Counsel of the facts as stated here in above
and had required him to incorporate the same in the affidavit;
Ex.WW1/M2 did not bear his signatures, neither did he leave the
service and had taken full and final settlement from the management;
that he had never applied for withdrawal of provident fund; that it was
incorrect to suggest that he had tendered his resignation of his own
volition and it was also incorrect to suggest that management did not
terminate his services or that he had received his full and final
settlement from the management on 17.09.2002; that it was incorrect
to suggest that he was deposing falsely; that it was further incorrect to
I.D No. 134/09 PAGE NO.10 OF 35
suggest that he had filed a false affidavit just to extract money from the
management. Thereafter, workman evidence has been closed, on
record.
The management has led the evidence of MW1 Sh. Vipin
Kumar, Manager (Accounts) of the management in its management
evidence, on record, who has appeared on behalf of the management in
management evidence, tendered his affidavit by way of evidence
Ex.MW1/A as also relied upon documents Exts.MW1/1 to MW1/7, on
record. In his affidavit by way of evidence Ex.MW1/A he has
reiterated all the contents of the written statement and has deposed that
he was working as Manager Accounts in the management; that he has
been authorized by the management by virtue of Ex.MW1/1; that he
was well acquainted with the facts and circumstances of the matter;
that hence, competent to file present affidavit; that the workman was
employed with the management at a monthly salary of Rs.8,000/ per
month as admitted by the workman in his statement of claim in para 1;
that Ex.MW1/2 is the application for employment; that Column No.1
shows that the workman has applied for and been appointed to the post
of Engineering Supervisor; that the signature of the workman is at
point A of the application; that the workman himself had voluntarily
tendered his resignation to the management due to some personal
reasons vide Ex.MW1/3 dated 17.09.2002; that the workman in his
resignation letter had also requested to the management to relieve him
I.D No. 134/09 PAGE NO.11 OF 35
of his duties with immediate effect and settle his dues; that the
signature of the workman is at point A; that the management on the
same day i.e. on 17.09.2002 had accepted the resignation of the
workman and settled his dues fully and finally and accordingly paid
Rs. 3947/ in cash to the workman which he duly accepted; that the
letter dated 17.09.2002 sent to the workman through UPC accepting
his resignation is Ex.MW1/4; that the UPC is Ex.MW1/5; the voucher
dated 17.09.2002 receiving rest Rs. 3947/ as full and final payment is
Ex.MW1/6; that the management had received the demand notice
dated 03.10.2002 but the management was not under any obligation to
reply the same as the workman had already tendered his resignation
which has been duly accepted by the management; that the
management had appeared before the conciliation officer and opposed
the claim of the workman; that the management has filed written
statement to the claim petition of the workman before this Hon'ble
Court; that the contents of the same may also kindly considered as part
and parcel of this affidavit; that the written statement is Ex.MW1/7;
Ex.MW1/1 being authorization of the management in respect of the
MW1; Ex.MW1/2 being application form for employment of the
workman to the management; Ex.MW1/3 being the alleged
resignation letter dated 17.09.2002 of the workman to the
management; Ex.MW1/4 being a letter dated 17.09.2002 of the
management to the workman accepting his resignation letter dated
I.D No. 134/09 PAGE NO.12 OF 35
17.09.2002; Ex.MW1/5 U.P.C. in respect of the letter dated
17.09.2002 (Ex.MW1/4) sent by the management to the workman;
Ex.MW1/6 being a voucher dated 17.09.2002 in alleged full and final
payment of an amount of Rs. 3,947/ on the part of the management to
the workman; Ex.MW1/7 being written statement of the management
to the instant statement of claim of the workman.
