Delhi District Court
The Secretary (Labour) Govt. Of The ... vs Burmah Shell Management Staff ... on 1 February, 2007
1
IN THE COURT OF SH. R.K. JAIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI.
ID NO. 980/98
BETWEEN
Its Work-woman
Smt. Sujata Basu,
W/o Sh. B.K. Basu,
R/o W-706, Chittranjan Park,
New Delhi.
AND
The Management
M/s. T.V. India Pvt. Limited,
D-5, Green Park, New Delhi.
AWARD
1.The Secretary (Labour) Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this labour court vide notification No. F. 24 (692)/98-Lab./19925-29 dated 15.6.98 with the following terms of reference:-
'Whether the services of Ms. Sujata Basu have been terminated illegally and/ or unjustifiably by the management, and if so, to what relief is she entitled and what directions are necessary in this respect?"
2. After receipt of the reference, notice was sent to the work-woman who filed her statement of claim submitting therein that she joined the 2 management on 9.3.1996 by appointment letter and her salary was Rs.13000/- consolidated per month and she had been in continuous uninterrupted service with the management.
3. It is further submitted that she discharged her duties to the best of her ability and never gave any chance of complaint to the management and have been worked for the requisite period she was entitled to various other protections provided under the Industrial Disputes Act and that she was a 'workman' within the definition.
4. It is further submitted that she had been given certain assurances like growing with the company, treating the company as her family and placing her superiors as her elders on whom she could look upon for advice and protections. She had also, accordingly, a reeciprocal faith which was reflected in her dedicated service which is borne out by the fact that her record with the company bears no stigma.
5. It is further submitted that there was some premeditative, calculative type of conspiracy against her for an ulterior motive which later on came to her knowledge when she was asked by her superiors to tender her resignation, in the interest of the company.
6. It is further submitted that she received a letter dated 21.3.1997 whereby her services were terminated with immediate effect. 3
7. It is further submitted that the work-woman tried to reason out with her superiors but no reply was received. She also sent a demand notice dated 16.4.1997 but the management sent a reply confirming her termination. Since the action of the management, in terminating her services, was in violation of the social Security Legislation, she raised the dispute before the conciliation officer which resulted in failure because of adamant attitude of the management.
8. It is further submitted that the work-woman was unemployed since the date of her termination and accordingly, it is prayed that the management should be directed to reinstate her with payment of full back wages ad other consequential reliefs.
9. The reference was received against only one management but in the statement of claim the work-woman had involved two more managements on the ground that management no. 1 was taken over by management no. 3.
10. The notice of the claim was sent to all the three managements mentioned in the statement of claim and management no. 3 preferred not to appear and was proceeded against ex-parte.
11. Management no. 1 & 2 in the joint written statement took preliminary objection that the claimant was not a 'workman' as defined 4 under section 2(s) of Industrial Disputes Act as she was engaged in the post that involved independent action and decision in her area of specialization and was assisted by a team of four persons.
12. It was further submitted by the management that the establishment was set up as a software production house in 1995 with an intention of producing good quality television software and that the programmes would be produced as required by prospective buyers and, accordingly, the management retained services of various categories of specialists and experts who would fulfill the need of television based software demand.
13. In the written statement it was admitted that the work-woman was appointed as Assistant Producer and she had joined the company on 1.3.1996 and on 9.3.96 a letter of appointment detailing the terms and conditions pertinent to the job was issued. It was submitted that work- woman was assigned to the programmes entitled 'On Air' which was commissioned by a client and that client was no longer commissioning the programme and that the employment of the work-woman was based upon the requirements of television software demand. It was admitted that a letter of termination of services dated 21.3.1997 was issued and it was submitted that the work-woman was given all her 5 salary, dues of one month salary in lieu of notice period which was duly accepted by her. It was submitted that the demand notice received from the work-woman was duly replied and reply was filed in conciliation proceedings also.
