Delhi District Court
Between The vs The on 2 May, 2018
IN THE COURT OF SH. ATUL KUMAR GARG, PRESIDING
OFFICER, LABOUR COURT NO. XVI, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
LIR No. 6197/16
Date of institution 03.08.2015
Date of decision 02.05.2018
BETWEEN THE WORKMAN
Shri Jaswant Ray,
S/o Sh. Begraj Singh,
R/o F-119, Pandav Nagar,
Meerut (UP) 250003
VERSUS
THE MANAGEMENT OF
M/s Shriram Institute for,
Industrial Research,
(A unit of Shriram Scientific and,
Industrial Research Foundation),
19, University Road,
Delhi-110007.
AWARD
1. By this award, I shall dispose off of the claim filed by the
workman under Section 2-A (2) of the Industrial Disputes Act. In his
statement of claim, the workman has stated that the applicant was initially
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appointed as a Project Trainee vide employment letter dated 03.07.2007
issued and duly signed by the director of the Institute on a monthly
endorsement of Rs. 5,000/-. He further submits that the monthly
emolument of the applicant was enhanced from Rs. 5,000/- to Rs. 8,000/-
w.e.f. 01.10.2007. From 01.02.2008, the applicant was designated as
Analyst B in the pay scale of Rs. 4500 - 125 - 7000 plus allowances as
per institute rules inforced from time to time, vide letter dated 17.01.2009
and was confirmed in the post of Analyst B w.e.f 01.05.2009 vide letter
dated 15.05.2009 and in accordance with Office Bulletin No. 1449 dated
06.08.2009 the applicant was placed in the pay scale 5200 - 20200 vide
basic pay of Rs. 11,170/- per month which is very clear from the letter
dated 27.08.2009. He further submitted that in accordance with office
Bulletin No. 1450 dated 08.09.2009, the applicant was re-designated as
Jr. Scientist 'A' with immediate effect and all other terms and conditions
of employment remain unchanged w.e.f. 01.02.2008 and all other terms
and conditions of employment remained unchanged and applicant was
placed in the pay scale of Rs. 5,200/- as per office bulletin No. 1449
dated 06.08.2009 and lastly the applicant was drawing a consolidate
monthly salary of Rs. 30,231/- per month. It is further the case of the
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applicant that he was performing his duty diligently and honestly with the
entire satisfaction of the management. The management vide order dated
02.11.2013 issued a show cause notice alleging certain baseless
allegations against the applicant refuting the said application the applicant
duly submitted his reply dated 08.11.2013. It is further the case of the
workman that the management with malafide intention and by way of
victimization issued a charge sheet to the applicant on 15.11.2013
alleging certain vague and baseless charges against the applicant and the
applicant denied in toto all the said charges and duly submitted his reply
on 03.12.2013. The management instituted an enquiry against the
applicant and appointed Shri. M.K. Gupta, Advocate as an Enquiry
Officer to hold the said enquiry in to the charges leveled against the
applicant. The said enquiry officer conducted the enquiry in respect of the
charges levelled against the applicant against the principal of natural
justice. The enquiry office had held in his report that the charges have
been duly proved. He submitted that the said finding of the enquiry
office is against the facts and violation of the law and principles of
natural justice. He submitted that in fact the enquiry officer had mis-
conducted the enquiry with the predetermined motive to hold the charges
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as having been established in a very casual, arbitrary and mechanical
manner and has acted in the manner of an agent of the management. He
submitted that the management had dismissed the applicant from service
vide letter dated 07.11.2014 with immediate effect. He further submitted
that the applicant after dismissal of his service served with the demand
notice vide dated 21.11.2014 requesting the management to withdraw
their dismissal order or to reinstate him in service with continuity of
service and with full back wages along with the other legal dues, but the
management vide letter dated 29.11.2014 rejected the said demand of the
applicant. He submitted that the dismissal of the applicant is illegal,
unlawful, malafide and is an act of victimization and unfair labour
practice. He further submitted that as per Section 2-A of the I.D. Act,
1947, the applicant raised an Industrial Dispute vide Statement of Claim
dated 23.12.2014 before the Conciliation Officer and on receipt of the
claim filed by the applicant, the concerned Conciliation officer initiated
the proceeding of refuting of the claim. The management refused to
accede the demand of the applicant incorporated in the claim petition and
consequently no settlement could be arrived at the conciliation officer as
per provisions of Section 10 (4-A) of the Industrial Disputes Act, 1947
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Delhi Amended Act, 2010 and Delhi (Act 9 of 2010) directed the
applicant, if so desires, may apply before the concerned labour court for
adjudication of the disputes. Hence, he has made prayer that he be given
reinstatement with full back wages.