This witness has been cross examined at length on behalf of
the workman in management evidence, in which he has deposed that
he was working as Accounts Officer; that he was working there from
1991. Again said that he was working with Mr. Sahni since 1991; that
he did not remember as to on which date he had signed the affidavit;
that he could say so after seeing the record; that he was working as
Accounts Manager/Accounts Officer on the day he had signed the
affidavit; that he was the head of the Accounts Department; that on
17.09.2002 he was holding the same post; that it was not necessary
that on each and every voucher his signatures should be there; that it
was incorrect that the workman was working as maintainer with the
management at the salary of Rs. 8,000/; that there was a procedure for
appointment in their organization conducted by the management; that
they accept the application from the candidate, take his interview and
if he was selected he was required to fill one more application form;
that management never give the written communication to the
candidate regarding acceptance or rejection of his application; that he
I.D No. 134/09 PAGE NO.13 OF 35
did not know that if a candidate applies to a particular post, whether he
got appointed to that particular post or not as he was not the appointing
authority; that he had no knowledge whether the appointment letter
used to be given to the candidate or not; that he had no knowledge
whether Tara Chand has been given any appointment letter or not;
that he could tell after seeing the record; that he did not know whether
the workman was given any appointment letter to the post of
Engineering Supervisor by the management or not; that there was no
HR Department in their organization at present; that the resignation
letter was given by the workman to the management; that the
resignation was given to the proprietor of the firm or the manager of
the management firm or to Mr. Virender Sahni; that on 17.09.2002 the
manager was Mr. Vimal Seth; that it was incorrect to suggest that the
resignation letter was not that of Tara Chand; that it was further
incorrect that the documents were forged and fabricated; that it was
correct that the acceptance letter was given to the workman by post by
UPC; that probably some one from the management must have
accepted his resignation; that he could tell the specific name after
seeing the record; that it was incorrect that the workman did not
tender his resignation; that he did not know the exact date but in the
month of September, 2002 the full and final payment was made to the
workman; that it was incorrect that the workman did not submit his
resignation and that the documents so mentioned are forged and
I.D No. 134/09 PAGE NO.14 OF 35
fabricated; that Mr. Tarachand was employee of M/s Ashok Country
Resorts on 17.09.2002; that it was correct that on the vouchers the
name of Sahni International was mentioned but the same was erased
by pen and a stamp of Ashok Country Resort was affixed; that he did
not remember how much amount was taken by Sh. Tara Chand
Sharma on the date of resignation; that he could tell so after seeing the
record; that he did not prepare the voucher; that the administrative
management who had accepted the resignation, and as such the
accounts were maintained subsequent to the acceptance of the
resignation; that it was wrong to suggest that the voucher was a forged
document. Vol. it was signed by Sh. Tara Chand Sharma himself; that
it was incorrect to say that on his demand of statutory rights, the
services of the workman were terminated; that it was incorrect to
suggest that on his demand for his benefits the workman was
physically assaulted prior to termination of his service; that he could
produce document to show that the workman was getting his dues but
he had not brought the same on that day; that it was incorrect to
suggest that he was deposing falsely or that the workman has not been
paid his dues and his services were terminated illegally and
unjustifiably.
This witness has appeared again in the management
evidence pursuant to order dated 31.03.2010 passed in this regard, on
record and has deposed that he has brought the original demand notice
I.D No. 134/09 PAGE NO.15 OF 35
dated 03.10.2002 along with its postal receipt; that this was the
original demand notice sent by the workman to the management; that
the demand notice and the Speed post cover are exhibited as
Exts.MW1/8 and MW1/9, on record. In his cross examination on
behalf of the workman he has deposed that he did not know when the
demand notice Ex.MW1/8 was received by the management; that he
did not remember if this demand notice was received by him or not;
that the management has mentioned about receiving of this demand
notice in their written statement; that he did not remember if the
workman was given appointment letter showing his designation as a
Supervisor or not; that he was working as Accounts Manager in the
management but also looking after the administration; that his
signatures are not appearing on full and final voucher or any other
voucher pertaining to an employee; that Ex.WW1/M2 does not bear
his signatures; that he could not identify the signature of any person
who had sign Ex.WW1/M2 on behalf of the management; Ex.MW1/8
being demand notice dated 03.10.2002 of the workman to the
management; Ex.MW1/9 being its Speed Post Cover.
Thereafter, the management has led the evidence of one Sh.
