Delhi District Court
Ashok Sachdeva S/O. Late Sh. Ram Lal ... vs M/S. Pvr Ltd on 31 March, 2015
Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
REFERENCE CASE (ID) NO. 293/14 (OLD No. 326/13)
UNIQUE CASE IDENTIFICATION NO. 02402C0293332013
In the matter of:
Ashok Sachdeva s/o. Late Sh. Ram Lal Sachdeva
R/o. RZ H3/1, 1st Floor, Street No. 6,
Raghu Nagar, New Delhi110045 ..... Workman / Claimant
Vs.
M/s. PVR Ltd.
PVR Cinema, 61, Basant Lok,
Vasant Vihar, New Delhi110057. ..... Management
Date of institution : 03.09.2013
Date of reserving for award : 23.03.2015
Date of award : 31.03.2015
AWARD
1. TERMS OF REFERENCE
Vide Order No. F.24(151)/13/SWD/Lab./64916494 dated 26.07.2013 Deputy
Labour Commissioner (South West District), Labour Department, Government of
N.C.T. of Delhi referred following industrial dispute between workman Ashok
Sachdeva R/o. RZ H3/1, 1st Floor, Street No. 6, Raghu Nagar, New Delhi110045
and M/s. PVR Ltd., PVR Cinema, 61, Basant Lok, Vasant Vihar, New Delhi110057
u/s. 10(1) (c) and 12(5) of the Industrial Disputes Act, 1947 Govt. of NCT of Delhi
vide Labour Department Notification No. F.1/31/616/Estt/2008/7458 dated
03.03.2009 for adjudication by this Labor Court XIX:
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''Whether services of said Sh. Ashok Sachdeva have been
terminated illegally and/ or unjustifiably by the management and if
so, to what relief is he entitled?"
(Note: On 24.04.2014 this Court received this case by way of transfer from the Court
of Sh. Sanjay Sharma, Ld. POLC - XIX, KKD Courts pursuant to Order No. 5675
dated 28.03.2014 of Dr. Rajender Dhar, Additional Labour Commissioner, Govt. of
NCT of Delhi. Vide this Order it was also directed that transferee Labour Court
shall proceed with the transfered proceedings from the stage at which they stood at
the time of transfer.)
2. CASE OF THE WORKMAN AS PLEADED IN THE STATEMENT OF
CLAIM.
(i) The workman was engaged on services by the management w.e.f. 3rd of
March 2010 and all along the tenure of service, workman's / claimant's performance
was satisfactory.
(ii) The workman / claimant is a permanent workman on record as within the
meaning and scope of section 2 (s) of the Industrial Disputes Act, 1947 and a letter
of confirmation dated 6th of Dec. 2010 was also released by the management. The
workman is a permanent workman further in consideration of a fact that the
workman has successfully completed app. 1100 days of continuous working without
any interruption and has accumulated 48 earned leaves on record in this duration.
(iii) The workman is a diploma holder in Mechanical Engineering and is having a
vast experience in the field of installation / operation / maintenance and services of
machinery. In view of qualification and experience, followed by interviews, a letter
dated 25th of Feb. 2010 was issued on workman to join the services, either on or
before 3rd of March 2010. Subsequently workman joined the duty. But the
appointment letter in fact came into existence not before 12th of March 2010.
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Though none of the letter, neither of dated 25th of February, nor of 12th of March
2010, explains the nature of duty but on the date of joining i.e. 3rd March 2010, Sh.
Rakesh Kaul (Vice President) (Projects), briefed the nature of duty assigned to as,
''providing technical assistance in execution of site in view of Manufacturer's
recommendations and applicable Standards. To assist the design Dept. of company /
Architect / Site Coordination cum purchase Dept., in ways of speedy modification of
the design under compelling reasons and to save and secure the concerned design /
drawing at site for necessary uses. And that to follow incidental instructions of Sh.
Manish Parashar (Manager Region)". In this duration no other employee of
company was ever assigned to subordinate the workman / claimant.
(iv) Without any allegation / show cause notice, a letter under caption ''LETTER
OF SEPARATION'' dated 10.04.2013, vide email and a copy by post, was served on
workman containing the information which reads as under:
''Yours services are no more required by the Company, and the
employment contract dt. 3rd of March 2010 is hereby terminated with
the clause of no. 6. And that a cheque no. 121803 dt. 10/04/2013 for
Rs. 1279/ drawn on HDFC Bank Ltd towards full and final settlement
of your dues which also includes your one month salary in lieu of
notice, as required in your contract. This letter further reads that the
above settled amount is being paid to you after making the necessary
action of Rs.72375/ towards imprest amount account as per our
record. And so on.''
(v) To workman's utmost surprise, that said imprest amount of Rs. 72,375/ was
found false and concocted. After a strong objection hinged at the support of credible
details, management could not hold ground further on its taken position, hence,
released another cheque of Rs. 27,880/ bearing no. 121714 dated 18.04.2013 vide
letter 24.04.2013 alongwith a alleged sheet marked, annexure A' containing
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purported details of alleged full and final settlement.
(vi) The workman / claimant objected further on this alleged full and final
settlement vide various communications for the want of relevant account ledger
page and stressed upon the management to clarify its position on controversies as
stated therein, but sadly none from the management side cared to address or to reply.
(vii) This alleged 'Full and Final' settlement as depicted in 'Annexure A' reveals
another story of misappropriation and ulterior motives, that on one hand
management closed the workman's / claimant's account on dated 08/04/2013, i.e. 2
days prior of the referred date of termination letter dated 10.04.2013 but also
founded on a conspiracy ground, as is visible in ''Annexure A'' ''REASONASKED
TO RESIGN and DATE OF RESIGNATION DT 08/04/2013 (contents drawn from
purported Annexure A)''. Workman specifically submits here that at no stage any
resignation letter or any other letter to that effect, whatsoever, was ever tendered by
the workman. The said ground shown by the management is concocted, misleading
to the extent of a hatching a conspiracy against an innocent workman.
(viii) Further in this purported, ''Annexure A'' management deliberately / sinisterly
paid off the 48 earned leaves at the basic rate of salary, which is wholly against the
settled law, especially Chapter XIII of Factory Act ANNUAL LEAVES WITH
WAGES under section 79 (11) amended in 1976. It is out of place to assume that
such a big company, having plus 3000 employees on pay roll, spread across the
country, is not aware of the applicable rules. Even after repeated queries raised by
the workman before Head (H.R. Division) of company, none came forward to pay
any heed to clarify such an important issue. It is not out of place to submit here that
management was all out to inflict, as maximum financial losses to workman, as
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much as possible within its capacity, under wholly unethical and full of sinister
purposes, to make sure that workman with his family must destine to starve.
