Delhi District Court
Between The vs The on 13 December, 2022
IN THE COURT OF AJAY GOEL, PRESIDING OFFICER-06,
LABOUR COURT, ROUSE AVENUE DISTRICT COURT, D.D.U.
MARG, NEW DELHI.
LIR No. 1095/19
Date of Institution 16.03.2019
Date of Award 13.12.2022
BETWEEN THE WORKMAN
Sh. Rohit Kumar Tiwari, S/o Sh. Ram Chetan Tiwari, aged about 33
years, Contact No. 9540274409, R/o A-1/59, Utsav Vihar, Karala,
Delhi-81.
AND
THE MANAGEMENT OF
M/s. Shri Ram Mandir (Regd). C-7/119, Sector-8, Rohini, Delhi-
110085.
AWARD
1.By this award, I shall dispose of the reference sent by the Joint Labour Commissioner (North West District), Labour Department, Govt. of the National Capital Territory of Delhi arising between the parties named above to this court vide notification No. F.24/ID/530/18/NWD/499/18/Lab/13360-62, dated 28.02.2019 with the following terms of reference:-
"Whether the services of workman Sh. Rohit Kumar Tiwari, S/o Sh. Ram Chetan Tiwari have been terminated illegally and /or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect? "
2. After receipt of reference, notice was issued to the claimant with directions to file statement of claim which has been filed by him stating therein that workman was working with management as Sewadar and at LIR No. 1095-16 Page No. 1 the time of joining, his salary was Rs. 1000/- per month and his last drawn salary was Rs. 5000/- per month. It is stated that workman had demanded from management to increase his salary as per minimum wages and further to give other benefits and the management assured the workman to provide it soon. It is stated that when workman again demanded the same from management, the management got annoyed and illegally terminated the services of workman on 25.07.2018. Thereafter, workman sent legal demand notice dated 29.07.2018 to management but despite same, management failed to reinstate the service of workman. Later on, workman filed his statement of claim before Ld. Conciliation Officer, but same has not settled. Hence, present claim was filed by workman.
3. Notice of claim was sent to the management and upon service of same, management appeared and filed written statement in the matter wherein preliminary objections were raised to the effect that workman has written himself to have been working as Sewadar meaning thereby a volunteer to perform Sewa in the mandir for his self faith and satisfaction. It was also stated that management is not an Industry as defined U/s 2 (j) and workman is not workman under Industrial Disputes Act. On merits, it was stated that management never employed the workman as such there was no occasion for him to demand for increase of his salary. It was also stated that there was no employer-employee relationship between the parties and the entire story is concocted by the claimant. It was also stated that management is a small temple in the vicinity of Sector-8, Pocket-C, Rohini, Delhi for the purposes of worship by different devotees and there was no other purpose except performing pooja in the temple. The other contents of claim petition were denied and it was prayed that claim of workman be dismissed with heavy costs.
4. After completion of pleadings, the following issues were framed vide order dated 13.02.2020:-
1. Whether the management is an 'Industry' as defined in Section 2 (j) of the Industrial Disputes Act, 1947?OPW LIR No. 1095-16 Page No. 2
2. Whether the claimant is a 'workman' as defined under section 2 (s) of the Industrial Disputes Act, 1947?OPW
3. As per terms of reference?OPW
4. Relief.
5. In evidence, workman appeared in witness box as WW-1 and he tendered his affidavit and relied upon several documents in support of his case. Thereafter, workman's evidence was closed.
6. In defence, management produced Sh. Ramesh Kumar Grover, President of management as MW-1. He also filed his affidavit of evidence and relied upon documents in support of case of management. After his examination, M.E. was closed.
7. I have heard the arguments and perused the record. My issues-wise findings are as follows:-
8. Issue No. 1. Whether the management is an 'Industry' as defined in Section 2 (j) of the Industrial Disputes Act, 1947?OPW and Issue No. 2. Whether the claimant is a 'workman' as defined under section 2 (s) of the Industrial Disputes Act, 1947?OPW and Issue No. 3. As per terms of reference?OPW :- All these issues are taken up together being inter-connected.