Deepak Jain, Handwriting and Finger Prints Expert, as MW2 in its
management evidence, on record, who has tendered his affidavit by
way of evidence Ex.MW2/A as also relied upon the documents
Ex.MW2/1 (handwriting report), Ex.MW2/2 (Collectively) Photograph
I.D No. 134/09 PAGE NO.16 OF 35
nos. 1 to 8, Exts. MW2/3 (Collectively) negatives 1 to 8; that the
question signature mark Q3 is on the document Ex.MW1/8 which was
supplied to him by the management before filing in the Court. In his
cross examination on behalf of the workman as MW2 in management
evidence he has deposed that it was correct that certificate course
conducted by Delhi University was not recognized by any state or
Government of India. Vol. There was no such provisions; that there
was no recognized university or institute imparting the said course of
Forensic Science; that it was correct that he did the course voluntarily;
that he was working in this field since the last 20 years; that the
affidavit filed by him was drafted by himself; that his affidavit was
selfidentified; that he had brought the PAN card to show that he was
Sh. Deepak Jain; that he had not compared any other document except
the documents mentioned in his report; that he was not contacted by
the workman before coming to depose in this case; that he was not a
summoned witness; that it was correct that he was being called by the
management to depose on that day; that he had taken the disputed and
admitted signatures from the documents on the Court record except the
document Ex.MW1/8 which was supplied by the management; that the
contents of his report were correct with regard to the document dated
30.10.2002. Again said the document dated 30.10.2002 as referred to
in his report was wrongly dated though the correct date was
03.10.2002; that he was not being given the detail of the disputed
I.D No. 134/09 PAGE NO.17 OF 35
signatures in writing by the management; that it was incorrect to
suggest that the first letter of the disputed and admitted signatures of
the workman did not match; that it was incorrect to suggest that the
admitted and disputed signatures at Q1 did not match as a whole; that
it was incorrect to suggest that he had given a false report at the
instance of the management thereby stating that the disputed signatures
at Q1 match with the admitted signatures; that the same was his reply
with regard to the disputed signatures at Q2; that it was incorrect to
suggest that signatures at Q2 were lifted from Ex.MW1/2; that he
could not say if the signatures at Q2 were not the disputed signatures
or that these signatures are admitted by the workman; that he could not
say if the signatures of the workman at Q3 were also not disputed
signatures of the workman or that the same were admitted by the
workman; that it was incorrect to suggest that he had taken the
signatures of the workman from the letter dated 30.10.2002 which
letter was not being produced by the management intentionally. Vol.
the signatures Q3 were taken from the letter dated 03.10.2002 but due
to typographical error the date was wrongly mentioned in his report as
well as affidavit as 30.10.2002; that it was incorrect to suggest that he
was filing a false report at the instance of the management.
Thereafter, management evidence has been closed, on
record.
It is seen from the record that though the management has
I.D No. 134/09 PAGE NO.18 OF 35
alleged that the workman was working on the post of Engineering
Supervisor at a monthly salary of Rs. 8,000/ by way of affidavit by
way of evidence of its MW1 (Ex.MW1/A) along with Ex.MW1/2 an
application form for employment given by the workman to the
management while applying for employment with it wherein the
position applied for has been mentioned as Engineering Supervisor on
the part of the workman along with Ex.MW1/8 wherein the workman
is alleged to have admitted being in the employment with the
management as Supervisor (Maintenance) w.e.f. 07.10.1999 on the
last drawn wages of Rs. 8,000/ per month which is the demand notice
dated 03.10.2002 sent by the workman to the management vide Speed
Post Cover, Ex.MW1/9, though not as Engineering Supervisor as
alleged by the management, however, no appointment letter in respect
of the workman has been filed on the part of the management to the
said effect viz. in respect of his alleged employment with the
management as Engineering Supervisor either in its cross examination
of the workman (WW1) in workman evidence or in its management
evidence, on record, though the workman has alleged by way of his
statement of claim as also by way of his affidavit by way of evidence
Ex.WW1/A in workman evidence that he was working with the
management since 07.10.1999 on the post of maintainer on the
monthly salary of Rs. 8,000/.
By now the law regarding as to who constitutes a workman
I.D No. 134/09 PAGE NO.19 OF 35
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
"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 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."
I.D No. 134/09 PAGE NO.20 OF 35
" 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 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 I.D No. 134/09 PAGE NO.21 OF 35 within the meaning of the expression as defined in S.2 (s) of the Industrial Disputes Act, 1947 or a 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 " 7. Where an employee has multifurious duties and a question is raised whether 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 I.D No. 134/09 PAGE NO.22 OF 35 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 vide citation 2001 LLR 1083 Supreme Court of India; Hussan Mithu Mhasvadkar Vs. Bombay Iron & Steel Labour Board "10. 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 the nature of his duties and the powers conferred upon as well as the functions assigned to him."