14. On merits, all other averments made in the claim were denied.
15. On the pleadings of the parties, following issues were framed on 11.02.2000:-
1. Whether the claimant is a workman?
2. Whether the services of the claimant have been terminated illegally and/or unjustifiably?
3. Relief.
16. The work-woman examined herself as WW1 and filed her affidavits Ex. WW1/A and WW1/B in support of her case. The management failed to lead any evidence.
17. I have heard Ld. AR for the work-woman who had also filed written arguments and have gone through the relevant record. My findings on the aforesaid issues are as follows. ISSUE NO. 1
18. Ld. AR for the work-woman by way of written arguments has submitted that though the work-woman was designated as Assistant 6 Producer which was high sounding nomenclature but actually was a 'workman' and she neither had any power nor control over the subordinate as she did not have any subordinate.
19. It is well settled law that the designation of an employee is not of much importance and what is important is the nature of duties being performed by him. The determinative factor is the main duties of the concerned employee and not some work incidentally done. In other words, what is in substance, the work which employee does or what is in substance he is employed to do.
20. Section 2(s) of Industrial Disputes Act, 1947 defines the 'workman' 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 7 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."
21. By the definition itself it is clear that a person to be a workman must be employed to do:
a) Manual Work
b) Unskilled Work
c) Skilled Work
d) Technical Work
e) Operational Work
f) Clerical Work
g) Supervisory work
22. In Burmah Shell Oil Storage & Distribution Co. of Indis Ltd. vs. Burmah Shell Management Staff Association 1970 2 LLJ 590 SC, it was held by Hon'ble Supreme Court that in order to bring an employee within the ambit of the definition of 'workman' the nature of the work performed by him must fall within one or other of the above seven classifications. The specifications of the seven types of work was intended to lay down that an employee is a 'workman' only if he is employed to do the work of one of those types. While there may be 8 employees who in doing any work would not be out of the scope of the work without any resort to exceptions.
23. It is also well settled law that an employee claiming himself to be a 'workman' within the definition of section 2(s) of Industrial Disputes Act has to prove that he fell within one of the categories mentioned in the definition itself.
24. In the present case, the offer of appointment is Ex. WW1/1. The letter of appointment itself is Ex. WW1/2. In none of those letters it is specified as to what duties the work-woman was expected to perform. In the statement of claim also the work-woman has not explained what duties she was performing or expected to perform. In affidavit Ex. WW1/A in para no. 6 she has tried to explain what her duties were and it is stated that:
"my nature of duties were very ordinary and I had no authority over any other employee, say to grant leave, to suspend etc. etc. but I used to assist in organising the talk shows which the company was organizing ad we would sit together and the topic would be told to us. Further, we would be given the particulars of people and then I along with others made to go to personally meet those people get them for the show on the scheduled date and after the show was over would bid them goodbye of course, congratulate them for giving excellent performances, speaking very well etc. etc. and then would go for my next assignment."9
25. In her cross-examination the work-woman as WW1 deposed that her work in the company was to bring/escort the guests to the studio, give them cup of tea, make them comfortable. Keeping in mind the duties explained by the work-woman can it be said that her work fell within one or other of the above seven classifications? In my opinion, the duties performed by the work-woman did not fell within any of the categories enumerated above. The work of the work-woman was like that of a presenter or playing host to the guests. Her work was intellectual work and by no stretch of imagination she can be said to be doing any of the work which could make her a 'workman' within the definition of section 2(s) of ID Act. I have no hesitation in holding that the claimant is not a 'workman'.
26. The issue is, accordingly, decided in favour of the management and against the work-woman.
ISSUE NO. 2
27. While deciding issue no. 1 it has already been held that the claimant is not a workman. So the issue of termination of services illegally and/or unjustifiably need not be decided.
RELIEF
28. In view of my findings on the issues above, I hold that the claimant 10 is not entitled to any relief. No directions are necessary in this respect.
29. The reference is answered, accordingly. Copy of award be sent to Secretary (Labour) Govt. of NCT Delhi.
Dated : 01.02.2007 (R.K. JAIN)
Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi