Delhi District Court
The vs The on 10 July, 2007
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. : 263/2001
BETWEEN
The Workman, Sh. Hardwari Lal Sharma S/o Sh. Gokal Chand Sharma
C/o Pustak Mahal Karamchari Union, F-127, Ganga Vihar, Delhi.
AND
The Management, M/s. Pustak Mahal Publishers, F-2/16, Ansari Road,
Darya Ganj, New Delhi.
AWARD
1.Reference was sent by Sh. Narendra Kumar, Secretary Labour, Government of NCT, Delhi on 15/10/01 vide reference No. F.24(2624)/2001- Lab./22941-45 pertaining to an Industrial Dispute between the management of M/s Pustak Mahal Publishers and its workman Sh. Hardwari Lal Sharma, in the following terms:-
"Whether the termination of services Sh. Hardwari Lal Sharma S/ Sh. Gokal Chand Sharma by the management is illegal and/or unjustified and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect ?"
2. Pursuant to the reference, statement of claim was filed by the workman wherein he has stated that he had been working with the management since 01/09/94 as a Clerk and his last drawn salary had been Rs. 5700/- per month. During his tenure, he never gave any cause of complaint to the management and he worked honestly and with dedication. Even earlier, he had worked with this same management since 01/11/78 but on account of his personal reasons, he could not continue with the job and had left the service of his own but the management being very impressed with the honesty and dedication of the workman and as such they asked him to join the company again. Workman joined on 01/09/94 again. On papers, the workman was shown by the management as a Sales Manager whereas in reality all clerical work was being taken by the management from the workman. Besides, no facilities which are available to a Manager, were provided to the workman/claimant. Other employees of the same company in order to press on their demands formed a union and workman/claimant also became a member of the said union and they all jointly submitted a demand memorandum to the management which annoyed the management.
3. On 20/04/01 at about 11.00 AM, the director of the company Sh.
Ram Avtar Gupta called the claimant/workman to the office and asked him to resign from the union and also to get the union wound up. Workman/claimant expressed his inability to do so, he being an ordinary member of the union and also he refused to resign from the membership thereof. The management got annoyed with him also and at 2.30 PM they gave a dismissal letter to the workman/claimant but on his refusal to receive the same, his services were terminated.
4. His termination is stated to be absolutely wrong and illegal and in gross violation of section 25F & 25N of Industrial Disputes Act, 1947. On 26/04/01, workman/claimant made a complaint to the Labour Department and during proceedings before the Conciliation Officer, the management representative appeared but clearly refused to take back the workman/claimant on duty. Workman/claimant then sent a demand notice to the management on 23/05/01 directly as well as through representative. Workman/claimant states that he is unemployed inspite of his best efforts to secure a job ever-since 20/04/01 and wants to be reinstated.
5. Management in its turn filed their written statement taking preliminary objection therein that claimant was not a workman as defined in section 2(s) of the Industrial Disputes Act, 1947 and thus he was not covered by the Industrial Disputes Act. On merits, management has been specifically denying that claimant was working as a workman. They have elaborated that he was a Sales Manager and had number of persons working under him. He had sales representatives working under him. The claimant was discharging duties of supervisory nature. However, they have not disputed the length of service, rate of wages which are stated to be matter of record. However, as regards his performance, management has denied the contents of the corresponding para and they state that the work and conduct of the claimant was least satisfactory and over period of time, the management lost confidence on him. Contents of para 8 have been admitted regarding the receipt of demand notice and it has been further stated that it was not felt necessary by the management to send any reply in view of the fact that claimant was not a workman under the Act. As regards contents of para 9 regarding continued unemployment of claimant/workman, management has denied the same for want of knowledge.
6. Rejoinder was filed to the written statement on behalf of workman/claimant wherein he has denied the contents of the W/s and reiterated his version as in the claim. On the basis of pleadings of the parties, following issues were framed by my Ld. Predecessor:-
(1) Whether the claimant is not a "workman" as defined in Section 2(s) of ID Act, as alleged by the management in its Preliminary Objection No. 1 of WS? If so, to what effect?
(2) To what relief, if any, is the claimant/workman entitled against the management in terms of this reference?
7. Workman, in his evidence, examined himself as WW-1 and tendered his affidavit as Ex. WW1/A and also tendered in evidence the following documents:-
(1) Copy of demand notice dated 23/05/01 as Ex. WW1/1.
(2) UPC and postal receipt being Ex. WW1/2 & WW1/3. (3) Complaint dated 26/04/01 to Assistant Labour Commissioner as Ex.
WW1/4.
(4) Form 'G' section 15 of Register of Employment and Remuneration as Ex. WW1/5 & 6.
(5) Copy of claim statement filed before Conciliation Officer as Ex. WW1/7.
(6) Copy of letter issued from management to M/s Aggarwal Brothers dated 10/04/01 as Ex. MW1/X1.