2. Management had filed the reply to the statement of the claim filed
by the workman. He submitted that the service of the workman's has been
terminated on charges of mis-conduct after conduct of fair and proper
enquiry against him. He submits that the claim is filed only to harass the
management and as such the claim is liable to be rejected on this ground
itself. Management further took the preliminary objection as per the
averments of the claimant, he was posted as Jr. Scientist 'A' with the
management. Therefore, such highly qualified person, doing research
work and whose salary was Rs. 30,000/- approximately, cannot be termed
to be a workman in the eyes of law. As such, the claimant being not a
workman is not entitled to file any claim before this court and to get any
relief from this court. He submitted that the claim of the claimant is liable
to be dismissed.
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3. Rejoinder has also been filed by the workman wherein he had
reiterated the averments claimed by him in his statement of claim and
denied whatever has been stated by the management in the written
statement.
4. After completion of the pleadings of the parties, vide order dated
08.04.2016, following issues have been framed:-
1. Whether the claimant is not a workman as per Industrial
Disputes Act? OPM.
2. Whether domestic enquiry conducted by the management
against the claimant was fair and proper and in accordance with the
Principles of Natural Justice? OPW.
3. If not, whether the claimant had committed misconduct?
4. Relief.
No other issue arose or pressed and the matter was listed for
workman evidence.
5. From the objections, two preliminary issues have been framed in
the present case. First preliminary issue is that whether the claimant is
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not a workman as per Industrial Disputes Act? Other Issue which is
preceded to first issue has to be decided lateron only if the first issue
goes against the management. Onus of proving this issue is upon the
management as he has to prove that the claimant is not a workman and
he has not been covered under the definition of the Section 2 (s) of the
Industrial Disputes Act.
6. For this, management has examined one Col. C.S. Ghosh
(Retired). He deposed that he was Deputy Director with the
management and also authorised signatory of the management and he
was fully conversant with the facts of the case. He has been authorised
to depose in this case vide Governing Board resolution dated
11.10.2012 which has been exhibited as Ex. MW 2/1. He deposed that
the claimant was working with the management and his last
designation was Junior Scientist 'A. He was assigned various duties
from time to time vide letter dated 01.06.2007 and he was authorised to
work in the Animal House for assisting the in-charge of Animal House
in the maintenance of the Animal House and to conduct Toxicology
Studies alloted to him by the Study Director. He had relied upon the
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authority letter dated 01.06.2007 and exhibited the same as Ex. MW
2/2. He further deposed that the claimant was transferred from
Toxicology Section to Material Science Division vide office order
dated 04.08.2008 and exhibited the copy of the same as Ex. MW 2/3.
Thereafter, the claimant was again transferred from MSD to
Toxicology Section vide office order dated 09.07.2010 and exhibited
the copy of the same as Ex. MW 2/4. At the time of termination of his
service, he was working in the Animal House of Toxicology Section.
Animal House is a research unit of Toxicology Section of the Institute
where the testing of various drugs items, chemicals etc. are carried out
on animals. The claimant was deputed in the Animal House of
Toxicology Section for supervision and maintenance of the said
Animal House. Besides this, he was also assigned and engaged in
various research works, projects etc. in some of the projects, he was
designated as Study Director of the project. He has got exhibited the
copy of the statement of quality assurance unit report of various studies
conducted by the claimant as a study director as Ex. MW 2/5 to Ex.
MW 2/10. He further deposed that the management had granted him
permission for pursuing the Ph.D course vide letter dated 20.04.2012.
