Delhi District Court
Sh. Shail Nath Sinha vs The on 15 April, 2019
IN THE COURT OF SH. RAKESH KUMARI
PRESIDING OFFICER LABOUR COURTX
DWARKA COURTS, NEW DELHI.
LC No. : 2195/16
Date of Institution of the case : 18.10.2006
Date on which Award is passed : 15.04.2019
Sh. Shail Nath Sinha,
S/o Sh. R.N. Sinha,
Editor - Photo,
R/o 7/102, East End Apartments,
Mayur Vihar, PhaseI Extension,
Delhi110096.
..... Workman.
VERSUS
The Management of Hindustan Times Ltd.,
Hindustan Times House,
1820, Kasturba Gandhi Marg,
New Delhi110001,
through its General Manager - HR
..... Management.
:A W A R D:
1. By this award, I shall dispose of the claim of the workman
as filed by him directly before the court against the Management
as per notification of Delhi Government under Industrial Dispute
LC No.2195/16 Page 1 of 48
Act 1947.
2. Brief facts, as stated by the workman in his statement of
claim are that he worked with the management for about three
decades as a confirmed employee on different posts. He was
initially appointed as Trainee Photographer on 23.07.1976 by the
management and on satisfactory completion of the training
period, he was appointed as a Photographer. His services were
confirmed by the management vide order dated 09.12.1977.
Subsequent thereto, he was granted various promotions as Senior
Photographer, Additional Chief Photographer, Chief
Photographer, Assistant Editor (Photo) and Editor (Photo). While
promoting him as Editor (Photo) vide order dated 17.02.2002, the
workman was placed in the pay scale of Rs.1021046013430
6051766579522435 as applicable to Group 1A of the Working
Journalists in terms of the Wage Board Award (Manisana) w.e.f.
01.02.2002. The workman has further claimed that he is a
workman within the meaning of Section 2(s) of the Industrial
Disputes Act inasmuch as he was made to do only the manual
work with no supervisory, managerial and administrative powers.
He is also a 'newspaper employee' as defined under Section 2(c)
and 'working journalist' as defined under Section 2(f) of Working
Journalists and Other Newspaper Employees (Conditions of
LC No.2195/16 Page 2 of 48
Service) and Miscellaneous Provisions Act, 1955. His only
avocation had always been that of a journalist. He had been
taking photographs and editing them. The management is an
'industry' with the meaning of Section 2(j) of the Industrial
Disputes Act and also a 'newspaper establishment' as defined
under Section 2(d) of Working Journalists and Other Newspaper
Employees (Condition of Service) and Miscellaneous Provisions
Act, 1955.
3. It is further claimed by the workman that he had performed
his duties with full sincerity and devotion to the entire
satisfaction of the management of Hindustan Times Ltd. He had
also been chosen by the coworkers as Assistant Secretary/
President / General Secretary of the workers' registered and
recognized union titled Hindustan Times Employees Union and
he had continued as such for years together. As an office bearer
of the workers' union, the claimant had enjoyed the status of
protected workman. While representing the workers, the
workman had signed number of agreements with Hindustan
Times Ltd. It was because of his sincere and devoted action the
different wage board awards were passed fixing the better pay
scales for the workers. Since the workman had filed various
cases on behalf of the workers against the management, it had
LC No.2195/16 Page 3 of 48
become more vindictive against him and wanted to get rid of him
at all costs. The workman has also been one of the members of
Press Council of India, President of Working News Cameraman's
Association, Treasurer of Indian Journalists Union and Secretary
of Confederation of Newspaper and News Agencies Employees
Organisation. It is because of the leadership quality of the
workman, the management was desperately looking for an
opportunity to remove the workman from service.
4. The workman has further claimed that since he had not
contested the election of the workers' union, he had lost the status
of 'protected workman' w.e.f. 01.09.2005. Taking undue
advantage of the said fact, the management had abruptly and
malafidely terminated his services vide order/letter dated
09.06.2006. The said letter was received by him on 12.06.2006
as per which his services were terminated resorting to clause 8 of
the letter of appointment dated 23.07.1976 ignoring the fact that
his services already stood confirmed vide order dated 09.12.1977
and the order of confirmation did not contain any condition that
the services of the workman could be terminated even after
confirmation. Even clause 8 of the initial letter of appointment as
a trainee photographer is not at all applicable to the workman and
as such the same could not be resorted to by the management for
LC No.2195/16 Page 4 of 48
termination of the services of the workman. Termination of his
services is also in utter violation of provisions of Industrial
Disputes Act as neither the workman was given six months notice
or pay in lieu thereof nor any retrenchment compensation was
given to him. Even no show cause notice was issued to him.
Hence, the management has arbitrarily, malafidely and
whimsically terminated the services of the workman. It is
claimed that since the date of his termination, the workman is
unemployed despite his best efforts to get any alternative job
which is causing undue hardship to him. He had also sent a
representation dated 07.07.2006 requesting the management to
reinstate him in service with all back wages and other
consequential benefits including continuity in service, increments
etc. which was responded to by the management vide letter dated
21.07.2006 wherein the management had declined to reinstate
him. The workman has prayed for quashing the termination order
dated 09.06.2006 and directing the management to reinstate him
with full back wages, continuity of service, annual increments
and other consequential benefits.