Similarly, it has been held vide citation 2004 LLR 108 Bombay High Court Tanojkumar B.Chatterjee Vs. Solapur Municipal Corporation I.D No. 134/09 PAGE NO.23 OF 35 "5.Now, it is well settled in this branch of law, as in many others, that designations are not dispositive the court has to have due regard to the real nature of the duties and functions. In so far as supervisor is concerned, he or she is one who can bind the employer by taking some kind of decision on his behalf. National Engineering Industries Ltd. Vs. Shri Kishan Bhageria, 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 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 I.D No. 134/09 PAGE NO.24 OF 35 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 corrective steps if a subordinate errs in work assigned to him."
From the above position of law it is evident that mere nomenclature of Manager or Supervisor in respect of an employee will not bring him/her out of the ambit of the definition of the workman as defined vide the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date) where monthly remuneration in respect of the workman has been increased from Rs. 1,600/ to Rs. 10,000/ per month and that the powers/duties being performed or assigned to him which can be said to bestow managerial/supervisory powers/functions upon him/her are to be examined for the purpose of determining the status of a claimant qua the provisions of Section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date). I find I.D No. 134/09 PAGE NO.25 OF 35 from the record that in the instant case, admittedly no evidence has been led by the management that the claimant/workman was exercising any administrative/managerial powers/functions like sanctioning or even recommending leaves in respect of any alleged subordinates and/or having any power to take any disciplinary action qua the alleged subordinates and/or even exercising any command and/or control over alleged subordinates to the extent that even no hierarchy has been outlined/delineated on the part of the management over which the claimant/workman can be said/alleged to have exercised any administrative and/or managerial powers/functions and accordingly in view of my above observations and the above case law on the subject, the instant issue as to whether claimant is not a workman under the definition of the Industrial Disputes Act is decided in favour of the workman and against the management. Issue no.2.
It is seen from the record that though the management has alleged that the workman had voluntarily resigned from his services of the management vide letter dated 17.09.2002 given by him to the management in this regard, Ex.MW1/3, which has been denied on the part of the workman by way of his testimony as WW1 in workman evidence, on record, when he states in his cross examination on behalf of the management in his workman evidence that it was wrong to suggest that on 17.09.2002 he had given a resignation letter signed by I.D No. 134/09 PAGE NO.26 OF 35 him, however, it is further seen from the record that the management has not confronted the workman with his alleged resignation letter dated 17.09.2002, Ex.MW1/3, or to his alleged signatures at point A on the same as alleged by it, in its cross examination of the workman as WW1 in workman evidence, on record, or led any corroborative evidence in support of its submissions that the said letter dated 17.09.2002 (Ex. MW1/3) allegedly bearing the signatures of the workman on the same is the resignation letter given by the workman to the management by way of report of any handwriting expert in respect of the same, on record, despite management having been given opportunities twice vide orders dated 02.02.2009 and 03.09.2011 passed specifically in this regard, on record, and accordingly the said document cannot be said to have been proved on the part of the management qua the workman in respect of its submission/allegation that the workman had resigned from his services with the management vide the said letter Ex.MW1/3 on 17.09.2002, on record and which had allegedly been accepted by the management on the same day vide its letter of the same date viz. 17.09.2002 to the workman sent by UPC Post to the workman Exts.MW1/4 and MW1/5 respectively, on record.
