Delhi District Court
The vs The on 2 April, 2008
COURT OF MS. SUJATA KOHLI
PRESIDING OFFICER LABOUR COURT II,
ROOM NO. 48, KARKARDOOMA COURTS, DELHI
I.D. No. : 16/2000
Date of Institution of the case : 15/01/2000
Date on which Judgment was reserved : 27/02/2008
Date on which Judgment was pronounced : 02/04/2008
B E T W E E N
The Workman, Sh. Khajan Singh C/o Kapra Mazdoor Lal Jhanda
Union, 95A, Kamla Nagar, Delhi7.
A N D
The Management, M/s Birla Textile Mills, Birla Lines, Ghanta Ghar,
Subzi Mandi, Delhi 7.
A W A R D
1.Reference was sent by Sh. Satish Gathwal, Secretary Labour, Government of NCT, Delhi on 16/11/99 vide reference No. F.24(4348)/ 99Lab./8812529 pertaining to an Industrial Dispute between the management of M/s Birla Textile Mills and its workman Sh. Khajan Singh, in the following terms of reference: "Whether the services of Sh. Khajan Singh 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. Pursuant to the reference, claim was filed by the workman stating therein that had been working with the management as a Karigar since 07/05/1972 at a monthly salary @ Rs. 2200/ approximately. His services were terminated on 01.12.96. As per claimant, workman had been working in "Reel Khata" section.
3. As per claimant the workman had been working sincerely diligently and never giving any cause of complaint to the management regarding his profession. Workman remained in Bunta section upto 1983, from where he was transferred to "Reel Khata" section where he worked upto 30.11.96. The designation of the workman was no doubt changed to "Reeling Supervisor" but his duties virtually remained unchanged. He never worked as a Supervisor in the transferred section and after his transfer there was no increment in his wages also.
4. As per the order of the Hon'ble Supreme Court dated 08/07/96, 168 industries in Delhi were ordered to be closed w.e.f. 30.11.96, including mills of the management. However, the Hon'ble Supreme Court vide order dated 23.12.96 in Civil Writ Petition No. 4677/95 titled as MC Mehta Vs. Union of India & Ors. permitted the relocation of the industries outside NCT of Delhi i.e in Baddi in Himachal Pradesh wherein the court had also ordered that the workmen presently employed would be having continuity of service and accordingly the workman also reported for duty at Baddi in Himachal Pradesh on 14.01.99 as well as on 15.01.99 but he was not taken on duty nor the management made ex gratia payment of Rs. 30,000/ also. Even, prior to the passing of the order of the Hon'ble Supreme Court workman had been reporting for duty but it was the management who was not taking him on duty since 30.11.96.
5. It is further stated by the claimant that the management neither served any notice upon the workman prior to his termination to his termination nor they paid any compensation nor any chargsheet was issued nor any reason for his termination was communicated to the workman. Termination is claimed to be illegal as well as unjustified.
6. It is further stated that before the Conciliation Officer, management had filed reply to the statement of claim filed by the workman wherein they had taken a plea that after waiting for one year management has discharged the workman through letter dated 03.09.97. As per the claim, the workman had never received any such letter purportedly to be the letter of discharge prior to the reply of the management.
7. It is further claimed by the workman the he remained unemployed since his date of termination as he could not get any alternative employment despite his best efforts.
8. Conciliation proceedings had failed mainly due to anti labour attitude of the management and dispute was referred to the court.
9. Workman prays for setting aside the termination order as illegal and unjust and he prays for reinstatement with continuity of service and full back wages.
11. Management in their written statement has taken several preliminary objections, first being with respect to territorial jurisdiction of this court to entertain and decide this claim. It is stated that since the management was directed to relocate the mills outside Delhi and the mills had been relocated at Baddi Himachal Pradesh, cause of action has arisen at Himachal Pradesh on this ground Government of NCT Delhi court would not be having any territorial jurisdiction to entertain this claim.
12. Secondly, it is the contention of management that the employee started remaining absent since 01.12.96 without any reason and without any communication to the management and as such his absence was absolutely unauthorisedly. Besides, the employee had also not given his written consent to work at the relocated place and as such the management faced administrative as well as disciplinary problems on account of unauthorised absence of the employee as the work of supervision on account of closure of the mill at the existing place and its relocation elsewhere had increased.
13. It is further stated that after waiting for considerable period the employee was discharged from service w.e.f. 03.09.97 and after giving him one month pay in lieu of notice.