(ix) Workman has been victimized by the management. The purported
termination is hinged on a null and void Clause 6 of appointment letter. In fact, this
purported invocation of clause 6 is in fact an afterthought meant to fulfill the
malafide intents of management. Workman wish to submit here that the purported
termination is a blatant violation of the provisions of the Industrial Disputes Act,
1947. Especially section 2 (oo) and that this adventurous act of management comes
within the purview of section 2 (ra) read together with amendment specified in the
Fifth Schedule of UNFAIR LABOUR PRACTICE. This purported clause 6 is
''NULL AND VOID'' in view of Industrial Disputes Act, 1947 and further in view of
section 16 and 17 of THE INDIAN CONTRACT ACT 1872, and that this clause 6
stands irrelevant once the workman has succeeded to completed 240 days of
working and also is in possession of a ''CONFORMATION OF SERVICE'' letter.
(x) STATEMENT OF CLAIM
CLAIM 1: Reinstatement of the workman with full back wages and continuity of
service with all due enhancements from March 2012.
CLAIM 2: Yearly enhancement of salary as due from March 2012 and on, at the
same rate as received by the other similar positions Rs.1,30,000/ as
on date of filing of claim and so on till the date of realization of
claim.
CLAIM 3: Legal expenses as incurred by the workman Rs. 50,000/.
CLAIM 4: Difference of payment of the earned leave (48) @ full wages (not
paid minus paid) Rs. 34,000/.
CLAIM 5: Losses and damages incurred by the workman at the hands of
management for their wrongful, arbitrary, illegal act of causing undue
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agony, harassment and by sailing the workman into such an
embarrassing situations to face the hardship as detailed hereunder.
a) Feeling ashamed before family members for the reason of being an
accused of a covert offence, supposed by the members of the family,
to have been committed by their earning hand at works.
b) Of being embarrassed before friend circle, society and relatives for
their exfacie visible doubts on workman's integrity.
c) For getting into a very sinister situation before the family and the
society, especially, where in fact workman planned to enhance
relations by marrying his daughter in a good family but this act of
management has ruined the relationship and this continues in the
absence of any further opportunity of employment for workman.
d) For getting humiliated by the dreamed future employers, wherever
workman approached for employment, for the sole reason that unsaid
story behind the termination is rather more important, then said.
e) For getting into mental turmoil now and then to find a way out for at
least a dry bread for workman's family.
f) For arranging money from here and there at random interest to pay
rent of accommodation in the absence of any other source of income,
especially at this age factor (55) Rs. 10,00,000/.
CLAIM 6: An interest of 12% on the aggregate amount from the date of
termination i.e. 10.04.2013 onwards till the date of realization of
awarded amount.
(xi) The workman reserves the right to may modify his claim in the face
of future circumstances, and on the basis of aborted gratuity.
(xii) Since from the stage of Conciliation onwards, workman / claimant has
decided for self representation only, therefore, equal terms applies on management /
respondent too. Any representation through legal practitioner is objected.
With these averments, workman prayed for setting aside the termination /
separation order of management on merits with appropriate orders of reinstatement
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and may pass the other claims and any other such reliefs to the workman as may
deem fit to this Court in the interest of justice.
3. STAND OF THE MANAGEMENT AS PLEADED IN THE WRITTEN
STATEMENT OF DEFENCE.
Management, while denying the case as pleaded by workman in the
statement of claim, took the stand that claim of the claimant is not maintainable as
claimant is not a 'workman' as defined under section 2(s) of the Industrial Disputes
Act, 1947. Management pleaded that claimant was appointed vide appointment
letter dated 12.03.2010 as Assistant Manager (Projects) at Grade M5. Management
denied the averments made by workman regarding his nature of duties and pleaded
that the nature of job of the claimant was supervisory and administrative in nature
and was responsible for complete management, supervision and control of the task
force engaged in the construction and development new projects. Management
admitted that it had issued the letter of separation dated 10.04.2013 and pleaded that
the services of the claimant have been terminated in accordance with clause 6 of the
appointment letter and the management company had already paid the legal dues to
the claimant vide two separate cheques of Rs.1279/ and Rs.27,880/ bearing no.
121803 and 121714 dated 10.04.2013 and 18.04.2013 both drawn at HDFC Bank Ltd.
respectively. The claimant was earlier paid Rs.1279/ by the management after the
necessary adjustment towards the imprest cash and was subsequently paid Rs.
27,880/ as the same was paid to the claimant after claimant had submitted bills /
voucher of expenses incurred by him. Management denied the averment of workman
/ claimant that performance of claimant was satisfactory. Management pleaded that
management establishment is not a factory and, thus, not covered by the provisions
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of Factories Act, 1948.
4. REJOINDER
Workman filed rejoinder to the WS of the management denying the stand
taken by the management and reaffirming the averments made in the statement of
claim. Workman in the rejoinder specifically pleaded that, "..... it is denied that
any bill / voucher to the amount of Rs.27880/ was ever submitted by the Claimant
aftermath termination dated 10.04.2013."
5. ISSUES
Vide order dated 09.06.2014 following issues were framed:
(i) Whether Mr. Ashok Sachdeva is a 'workman' as defined under
section 2 (s) of the Industrial Disputes Act, 1947? OPW
(ii) In terms of reference.
6. EVIDENCE
Workman appeared in the witness box as WW1 - Ashok Sachdeva.
Workman relied upon documents namely Ex.WW1/1 - (Colly. 38 pages) pagewise
details of which are as under:
Sl. No. Particulars Page No.
01. Statement of claim 1 - 7
02. Order of reference 8
03. Affidavit supporting the statement of claim 8
04. Details of full and final settlement (Annexure 'A') 9
05. Full and final payment letter dated 24.04.2013 10
06. Letter of Separation dated 10.04.2013 11
07. Appointment Letter dated 12.03.2010 12 14
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08. Salary breakup sheet 15
09. Application dated 25.02.2010 for the position of Assistant 16
Manager - Projects
10. Salary breakup sheet 17
11. Legal Notice dated 22.04.2013 18 - 26
12. Reply to Legal Notice dated 22.04.2013 27 - 29
13. Notice dated 17.05.2013 for action of criminal proceeding 30 - 31
against responsibles
14. Increment Letter dated 20.09.2011 32
15. Confirmation letter dated 06.12.2010 33
16. Deputation letter dated 10.03.2011 34
17. Deputation letter dated 24.11.2010 35
18. Pay slip for December 2012 36
19. Pay slip for February 2013 37
20. Email dated 08.02.2013 regarding Mediclaim / ESI card / 38;
email ID of workman not being in order.