It is further seen from the record that even the contention of the management that the workman had received his full and final settlement amount vide voucher dated 17.09.2002, Ex.MW1/6 (also I.D No. 134/09 PAGE NO.27 OF 35 Ex.WW1/M2), on record, allegedly bearing the signatures of the workman on the same has also not been proved, on record, by virtue of it admittedly not bearing signatures of any authorized representative of the management on its behalf on the same as admitted by the MW1 Sh. Vipin Kumar, Manager (Accounts) of the management when he admits in his cross examination on behalf of the workman in management evidence, on record, that he had not prepared the voucher and that his signatures are not appearing on full and final voucher or any other voucher pertaining to an employee; Ex.WW1/M2 does not bear his signatures and he cannot identify the signatures of any person who had signed Ex.WW1/M2 on behalf of the management and accordingly, I find from the record that the alleged voucher of the management dated 17.09.2002 in respect of the full and final settlement of the dues of the workman as alleged by it, Ex. WW1/M2 as also Ex.MW1/6, on record, is not in accordance with the provisions of Rule 58 of the Industrial Disputes Act (Central) Rules, 1957 governing the drawing of such memorandum of settlement between the parties which provides as follows:
58.Memorandum of settlement. (1) A settlement arrived at in the course of conciliation proceedings or otherwise, shall be in Form H. (2) The settlement shall be signed by I.D No. 134/09 PAGE NO.28 OF 35
(a) in the case of an employer, by the employer himself, or by his authorised agent, or when the employer is an incorporated company or other body corporate, by the agent, manager or other principal officer of the corporation;
[(b) in the case of the workmen, by any officer of a trade union of the workmen or by five representatives of the workmen duly authorised in this behalf at meeting of the workmen held for the purpose;] [(c) in the case of the workman in an industrial dispute under section 2A of the Act, by the workman concerned.] Explanation. In this rule "officer" means any of the following officers, namely:
(a) the President;
(b) the VicePresident;
(c) the Secretary (including the General Secretary);
(d) a Joint Secretary;
I.D No. 134/09 PAGE NO.29 OF 35
(e) any other officer of the trade union authorised in this behalf by the President and Secretary of Union.
(3) Where a settlement is arrived at in the course of conciliation proceeding the Conciliation Officer shall send a report thereof to the Central Government together with a copy of the memorandum of settlement signed by the parties to the dispute.
(4) Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceeding before a Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the Central Government, the Chief Labour Commissioner (Central) New Delhi, and the Regional Labour Commissioner (Central) and to the Assistant Labour Commissioner (Central) concerned.
It is further seen from the record that even the testimony of the MW2 Sh. Deepak Jain, Handwriting and Finger Prints Expert led by the management in its management evidence by way of affidavit by way of evidence Ex.MW2/A as also his report Ex.MW2/1 and photographs Ex. MW2/2 (Colly) and the negatives Ex.MW2/3 (Colly) in respect of questioned signatures Q1 to Q3 of the workman on the relevant documents viz. voucher dated 17.09.2002 in respect of the alleged full and final payment of the dues of the workman on the part I.D No. 134/09 PAGE NO.30 OF 35 of the management (Ex.MW1/6 as also Ex.WW1/M2) in respect of questioned signature Q1, application form for employment of the workman to the management dated 07.10.1999 (Ex. MW1/2) in respect of the questioned signature of the workman Q2 as also demand notice dated 03.10.2002 of the workman to the management (Ex.MW1/8) in respect of the questioned signature of the workman Q3 is not helpful or conclusive in respect of the submissions of the management, as above said, in view of my finding that the document Ex.MW1/6 as also Ex.WW1/M2 in respect of the alleged full and final payment of the dues of the workman is not conforming to the provisions of Rule 58 of the Industrial Disputes (Central) Rules, 1957 governing the memorandum of settlement between an employer and employee in respect of an industrial dispute between the parties under Section 2 A of the Industrial Disputes Act, 1947 (as amended upto date) viz. dispute relating to discharge, dismissal, retrenchment or otherwise termination of the services of the workman on the part of the employer/management as in the present case as also in view of the submission on the part of the workman, on record, that the questioned signatures Q2 and Q3 in fact had not been disputed by him, on record, as is evident from the cross examination of the MW2 in management evidence that he cannot say if the signatures at Q2 are not the disputed signatures or that these signatures are admitted by the workman; that he cannot say if the signatures of the workman at Q3 I.D No. 134/09 PAGE NO.31 OF 35 are also not disputed signatures of the workman or that the same are admitted by the workman (emphasis supplied) and accordingly it is held that the document Ex.MW1/6/WW1/M2 is not duly proved against the workman, on record. The issue no.2 is accordingly decided in favour of the workman and against the management. Issue no.3.