5. Notice of the claim was sent to management and the
management contested the claim of the workman by filing its
written statement. In its written statement, the management has
LC No.2195/16 Page 5 of 48
stated that at the time of termination of his service, the workman
was working as Departmental Head of Photographic Department
and was designated as Photo Editor. He was discharging
supervisory and administrative duties and was drawing a salary
of Rs.38,322/ per month and as such, he is not a 'workman'
within the meaning of Rs.2(s) of Industrial Disputes Act, hence
this Court has no jurisdiction to entertain the present claim of the
workman. The workman was working as Photo Editor and was
heading the Photography Department. He had one Chief
Photographer, four senior photographers/principal photographers,
seven photographers/photo coordinators and three Dark Room
Assistants working under him who directly reported to the
workman. The job responsibilities of the claimant including
assigning of work to the photographers working in the
Photography Department, exercising administrative control over
the working of the photographers working under him, sanctioning
of leave to the employees working under him, sanctioning of
special expenses claimed by the employees working in his
department like that of telephonic bills etc. He was also
reviewing the performance of the employees working in his
department and renewing extension of contracts of the fixed term
employees. He was regularly attending the editorial meetings
with other editors which were conducted every day at about 4.00
LC No.2195/16 Page 6 of 48
pm and were being attended by all the departmental heads. In
these meetings, a post mortem of the day's newspaper is done i.e.
what are the news items which are good in terms of content,
focus, relevance, national or local importance, grammar/spelling
mistakes etc. and what are the news that were not so good that
needed to be actioned upon. Planning for the day's newspaper is
also done in terms of deciding upon the focus area, prioritizing
news items etc. Strategic decision for a longer period of time are
also decided in these meetings between the Editor and the
Departmental Heads. Photo Department contributed effectively
to these meetings in the terms of :
(a) Information about the photographs used/to be used in the
paper;
(b) why other photos were dropped;
(c) How the photographs chosen/to be chosen have relevance
to the news articles;
(d) Selecting the main picture on the front page;
(e) The technical correctness/draw backs with the photo
printed; and
(f) plans for the future coverage etc.
6. The workman being Head of the Photography Department
attended to these meetings and gave the necessary inputs. Apart
LC No.2195/16 Page 7 of 48
from the above, the workman was also responsible for the
custody and allocation of the expensive photographic equipment
etc., he was also responsible for the supervision of all work
connected with the Photo Library, which clearly established that
the duties performed by the workman were supervisory,
administrative and managerial in nature. Hence, he is not a
workman within the meaning of Section 2(s) of Industrial
Disputes Act.
7. On merits, the management has denied the claim of the
workman submitting that since the claimant is not a workman
within the meaning of Section 2(s) of Industrial Disputes Act, he
cannot invoke the jurisdiction of this Court and challenge the
termination of his service by raising an industrial dispute. The
initial appointment and the subsequent promotions granted to the
workman are of no relevance. The fact remains that at the time of
termination of his service, the claimant was working as Photo
Editor in which capacity he was heading the Photography
Department and a number of photographers worked under his
supervisory and administrative control. Since admittedly he was
drawing a salary of more than Rs.1600/ per month, he does not
fall within the definition of 'workman' under the Industrial
Disputes Act and consequently, the statement of claim as put up
LC No.2195/16 Page 8 of 48
by the workman merits outright dismissal. It is specifically
denied that the workman was performing manual work with no
supervisory, managerial and administrative powers.
8. In reply to para 3 of the statement of claim, it is submitted
by the management that the work performance of the workman
had not been satisfactory. An office bearer of the Union or a
protected workman is an employee first and the official of the
Union later. Every employee is required to maintain discipline
and ensure that the operations of the company are not adversely
affected. Having examined the personal file of the claimant, it
was found that his work and conduct had been unsatisfactory. He
was found indulging in certain activities which were highly
detrimental to discipline and totally incompatible with his job
responsibilities as a Photo Editor Incharge of the Photography
Department. During the period October, 2004 onwards right upto
the end of 2005, it was found that the workman was frequently
leaving his place of duty during the working hours and going out
of the office building and joining the employees sitting in Dharna
in a tent outside the HT House. The record indicated that the
workman had been going out and coming in on several occasions
during the day. Repeated advise of the management not to leave
his place of work was not adhered to and he continued with his
LC No.2195/16 Page 9 of 48
frequent absenteeism from his place of duty for more than a year.
Encourage by the conduct of the workman, another employee
namely Sh. Mukesh Srivastava also similarly starting absenting
from his place of work and joining the employees sitting on
agitation outside the office building. In order to ensure that the
disease did not spread any further, the management had to
chargesheet Sh.Mukesh Srivastava and suspend him from service
and ultimately he was dismissed from service after he was found
guilty of the charges in the inquiry. It is further submitted that
since aforesaid conduct of the workman constituted misconduct,
the management was within its competent to adopt the same line
of action against the workman as in case of Sh.Mukesh
Srivastava. But since the claimant was holding a senior position,
the management decided not to take any punitive action against
him and instead discharged him from service in terms of his
contract of employment on payment of three months salary in
lieu of three months notice as the management came to the
conclusion that retention of the workman was no longer
conducive to the interest of organisation as well as discipline.
Accordingly, the services of the workman were terminated by
giving him three months salary in lieu of 3 months notice in
terms of Clause 8 of the letter of appointment dated 23.07.1976
issued to him. Every employee in terms of his contract of
LC No.2195/16 Page 10 of 48
employment even if he happens to be an office bearer of the
Union, has to conform to the discipline and perform his duties
diligently. No employee, therefore, can claim any immunity on
the purported plea that he was holding an office in the Union.
9. It is further submitted by the management that the claimant
has not been retrenched from service and hence he is not entitled
to 6 months notice or salary in lieu thereof as retrenchment
compensation. It is a case of termination of service in terms of
contract of employment and such termination of service cannot
constitute retrenchment. The management has prayed for
dismissal of claim of the workman.