Ex. WW1/2 - Rejoinder dated 15.06.2014 and Ex.WW1/3 (colly. 3 pages) -
Comparison of claim statement V/s. written statements and difference.
Workman in his crossexamination was confronted with the documents
namely Ex. WW1/M1 Emails 22.03.2011 and dated 22.03.2011; Ex.WW1/M2 -
Email dated 20.03.2011 and 22.03.2011; Ex.WW1/M3 - Email dated 19.05.2011
& 26.05.2011; Ex.WW1/M4 - Email dated 30.06.2011; Ex.WW1/5 - Email dated
29.02.2012; Ex.WW1/M6 - Email dated 09.04.2012; Ex.WW1/M7 - Email dated
13.06.2012; Ex.WW1/M8 - Email dated 15.01.2013 and 04.01.2013; Ex.WW1/M9
- Email dated 16.08.2012; Ex.WW1/M10 - Curriculam Vitae of workman dated
17.02.2010; Ex.WW1/M11 (Mark11)- Interview Assessment Sheet; Ex.WW1/M12
-Initial Performance Assessment; Ex.WW1/M13-Increment Letter; Ex.WW1/M14
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- Letter of Separation; Ex.WW1/M15 - Reply dated 25.04.2013 to notice dated
22.04.2013; Ex.WW1/M16 - Interim Site Report dated 24.03.2011; Ex.WW1/M17
- Email dated 22.03.2011 and Mark M1 - Email dated 24.03.2011.
Management examined MW1 Mr. Manish Parashar, Assistant Vice
President and MW2 - Mr. Amit Pandey, Assistant Manager (HR) and relied upon
documents namely Ex.MW2/1 - Interview Assessment Sheet of workman dated
23.02.2010; Ex.MW2/2 - Increment Letter dated 20.09.2011; Ex.MW2/3 - Letter
of Separation dated 10.04.2013 and Annexure A. ME was closed on 20.01.2015.
7. ARGUMENTS
I have heard workman Sh. Ashok Sachdeva and Sh. Saurabh Munjal, Adv.
for the management. Written arguments have also been filed by both the workman
and the management. Workman relied upon case laws reported as (i) National
Engineering Industries Limited Vs. Shri Shri Kishan Bhageria & Others 1988 AIR
329; (ii) Shri Aloysius Nunes Vs. Thomas Cook India Ltd. 2000 (86) FLR 583; (iii)
Shree Baidyanath Ayurvedh Bhawan Vs. Presiding Officer, Industrial decided on
on 23 March 2007 by Hon'ble Mr. Justice Tarun Aggarwal, Allahabad High Court;
(iv) Shalimar Paints Limited Vs. First Industrial Tribunal & Ors. decided on 17 May
2011 by Hon'ble Justice Jatanta Kumar Biswas, Judge Calcutta High Court; (v) S.
K. Verma Vs. Mahesh Chandra & Anr. AIR 1984 SC 1462; (vi) Banking
Corporation Ltd. Vs. Govt. of India & Anr. WP (C) No. 12602 / 2006 decided on
24.09.2008 by Hon'ble Mr. Justice Siddharth Mridul, Judge, Hon'ble Delhi High
Court and (vii) Kirloskar Electric Company Vs. Govt. of NCT of Delhi WP (C) No.
11357/2009 decided on 02.09.2009 by Hon'ble Mr. Justice S. N. Aggarwal, Judge,
Delhi High Court.
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Ld. counsel for management relied upon case laws reported as (i) Shankar
Chakravarti Vs. Britannia Biscuit Co. Ltd. and Anr. MANU/SC/0374/1979; (ii)
Narsinha Anant Joshi Vs. Century Shipping & Ors. MANU/MH/0431/1994; (iii) S.
K. Maini Vs. Carona Sahu Co. Ltd. 1994 AIR 1824 and (iv) Seraikella Glass Works
Ltd. Vs. 2nd Industrial Tribunal W. B. & Ors. 1993 I CLR 359.
Material available on judicial file perused carefully. I have given a thoughtful
consideration to the facts and circumstances of this case as they arise on the basis of
material available on judicial file.
8. My ISSUEWISE findings are as under:
ISSUE No. 1
Whether Mr. Ashok Sachdeva is a 'workman' as defined under section 2 (s) of the
Industrial Disputes Act, 1947? OPW
Section 2 (s) of the Industrial Disputes Act, 1947 reads as under:
"2. Definitions. In this Act, unless there is anything repugnant in the
subject or context,
.
.
.
(s) "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 Page 11 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 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 ten thousand 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."
The definition of "workman" as contained in Section 2 (s) of the Industrial Disputes Act, 1947 is exhaustive. Hence the position in law as it obtains today is that a person to be a workman under the Industrial Disputes Act, 1947 must be employed to do the work of any of the categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that such person is not covered by either of the four exceptions to the definition. Even if a person does not perform managerial / supervisory or administrative duties, with a view to hold that such person is a workman, it must be established that such person performs skilled or unskilled, manual, supervisory, technical, operational or clerical work for hire or reward. The question as to whether an employee is a "workman" as defined under section 2 (s) of the Industrial Disputes Act, 1947 has to be determined with reference to his dominant / principal / main / substantial nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the / each case and the material on record. It is not possible to lay down any strait - jacket formule which can be determinative of the real nature of duties and functions being performed by an employee in all cases.
So far as technical work is concerned, technical work depends upon the special mental training or scientific or technical knowledge of a person. The broad test is that if a person is employed because such person possesses such faculties and they enable him to produce something as a creation of his own, such person would Page 12 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 be employed on 'technical work' even though in carrying out that work, such person may have to go through a lot of manual labour. Unless a person employed to do any 'technical' work is excluded by virtue of clauses (iii) and (iv), such person will fall within the ambit of the definition of 'workman' irrespective of the amount of salary such person draws or the nature of duties such person performs.
Under the present definition, a person engaged do to supervisory work, unless such person falls within the exception of clause (iv), shall fall within the definition. It is, however, evident from the definition that an employee in order to fall outside the definition of "workman" must have been "employed" in a "supervisory capacity" and merely performing some supervisory duties will not take the employee out of the definition of "workman". The essence of "supervisory"
work is the supervision by one person over the work of the others. Supervision contemplates direction and control. A 'supervisor' as understood in section 2 (s) really means that the person exercising supervisory work is required to control the men and not the machine. It is not necessary that a supervisor must be supervising his fellow employees. It is enough that the supervisory work must be working in relation to the industry in which the person is employed but the work in relation to the industry may be done by an independent contractor whose work may also require some supervision. The power of appointment and dismissal or disciplinary power are not necessary incidents of supervisory power and such power(s) more properly appertain to managerial power. Even in the absence of such power, a person can supervise the activities of other employees working under the same master. Having regard to the categories of service indicated by the use of different words like 'supervisory', 'managerial' and 'administrative', it is not necessary to import the notions of one into the interpretation of the other. Such words are Page 13 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 advisedly loose expressions with no rigid frontiers and too much subtlety in trying to precisely define where supervision ends, management begins or administration starts should not be encouraged for that would be theoretical and not practical. It should be broadly interpreted from common sense point of view where tests will be simple both in theory and their application.
