Delhi High Court
M/S Kirloskar Electric Company Limited vs Government Of Nct Of Delhi And Others on 2 September, 2009
Author: S.N. Aggarwal
Bench: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 11357/2009
% Date of Decision: 02nd September, 2009
# M/S KIRLOSKAR ELECTRIC COMPANY LIMITED
..... PETITIONER
! Through: Mr. D.P. Chaturvedi, Advocate.
VERSUS
$ GOVERNMENT OF N.C.T. OF DELHI AND OTHERS
.....RESPONDENTS
^ Through: Mr. R.S. Mathur, Advocate for counsel for
respondents No. 1, 2 & 4.
CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper may be allowed to see
the judgment? YES
2. To be referred to the reporter or not?YES
3. Whether the judgment should be reported in the
Digest?YES
S.N.AGGARWAL, J (ORAL)
C.M. No. 10957/2009 in W.P.(C.) No. 11357/2009 Exemption as prayed for is granted subject to all just exceptions. W.P.(C.) No. 11357/2009 and C.M. No. 10955/2009 (for condonation of delay in filing of the writ petition) and C.M. No. 10956/2009 (for stay) The management of M/s Kirloskar Electric Company Limited (hereinafter to be referred as the petitioner) seeks to challenge an industrial award dated 20.03.2008 passed by the Industrial Adjudicator directing it to pay retrenchment compensation as per provisions contained in Section 25-F of the Industrial Disputes Act, 1947 to respondent No. 3 for illegal termination of his services w.e.f 23.11.2001. W.P.(C) No.11357/2009 Page 1 of 6
2. Heard on admission.
3. Mr. D.P. Chaturvedi, learned counsel appearing on behalf of the petitioner, has argued that the impugned award in favour of respondent No. 3 suffers from perversity because according to him, the Labour Court has acted mechanically in holding respondent No. 3 to be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 though his designation in terms of his last appointment letter (being Annexure P-3 at page 69 of the Paper Book) was Assistant Manager. The submission of Mr. Chaturvedi was that since the respondent No. 3 was holding the post of Assistant Manager in the petitioner company at the time his services were dispensed with, he does not fall within the definition of 'workman' provided in Section 2(s) of the Industrial Disputes Act, 1947.
4. Mr. Chaturvedi has referred to Ground (XIV) at Pages 50-51 of the Paper Book to contend that the Hon'ble Supreme Court in Tejinder Singh Vs. Bharat Petroleum Corporation Limited reported in (1986) 4 SCC, 237, has held that an officer does not fall within the purview of 'workman' provided in Section 2(s). However, when the Court asked Mr. Chaturvedi to show the judgement in Tejinder Singh's case on which he seeks to place reliance, he submitted that he has not brought the said judgment with him.
5. The learned counsel appearing on behalf of the petitioner company has also argued that since the industrial award given by the Industrial Adjudicator against the petitioner management was not published by the appropriate Government within thirty days of the date of receipt of the said award as provided in Section 17(i) of the Industrial Disputes Act, 1947 therefore, according to him, in view of the provisions contained in Section 17(ii) of the Industrial Disputes Act, 1947, the said award cannot W.P.(C) No.11357/2009 Page 2 of 6 be implemented and has to be treated as non-est.
6. I have given my thoughtful consideration to the above arguments advanced by Mr. Chaturvedi, learned counsel appearing on behalf of the petitioner, but I could not persuade myself to agree with any of them for the reasons to follow hereinafter.
7. I do not find any merit in the argument of the learned counsel appearing on behalf of the petitioner that the Court below has acted mechanically in holding respondent No. 3 to be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. A perusal of the impugned award from Para 12 onwards up to Para 17 of the said award would show that the Court below has not only taken into account the evidence produced by the respondent No. 3 in regard to the nature of duties performed by him in the course of his employment with the petitioner company but has also taken note of number of judgments of the Hon'ble Supreme Court which lay down the test for determining whether an employee is a 'workman' or not. It was upon consideration of all relevant facts and applying the test laid down by the Hon'ble Supreme Court in the precedents referred in the impugned award, the Court below has reached to a conclusion that the respondent No. 3 is covered by the definition of 'workman' provided in Section 2(s) of the Industrial Disputes Act, 1947. The judgment of the Hon'ble Supreme Court in Tejinder Singh's case (supra), on which reliance is sought to be placed by the petitioner company, is not applicable to the facts and circumstances of the present case. The proposition of law laid down by the Hon'ble Supreme Court in the said case is that an officer is not covered by the definition of the 'workman' provided in Section 2(s) of the Industrial Disputes Act, 1947.