9. It is the case of the workman that he was working with management as Sewadar and at the time of joining, his salary was Rs. 1000/- per month and his last drawn salary was Rs. 5000/- per month. It is pleaded that workman had demanded from management to increase his salary as per minimum wages and further to give other benefits and the management assured the workman to provide it soon. It is further pleaded that when workman again demanded the same from management, the management got annoyed and illegally terminated the services of workman on 25.07.2018. It is further the case of workman that he sent legal demand notice dated 29.07.2018 to management but despite same, management failed to reinstate the service of workman and later on, workman filed his LIR No. 1095-16 Page No. 3 statement of claim before Ld. Conciliation Officer, but same has not settled.
10. On the other hand, the management has argued that management is not an Industry as defined U/s 2 (j) and workman is not workman under Industrial Disputes Act. It is also pleaded that management never employed the workman as such there was no occasion for him to demand for increase of his salary. It is further pleaded that there was no employer-
employee relationship between the parties and the entire story is concocted by the claimant. It is also pleaded that management is a small temple in the vicinity of Sector-8, Pocket-C, Rohini, Delhi for the purposes of worship by different devotees and there was no other purpose except performing pooja in the temple.
11. Now to analyze the facts emerged in course of trial, it is important to examine the observations made by the different courts, how to determine who would be the workman in terms of ID Act, to justify him/her to invoke jurisdiction of the authorities/court constituted in this regard in terms of mandate of statute. To begin with, who would be workman in terms of ID Act, we need to refer to Section 2(s) of ID Act, that defines who shall be Workman to invoke jurisdiction under ID Act, which reads 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-
1) 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
2) who is employed in the police service or as an officer or other employee LIR No. 1095-16 Page No. 4 of a prison; or
3) who is employed mainly in a managerial or administrative Capacity; or
4) 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. Reliance is placed upon judgment titled as Kirloskar Brothers Ltd. Vs. Presiding Officer, Labour Court, Delhi and Anr reported at 1976 ILR 1 DL 565, wherein the Hon'ble Apex Court observed that " Trial Court should adopt a positive approach to examine whether particular employee is a workman or not". To explain in candid term, the principle evolved and adopted by the Hon'ble Apex Court is reproduced hereunder for ready reference of this Hon'ble Court.
"10. In order to make a reference to a Labour Court or a Tribunal of an Industrial dispute the first point that must engage the attention of the appropriate Government is to decide whether the complaining employee is a "workman". Even if reference is made of a dispute then the Labour Court or the Tribunal must first apply its mind to this problem for unless the employee concerned is a workman the question of adjudication of an industrial disputes does not arise. In my opinion the approach has to be a positive approach and not a negative approach. In other words, what has to be seen is whether the particular employee is a workman and not whether the employee concerned falls within the exceptions mentioned in Section 2(s) and if he does not fall in one of the exceptions then by process of elimination he is held to be a "workman". A social legislation like the Industrial Disputes Act confers certain rights and obligations upon certain categories of persons. Those rights and obligations must be limited to be attracted only in the case of such persons as are covered by the statute. Certain rights are conferred upon a "workman" as defined by Section 2(s) of the Act. Therefore, those rights are available only to persons who can be called workman and not to all those who are not LIR No. 1095-16 Page No. 5 covered by the exceptions given in Section 2(s). To put in another way what has to be seen is whether a person is a workman as opposed to what may be called "non-workman and not whether he is a workman because he is not a Manager or one employed in an administrative capacity. It is possible that an employee in a given case may not be employed in managerial and administrative capacity or in supervisory capacity and yet he may not be a workman. If the approach is that every employee is a "workman" but the benefits of raising an industrial dispute is not available to those who are subject to the Army Act, or the Air Force Act or the Navy (Discipline) Act or who is employed in the police service or as an officer or other employee of a prison or who is employed mainly in a managerial or administrative capacity; or who being employed in a supervisory capacity, draws wages exceeding five 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, then, in my opinion, the approach would be incorrect. The proper approach in law would be to first see whether an employee is a workman and then see whether any of the exceptions are attracted. Reading the definition