The words 'managerial or administrative capacity' have not been defined in the Industrial Disputes Act, 1947, therefore, have to be interpreted in their ordinary sense. Managerial or administrative functions require a person to control the work of others.
One of the essential requirements for an employee to fall within the definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947 is that such person must have been employed in any "industry". In this regard it would be relevant to refer to following depositions made by MW1 Mr. Manish Parashar in his cross - examination conducted on 22.11.2014: ".....Q. I put it to you management is in the business of production, distribution and exhibition of cinema movies.
A. It is correct.
It is correct that management makes popcorn by use of Corns (ActII) and makes soft drinks (combined CO2 syrup + water), serve chips, burgers, sauce etc. Every cinema is connected with 100 to 300 KV industrial electricity load.
Q. How many screens were in operation by March end 2013 in India as well as in NCT?
A. Approx. 400 throughout in India. May be there are 45 to 50 screens in Delhi.
Q. I put it to you that to run a show, every screen needs at the least a Projector operator, ticket counter clerk, housekeeping personnel and two ESP staff for sale, pack and supply of refreshment and these are undisputed workman?
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A. Question does not pertains to my area.
(At this stage the ld. counsel for management submitted that management admits that management is a 'industry' under section 2
(j) of the Industrial Disputes Act, 1947.)......"
Thus, admittedly management is liable to be held to be an "industry" under section 2 (j) of the Industrial Disputes Act, 1947. Also it is observed that un disputedly there existed relationship of employer - employee between the management and workman and that workman was employed in such relationship for hire or reward. Here, parties are at issue as regards the nature of duties performed by the workman and / or as regards the capacity in which workman was employed by the management. As per claimant / workman, claimant / workman falls within the definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947. On the other hand, as per management claimant / workman does not falls within the definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947 inasmuch as nature of job of claimant was supervisory and administrative in nature and was responsible for complete management, supervision and control of the task force engaged in the construction and development new projects. It is a settled proposition of law that onus to prove that claimant / workman falls within the definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947 is upon the workman. Primarily, it is for the claimant / workman to prove by leading cogent and convincing evidence on judicial file that such claimant / workman is covered under the definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947. Initial onus in this regard is always on the claimant / workman and in order to succeed in convincing the Court as regards his claim of falling under section 2 (s) of the Industrial Disputes Act, 1947, claimant / workman is supposed to Page 15 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 stand on his own legs. Stand of the management that case of the claimant / workman falls under any of the exceptions under section 2 (s) of the Industrial Disputes Act, 1947 is required to be considered only if workman is able to discharge the abovesaid initial onus. Both workman and management are supposed to discharge their respective onus on the touchstone of the principle of preponderance of probabilities.
In this case, admittedly, claimant / workman was appointed by the management vide appointment letter dated 12.03.2010 as Assistant Manager -
Projects at PVR Ltd. w.e.f. 03.03.2010. Clause (1) of said appointment letter reads as under: "..... We outline below the terms and conditions of this appointment for your acceptance:
1. You will be employed on a full time basis as an Assistant Manager - Projects. Your work responsibilities shall be worked out in detail with you, with defined key performance parameters......".
Management in the WS as regards nature of the job of claimant / workman pleaded that job of the claimant was supervisory and administrative in nature and claimant was responsible for complete management, supervision and control of the task force engaged in the construction and development new projects. In this regard, MW1 Mr. Manish Parashar in his cross - examination conducted on 22.11.2014 deposed as under: "......Q. I put it to you that clauseI of appointment letter reads as, ''You will be employed on a full time basis as an Asst. Manager Projects. Your work responsibilities shall be worked out in details with you, with defined key performance parameters''. Is it correct?
The appointment letter is admitted document of both the parties, hence question disallowed.
Q. Kindly identify your document vide which management worked out my work responsibilities as referred to in last question?
Page 16 of 41 (ANAND SWAROOP AGGARWAL)POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 Ans. It was not required that management is supposed to work out the work responsibilities of workman in writing and the same could have been done orally.
Court Q. Kindly tell as to when work responsibilities of the workman were discussed and kindly further elaborate the work responsibilities of the workman?
Ans. The same has been discussed according to the sites which claimant has worked for every time. Kindly refer to para. 2 of my affidavit...."
It may be noted at this stage itself that para. 2 of evidence affidavit Ex.MW1/A of MW1 Mr. Manish Parashar reads as under: "2. I say that claimant was appointed vide appointment letter dated 12.03.2010 as Assistant Manager (projects) at Grade M5. The nature of job of the claimant was supervisory and administrative in nature and was responsible for complete management, supervision and control of the task force engaged in the construction and development new projects. The appointment letter is already on record and exhibited as Ex.WW1/1, which had been filed by the claimant. The claimant had admitted in cross examination that as per salary breakup sheet he was an employee as a M5 grade and was getting his salary as per salary breakup sheet. The salary breakup sheet was already on record and also exhibited as Ex.WW1/1 in page no.22 of the Ex.WW1."
What is pertinent to note is that in para. 2 of evidence affidavit of MW1 Mr. Manish Parashar there is no detailed elaboration of the work responsibilities of claimant / workman as contemplated by the clause 1 of the appointment letter of claimant / workman or by the depositions made by MW1 Mr. Manish Parashar to the effect that, "Ans. The the same has been discussed according to the sites which claimant has worked for every time. Kindly refer to para. 2 of my affidavit." Above depositions of MW1 Mr. Manish Parashar suggests that job responsibilities of Page 17 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 claimant / workman were discussed / changed site to site at which workman worked during service tenure with the management. Claimant / workman in his evidence affidavit deposed as under: "7. I say that workman is a Diploma holder in Mech. Engineering and having a vast experience in the field of installation / operation / maintenance and services of machinery. In view of qualification and experience, followed by interviews, a letter dt. 25th of Feb 2010 was issued on workman to join the services, either on or before 3rd of March 2010, subsequently, workman joined the duty. But the appointment letter in fact came into existence not before 12th of March 2010.