8. In the present case, the Court below taking note of the nature of W.P.(C) No.11357/2009 Page 3 of 6 duties performed by respondent No. 3 in the course of his employment with the petitioner company, has rightly reached to a conclusion that his designation either as Accounts Officer or as Assistant Manager, was only a misnomer and does not suggest that he was discharging either supervisory or managerial duties so as to exclude him from the purview of the definition of 'workman' given in Section 2(s) of the Industrial Disputes Act, 1947. It shall be significant to mention that though the petitioner company had filed its written statement before the Labour Court but despite opportunity given to it, neither it cross-examined the witnesses of the workman nor did it produce any evidence to prove its contention that the respondent No. 3 was discharging supervisory or managerial functions. In the facts and circumstances of the case, I do not find any perversity or illegality in the finding of the Court below that respondent No. 3 is covered by the definition of 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
9. I also do not find any merit in the argument of Mr. Chaturvedi, learned counsel appearing on behalf of the petitioner, that the award impugned in the present writ petition is to be treated as non-est and cannot be implemented as it was not published within thirty days of receipt of copy of the award by the Government. The award impugned by the petitioner in this writ petition was given by the Court below on 20.03.2008. According to Mr. Chaturvedi, learned counsel appearing on behalf of the petitioner company, the copy of the award was received by the concerned Government for publication on 10.04.2008 and, therefore, according to him, in view of the provisions contained in Section 17(1) of the Industrial Disputes Act, 1947, it was incumbent and mandatory upon the Government to have published the award within thirty days of receipt of copy of the award by it. His submission is that since the award was W.P.(C) No.11357/2009 Page 4 of 6 published by the Government on 21.07.2008, the award cannot be implemented as according to him, the said award has not become final in view of the provisions contained in Section 17(2) of the Industrial Disputes Act, 1947. This argument is wholly mis-conceived. By no stretch of imagination it can be said that merely because there was delay in publication of the industrial award, the said award is not binding on the petitioner. In the opinion of this Court, the provisions of Section 17(1) which provide for publication of award by the Government within thirty days of receipt of the copy of the award by it, is directory in nature and delay in publication of the award is only a procedural irregularity and cannot affect the merit of the award.
10. Mr. Chaturvedi, learned counsel appearing on behalf of the petitioner, has also argued that the appointment of the respondent No. 3 was a contractual appointment which permitted the management of the petitioner company to dispense with the services of its employee in terms of the contract of employment. According to him, the Labour Court has exceeded its jurisdiction in directing the petitioner to pay retrenchment compensation in terms of Section 25-F to the respondent No. 3 because according to him, the services of respondent No. 3 were rightly dispensed with strictly in terms of his contract of employment. I do not find any merit even in this argument of the petitioner's learned counsel.
11. Section 2(ra) of the Industrial Disputes Act, 1947 defines with the meaning of 'unfair labour practice'. As per definition of 'unfair labour practice' given in Section 2(ra), 'unfair labour practice' means any of the practices specified in the Fifth Schedule. Clause 10 of the Fifth Schedule provides that in case an employer continues an employee on temporary basis with an object of depriving him of the status and privileges of permanent workman, then it amounts to an unfair labour practice. W.P.(C) No.11357/2009 Page 5 of 6
12. In the present case, the respondent No. 3 before his services were dispensed with by the petitioner company vide notice dated 23.11.2001, had worked with the petitioner company for more than 11 years. His contract of appointment was renewed by the petitioner company four times, every time for three years. It appears that the respondent No. 3 was appointed by the petitioner company for a fixed term of three years renewing it every time only with a purpose to deprive him of permanent status and to deny him the benefits available to him under the Industrial Disputes Act, 1947.
13. It shall also be significant to mention that the respondent No. 3 had also made a monetary claim before the Labour Court under three heads, viz., (i) Rs. 2,00,030/- on account of difference of earned wages from 26.04.2001 to 25.01.2002, (ii) unpaid amount of Rs. 1,19,130/- for the period between 1997-98 to 2001-02, and (iii) wages for privileged leave for six months at Rs. 19,855/- per month. All these three claims made by respondent No. 3 have been rejected by the Labour Court as the workman could not prove the same. The impugned award of the Court below is a well-reasoned award and I am in complete agreement with the same.
14. For the foregoing reasons, I do not find any merit in this writ petition which fails and is hereby dismissed in limine.
C.M. Nos. 10956/2009 and 10955/2009 are also dismissed.
SEPTEMBER 02, 2009 S.N.AGGARWAL, J
'bsr'
W.P.(C) No.11357/2009 Page 6 of 6