14. It is also the case of the management that in fact employee is even now holding mills' accommodation in absolutely unauthorised manner. It is elaborated hereunder that an accommodation had been given to the employee for his residence during his employment but in spite of discharge from service the said accommodation was retained by the employee absolutely unauthorisedly and in fact this claim has also been filed just to continue to retain the mills accommodation for a longer period without paying any licence fee. As such, the claim is stated to be malafide.
15. Management has further raised preliminary objection that the employee is not a workman as defined U/s 2 (s) of I.D. Act 1947. He was working as a Reeling Supervisor (since 15/09/86) and as such he is outside the purview of definition of workman as even in section 2 (s) of I.D. Act 1947. As such, the claim under I.D. Act is not maintainable.
16. It is further denied that the employee had never received letter dated 03.09.97 sent by the management to him and reference is made to proceedings before the labour conciliation officer where the employee has stated to have admitted having received the said letter.
17. As regards having remained unemployed ever since his termination, management has denied this also and has specifically averred that the employee was very much gainfully employed and in fact this was the reason as to why he did not report for duties at relocated place intentionally. Management prays for the dismissal of the claim.
18. Detailed rejoinder was filed to this written statement denying the objections raised by the management as being unsustainable and specifically stating that no Supervisory powers had been given to the workman. All the matters of fact alleged in the WS have been denied and the contents of the claim are reiterated as true and correct.
19. As regards the allegations of the management regarding the workman retaining the accommodation unauthorizedly, it has been stated by the workman in rejoinder, para 4, that the quarter in question is subject matter to criminal complaint filed by management before Additional Chief Metropolitan Magistrate which is pending adjudication and it has been denied that the present claim has been filed to retain the mill quarter and the act of the workman amounts to breach of trust and misconduct.
20. On the basis of the pleadings following issues were framed by my Ld. Predecessor on 01.03.02:
1. Whether this court has no jurisdiction to entertain the claim of the claimant in view of P.O No. 1 of W.S.?
2. Whether claimant is not a workman as defined U/s 2 (s) of I.D. Act, if so, to what effect?
3. To what relief, if any, is the workman/claimant entitled against the management in terms of reference.
21. During evidence, workman examined himself as WW1 on his affidavit Ex. WW1/A. Besides, he tendered the following documents in evidence :
i) application of the workman dated. 09.04.99 Ex. WW--1/1.
ii) Pass/ICard, Ex. WW1/2.
iii) ESI Card Ex. WW--1/3.
iv) PF pass book Ex. WW--1/4.
v) Demand notice, Ex. WW1/5.
vi) A.D. Card, Ex. MW2/W1.
vii) Copy of leave book, Ex. WW1/6.
viii) Copy of application filed before labour commissioner dated 09/02/99, Ex. WW1/7.
22. Management examined Sh. Pradeep Sharma, an employee from Time Keeping Department as MW1 on his affidavit Ex. MW1/A. He also relied upon following documents:
i) Personal date form of the workman, Ex. MW1/1.
ii) Letter of the workman dated 01/09/87 sent to the management, Ex. MW1/2.
iii) Internal correspondence of management dated 29/09/86, Ex.
MW1/3.
iv) Application of workman to the management for accommodation, Ex. MW1/4.
v) Copy of order of Hon'ble Supreme Court dated 08.07.96, Ex. MW1/5.
vi) Letter from management dated 03/09/97, Ex. MW1/6.
vii) Copy of order of Hon'ble Supreme Court, Ex. MW1/7.
viii) Copy of memorandum of settlement, Ex. MW1/8.
23. Management also examined Sh. Mahavir Prasad (Parik), Industrial Relation Officer as MW2 on his affidavit Ex. MW2/A. Besides, he tendered the following documents in his evidence:
(i) Copy of charge sheet dated 30/08/87, Ex. MW2/1 & 2. Besides, management also confronted some documents during cross examination of workman:
(i) Personal data form, Ex. WW1/M1 (already exhibit as Ex. MW1/1).
(ii) Copy of claim dated 05/03/99, Ex. WW1/M3.
24. A/Rs for both parties failed to address any oral arguments on merits of the case inspite of various opportunities for the purpose. However, written submissions were filed on behalf of both parties. I proceed to decide the claim on the basis of material on record, in the light of written submissions of the parties. My findings on each issue are as under: ISSUE NO. 1
25. This issue revolves around the point of territorial jurisdiction of this court to entertain and decide the claim. Objection of the management is based on the pleading that since industry had been relocated in Himachal Pradesh and as per the employee he had alleged to have reported to the DLC, Baddi, Himachal and further that head office of the industry was not at Delhi, it is only the court at Himachal Pradesh which would have jurisdiction over this claim. Management has relied upon the decision of our own Hon'ble High Court in DLF Universal Ltd Vs. GNCT, Delhi & others 2002 (96) DLT 825 wherein it was held that there are three clear cut principles/ test for determining the jurisdiction:
i)Whether does order of termination of service operate:
(i)Is there some nexus between industrial dispute arising from termination of service and territory of state
(ii)that the well known test of jurisdiction of civil court including the residence of the parties and the subject matter of the dispute substantially arising therein would also be applicable.