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He has got exhibited the letter dated 12.04.2012 and letter dated
20.04.2012 as Ex. MW 2/14 to Ex. MW 2/15.
7. The workman had examined himself as WW 1 claiming that he
was workman employed with the respondent/ management and his
services have been terminated illegally as he was dismissed from the services. Enquiry is not fair. He has admitted that he was appointed as "Project Trainee" vide appointment letter dated 03.07.2007 and the same was duly signed by the Director of the Institute on a monthly endorsement of Rs. 5,000/- per month. Letter dated 02.11.2007, the monthly emolument of the workman were enhanced w.e.f. 01.10.2007 from Rs. 5,000/- to Rs. 8,000/- per month. He was designated at the post 'Analyst B'. The said post of the workman was confirmed on 01.05.2009 vide letter dated 15.05.2009. He was again re-designated as Junior Scientist 'A'.
8. Management had drawn the attention of this court towards the cross examination of the WW 1 who has stated that he had not filed his detailed work profile/ duties on record of this court. The management LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 9 of 17 has further drawn the attention of this court towards the cross examination of the workman where he has admitted that he was M.Sc qualified and he worked with the management at the last drawn pay of Rs. 30,231/- per month. Witness further admitted that he had last worked in department of Toxicology. In this department, testing work of chemicals, food, drugs, pesticides, cosmetics, medical devices etc. is being done. He has admitted that while working with the above said department, he used to apply his mind in doing testing jobs in which he was involved. He submitted that from the above evidence on record, it has been established that the claimant is not workman within the definition of workman under Section 2 (s) of the Industrial Disputes Act. Management has also relied upon the judgment LKP Merchant Financing Ltd. Vs Government of NCT, Delhi & Ors. 2003 LLR 367 in Civil Writ No. 7321 of 2001 and C.M. No. 12547 of 2001 where it has been held that determination as to whether an employee is a workman or not depends upon the nature of duties performed by him. Designation and salary received by him may not be criteria to hold that he was not workman under the Act. Only after evidence produced by the parties about nature of duties performed that LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 10 of 17 authoritative decision could be given as to whether an employee was a workman or not. He has further relied upon the judgment Bharat Bhawan Trust Vs Bharat Bhawan Artists Association and anr. wherein Supreme Court of India has held that the respondent perform is in nature of a creative art and their work subject to an order required from the Art Director non from any of the artists. In performing their work, they have to bring to their work, their artistic ability, talent and a sense of perception for the purpose of production of drama involving in the course of such work, the application of the correct technique and the selection of the cast, the play the manner of presentation the light and shade effects and so on. In effect the work they do is creative art which only a person with an artistic talent and requisite technique can manage. To tell such a person, a skilled or a manual worker is altogether inappropriate. He further relied upon the judgment Divyash Pandit Vs The Management of National Council for Cement and Building Materials, 2012 LLR 463 Delhi High Court in LPA No. 297/2009, D/-29-3-2012 whereby it was held that considering the nature of the work which the appellant was performing, it cannot be said that he was doing any manual, LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 11 of 17 unskilled, skilled, technical, operational or clerical work within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947. He submits that by all the evidence as well as admission of the claimant that he is the Study Director and he has signed various letters established that he is not doing any technical job. Therefore, claimant cannot be said to be workman under the definition of the Section 2 (s) of the Industrial Disputes Act, 1947.
9. On the other hand, ld. Counsel for the claimant/ workman had stated that the claimant is the workman and it has come under the purview of Section 2(s) of the Industrial Disputes Act, 1947. He submitted that he has no supervisory power or control, he has no authority to remove or recruit the staff. Witness has admitted that the workman had no power of signing and writing or to take or initiate any disciplinary action to any employee. MW 2 further admitted that the workman has been working under the head of the department. Witness has further admitted that workman has asked to pursue his PHD from the department which was allowed with conditions prescribed in Ex. MW 2/15. He had relied upon the judgment Sharad Kumar Vs LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 12 of 17 Government of NCT of Delhi & ors., 2002 LLR 545 in Civil Appeal No. 2622 of 2002 whereby Supreme Court of India held that merely designation of a post held by an employee ie., Area Salaes Executive not the decisive factor and State Government erroneously considered designation of post which is extraneous to relevant matters. He further relied upon the judgment Mahajan Borewell Company, Bangalore Vs Rajaram Bhat & Anr., 1998 LLR 363 in Writ Appeal No. 2608 & 2609 of 1995 whereby Karnataka High Court had held that an employee employed as Geologist was assisted by a driver and a helper who was only to assist him in transportation of instruments. He was not working in any supervisory, administrative or managerial capacity nor had he any disciplinary control over the drivers or the helper.