10. The workman filed rejoinder to the written statement of the
management in which the objection/claim taken by the
management has been strongly controverted and denied and
averments, as raised in the statement of claim, have been re
asserted and reiterated. It is denied that he was discharging
supervisory or administrative duties. It is stated that the editorial
meetings were headed by the Editor and it was his decision that
was final and binding on all. In the said editorial meetings, the
function of the workman was only to give suggestions. He was
not authorised to take strategic decisions pertaining to anything
LC No.2195/16 Page 11 of 48
in the said meetings. The principal work of the photo department
was to shoot pictures for the paper and thereafter it was the job of
the other departments including the Desk Department to use,
drop, select or plan the pictures for any particular page/relevant
articles. His work was only manual pertaining to photographs,
whether outdoor or indoor. He was given photographic
equipments as his main job was to shoot photographs for the
paper. It is submitted that he had always supported the cause of
the other coworkers during his offduty hours and it was because
of this trade union activities of the workman that the management
got vindictive and has terminated the services of the workman. It
is further submitted that in the Industrial Dispute Case
no.66/05/06 pertaining to other coworkers, the Tribunal has
already given a prima facie finding to the effect that the action of
the management in partial transfer/retrenchment of the workers is
unjustified and that the workers are entitled to 50% of their last
drawn wages during the pendency of the industrial dispute. The
workman had to go out of the building only for official work i.e.
for the work of photography as his major work was field work of
shooting photographs for the newspaper.
11. On the pleadings of the parties, vide order dated
24.04.2007, the following issues were framed:
LC No.2195/16 Page 12 of 48
"(i) Whether the claimant is a 'workman' as per the
provisions of Industrial Dispute Act?
(ii) Whether the service of the workman has been
illegally terminated and if so, to what relief he is entitled
to?
(iii) Relief."
12. No other issue arose or pressed for and matter was listed
for WE.
13. In support of his claim, workman examined only himself as
WW1. He has tendered his evidence by way of affidavit
Ex.WW1/A. The contents of his affidavit Ex.WW1/A is
corroborative to the statement of claim. He also relied upon the
following documents:
(i) his appointment letter as Trainee Photographer on
23.07.1976 by the management as Ex.WW1/1;
(ii) letter dated 04.07.1977 vide which he was appointed as
Photographer as Ex.WW1/2;
(iii) letter dated 09.12.1977 vide which his services were
confirmed as Ex.WW1/3;
(iv) letter dated 26.05.1988 vide which he was promoted as
Senior Photographer as Ex.WW1/4;
(v) letters dated 25.12.1991, 19.04.1993, 18.11.1996,
LC No.2195/16 Page 13 of 48
17.02.2002 vide which he was promoted as Additional Chief
Photographer, then as Chief Photographer, Assistant Editor
(photo), Editor (Photo) as Ex.WW1/5, Ex.WW1/6, Ex.WW1/7
and Ex.WW1/8 respectively;
(vi) specimen copy of some photographs taken by the workman
as printed in the HT Newspaper and magazine is Ex.WW1/9
(Colly.);
(vii) photographer's pass given by Parliament for shooting
photographs is Ex.WW1/10;
(viii) specimen copies of letters dated 01.12.2003, 30.11.2004
and 25.11.2005 alongwith specimen copy of applicant form for
accreditation and guidelines for the grant of accreditation are
Ex.WW1/11 (Colly);
(ix) specimen copies of memorandum of
settlements/agreements dated 22.09.1989, 14.12.2000,
24.01.2001, 23.01.2002 and 12.08.2002 signed by him with the
management as Ex.WW1/12 (Colly);
(x) letters dated 03.08.2000, 31.07.2000, 23.07.2001,
07.04.2003, 31.03.2003, 16.08.2004, 20.08.2004, 25.08.2004 and
04.04.2005 written by workers' union to the management
enclosing the list of protected workmen (including his name) as
Ex.WW1/13;
(xi) copy of the order dated 03.11.2005 as Ex.WW1/14;
LC No.2195/16 Page 14 of 48
(xii) letters dated 03.04.2003, 07.04.2003, 06.06.2003,
29.10.2003, 01.12.2003, 06.05.2004, 04.08.2004, 13.08.2004 and
25.07.2005 written by the management to the workman in his
capacity as General Secretary as Ex.WW1/15 (Colly.);
(xiii) his termination letter dated 09.06.2006 as Ex.WW1/16;
(xiv) copy of his pay slips showing payment of overtime as
Ex.WW1/17;
(xv) copy of representation dated 07.07.2006 sent by him to the
management as Ex.WW1/18;
(xvi) copy of letter dated 21.07.2006 sent by the management to
the workman as Ex.WW1/19.
14. Thereafter, the workman has also tendered in evidence his
additional affidavit Ex.WW1/B and relied upon the documents
i.e. copies of the settlement dated 06.12.1973, 16.04.2000 and
12.08.2002 in respect of the decisions regarding sanctioning of
overtime by way of settlements with workers' union as
Ex.WW1/R1 (colly.), copies of letters written by the workman as
union leader to the management for grant of overtime to the
workers and the reply by the management as Ex.WW1/R2
(colly.) and certain documents dated 23.01.2005, 25.04.2005,
05.07.2005 and 18.07.2005 as Ex.WW1/R3 (colly.).
LC No.2195/16 Page 15 of 48
15. WW1 the claimant was cross examined by the
management. During his cross examination by the management,
WW1 has stated that at the time of his termination, his
designation was Editor Photo and that his salary was more than
Rs.38,000/. He has denied the suggestion that in the capacity of
Editor Photo, he was heading the photography department of the
management and that he was the senior most officer in the said
department. He has voluntarily added that he was one of the
senior photographers working in the photography department.