of the word "workman" I find that it is necessary that a person must be employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. Thus the first thing to find out is whether the employee concerned is employed to do manual or clerical work, be it skilled or unskilled, technical or non- technical. If that be so, then he would be workman even if he is employed in a supervisory capacity line less by virtue of being employed in supervisory capacity his wages exceed Rs. 500.00 or his duties or powers convert his employment into one mainly of managerial nature. On the other hand, if manual or clerical work is only small part of the duties of the person concerned and incidental to his main work, which is not manual or clerical then such a person would not be a workman. In Management of M/s. May and Baker (India) Ltd. v. Their workmen and LIR No. 1095-16 Page No. 6 Appellants, that court was concerned with construing Section 2(s) of the Industrial Disputes Act as it stood before the amendment of 1956. The rule laid down was similar to the one which I have propounded above and I think the rule still holds good despite the substitution of clause (s) of Section 2 by the amendment Act, 36 of 1956. In the case of M/s. May and Baker, referred to above the Supreme Court came to the conclusion that inasmuch as the main work of the employee in that case was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing the employee could not be regarded as a person falling within the ambit of the term "workman". On good authority, therefore, I hold that the approach has to be positive, as said by me earlier and not negative to find out whether an employee would fall within the ambit of the term workman."
13. It was further observed by Hon'ble Apex Court in case titled as in ARKAL GOVIND RAJ RAO VS. CIB GEIGY OF INDIA PVT.
LTD. BOMBAY reported at 1985 (11) IL 401(403) SC wherein it was held that "the dominant purpose of employment must be first taken into consideration and gloss of some additional duties must be rejected while determining the status and character of the person."
14. As far as evidence of workman led in this case is concerned, he has produced himself in witness box as WW-1 and relied upon some documents in support of his claim i.e. copy of his Aadhar Card as Ex. WW-1/1, Copy of PAN Card as Ex. WW-1/2, Copy of salary slip as Ex. WW-1/3, copy of passbook as Ex. WW-1/4 and copy of legal notice as Ex. WW-1/5.
15. In his cross-examination, though he has relied upon Ex. WW-1/3 (Colly) and exhibition of document was objected to as original was not produced. He deposed that original of any documents were never produced in the court. He admitted that "He used to perform Puja rituals for Lord Vishnu including Mandir. The offerings were being deposited in one Daan LIR No. 1095-16 Page No. 7 Patra. However, people used to give some Dakshina to him also. It is also deposed that the management used to open Daan Patra and collect the money and he was getting Rs. 1000/- by management. He further deposed that he does not go anywhere to perform puja and rituals. He also deposed that he is 8th Class passed and has not studied any Ved etc. and cannot see Panchang.
16. From above deposition of workman, it is seen that on one hand, he has deposed that he used to perform puja rituals in Mandir and on the other hand, he admitted that he is just 8th class passed and had not studied any Ved and cannot see Panchang.
17. WW-1 also admitted that his proofs were taken by management but no written appointment letter was issued to him. He further admitted that no manufacturing process is being run in the mandir and there is no sale purchase in the mandir and the only help in the mandir is from offering given by devotees. He voluntarily further deposed that there is some rental income of mandir. WW-1 further admitted that he is having commercial Driving Licence and same was issued to him before he was sewadar in the mandir and he used to drive the vehicle of persons on payment whenever he got the chance.
18. From above deposition, it is also clear that no appointment letter has been placed and proved on record by workman showing himself to be employee of workman. It is also admitted by workman that no manufacturing process was being run in the mandir and there is no sale purchase in the mandir and the only help in the mandir is from offering given by devotees. Furthermore, he has admitted that there is some rental income of mandir. To make the matter worse, the workman has also admitted that he was having commercial Driving Licence and he used to drive the vehicle of persons on payment whenever he got the chance. The documents relied upon by him are copies of Aadhar card and Pan card which are not helpful for his case. The copy of passbook relied upon by workman is only copy of front page and no entries of any period have LIR No. 1095-16 Page No. 8 been placed on record. As far as salary slip Ex. WW-1/3 relied upon by workman is concerned, the witness of management i.e. MW-1 was shown the said salary slip and deposed that his cashier can tell in this regard and he denied the suggestion that workman was getting monthly salary from mandir to the tune of Rs. 1000/-. MW-1 has voluntary deposed that he was doing cleaning work in Mandir by his own and devotees used to give money to workman.