10. I have heard the contentions raised on behalf of the AR as well as perused the evidence brought and examined by the parties. Section 2
(s) of the Industrial Disputes Act, 1947 (hereinafter referred as an Act) defines the word 'workman' to the extent it is relevant to read as under:-
LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 13 of 17 " 'Workman' means any person 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 person 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."
11. It has been held in the catena of the judgment that it is the nature of the duties not the designation or the pay which determine whether the claimant is a workman or not. If the nature of duty is manual or clerical, then the person is held to be workman. If the manual or clerical work is a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such person would not be a workman. It is to be seen in each case from the nature of duties whether a person employed is a workman or not under the definition of that word as it existed before the amendment of 1956. LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 14 of 17
12. Now look at the evidence. Here, the workman is a M.Sc qualified and his last pay was Rs. 30,231/-. Though the qualifications and the pay is not sole criteria to decide that the claimant is a workman or not. It is the nature of the duty which is most important. However, the qualification and the pay which the claimant draw has some relevancy to decide the issue whether the claimant is a workman under the definition of Section 2 (s) of the Industrial Disputes Act.
13. Now, come to the duties of the workman. Claimant has admitted that he has not filed any detailed work profile before this court. He further admitted that lastly he worked in the department of Toxicology. In this department, testing work of chemicals, food, drugs, pesticides, cosmetics, medical devices etc. is being done. He further admitted that while working with the above said department, he used to apply his mind in doing testing jobs in which he was involved.
14. Now look at the testimony of the MW 2 who had deposed that the claimant was working with the management and his last designation was Junior Scientist 'A'. He was assigned various duties LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 15 of 17 from time to time and vide letter dated 01.06.2007, he was authorised to work in the Animal House for assisting the incharge of Animal House in the maintenance of the Animal House and conduct Toxicology Studies allotted to him by the Study Director. He had proved the various documents Ex. MW 2/2, Ex. MW 2/3 and Ex. MW 2/4 dated 01.06.2007, 04.08.2008 and 09.07.2010 respectively. He further deposed that the the claimant was involved as scientist in development of perm selective membranes in the year 2009. Copies of various progress reports submitted to Radiometer Medical Aps, Denmark which is exhibited as Ex. MW 2/11 to Ex. MW 2/13.
15. If we have seen the various documents produced by the management which has been unrebutted and unchalleged, then it appears that the claimant job is not a clerical or manual in nature. His job is to supervise the work as well as applying his mind which is necessary in determining whether the claimant is workman or not. Entire evidence adduced by the workman shows that the claimant is not the workman withing the definition of Section 2 (s) of the Industrial Disputes Act. Therefore, this issue stands proved in favour of LIR No. 6197/16, Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Page No. 16 of 17 the management and against the workman.
16. In the result, in view of the findings on the aforesaid issues claimant is not entitled to any relief and his claim deserves to be dismissed. Award is passed accordingly. Copies of award be sent to the appropriate Government for publication as per law. File is consigned to the record room after necessary compliance by Ahlmad.
PRONOUNCED IN OPEN ATUL Digitally signed
by ATUL KUMAR
COURT ON 02.05.2018 KUMAR GARG
Date: 2018.06.01
GARG 15:06:11 +0530
(ATUL KUMAR GARG)
RESIDING OFFICER
LABOUR COURT-XVI/
SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
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LIR No. 6197/16,
Jaswant Ray Vs M/s Shriram Institute for Industrial Research 02.05.2018 Present: None.
Vide my separate order dictated and announced in the open court, award is passed accordingly. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
(ATUL KUMAR GARG) RESIDING OFFICER LABOUR COURT-XVI/ SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI.
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