He has denied the suggestion that a chief photographer, four
senior/principal photographers and seven photographers/photo
coordinators were subordinate to him and voluntarily added that
they were just his junior colleagues. He has admitted that his
grade was much higher than that of the photographer or photo
coordinator. He has stated that he was in the highest grade under
the wage board and he did not aware about the salaries drawn by
others. He has denied the suggestion that chief photographers,
senior photographers, photographers and dark room assistants
were directly reporting to him and voluntarily added that they
(including him) were reporting to Resident Editor and Editor. He
has also denied the suggestion that he was assigning duties to the
photographer, exercising administrative control over them,
sanctioning leave to them, reviewing their performances, taking
LC No.2195/16 Page 16 of 48
decisions about renewing the contracts of the fixed term
employees, or inducting trainings to the employees. He has
admitted that editorial meetings used to be held on daily basis in
which he used to participate with Editors but voluntarily added
that his other photographer colleagues also used to go and
participate in the said editorial meetings. He has denied the
suggestion that from his department, only he used to participate
in the editorial meeting and that all departmental heads used to
attend the editorial meetings. He has admitted that the purpose
of holding the editorial meetings was to have discussion
regarding the assignments and other works and that in such
meetings, the contents of the newspaper used to be scrutinized
threadbare. He has denied that planning for the newspaper for
the next day used to be done in such meeting but he has
voluntarily added that such planning used to be done in other
meetings amongst the editors, resident editors and desk staff.
16. During his cross examination, WW1 was confronted with
several documents i.e. Ex.WW1/M1 which is the application of
one Sh.Ajay Aggarwal, Principal Photographer for
reimbursement of telephone bills and he admitted his signature
on the same at pointA. Same was his reply in respect of
documents Ex.WW1/M2 to Ex.WW1/M4. He has stated that he
LC No.2195/16 Page 17 of 48
had signed those documents in the capacity as departmental
colleague and sanctioning authority was Dy.General Manager
(HR) and finally sanctioned by V.P. (HRD) on the
recommendation of DGM(HRD). He has stated that Sh. A.C.
Sethi, DGM(HRD) and Sh.Yash Yadav, V.P.(HRD) had signed
Ex.WW1/M4 at pointB and C respectively. He has denied the
suggestion that he signed on the said claims in the capacity of
head of the photography department and not as a mere colleague
and that there was no rule or practice in the management that
colleague used to sign on the money claims made by the
employees. He has voluntarily added that there was a system in
the editorial department where colleagues used to sign the papers
for any payment which is under the policy of the company and
the purpose of his signing the claim was to identify the claimant.
He did not remember whether he sent the email, printed copy of
which is MarkA. He has stated that the email ID mentioned in
MarkA was his official ID which could be accessed by anyone in
the company. He admitted that he had his own password but
voluntarily added that the system can always open the password
and work on it. A specific question put to WW1 during his cross
examination and the answer given by him reads as under:
"Q. Are you implying that some other employee sent
the email MarkA in your name?
Ans. As I said I do not remember sending this mail
LC No.2195/16 Page 18 of 48
because this is extension for a contract employee and
he was working as a wage board employee"
17. WW1 has stated that Ex.WW1/M5 is the copy of his letter
dated 04.08.2006 and admitted that letters dated 26.07.2006,
21.07.2006 and 09.06.2006 Ex.WW1/M6, M7 and M8
respectively were received by him from the management. He has
also admitted his signature on the joining report Ex.WW1/M9 at
pointA and voluntarily added that he had signed the same as per
the directions of the management and moreover as per the
management, HT Media Ltd. is a separate company. He has
denied the suggestion that he signed Ex.WW1/M9 in the capacity
of departmental head. He has admitted it to be correct that the
documents at paged 42 to 123 of the management's documents
bear his signature in the encircled portion which are
Ex.WW1/M10 (Colly.). He has stated that all the leave
applications are incomplete as the same have not been signed by
the Editor as required and the management has deliberately
created these documents. WW1 has denied that that being
Departmental Head, he was the leave sanctioning and
recommending authority. He did not remember if any employee
ever accessed his official email ID or password and sent email
using his name to anyone.
LC No.2195/16 Page 19 of 48
18. WW1 was shown the movement chart from pages 17 to 34
of the management's documents placed on record and a question
was put to him that the said chart correctly depicted the details of
his movements in and out of the office during the relevant period
as stated in the movement chart, to which the workman has
replied that he did not remember any such chart which
management was preparing for their employees and since the
period pertained to as back as 2004 he did not remember the
details mentioned therein. He has voluntarily added that if the
said unsigned document of the management was correct then it
was infringement on his journalistic freedom and he felt that the
whole document has been cooked up against him for this case.
19. WW1/workman has admitted that Wage Board was
constituted by the Government and the same was with respect to
the entire newspaper industry and it has different
recommendations for different classes of newspapers. He has
denied the suggestion that he had falsely stated that it was
because of his steps that different Wage Board Awards were
passed. He did not remember if the management had challenged
the order dated 03.11.2005 Ex.WW1/14 passed by the Assistant
Labour Commissioner. He has admitted that he was not the
protected workman when his services were terminated.
LC No.2195/16 Page 20 of 48
20. During his cross examination conducted by learned AR of
the management after filing of additional affidavit Ex.WW1/B by
the workman, the workman/WW1 has denied the suggestion that
in the capacity of departmental head of photographic department,
he was fully competent and entitled to allocate and sanction
overtime to the other employees working in his department and
that he was in fact exercising such powers and functions. He has
stated that he did not see the originals of photocopies of
document which are Ex.WW1/R3 filed by him and that the same
were received by him from concerned employee Sh. R.K.Mudgal
who was working in the Advertisement Department. He could
not say whether the signatures at pointA (on page17 of
Ex.WW1/R3), at pointB and C (on page 18 of Ex.WW1/R3), at
pointD (on page 19 of Ex.WW1/R3), and at pointE (on page 20
of Ex.WW1/R3) are of Mr.R.S.Avasthi, General Manager,
Mr.Naval Kishore Sinha, Senior Manager and Sh. R.S. Avasthi,
Mr.Naval Kishore Sinha and Mr.Raj Kamal, Deputy Manager
respectively.