(7) Copy of receipt issued from management dated 30/04/01 as Ex. MW1/X2.
(8) Copy of receipt dated 17/12/99 as Ex. MW1/X3.
(9) Copy of letter dated 01/05/97 from management addressed to Kanpur
Delhi Goods Commercial Pvt. Ltd. as Ex. MW1/X4.
8. Management, on the other hand, examined its office Superintendent Ms. Amarjeet Kaur as MW-1 on her affidavit tendered as Ex. MW1/A, Sh. Daya Kishan, Steno/Typist in the management as MW-2 on his affidavit tendered as Ex. MW2/A & Sh. S.K. Tripathi, a Sales Representative with the management as MW-3 on his affidavit tendered as Ex. MW3/A. Following documents were tendered in evidence on behalf of the management:-
(1) Copy of extract from Register of Employment and Remuneration as Ex. MW1/5 collectively.
During cross-examination of the workman Ex. WW1/M1 to Ex. WW1/M8 were also put to the workman on behalf of management.
9. Written arguments were filed on behalf of both parties. File perused.
Now, I proceed to decide the claim on the basis of material on record and in the light of written arguments submitted by both parties. My findings on each issue are as under:-
ISSUE No. 1
10. As per the settled law, the burden to prove that claimant is not within the category of workman as defined under section 2(s) of the I.D. Act, lay upon the management as Issue No. 1 is framed on the basis of preliminary objection taken by the management in the W/s that claimant is not a workman under Industrial Disputes Act.
11. The definition of workman as given in section 2(s) of the Industrial Disputes Act is as under:
"workman" means any person (including an 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 service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
12. It has been pleaded that claimant had been engaged as a Sales Manager with supervisory powers. Management examined three witnesses in support of its case on affidavit and relied upon the documents as stated above. Management also relied on documents put to the workman during cross-examination of the workman. However, none of these documents proved on record establish that claimant was discharging his duties as a Manager and Supervisor. No list of employees has been proved on record which could establish that claimant was controlling other employees and supervise their work. There is no document to prove on record to establish that claimant was entrusted with powers to appoint and terminate the services of other employees, sanction or disallow leave of employees working under him. It is the management who had a direct control and supervision on the working of the claimant. Now, this point is well settled by Hon'ble Supreme Court while determining the status of the claimant whether a person is employed as workman or not.
13. In Ananda Bazar Patrika (P) Ltd. v. The Workmen, (1970) 3 SCC 248 it was held in paragraph 3 of the Report that:
"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as clerk into one in supervisory capacity"
14. Similarly, in S.K. Maini v. M/s Carona Sahu Co. Ltd. (1994) 3 SCC 510, the Hon'ble Supreme Court held in paragraph 9 of the Report:
"After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition or workman under Section 2(s) there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he come within the definition of workman or goes out of it."
Thereafter, in the same paragraph, it was said:
"...the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as Section 2(s) of the Industrial Dispute Act."
15. Now, applying the principle laid down by the Hon'ble Supreme Court in the present case, claimant was appointed as a Sales Manager, but management has failed to produce any document to establish that claimant was vested with powers managerial and supervisory. On the basis of mere designation, management could not establish that claimant was not covered within the definition of section 2(s) of Industrial Disputes Act. Claimant used to issue letters, reminders under his signatures only in the capacity of a clerk for collection of money.
16. On the contrary, it is the workman who has produced certain documents which show that the claimant was actually a Clerk. The copy of the extract from the Register of Employment and Remuneration in the year 1978 when the workman had earlier been employed by the management, has shown the workman as a Clerk. Management, on the other hand, has not produced any document to show that when he was reappointed, it was on higher post i.e of Sales Manager. Even otherwise, a mere 9th class pass, it is not credible that he can be appointed as a Sales Manger. Even otherwise, the extracts of the register Ex. WW1/5 & 6 show the signatures of the owner/occupier in the appropriate column but the extracts from the similar register as produced by the management pertaining to the year 1997-98 are not showing the signatures of the owner or occupier for reasons best known to the management. Management has not even produced the appointment letter issued to the workman, if any, for reasons best known to the management. The appointment letter could have been an important piece of evidence to determine the issue as same would have also described the duties of the claimant to some extent, however, same has not been produced by the management.
17. In fact, during cross-examination of MW-1, workman has confronted the witness with a document Ex. MW1/X1 which is a letter issued from the company to another establishment. This letter is, no doubt, signed by the claimant/workman but same is shown to have been signed for and on behalf of Sh. Ramesh Kumar Gupta, Marketing Director. It just shows the real position of the claimant/workman which was only but one of not more than a Clerk. Same is the position with documents produced by the workman during cross-examination of the management. Same is the position with Ex. MW1/X2, X3 & X4 wherein allover the signatures of workman/claimant appear as in the capacity for and on behalf of the Partner or Marketing Director. The signature of the claimant/workman is not in an individual/independent capacity. It is also surprising that Ex. MW1/5 collectively are throughout showing the column "nature of work" of each employee as blank, which perhaps management failed to notice at the time of producing this document, which has been produced by them to highlight other purposes.