That though none of the letter, neither of 25th of Feb, nor of 12th of March 2010, explains the nature of duty, but on the date of joining i.e. 3rd of March 2010, Sh. Rakesh Kaul (V.P.) Projects, briefed the nature of duty assigned to as, ''providing technical assistance in execution of site in view of Manufacturer's recommendations and applicable standards. To assist the design Deptt. of company / Architect / Site coordination cum purchase Deptt., in ways of speedy modification of the design under compelling reasons, and to save and secure the concerned design/drawings at site for necessary uses. And that to follow incidental instructions of Sh. Manish Parashar (Manager Region).'' That in this duration no other employee of company was ever assigned to subordinate the workman/Claimant.
8. I say that during my employment, I contributed my services at following sites.
a) PVR DIRECTOR CUT AMBIANCE MALL VASANT KUNJ; from Dt. 4th of March 2010 to 31st of Nov. 2010 and in this duration my duties were as under;
i. To list all the finished civil structure dimensions with the usage of geometrical tools / instruments, for appropriate peruse of Architect / Consultants (a skilled technomanual job).
ii. Recording, saving and securing of all the working drawings in a chronologically manner for appropriate uses of seniors, architect and consultants during their visit at site. (skilled job) iii. Laying temporary wiring in the multiplex to illuminate the area Page 18 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 and for other usages. (skilled job) iv. Handling the incoming/outgoing dak and maintaining the files cabinet for ready uses of Manager Region (clerical job). v. Receiving the running/adhoc bills of vendors, initial checking against sums and putting up same for Manager Region's kind attention and approval, as required (clerical job). vi. Preparing payment certificate of vender's bills in view of approval obtained as per settled procedure of Respondent. (clerical job) vii. Registering/recording the inventory of material of venders coming into the site. (clerical job).
b) PVR MBD MALL JALLANDHAR from 1st of Dec 2010 to 10th of March 2011.
i. Listing all the finished civil structure dimensions with the usage of geometrical tools/instruments, with respect to proposed civil drawings for appropriate peruse of Architect/Consultants (a skilled technomanual job).
c) PVR AVANI HOWRAH from 15th of March to 14th of Feb 2012. i. Listing all the finished civil structure dimensions with the usage of geometrical tools/instruments, for appropriate peruse of Architect /Consultants in a way (a skilled technomanual job). ii. Recording, saving and securing of all the drawings in a chronological manner for appropriate usage of seniors architect/consultants, during their visit at site. (skilled job) iii. Handling the incoming/outgoing dak and maintaining the file cabinet for ready use of seniors (clerical job).
iv. Maintaining a display board/chart of samples of material being used by the Developer for ready use of seniors. (clerical cum manual job).
v. From Sep. 2011 onwards maintaining the record of inventory received from Operation /F & B Deptt. of Respondent i.e. sound and projection system, I.T. Equipment, LCDs, Computers, Lights, poster windows, signages, server, inverters and food/concession storages. (clerical job) vi. Fixing and installation of all the equipments as listed above in para v (skilled technical job).
Vii. Continuity test of all the wires and mage ring of all the power
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cables laid by developer with the usage of high tech. Instruments. End termination of all wires/power cables, with the applications of cable gland, thimbles and ferrules to ensure its identity (skilled technical job).
d) PVR DIOMOND MALL JASSORE ROAD KOLKATA from
Dec 2011 to 28th March 2012.
i. Listing all the finished civil structure dimensions with the
usage of geometrical tools/instruments, for appropriate peruse of Architect/Consultants (a skilled technomanual job).
e) PVR PANIPAT FUNCITY MALL from 15th of April 2012 to June 2012.(weekly visits) i. Listing all the finished civil structure dimensions with the usage of geometrical tools/instruments, for appropriate peruse of Architect/Consultant (a skilled technomanual job).
f) PVR PRIYA CINEMA (Regional Manager Office) VASANT VIHAR from April 2012 to till termination date i.e. 10th of March 2013.
i. Maintaining file record.
ii. Recording, saving and securing all drawings record in a
chronological manner for ready use of Manager (region) iii. Handling incoming/outgoing dak.
iv. Initial checking of bills of venders and putting up for the kind perusal of R.M. (Technoclerical job)
9. I say that while attending all above sites as ''a'' to ''f'' above of para 8, none other employees was ever assigned to my assistance, therefore, sanctioning a leave, signing any appraisal, taking any disciplinary action, indenting any material or distribution of same is out of question.
10. I say that I never performed any act which could bind the company.
11. I say that I was never assigned to supervise any team or any work performed by any team.
12. I say that at no stage of my employment I ever performed any managerial or administrative action and at no stage any such powers were ever vested in me.
13. I say at no stage of my employment, no authority was ever Page 20 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 vested in me to take any independent decision....." Firstly, as per above depositions, on 03.03.2010 Mr. Rakesh Kaul, (V. P. Projects) briefed the claimant / workman as regards his nature of duties as deposed / reproduced hereinabove. What is pertinent to note is that Mr. Rakesh Kaul, (V. P. Projects) has not appeared in the witness box to rebut the abovesaid depositions made by claimant / workman on oath. Also, abovesaid depositions of workman shows that nature of job responsibilities of workman were discussed according to site(s) where claimant / workman worked while in the employment of management.
The above referred depositions made by claimant / workman in his evidence affidavit regarding nature of work / job responsibilities of workman changing site to site find corroboration from the above mentioned answer given by MW1 Mr. Manish Parashar during his cross - examination conducted on 22.11.2014. As regards, nature of job / work responsibilities of workman, workman in his cross -
examination has been made to depose as under: "......It is correct that I was appointed for the post of Assistant Manager Projects. I was initially deputed at PVR, Vasant Kunj, Ambience Mall. It is correct that I was deputed to PVR, Jalandar, MBD Mall w.e.f. 0112.2010. It is correct that letter dated 24.11.2010 was issued to me wherein I was informed about my aforesaid deputation. It is correct that at the time when I was deputed management was coming with new project in Jalandar, MBD Mall. It is incorrect that I was deputed as wholesole incharge for looking after the said project. (Vol It was meant to completely to remeasure the site according to given drawings). My duty was to cross check the measurement with respect to drawing. After my cross checking it is up to the architect/ designer to verify my measurement or not. The work of measurement is a continuous project with respect to design changes. Design changes means change in location of facilities like change in location of restroom, back office area, counters etc. The work of measurement cannot be done by a layman infact it is skilled/ technical Page 21 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 job. The work of measurement is a continuous process till the finalization of design...."