21. The management has examined four witnesses namely
MW1 Sh.Avik Basu, AVPHR; MW2 Sh.Jai Bhagwan, MW3
Sh.Devender Kumar and MW4 Sh. B.S. Randhawa in support of
its case.
LC No.2195/16 Page 21 of 48
22. MW1 Sh.Avik Basu has tendered in evidence his affidavit
Ex.MW1/A and relied upon the following documents:
(a) Speaking order for terminating the services of the workman
as Ex.MW1/1.
(b) Photocopy of letter dated 10.08.2006 from Sh. B.S.
Randhawa to the management alongwith inventory as Ex.MW1/2
(Colly.).
(c) Copy of chart depicting details of the movement of the
workman with regard to his entry to and exit from the premises
for the period 19.10.2004 to 12.05.2005 as Ex.MW1/3.
(d) Copy of the chargesheet dated 18.12.2004 issued to
Mr.Mukesh Kumar Srivastava as Ex.MW1/4.
(e) Photocopy of Manisana Wage Board Report for Working
Journalists and NonJournalist Newspaper & Agency Employees
as Ex.MW1/5.
23. During his cross examination, he has stated that the
workman had been given his last promotion as Editor Photo on
01.02.2002. He has stated that the letter of promotion of the
workman as Editor Photo Ex.WW1/8 and letter terminating his
service Ex.WW1/16 are on record and that he was having the
requisite authority to issue the said letter on behalf of the
management but he could not say whether he had placed on
LC No.2195/16 Page 22 of 48
record the said authority letter or not. He has stated that he has
not brought any document to show that the claimant had issued
appointment letter in respect of any employee of the
management. He has admitted it to be correct that the workman
had never issued any show cause notice to any employee or
initiated any disciplinary action on behalf of the management
against any employee during the tenure of his employment with
the management and that the workman was not having any power
to take disciplinary action or issue appointment letter in respect
of any employee of the management on its behalf. He could not
say whether the workman was having any power to give
monetary reward to any employee on behalf of the management,
however, the workman had the necessary power and authority to
sanction overtime, leave, any special reimbursement like
telephone bills in respect of the employees subordinate to him.
He has stated that in Ex.WW1/M10 (colly), the signatures of
Editor was not required as the workman as sanctioning authority
had already signed in this regard. MW1 has stated that he was
not having any document to show that the subordinate staff was
to report to the workman and voluntarily added that whatever
documents were there with the management in this regard, the
same have already been exhibited on record. He could not say
whether any photographer used to attend the editorial meetings or
LC No.2195/16 Page 23 of 48
not. He has voluntarily added that the editorial meeting were
meant for the heads of the departments. It was not prescribed
anywhere that only the heads of the departments were to attend
the editorial meeting but it is a norm. He had admitted it to be
correct that settlements between the management and the
employees union used to take place and the last settlement
between them was dated 12.08.2002 and that Ex.WW1/12 (colly)
are the settlement entered into between the management and the
employees union which was valid upto 31.05.2005. He has also
admitted that the workman was General Secretary of Hindustan
Times Employees Union at that time. He has denied the
suggestion that the workman was a protected workman on the
date of his termination by the management. He has admitted that
letter dated 03.04.2003 Ex.WW1/5 has been issued on behalf of
the management. There was change in the responsibility and
duties of the claimant pursuant to his promotion as Editor Photo
by the management on 01.02.2002 which responsibility and duty
continued to perform till date of his termination. He has denied
the suggestion that the main duty and responsibility of the
workman was to take photographs. The workman was
performing the duty of taking photographs at his will and
discretion. It is stated that the photorapher's pass Ex.WW1/10
had been issued to the workman by the issuing authority on the
LC No.2195/16 Page 24 of 48
recommendation of the management. He has admitted that no
notice was issued to the workman prior to termination of his
services by the management and voluntarily added that three
months salary n lieu of notice had been given to the workman as
per the terms and conditions of his service at the time of
termination of service. He has further admitted that no
retrenchment compensation had been paid to workman and that
no chargesheet or domestic inquiry had been held against the
workman before the termination of his service. HT Media Ltd.
had come into existence in the year 20022003. Services of 362
employees of the press of the management had been retrenched
under Section 25 FF of the Industrial Disputes Act on
02.10.2004. Duties of Photo Editor are not laid down in any rule
or regulations of the management. The workman was in the
salary band of Group 1 A as prescribe under Manisana Wage
Board for Journalists and NonJournalists. He has denied the
suggestion that the workman had no authority to sanction leave,
overtime or special expenses to any other employee and that he
had no authority to review the performance of any other
employee. He has also denied that services of the workman were
terminated because of his trade union activities.
24. MW2 Sh. Jai Bhagwan has tendered his evidence by way
LC No.2195/16 Page 25 of 48
of affidavit Ex.MW2/A. During his cross examination, he has
stated that he had prepared the movement register on the
directions of Sh. Devender Kumar, Security Incharge, M/s G4S
Security. He has admitted that the names of the employees
mentioned in para 3 of his affidavit were all the union leaders of
the workers and that the workman S.N. Sinha was working as
General Secretary of the union at the time when he prepared the
register. He could not say whether the work of workman was
photography. He has denied the suggestion that when he used to
follow the workmam, he was carrying the camera. He has stated
that he never used to make the video or take photographs of
workman in the course of following him. He used to follow
Mr.Sinha normally up to the tent but on occasions he used to
follow the workman to the nearest place to the office such as
Shankar Market etc. The main movement he recorded was from
the gate to the tent. He had never seen the appointment letter of
workman, however, he had learnt that the workman worked as
Senior Manager with Hindustan Times.