26. Case of the present claimant would squarely be covered by clause (3) as residence of the workman was very well in Delhi. Even otherwise Hon'ble Supreme Court in Bikash Bhushan Ghosh & Others Vs. Novartis India Ltd. & anothers 2007 LLR Vol.38 Page 903 has held that:
Transfer of an employee from Kolkata to different places in Assam, Bihar and Uttar Pradesh can be challenged in Kolkata and the Government of West Bengal would be the appropriate government to refer the dispute for adjudication hence neither the learned Single Judge nor the Division Bench of High Court were justified in holding that the reference was not maintainable.
27. In view of above discussion, it is clear that objection raised by management pertaining to jurisdiction holds no ground and same is rejected. Issue no. 1 is decided in favour of claimant and against the management.
ISSUE No. 2
28. As regards as to whether employee was a workman within the definition of section 2 (s) of I.D.Act or not, it has not been disputed by the workman that he was designated as "Reeling Supervisor". It has however been the case of the employee that although his designation was that of Reeling Supervisor, he was doing work of a workman only. He was not doing any supervisory duty.
28. In the rejoinder filed on 06.11.01 by the workman it has been stated in para 2 of the reply to preliminary objections that employee never worked as supervisor. He never used any discretion and that he always worked as Karigar despite his transfer to the "Reel Khata Section" from "Bunta" and infact even his salary remained same.
29. In his claim filed by workman, he has stated that he never worked as supervisor but by the time his affidavit came to be filed i.e on 03.02.03, he has improved upon his version and has come up with further statement that he was performing duty which included cleaning of thread and that he always worked under the supervision of the department head. He never used his discretion as he never supervised work of any co worker. He was not entitled to grant any leave to any workman and nor was he entitled to take any disciplinary action or to appoint any one or to issue any show cause notice, charge sheet etc to any other employee. None of the workers in the department were being supervised by him. This is so stated in para 2 of the affidavit EX WW 1/A.
30. Copy of order Ex. MW1/7 from Hon'ble Supreme Court has been perused. Vide this it was clearly laid down that benefit of judgment dated 8.7.99 was intended only for the 'workman'. It was stated therein that it had been clarified in order dated 11.12.96 that the benefit of judgment shall be extended to all 'workmen' as defined under I.D.Act. The applicants in that case were mostly supervisors. Some of them were getting salary of more than Rs.1600/ pm. They had prayed for being treated at par with the workmen of M/s Birla Textiles and for being paid the benefits contemplated by the judgment of Hon'ble Supreme Court dated 8.7.96. While making it clear that said benefits shall not apply to employees other than workmen as under I.D.Act. Hon'ble Supreme Court however refused to decide the question of fact as to whether applicants in question were or were not workmen as per the nature of duties assigned to them. However Hon'ble court observed that said employees may approach labour court for determination of their status. The petition before Hon'ble Supreme Court stood dismissed.
31. Even Ex. MW 1/3 in this regard is making things quite clear. The contents of this letter leave no ambiguity as regards the promotion of the employee. It reads as under:
" 29th September, 1986 Chief Executive, Shri Khajan Singh S/o Shri Feteh Singh has been working as Reeling Supervisor for the last two years but his designation is of Reeling Checker. Now he has given an application for changing his designation as Reeling Supervisor and absorbing him in the staff. The General Manager (Technical) has also recommended for his promotion as Reeling Supervisor.
Since he is already getting more than the minimum starting basic salary viz. Rs.
126/, he may be given a basic salary of Rs. 156/ per month plus dearness allowance.
Submitted for your sanction.
(Hanuwant Singh) Manager (P & A)"
32. It is very clear that not only the management promoted the employee as by way of rewarding him for his good performance in work, it also becomes clear that his salary had also been increased along with the promotion. As such the stand of the workman that the salary of employee had remained same, also stands negated by Ex. MW1/3.