It is seen from the record that in view of my findings on issue nos.1 & 2, as above, the workman has been able to prove by way of his testimony as WW1 in workman evidence by way of affidavit Ex.WW1/A along with the Exts.WW1/1 to WW1/5 that his services have been terminated on the part of the management on 17.09.2002 as alleged by him, on record. Admittedly, the workman by virtue of his length of service with the management since 07.10.1999 to which date of appointment there is no refutal on the part of the management, on record till 17.09.2002 when his services have been alleged to have been terminated on the part of the management by the workman and the workman having resigned from his services with the management on the part of the management (which case of the management has not been found to be proved vide my findings on issue no.2, as above said, on record), the workman has completed 240 days of service in the year preceding the date of his alleged termination of service viz. 17.09.2002 in the instant case as required under the provisions of Section 25B of the Industrial Disputes Act, 1947 (as amended upto date) and is I.D No. 134/09 PAGE NO.32 OF 35 accordingly entitled to the protection of the provisions of Section 25F of the Industrial Disputes Act, 1947 (as amended upto date) as on the said date, which I find from the record, in view of the case of the management of the alleged resignation of service on the part of the workman, as abovesaid, on record, have not been complied with on the part of the management qua the workman on the relevant date viz. 17.09.2002 in the instant case and accordingly, the termination of the services of the workman, as on the said date, as alleged by him is held to be illegal.
Now, coming to the relief to be awarded to the workman. It is seen from the record that the workman has alleged in his affidavit by way of evidence Ex.WW1/A in workman evidence, on record, that the workman has became unemployed and has been suffering from unemployment allegedly since the date of his alleged termination of service on the part of the management and is willing to join the services of the abovesaid management to which there is no refutal on the part of the management in its management evidence by way of affidavit by way of evidence of its MW1 Sh. Vipin Kumar, Manager (Accounts) of the management, Ex.MW1/A, on record, nor is there any allegation on the part of the management qua the workman that he has been gainfully employed during the period w.e.f. the date of alleged termination of his services with the management till any date in the same or even by way of cross examination of the workman I.D No. 134/09 PAGE NO.33 OF 35 (WW1) in workman evidence and nor any evidence has been led on the part of the management in this regard, on record, and accordingly I find from the record that the workman has not exhibited any conduct, on record, which can be said to disentitle him to the relief of reinstatement along with backwages as also it has nowhere been alleged on the part of the management, on record, that the workman has reached the age of superannuation and/or is anywhere nearing it as also in the facts and circumstances of the case, it is felt appropriate that the relief of reinstatement in service, however, along with 50% of backwages and continuity of service be awarded to the workman against the management since it cannot be held that the workman has remained totally unemployed during the period with effect from the date of termination of his services on the part of the management as alleged till the date of passing of award.
In view of my findings on issue nos.1 to 3 as framed in the instant proceedings, as above, I find from the record that an application under Section 340 Cr.P.C. moved on behalf of the management for taking of appropriate proceedings against the workman on the ground that the workman has allegedly committed forgery by substituting the word Supervisor in his demand notice dated 03.10.2002 sent to the management, Ex.MW1/8, on record, with the word maintainer in the copy of the same filed by the workman along with his statement of claim, Ex.WW1/2, on record, to which the reply I.D No. 134/09 PAGE NO.34 OF 35 has been filed on behalf of the workman, on record, to the effect that it was specifically denied that the workman has dishonestly and with malafide intentions to prove his own case has erased the word Supervisor with a pen and in place of the same inserted the hand written word maintainer as alleged; that it was submitted that it was nothing but a typographical mistake as also in reply to an application u/o VIII Rule 1A(3) R/W Section 151 CPC moved on behalf of the management seeking permission to exhibit the actual demand notice dated 03.10.2002 (which has been allowed vide order dated 31.03.2010 passed in this regard, on record and the said document exhibited in management evidence as MW1/8 along with its speed post cover as Ex.MW1/9 in the same, on record) that the abovesaid mistake is bonafide and the same is done only due to typographical error while in all the documents the workman has mentioned that he was working with the management as a maintainer, is without any merits and is hereby accordingly dismissed as such.
Reference is answered accordingly and the Award is passed. The Ahlmad is directed to send the Six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in open Court (CHANDRA GUPTA)
on 22.12.2012 Presiding Officer Labour CourtX,
Karkardooma Courts, Delhi.
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