18. As regards Ex. WW1/M1, which was put to the workman during his cross-examination, by the management, this letter is also appearing clearly to have been sent as a reminder to the different parties for collection of payments and which is more of a clerical task as same is being done on behalf of the management. As regards Ex. WW1/M2, management itself has produced its document but perhaps overlooking the fact that signatures of the workman/claimant have been done for and on behalf of Sh. Ramesh Kumar Gupta, Marketing Director. Same is the position appearing with Ex. WW1/M3 & 4 as the said letters clearly seem to have been issued under the signatures of the workman/claimant only in a clerical capacity on behalf of the Marketing Director/Partner. Ex. WW1/M7 is also not showing the signatures of the owner or occupier as was the case in the extract of registers produced by the workman pertaining to the period 1978. It has not been explained as to why the management stopped signing on the said register in the later period of 1994 onwards and in any case the designation stated against the workman/claimant has not been disputed. Workman/claimant has himself in the initial part of his claim clarified that although he was appointed as a Sales Manager, all clerical work was being taken from him and he was virtually working as a clerk. Same is the position with all other documents produced by the management which are in totality showing through and through the real nature of the job of the claimant/workman to be that of a clerk and as such
19. Workman/claimant has produced certain documents relating to the attendance register of employees which are already on record in which the management itself has shown the claimant as a clerk and management also failed to produce any letter/other document in respect that the promotion of the workman/claimant from the post of Clerk to Sales Manger. Besides, workman/claimant is just 9th class pass and, therefore, it is not credible that he would be working at the post of Sales Manager. He had no independent control and supervision on any other employee of the management. As such by merely stating that claimant was working as a Sales Manger does not exclude the claimant from the definition of section 2(s) of Industrial Disputes Act. It emerges that the question as to whether claimant would or would not be covered within the definition of workman would entirely be a question of fact in each case to find out the real dominant nature of his work.
20. Ld. ARM has also relied upon certain judgments on the same point and after perusal of the same, however, applying the law of the present set of circumstances as put on record, it is clear that claimant is a workman. In view of the above discussion, issue No. 1 is decided in favour of the workman and against the management.
ISSUE No. 2
21. As regards the termination of services of the workman, no reason has been assigned by the management. The procedure as provided under section 25F has not been followed. Even otherwise, section 25F of the Industrial Disputes Act provides that no workman employed in any industry which has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
22. Nor the procedure laid down in rule 76 has been followed. Rule 76 of the Industrial Disputes Act Central Rules, 1957 provides that if any employer desires to retrench any workman employed in his industrial establishment, who has been in continuous service for not less than one year under in, he shall give notice of such retrenchment as in Form-P to the Central Government, to the Regional Labour Commissioner Central and to the Assistant Labour Commissioner Central and the Employment Exchange concerned and such notice shall be served on that Government, Regional Labour Commissioner Central, Assistant Labour Commissioner Central and the Employment Exchange concerned by Registered Post in the following manner:
(a) where notice is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman;
(b) where no notice is given to the workman and he is paid one month's wages in lieu thereof, notice of retrenchment shall be sent within three days from the date on which such wages are paid; and
(c) where retrenchment is carried out under an agreement which specifies a date for the termination of service, notice of retrenchment shall be sent so as to reach the Central Government, the Regional Labour Commissioner (Central), the Assistant Labour Commissioner (Central), and the Employment Exchange concerned, at least one month before such date.
23. It was contended on behalf of workman that termination of services of the workman by the management was absolutely unlawful and reliance has also been placed upon the judgment delivered by Hon'ble Supreme Court in 2006 (II) LLJ page 1043- 1046 in the case of Director (Marketing) Indian Oil Corporation Limited and Another Vs. Santosh Kumar, in which Hon'ble Justice Dr. A.R. Lakshmanan and Hon'ble Justice Sh. Lokeshwar Singh Panta held that dismissal of the employee from service (Asstt. Manager- Operation) without any just and reasonable cause was unlawful and without application of mind, as such, the workman was held to be entitled to reinstatement with continuity in service and consequential benefits.
24. Keeping in view of the case law on the point, it is now directed that workman be reinstated with continuity of service and with 50% back wages and all other benefits. Accordingly, award is passed and reference is answered in these terms. Copy of the award be sent to appropriate government for publication within 30 days from the receipt of the award. File be cosigned to record room.
Announced in the open court Today on 10/07/2007 (SUJATA KOHLI) Presiding Officer Labour Court-II, Court No. 48, KKD Courts, Delhi