19. There are only self-serving statement of workman in this regard without any cogent and reliable evidence. The workman has failed to create any dent to the case of management. The onus was upon the workman to prove that he was an employee of management and his services have been illegally terminated by management but he failed to do so. Merely by issuing a demand notice and approaching the labour department ipso facto will not prove the relationship. Strange enough the workman has not moved any application to call the record from management to prove that he was working with management since long.
20. The initial onus was upon workman to prove that he has worked with management but nothing has been placed on record and same has not been discharged. He has also failed to prove that he was workman U/s 2 (s) of the Industrial Dispute Act. Mere statement of claim is not sufficient to prove the same and even oral evidence is also not sufficient.
21. From above discussion, it is clear that workman has failed to established that he has worked with management or that he is having any documentary evidence in this regard. No such document has been placed on record and even he could not prove his relationship with management. Another question involved is whether the management is Industry or not.
22. Reliance is placed upon judgment titled as Aseem Abbas Vs. Rajghat Committee & Anr. (2012 LAB. I. C. 2551) , decided by Hon'ble High Court wherein it was observed that " Rajghat Samidhi Committee (RSC) is akin to religious or spiritual institution or LIR No. 1095-16 Page No. 9 plea of worship- Activities of RSC cannot be treated as "res commercium"- Hence RSC is not an industry ".
23. Reliance is further placed upon judgment titled as Tirumala Tirupati Devasthanam Vs. Commissioner of Labour, Andhra Pradesh , passed by Hon'ble High Court of Andhra Pradesh wherein it was Hon'ble High observed that "The case of the petitioner - Devasthanam is that it is a public religious institution administered under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act XVII of 1966. The petitioner is a religious institution intended to propagate the religious tenets of Hindu Dharma Sastras and to enable the pilgrims to worship at the various temples. The Devasthanam is not an industry nor is it carrying of a trade or business. The employees of the Devasthanam are not, therefore, workman within the meaning of the Trade Unions Act any any union of such employees is not a Trade Union within the meaning of the Act and cannot be registered as such".
24. In AIR 1963 Madras 89 (V 50 C 31) case titled as Workman Vs. Madras Pinjrapole held that "Issue of jurisdiction not depending upon question of law but upon collateral question of fact requiring evidence-writs when can be issued" .
25. In another case titled as Harihar Bahinipaty & Ors. Vs. State of Orissa {AIR 1966 Orissa 35 (V 53 C13)}, the Hon'ble Court has held that "Daffadars, Barkandajes and Ballav Gudias of Sri Jagannath Temple do not form Industry".
26. The law settled in above judgment is fully applicable to the facts of the present case. The gist of the same is that management engaged in religious and spiritual activities does not fall within the definition of the "Industries" as defined in Section 2 (J) of the I. D. Act. Even otherwise, the sewadar is required to perform sewa at any religious place voluntarily for his self faith and satisfaction and not against any salary/monetary benefits. So it is clear that management is not an industry as defined in Section 2 (j) of the I. D. Act.
LIR No. 1095-16 Page No. 1027. So on all counts, workman has utterly failed to prove his case against the management. All these issues are decided in favour of management and against the workman.
28. Relief :- In view of the findings of the court on issues, it is held that the workman is not entitled to reliefs as claimed against the management and claim of workman stands rejected and award to that effect is hereby passed.
29. A copy of this award be sent to the Dy. Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Pronounced in open court on 13.12.2022 (AJAY GOEL) PRESIDING OFFICER LABOUR COURT-06/ ROUSE AVENUE COURT, NEW DELHI.
LIR No. 1095-16 Page No. 11