The manner in which workman has been cross examined during above said depositions of workman suggests that workman was involved in the work of remeasuring the site according to given drawings / cross checking the measurement with respect to drawing and, however, stand taken by management in this regard is that work of measurement cannot be done by a layman and infact it is a skilled / technical job. The depositions made by workman regarding his remeasuring the site according to drawing or cross - checking the measurements with respect to drawing have to be read alongwith depositions made by him in his evidence affidavit regarding his job responsibilities at various sites and when so read, it suggests that these acts were physically done by claimant / workman himself at site(s) by use of geometrical tools / instruments. It is also noted that there is no specific / effective cross - examination of workman as regards the duties of workman as detailed in para. 8 of his evidence affidavit. At this juncture, it would be relevant to refer to para. 9 of the evidence affidavit of MW1 Mr. Manish Parashar wherein he deposed that, "9..... The claimant in his cross examination stated that work of management cannot be done by a layman infact it is a technical job...". Obviously there is a typographical mistake in the above referred portion of depositions of MW1 Mr. Manish Parashar inasmuch as word 'management' has been written instead of word 'measurement' as has been admitted by MW1 Mr. Manish Parashar in his cross -
examination conducted on 22.11.2014 by making following depositions: "....Q. Is it correct para 9 of your affidavit operative part reads; ''The claimant in his crossexamination stated that work of management cannot be done by a layman, in fact it is a technical job ? Kindly identify the word management in crossexamination?
Page 22 of 41 (ANAND SWAROOP AGGARWAL)POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 Ans. It is typographical error. In fact instead of ''management'' the word measurement is to be read.
It is wrong to suggest that there is no typographical mistake and word management has been written intentionally in as much as management had sufficient time to correct the mistake...."
At this juncture it would be relevant to state that merely because work of measurement cannot be done by a layman and infact it is a skilled / technical job does not in any way take the claimant / workman outside the definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947. Both skilled / technical job are included in the definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947 unless case of claimant / workman also falls in the exceptions to the section 2 (s) of the Industrial Disputes Act, 1947. In his cross -
examination conducted on 23.08.2014 workman has been made to depose that, "...
It is wrong to suggest that I am not a workman as I am highly technical and highly qualified person.....". Merely because claimant / workman is a highly technical / qualified person does not take the claimant / workman out of the purview of definition of "workman" under section 2 (s) of the Industrial Disputes Act, 1947.
Rather technical nature of work is specifically included on the said definition and the said definition under section 2 (s) does not at all refer to qualification(s) and emphasis is only as regards the dominant / principal / main / substantial nature of duties and functions keeping in view the totality of the facts and circumstances of a given case as are made out on the basis of entire material available on judicial file.
Also, as regards job responsibilities of workman, workman in his cross examination has been suggested / made to depose as under: "......A mail dated 22.03.2011 was sent to Mr. Manoj Chakraborty (Consultant of HVAC) of Avani Mall, he was not an employee of respondent. It is correct that I have raised the query through this mail Page 23 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 on behalf of respondent management. (Vol Under the instruction of General Manager, Projects Sh. Manish Parashar).
Q: Have you placed on record any documentary proof as regards the above referred instruction from the General Manager, Projects Sh. Manish Parashar?
A: No, I did not because I donot have. It was the duty of the respondent to file complete concept. Document at page no.1 is not a complete document/ mail as is evident from the starting lines of page no. 1. This has been so done by the management as regards all/most the mails of the documents. I cannot have our said instructions/ documentary proof thereof as my mail account is lying closed since 08.02.2013 as per document at page no. 38 of the documents as relied upon by me.
It is incorrect to suggest that I have falsely answered the last question. The query as raised in mail dated 22.03.2011 is not related to measurement but is related to difference in two concept. (Vol one concept is standard design of respondent company where all these items (a) to (d) are included and the second concept is a given design by the Mall).
It is correct that interim site report dated 24.03.2011 was prepared by me......................................................................................................... The mail dated 23.03.2011 was sent by me to GM project Mr. Manish Parashar and Mr. Rakesh Kaul (Vice President). I have sought clarification on difference in two drawings. I have highlighted that in mall drawing handicapped restroom is shown but in M/s Genesis drawing (architect of respondent company), it is not shown. The mail dated 20.03.2011 showing in page no.5 was sent by me to Mr. Manish Parashar, Mr. Rakesh Kaul, Mr. Anil Raina and Mr. Agneet Kumar .................................................................................... Q. Can you describe the nature of work of Cinema Manager who is of M6 cadre ?
Ans. My duty was in project division. I have no comment to offer about cinema manager and his specific nature of work and powers vested in him.
Q. I say that M6 grade cadre has given wide power, in fact, cinema Manager is incharge of cinema and all the employees of below cadre like E1, E2, E3 and E4 works under M6 and get Page 24 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 their day to day instructions from M6 cadre. What have you to say? Ans. In project division, work profile is far different than above suggested. There was no E1, E2, E3 and E4 or any other employee was working under me or any sort of power to take any independent decision, to indent material, or to distribute material was ever vested in me at any site........................................ Q. As Project Manager my work was to look after the work of vendors who have been engaged by management for providing various services such as installation of chair, projects such as installation of tiles, bathroom fittings etc. What have you to say? Ans. It is incorrect to suggest, however, I have explained specifically my work profile site by site in para 8 of my affidavit. Q. You have sent various mails to vendors directly and have also issued instructions in those mails. What have you to say? Ans. Under the instructions of team leader, M5 Mr. Manish Parashar I may have passed his instructions but I specifically deny that within my capacity I was not empowered to do so. Q. Whether you have placed any document on record to show that you had been given instructions on the above Mr. Manish Parashar?
Ans. No. I have not. First of all, boss is not bound to send any mail for each and every instructions. Most of the instructions are conveyed by telephonically. Secondly, I do not see in any of the mail on record where I passed instructions for vendors for workforce etc...................................................................................................... Q. It is put to you that while working on site at Calcutta, you used to prepare the site reports. What have you to say? Ans. Before August, 2011 I was alone at site. That time I was preparing the report by myself. From August onwards Mr. Kishan Tiwari, Project Manager was also appointed at site and site report used to be prepared by him alone. Before August, I reported the status of site not more than two or three times.
It is correct that the report dt. 29.02.12 was sent by me through E mail. ..................................................................................................... It is correct that I had sent the mail dt. 22.03.11, 23.03.11, 26.05.11, 30.06.11 & 29.02.12. The same are Ex.WW1/M1 and Ex.WW1/M2, Ex.WW1/M3, Ex.WW1/M4, & Ex.WW1/M5.