25. MW3 Sh.Devenber Kumar has tendered his evidence by
way of affidavit Ex.MW3/A and also relied upon document
Ex.MW3/1 (colly.) (copy of six registers in number). During his
cross examination by learned AR of the workman, MW3 has
LC No.2195/16 Page 26 of 48
stated that he was appointed with H.T.Media in JulyAugust,
2008 but denied the suggestion that his appointment was as a
condition for supporting the management in the present case. He
has submitted that workman was one of the union leaders who
named in para 5 of his affidavit and that workman was the
General Secretary of the worker's union at that time. He was not
aware about the duty hours of workman. He used to follow the
workman when he used to go to the tent where the workers were
having dharna. He could not say whether the board he was
referring to in para 8 of his affidavit had two sections, one
pertaining to management and the other pertaining to editorial
team, however, the name of workman was there.
26. MW4 Sh.B.S. Randhawa has stated that he was a
practicing advocate. In the year 2006, he was doing the work of
Notary, Government of India. He was asked by the management
of M/s Hindustan Times Ltd. to prepare an inventory for the
articles lying in some rooms in the HT Building, K.G. Marg, New
Delhi. He truthfully prepared the inventories of all the articles
lying in the cabin of the workman, as told to him by the
management and the same was given to the management at that
time in August, 2006. He has stated that his report dated
10.08.2006 is already exhibited as Ex.MW1/2 (colly.) which
LC No.2195/16 Page 27 of 48
bears his signature on all the pages at pointA.
27. During his cross examination, MW4 Sh. B.S.Randhawa
has stated that he did not know if any intimation was given to the
workman for making the inventory of items on the relevant date
and time. He did not send any such intimation to the workman at
that time. He has admitted that the management had informed
him that the cabin where the articles were lying was of the
workman. He has mentioned in his report that the bunch of keys
was found in one of the cupboards. There were some articles of
photography, which could not be ascertained by him so he took
help of people from photo section so as to correctly mention the
same in his report. He did not recollect whether the empty
cupboards were that of photo section.
28. I have perused the entire record. I have heard the
submission of the AR of the workman and the management. My
issue wise findings are as under:
29. :ISSUE No.1:
Whether the claimant is a 'workman' as per the
provisions of Industrial Dispute Act?
30. In its Written Statement the management has taken the
objection that since the claimant is not a workman within the
LC No.2195/16 Page 28 of 48
meaning of Section 2(s) of Industrial Disputes Act, so he cannot
invoke the jurisdiction of this Court and challenge the
termination of his service by raising an industrial dispute.
31. It has been forcefully contended by AR of the
management that since at the time of termination of his service,
the claimant was working as Photo Editor in which capacity he
was heading the Photography Department and a number of
photographers worked under his supervisory and administrative
control, so he can not be termed as workman within the meaning
of Section 2 (s) of Industrial Dispute Act. The initial appointment
and the subsequent promotions granted to the workman are of no
relevance. Further admittedly he was drawing a salary of more
than Rs.1600/ per month, as on the date of his discontinuation of
service, he does not fall within the definition of 'workman' under
the Industrial Disputes Act and consequently, the statement of
claim as put up by the workman merits outright dismissal. It is
specifically denied that the workman was performing manual
work with no supervisory, managerial and administrative powers.
32. Per contra, according to workman the main and primary
work of claimant till the time of termination of his service was to
take photographs. He was made to do only the manual work with
LC No.2195/16 Page 29 of 48
no supervisory, managerial or administrative powers. The
management had got him issued accreditation card meant for
photographers by Press Information Bureau from time to time.
On 25.11.2005, the management had again requested the PIB to
issue the accreditation card interalia to the various photographers
including the claimant. It is relevant to mention that one of the
conditions for the issuance of accreditation card is that the card
holder has to undertake not to engage himself in any work other
than journalism. The card thus issued to the claimant was valid
till the date of termination of his service. The claimant was office
bearer of recognized workers union from time to time. Even after
his last promotion to the post of Editor (Photo_ on 17.02.2002, he
continued to be the office bearer of the workers' Union which is
cleared by the Union Letter dated 16.08.2004. Even this fact has
been specifically admitted by the management in its Written
Statement. Undisputedly, he was enjoying the status of protected
workmen under rule 61 of the Industrial Dispute (Central) rules
1957 till ,much after his promotion to the post of Editor (Photo).
The management has not denied the said fact and has only stated
that at the time of termination of his service he was not a
protected workman. It is also not the case of management that
after his last promotion on 17.02.2002, there was any change in
the nature of the duties performed by the claimant. Moreover,
LC No.2195/16 Page 30 of 48
admittedly, the management used to correspond with the claimant
as an office bearer of the Workers' Union. Thus, the duties of a
Cameraman were the main and principle duties of claimant. He
never enjoyed any administrative, managerial or supervisory
powers of appointing, dismissing or taking disciplinary action
against any other employee. However, he was incidentally made
to sign on some recommendatory letters as a Union Leader,
which can not convert his status from that of a worker/working
journalist to that of a managerial or administrative officer. Thus,
the claimant is a workman / working journalist as defined in
Section 2 (f) of the Working Journalists and Other Newspaper
Employees (conditions of service) and Miscellaneous Provisions
Act, 1955 and by virtue of clause 3 of the Act, all provisions of
I.D. Act as they are applicable to a workman is applicable to him.
The workman in its evidence reiterated that he had no
managerial, supervisory or administrative powers. His work was
that of an ordinary photographer and some desk job to develop
and forward the same to his seniors which is purely technical in
nature.
33. Section 2 (s) of I.D. Act which is reproduced (in so far as
relevant) as under :
"Workman" means any person (including an
LC No.2195/16 Page 31 of 48
apprentice) employed in any industry to do
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 proceeding under this 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 station 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
capacity, draws wages exceeding one
thousand six hundred rupees per mensem or
exercises, either by the nature of the duties
LC No.2195/16 Page 32 of 48
attached to the office or by reason of the
powers vested in him, functions mainly of a
managerial nature."
34. Section 2(f) of Working Journalists and Other Newspaper
Employees (Conditions of Service) and Miscellaneous Provisions
Act, 1955:
"Working journalist" means a person whose
principal avocation is that of a journalist and
[who is employed as such, either whole time or
part time, in, or in relation to, one or more
newspaper establishment], and includes an
editor, a leader - writer, news editor, sub -
editor, feature - writer, copy - tester, reporter,
correspondent, cartoonist, news - photographer
and proof - reader, but does not include any such person who -
(i). is employed mainly in a managerial or administrative capacity, or
(ii). being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a LC No.2195/16 Page 33 of 48 managerial nature;"
35. Section 3 of Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, provides that -
(1). the provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall, subject to the modification specified in subsection (2), apply to, or in relation to, working journalists as they apply to, or in relation to workmen within the meaning of that Act.
(2). Section 25F of the aforesaid Act, in its application to working journalist, shall be construed as if in clause (a) thereof, for the period of notice, referred to therein in relation to the retrenchment of a workman, the following periods of notice in relation to the retrenchment of a working journalist had been substituted namely -
(a). six months, in case of an editor, and
(b). three months, in the case os any other working journalist,"LC No.2195/16 Page 34 of 48
36. By now the law regarding as to who constitutes a workman under the provisions of Section 2 (s) of the Industrial Disputes Act is well settled. Vide citation AIR 1966 SC 305 All India Reserve Bank Employees Association and Anr. Appellants Vs. Reserve Bank of India and Anr. Respondents it has been held that: "The definition of workman in Sec.2(s), Industrial Disputes Act, 1947, as amended in 1956 includes inter alia an employee employed as a supervisor. There are only two circumstances in which such a person ceases to be a workman. One is when he draws wages in excess of Rs. 500/ per month and the other is when he performs managerial functions by reason of a power vested in him or by the nature of duties attached to his office".
"The word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of the context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the manual work of others."
" The question whether a particular workman is LC No.2195/16 Page 35 of 48 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"
37. 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 LC No.2195/16 Page 36 of 48 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 "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 incidentally asked to do some other work, LC No.2195/16 Page 37 of 48 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."
38. It has been held in 2001 LLR 1083 Supreme Court of India; Hussan Mithu Mhasvadkar Vs. Bombay Iron & Steel Labour Board that: "No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him."
39. Similarly, it has been held in 2004 LLR 108 Bombay High Court Tanojkumar B.Chatterjee Vs. Solapur Municipal Corporation that: "Now, it is well settled in this branch of law, as in many others, that designations are not LC No.2195/16 Page 38 of 48 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 this Court, in Union Carbide (I) Ltd. Vs. Samuel, (1998) 2 Cur LR 736; 1999 LLR 21. In the Bombay Dyeing LC No.2195/16 Page 39 of 48 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."
40. In Anand Regional Coop. Oil Seeds growers' Union Ltd. Vs. Shailesh Kumar Harshabhai Shah reported as 2006 - 6 SCC 548, it was held that: "15. Supervision contemplates directions and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue is importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there LC No.2195/16 Page 40 of 48 were some persons working under him whose work is required to be supervised. Being in charge of the section alone and that too it being a small one and relating to quality control would not answer the test."
17. A person indisputably carries on supervisory work if he has power of control or supervision in regard to recruitment, promotion, etc. The work involves exercise of tact and independence."
41. It has been held in Statesman Ltd. V. Lt. Governor, Delhi, reported as (1975) 2 LLJ 33 (Del.) that : "The working journalists are fully entitled to take advantage of the provisions of the Industrial Disputes Act like any other workman without their being labelled workman as such."
42. Judging by the said standard and keeping in view the fact that the claimant, who was lastly designated as Photo Editor, being a working journalist, falls within the ambit of Section 2 (f) of Working Journalists and Other Newspaper Employees LC No.2195/16 Page 41 of 48 (Conditions of Service) and Miscellaneous Provisions Act, 1955 and by virtue of Clause 3 of the Act, all the provisions of the Industrial Dispute Act, 1947, as they are applicable to workman, is applicable to him and his primary and principle duties was that of a photographer and he was never enjoying the administrative, managerial or supervisory powers of appointing, dismissing or taking disciplinary action against any other employee. Though, he was incidentally assigned some recommendatory and advisory duties which can not convert his status from that of a worker/ working journalist to that of a managerial or administrative officer, is a workman / working journalist as defined in Section 2
(f) of the Working Journalists and Other Newspaper Employees (conditions of service) and Miscellaneous Provisions Act, 1955 and by virtue of clause 3 of the Act, all provisions of I.D. Act as they are applicable to a workman is applicable to him. Issue stands decided accordingly.
43. :ISSUE No.2: Whether the service of the workman has been illegally terminated and if so, to what relief he is entitled to?