36. In case of H.R. Adyanthaya Vs. Sandoz (India) Ltd. & Others 1994 (69) FLR 593 (SCFB), constitutional bench of Hon'ble Supreme Court clearly laid down the law that even if a person does not perform managerial or supervisory duties with a view to hold that he is a workman, it must be established that he performs skilled or unskilled, manual, technical or clerical work for hire or reward and referring to this case in Mukesh Kumar Tripathi Vs. Sr. Divisional Manager, LIC and others 2004, (103) FLR page 350, Hon'ble Supreme Court has held that onus is upon the workman to prove that he is a workman.
37. Claimant in the present case has not adduced any evidence whatsoever as regards the nature of duties of the employee so as to establish that he had performed any skilled, unskilled, manual, technical or operational duties. Ex. MW1/3 above clearly shows that employee Khajan Singh who had earlier been working as Karigar had been promoted to the post of Reeling Supervisor on account of his hard work and sincerity and satisfactory performance as stated therein. His salary increase has also been shown in this document.
38. 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 straitjacket 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."
39. Burden to prove that although the employee had been assigned the post of Reeling Supervisor but in reality he was performing the duties of a workman, lay squarely upon the claimant but claimant has not come up even with a single document to substantiate his claim. On the contrary management has come up with various documents showing that it was not only a designation given to the employee but that it was clear cut case of promotion by the management itself feeling satisfaction with the work performance of the employee. The increase in his salary has also been depicted by the documents above referred which have all been filed by the management. Since the claimant has not disputed that he was Reeling Supervisor and since he has failed to lead any evidence, documentary or oral, in support of his contention that he was actually given duties of workman, the claimant has failed to establish that he was a workman within the definition of section 2 (s) of I.D.Act. Issue no. 2 is decided in favour of the management and against the claimant. Issue no.3
40. This entire claim has arisen from order of Hon'ble Supreme Court passed on 8.7.96. Copy of this has been placed on record by management as Ex. MW1/5 & Ex. MW1/7 ordering closure of 168 industries in Delhi w.e.f. 30.11.96 which included the mill of the management where the workman had also been working. However Hon'ble Supreme Court vide the said order permitted relocation of the said industries outside the NCT of Delhi and it was also directed that workmen shall have continuity of employment and as per orders firstly that shifting industries on their relocation in the new industrial estates shall be given incentives in terms of the provisions of the Master Plan. The closure order w.e.f. 30.11.96 shall be unconditional. Even if the relocation of the industries is not completed, they shall stop functioning in Delhi w.e.f. 30.11.96. Relevant portion of the order is reproduced as under: The workmen employed in the above mentioned 168 industries shall be entitled to the rights and benefits as indicated hereunder:
(a) The workmen shall have continuity of employment at the new town and place where the industry is shifted. The terms and conditions of their employment shall not be altered to their detriment:
(b) The period between the closure of the industry in Delhi and its restart at the place of relocation shall be treated as active employment and the workmen shall be paid their full wages with continuity of service;
(c) All those workmen who agree to shift with the industry shall be given one year wages as "shifting bonus" to help them to settle at the new location;
(d) the workmen employed in the industries which fail to relocate and the workmen who are not willing to shift along with the relocated industries, shall be deemed to have been retrenched with effect from November 30, 1996 provided they have been in continuous service (as defined in section 25B of the Industrial Disputes Act, 1947) for not less than one year in the industries concerned before the said date. They shall be paid compensation in terms of section 25F (b) of the Industrial Dispute Act, 1947. These workmen shall also be paid, in additional, one years wages as additional compensation;
(e) The "shifting bonus" and the compensation payable to the workmen in terms of this judgment shall be paid by the management before December, 31, 1998;
(f) The gratuity amount payable to any workmen shall be paid in addition.
46. Vide order dated 30.3.99 copy of which is Ex. MW1/7, already referred above, as already discussed, it has been held by Hon'ble Supreme Court that the benefits of the order dated 8.7.96, copy of which is Ex. MW1/7, benefit of continuity of service and all other benefits stated therein would be applicable only to those employees who fell in the category of 'workman' as defined in the I.D.Act and whether or not any person was a workman within Section 2 (s) of I.D.Act, determination of this question was left to the labour courts.
47. In view of my findings on issue no. 2, it is very clear that employee in question was not in the category of 'workman' as defined u/s 2 (s) of I.D. Act and as such he was not entitled to any relief as granted vide judgment Ex. MW1/5 & 7.
48. Even so, without prejudice to above, claimant has failed to establish that he had reported to the management at Baddi, Himachal Pradesh, for being absorbed. It is stated in the claim that the employee had reported for duty at Baddi, HP on 14.1.99 and 15.1.99 and that he was not taken on duty nor the management made Exgratia payment of Rs.30000/ to him but this fact has no where been supported by any documentary evidence whatsoever.