Page 25 of 41 (ANAND SWAROOP AGGARWAL)POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 It is correct that mail dt. 09.04.12 to 12.04.12 were issued by Manish Parashar to me. Same are Ex.WW1/M6. It is correct that mail dt. 13.06.12 was exchanged between me and Mr. Manish Parashar. Same is Ex.WW1/M7. (Vol. It is incomplete set of communication, however, I have submitted the remaining part in my reply of list of documents of respondent.) It is correct that mails dt. 28.12.12, 04.01.13 & 15.01.13 were exchanged between me and Mr. Riyaz Ahmed of HR Department. Same are Ex.WW1/M8 (colly.) (running into three pages from page no. 13 to 15 of documents filed by management). It is correct that contents of mail dt. 16.08.12 appears to list of employees, who are either of M6 or above grade. Same is Ex.WW1/M9. (Vol. however, the documents enclosed do not show the grades) .............................................................................................. Q. Is it correct that you have given instruction to the contractor through mail dt. 22.03.11 (page no.1 of list of document filed by the respondent)?. Same is Ex.WW1/M17.
Ans. I have already answered the question on 30.07.14 vide portion A to A. It had no concern to the contractor. In fact, Mr. Manoj Chakravarti was a HVAC Designer of Mall. He was not a contractor of respondent party. (Vol. detail answer is on record vide reply of list of documents of respondent) ............................................................... It is wrong to suggest that my position was Supervisory or managerial. It is wrong to suggest that I was conferred the powers to take decisions on behalf of the company. It is wrong to suggest that I used to give instructions to the vendor who used to work at various sites of the management. It is wrong to suggest that I used to inspect the work of vendors/contractors or that I used to prepare report with respect to that work........."
I have carefully gone through the entire emails referred to in the cross -
examination of workman. These emails do not establish on judicial file that case of claimant / workman herein is covered under exceptions (iii) or (iv) to section 2 (s) of the Industrial Disputes Act, 1947. So far as point of incomplete emails raised by workman is concerned it is observed that the said point is without any legal consequences inasmuch as workman at no point of time move any application Page 26 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 seeking production of emails by the management before the Court which, as per workman, were not produced completely by the management while producing other emails. Appointment letter of workman is does not specifically spell out the job -
responsibilities of claimant / workman and, thus, it cannot be said that claimant / workman was employed in a supervisory capacity within the meaning of exception clause (iv) to section 2 (s) of the Industrial Disputes Act, 1947. None of the emails suggest that claimant / workman herein was employed by management mainly in a managerial or administrative capacity. Merely because claimant / workman herein was designated as Assistant Manager (Projects) does not necessarily / conclusively mean that claimant / workman was employed by management mainly in managerial or administrative capacity. The emails suggest that claimant / workman was performing his duties as explained to him on 03.03.2010 by Mr. Rakesh Kaul (V. P. Projects). These emails suggest that claimant / workman was performing technical nature of duties which required special mental training or scientific or technical knowledge. Merely because work of claimant / workman involved creativity / innovation / technicality, as submitted by ld. counsel for management, does not mean that claimant / workman is not a "workman" under section 2 (s) of the Industrial Disputes Act, 1947. An act of a technical nature involves all these elements. The depositions made by claimant / workman in paras. 9 to 13, reproduced hereinabove can be said to have gone unrebutted in the totality of facts and circumstances of this case.
MW1 Mr. Manish Parashar in his cross - examination deposed as under: "Q. I put it to you that a Manager means, administrative plus Supervisory authority, over a section/unit/branch or a department with some reasonable powers to take independent decision on behalf of company and their decision taken are binding on company. What have you to say?
Page 27 of 41 (ANAND SWAROOP AGGARWAL)POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 Ans. To some extent, the same is correct.
Q. I put it to you that a Manager means an authority to sanction/approve leaves, to sign appraisal, to issue instructions and ensure its implementation and to take disciplinary action or against his subordinates for any disobedience. What have you to say? Ans. It depends upon the situations and facts at that time. Q. I put it to you that a Manager cannot perform these acts mere orally and this needs black and white actions. What have you to say? Ans. It is correct.
Q. List the hierarchy of Project Division of HOD to lower level. Ans. First is HOD, then Senior Vice President, Then Vice President/Asst. Vice President, then RGM, then Project Manager/Asst. Project Manager, then Supervisor.
Q. Identify Duty Manager/Cinema Manager/Deputy Manager/ESP in project division?
Ans. No, there is no such post in the project division. Q. Then why did you include all these designations in your affidavit para. 4 ?
Ans. In para. 4 we have defined the grading system of company and there is no differentiation for different departments. The designations referred in the last answer do not exist in the project division. They are working in other departments.
Q. I put it to you that claimant was deputized at PVR Ambience Mall, Vasant Kunj site from 04.03.2010 to 31.11.2010.
Ans. It is correct.
Q. Identify your documents which suggest any of above define managerial action performed by the claimant at the site and in this duration ?
Ans. There are no such documents for the abovesaid periods. Q. I put it to you that claimant was deputized at PVR MBD Jalandhar from dated 01.12.2010 to 10.03.2011?
Ans. I do not remember the exact duration.
Q. Identify your documents which suggest any of above define managerial action performed by the claimant at the site and in this duration ?
Ans. There are no such documents............................................................. Q. I put it to you that claimant was deputized at PVR Avani Howrah from 15.03.2011 for almost one year. What have you to say? Ans. It is correct.
Q. Identify your documents which suggest any above defined
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managerial action performed by the claimant at the PVR Avani site, within this duration?
Ans. Mail dated 29.02.2012 , mail dated 19.05.2011. Q. Identify documents which suggest any of defined managerial actions within the alleged scope of your affidavit of para 5, was performed by the claimant at PVR Jassore Road site, Kolkata ?
Ans. I do not remember.
Q. Identify documents which suggest any of defined managerial actions within the alleged scope of your affidavit of para 5, was performed by the claimant at PVR Fun City, Panipat ?
Ans. Right now not included.
Q. I put it to you that claimant reporting station was Regional Office, Delhi from June 2012 onward till the date of termination? What have you to say?
Ans. It is correct.
Q. Identify documents which suggests any of defined managerial action within the alleged scope of your affidavit of para. 7 was performed by the claimant that regional office, Delhi within this period? Ans. After April, 2012 he was deputed at Regional office, Vasant Vihar, Delhi but due to some urgent work at Panipat site he had to look after the same also. So from this period from April 2012, he has already given certain instructions to vendors which are already submitted. Q. I put it to you that your documents vide list of documents are unfair representation of true facts partly depiction which suits, mainly concealment which do not suit. What have you to say? Ans. It is incorrect to suggest.
Q. Reference to your affidavit para. 5 mail dated 22.11.2011 I put to you that top part of this document suggests incomplete communication. What have you to say?
Ans. It is incorrect.
Q. Identify the vendor herein the mail dated 22.11.2011? Ans. Vendor is Avani Mall management/their subvendors.
Q. Identify the instructions herein?
Ans. Same has been suggested in the mail itself.
Q. Do you mean requesting for a confirmation is an instruction?
Ans. In this mail, you have already written to myself for suggestions/instructions for this work. I have also clarified the course of action and as a technical person same has to be followed by yourself.