44. While deciding Issue No.1, I have already come to the conclusion that 'claimant is a workman / working journalist as defined in Section 2 (f) of the Working Journalists and Other LC No.2195/16 Page 42 of 48 Newspaper Employees (conditions of service) and Miscellaneous Provisions Act, 1955 and by virtue of clause 3 of the Act, all provisions of I.D. Act as they are applicable to a workman is applicable to him', and as such his services can only be terminated after complying the provisions of Industrial Disputes Act.
45. It has been claimed on behalf of workman that since he had not contested the election of the workers' union, he had lost the status of 'protected workman' w.e.f. 01.09.2005. Taking undue advantage of the said fact, the management had abruptly and malafidely terminated his services vide order/letter dated 09.06.2006. The said letter was received by him on 12.06.2006 as per which his services were terminated resorting to clause 8 of the letter of appointment dated 23.07.1976 ignoring the fact that his services already stood confirmed vide order dated 09.12.1977 and the order of confirmation did not contain any condition that the services of the workman could be terminated even after confirmation. Even clause 8 of the initial letter of appointment as a trainee photographer is not at all applicable to the workman and as such the same could not be resorted to by the management for termination of the services of the workman. Further termination of his services is also in utter violation of provisions of Industrial LC No.2195/16 Page 43 of 48 Disputes Act as neither the workman was given six months notice or pay in lieu thereof nor any retrenchment compensation was given to him. Even no show cause notice was issued to him. Hence, the management has arbitrarily, malafidely and whimsically terminated the services of the workman.
46. On the other hand according to management, the work performance of the claimant was not been satisfactory. An office bearer of the Union or a protected workman is an employee first and the official of the Union later. Every employee is required to maintain discipline and ensure that the operations of the company are not adversely affected. Having examined the personal file of the claimant, it was found that his work and conduct had been unsatisfactory. He was found indulging in certain activities which were highly detrimental to discipline and totally incompatible with his job responsibilities as a Photo Editor Incharge of the Photography Department. During the period October, 2004 onwards right upto the end of 2005, it was found that the workman was frequently leaving his place of duty during the working hours and going out of the office building and joining the employees sitting in Dharna in a tent outside the HT House. The record indicated that the workman had been going out and coming in on several occasions during the day. Repeated LC No.2195/16 Page 44 of 48 advise of the management not to leave his place of work was not adhered to and he continued with his frequent absenteeism from his place of duty for more than a year. Since the aforesaid conduct of the workman constituted misconduct, the management was within its competence to take action against the workman, however, instead of taking punitive action, he was discharged him from service in terms of his contract of employment on payment of three months salary in lieu of three months notice as the management came to the conclusion that retention of the workman was no longer conducive to the interest of organisation as well as discipline.
47. The claimant being a workman / working journalist, the management was obliged in law to retrench his services as per law. However, admittedly, the management has not considered the provisions of Section 25 F of the Industrial Dispute Act read with Section 3 of the Working Journalists and Other Newspaper Employees (conditions of service) and Miscellaneous Provisions Act 1955, simply terminated the services of claimant vide letter dated 09.06.2006 w.e.f. 12.06.2006 on payment of three months salary in lieu of three months notice period in terms of clause 8 of letter of appointment dated 23.07.1976, which is neither legal not justified. The aforesaid clause being in violation of Section 23 of LC No.2195/16 Page 45 of 48 Contract Act, 1872 can not resorted to by the management agianst the workman, who has the protection of Industrial Disputes Act and whose services can only be terminated in terms of the provisions of Industrial Dispute Act. Admittedly, before terminating the services of claimant, the management has not conducted any departmental enquiry against the claimant, nor even a show cause notice was served upon him, so the termination of the services of claimant is illegal and unjustified. In this regard a reliance can be placed upon the judgment of Hon'ble Apex Court of the land in the case of Novartis India Ltd. Vs. State of W.B. reported as (2009) 3 SCC 124, wherein it has been held : "38. The respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio......."
48. In view of above, the termination of the services of claimant was illegal and unjustified. Issue stands decided accordingly.
LC No.2195/16 Page 46 of 4849. :RELIEF:
50. In the instant matter, the workman has prayed for quashing the termination order dated 09.06.2006 and directing the management to reinstate him with full back wages, continuity of service, annual increments and other consequential benefits. Since the workman has already attained the age of his superannuation in the year 2012, so this is not a fit case for the reinstatement of the workman in service. Keeping in view the facts and circumstances of the case particularly the fact that a long time has passed and in these days of rising prices, it is not possible to survive without any job or work as such the workman must have been doing some job during this period in order to maintain himself and his family and the ends of justice will be served if a lump sum compensation is awarded to the workman in lieu of reinstatement with back wages, continuity of service, annual increments and other consequential benefits. Accordingly, a lump sum compensation of Rs.12,00,000/ (Rupees Twelve Lakhs Only) is awarded to the workman keeping in view his tenure of service with the management and his last drawn salary. As such the management is directed to pay a lump sum compensation of Rs.12,00,000/ (Rupees Twelve Lakhs Only) to the workman within one month from the date of publication of the award and in case the management failed to pay the said LC No.2195/16 Page 47 of 48 amount during the period as prescribed above, the workman is also entitled to recover the said amount from the management along with interest at the rate of 7 % per annum. Award is passed accordingly. Requisite copies of the award be sent to the competent authority for publication as per provisions of Industrial Dispute Act.
51. File be consigned to the Record Room after completion of necessary formalities.
Announced in the open Court on 15.04.2019 (RAKESH KUMARI) Presiding Officer Labour CourtX Dwarka Courts, New Delhi.
Digitally signed by RAKESH RAKESH KUMAR
KUMAR Date:
2019.04.16
16:10:28 +0530
LC No.2195/16 Page 48 of 48