49. Although Ex. WW1/1 is a letter of the workman addressed to District Labour Commissioner, Baddi, Himachal Pradesh. The contents of the same are only referring to the claim of the claimant that he had made himself present for duty at Baddi on 14/01/99 and 15/01/99 and that now his presence should be marked w.e.f. 09/04/99 onwards. The copy of the said letter is bearing a receiving by Joint Labour Commissioner Office, Himachal Pradesh. The workman has not produced any such joining report actually dated 14/01/99 or 15/01/99. It is only a self serving statement of the workman alleging that he had reported for duty at Baddi on 14 & 15/01/99. It still remains that there is no documentary evidence to prove that the workman had actually reported for duty at Baddi on 14/01/99 and 15/01/99.
50. On the contrary, Ex. WW1/7 letter dated 09/02/99 shows the intention of the workman to receive a compensation of Rs. 30,000/ in lieu of relocation at Baddi. In this letter also he has alleged that he had reported for duty at Baddi before District Labour Commissioner, Delhi as well as Joint Commissioner, Himachal Pradesh, but on account of the factory yet not having started at Baddi and the management had not given any work to the claimant nor any gate pass and as per the written instructions of the Joint Labour Commissioner, H.P., he returned to Delhi. He has referred to the order of Hon'ble Supreme Court dated 01/02/99 as per which all those workmen who had reported for duty at Baddi were to appear before the Labour Commissioner's Office at Delhi on 08/02/99 and 09/02/99. The workman has then intimated the Labour Commissioner that he shall appear on 09/02/99 to receive the amount of Rs. 30,000/ as compensation. By the same letter, he has requested the office of the Labour Commissioner to make the payment of Rs. 30,000/ to him and also he has warned them to initiate legal proceedings. This letter also contains merely the allegation of the claimant that he had reported at Baddi on 14/01/99 whereas there is no document dated 14/01/99 itself showing that workman had offered himself for duty at Baddi on 14/01/99.
51. EX WW 1/1 is a copy of letter which the employee had written to District Labour Commissioner at Baddi, HP merely complaining to him that vide order of Hon'ble Supreme Court he had reported to the management at Baddi, HP for duty and that he should be allowed to mark his attendance. This letter is dated 9.4.99 and is referring to the employee having reported for duty to the management on 14.1.99 and 15.1.99 whereas in the claim filed by the claimant it remained absolutely unexplained in the entire pleadings and evidence and also during the arguments addressed on behalf of the claimant as to what the employee had been doing in between 30.11.96 uptill 14.1.99 and 15.1.99. For as long a period of 3 years it has been left unexplained as to what course of action i.e whether the employee reported for duty at relocated place or not is absolutely not available on record.
52. Infact even the copy of letter that the employee may have submitted to the management on 14.1.99 / 15.1.99 also has not seen light of day. The real picture of fact that emerges is that whereas the industry was closed w.e.f. 30.11.96, the employee in question also took no step to give his option to join duty with the management at relocated place. As such contention of the management that it was employee who started remaining absent since 1.12.96 is the only conclusion to be drawn.
53. Even otherwise, the employee not being 'workman', benefit of orders of Hon'ble Supreme Court was not extendable to him, was clearly not entitled to any relief.
54. As regards the accommodation alleged to have been provided by the management to the claimant, it has been stated in the rejoinder that the quarter in question is subject matter of criminal complaint filed by the management before Ld. Additional Chief Metropolitan Magistrate and is pending adjudication. However, it has been denied that present claim has been filed by the employee to retain the mill quarter or the act of the employee amounts to breach of trust and misconduct. In the cross examination, workman has admitted it to be correct that management provided him quarter in Khilona Bhagh and which is still in his possession. He has also reiterated that management has filed a case against him, pending in Tis Hazari Court pertaining to the said accommodation.
55. This implies clearly that claimant has been outrightly residing in the premises of the management as trespasser for the last as many as 11 years i.e since 1997 till date. It is very clear that the accommodation for which family members of the employee would have had to pay thousands of rupees rent, they have enjoyed free of cost all these 11 years. There is no need to refer to the entire documents pertaining to the said accommodation like letter Ex. MW2/2 in view of the own admission of WW 1 in this regard.
56. As regards final relief, otherwise also, in view of conduct of the claimant, the claim stands dismissed, with costs of Rs.20000/ against the claimant.
57. Reference stands answered accordingly. Copies of the award be sent to appropriate Govt. for publication as per law. File be consigned to record room.
Announced in the open court Today on 02/04/2008 (SUJATA KOHLI) Presiding Officer Labour CourtII, Court No. 48, KKD Courts, Delhi.