Q. Name any slot in the employment which do not need to report?
Page 29 of 41 (ANAND SWAROOP AGGARWAL)POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 Ans. M.D or Executive Directors are not required to report. Q. Identify the items in detail dated 24.03.2011 page 2 which is a scope of execution by management company?
Ans. Item no. 2 in this mail which suggests that PVR as to look after the completion of site in said period.
Q. Can you identify any document which suggests that this target was set out by the management?
Ans. The total interim report dated 24.03.2011 suggests the same. Q. I put it to you that all infrastructure including civil work/electrification with necessary fittings, all interior work, accoustic of audi walls including curtain, data cabaling, tiling and stoning, plumbing, drainage, toilet with fitting, fire fighting including hydrance, sprinklers and fire extinguishers, fire detection with alarming system, air conditioning central as well as split units was a scope of developer? What have you to say?
Ans. Yes, it is correct.
Q. I put it to you that supplying and fixing of chairs, carpets, all entry and exits doors with fittings, entire glass work, RO Water supply and storage, electric power distribution switch gears with cabelling, 80KVA UPS, Inverters were indented, procure and born by developers. What have you to say?
Ans. Yes, it is correct. (vol. but it should be read in contrast with the agreement signed between PVR and Avani Mall management. Secondly, all the works are supervised by PVR management so you are appointed for the same.
Q. I put it to you that construction work was on for a year or so prior to the arrival of claimant at site. What have you to say? Ans. It is incorrect.
Q. Identify documents whereby the developer requested the management to depute someone to manage the affairs of construction? Ans. Right now it is not submitted. (vol. as per agreement PVR as to supervise all the works which are in the tenancy scope. Q. I put it to you that interim site report is a mare camera eye act, as seen as found within 7 days from arrival of claimant? What have you to say?
Ans. It is wrong to suggest........................................................................ Q. Reference of para. 7 of your affidavit mail dated 20.03.2011 and 23.03.2011, identify the addressee which is vendor and proclaimed instructions therein?
Ans. These mails are in contrast for finding out the ambiguity in the Page 30 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 drawing thereby these mails are for having suggestions from myself so that it can be pass on to the appropriate vendors.
Q. I put it to you that arrangement between developer and management was that management will provide conceptual details and drawings, architect of developer will incorporate the same into constructional design subject to modifications/approvals of the management and finally developer will appoint vendors on the basis of settled design? Is it correct or not?
Ans. No, it is not correct. As per the arrangement PVR management has to design, develop and operate the cinema. For design purpose all the suggestions are given by PVR management/their architects and to develop the same you have been deputed there to supervise all the works. Q. Name in the light of promisorpromisee relationship any vendor which management appointed to raise infrastructure of multiplex? Ans. We have appointed sound and projection vendor directly by management. Also we have appointed M/s. Vedant Interiors for carpentery and other jobs.
Q. I put it to you M/s. Vedant Interiors was appointed aftermath commissioning on 12.02.2012 of site for necessary changes as advised by Joint Director Sh. Sanjeev Kumar. What have you to say? Ans. It is incorrect as multiplex was not operational yet and it is in the final stages of near to completion of the same.
Q. Identify the date on which multiplex was inaugurated? Ans. I do not remember.
Q. Mail dated 30.06.2011 on page no. 8 is another act of deliberate concealment and cut paste of true facts. What have you to say? Ans. It is incorrect to suggest.
Q. That on page no. 9 of list of documents filed by management item no. 7 reads as report sent by claimant vide mail dated 29.02.2012. I put to you that you have deliberately concealed the trailing mail of Sh. Manish Parashar which carries instant instructions for claimant. What have you to say?
Ans. It is totally false. We have the mail which claimant had sent on 29.02.2012 at time 1.44 p.m. and same has been answered by myself at 1.51 p.m. Q. I put it to you that on page no. 10 particular no. 8 reads as 'mail dated 09.04.2012 issued by Mr. Manish Parashar informing claimant that he is Incharge of Fun city Panipat location'. Please identify word incharge in the mail for claimant and show it to the court?
Ans. Kindly refer to portion A to A which will infer the reply. The word Page 31 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 Incharge is very much mentioned in the very first line......."
MW1 Mr. Manish Parashar has failed to identify documents which suggest that workman / claimant performed managerial actions at PVR Ambience Mall, Vasant Kunj and PVR MBD Jalandhar. Mails dated 29.02.2012 (Ex.WW1/M5) and 19.05.2011 (Ex.WW1/M3) do not suggest that claimant / workman was performing any managerial act on behalf of management so as to bind the management qua an outsider in some legal relationship. Merely interacting with an outsider appointed / fixed by the management itself to get prefixed work done does not amount to performing managerial actions by the claimant / workman. MW1 Mr. Manish Parashar did not identify the documents which suggest that claimant / workman performed managerial actions at P.V.R. Jassore Road Site, Kolkata and PVR Funcity, Panipat within the alleged scope of para. 5 of the evidence affidavit of MW1 Mr. Manish Parashar which reads as under: "5. I say that M5 and M6 Grade Cadre Employees have been given vide powers and they can take decision on behalf of the company, similarly the claimant was also used to take decision on behalf of the company and in fact all the venders who were working at various sites while the claimant was sent to the site were working completely under him and he used to issue instructions to those venders or their representatives. The mail dated 22.3.2011 clearly demonstrate that claimant had issued instructions to the vender, similarly the mail dated 24.3.2011 is interim site report which was duly prepared by the claimant and the contents thereto clearly demonstrate the nature of work and responsibilities of the claimant."
It is noted that as submitted by ld. counsel for management that vide email dated 09.04.2012 Ex.WW1/M6 workman was made incharge of Funcity, Panipat alongwith Mr. Rajkumar Sharma. However, workman due to the attention of the Court towards another email on the same very page wherein it is mentioned that, Page 32 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 "6. Mr. Ashok Sachdeva From today onwards he will be reporting to regional office only." Claimant / workman submitted that decision of claimant / workman being made incharge of Funcity, Panipat was subsequently changed immediately after the email dated 09.04.2012.
MW1 Mr. Manish Parashar in his cross - examination deposed as under: ".....Q. Does management has full fledged Project Manager in Project Division?
Ans. Yes, management has the same.
Q. What grade full fledged Project Manager holds?
Ans. Most probably the grade must be M6 or M5.
It is wrong to suggest that I am deliberately making false statement while giving the last answer......."
MW1 Mr. Manish Parashar also deposed about the hierarchy of Project Division from HOD to lower level. Position of claimant / workman herein in that hierarchy does not appear to be such so as to enable him to take independent decisions on behalf of management so as to bind the management qua an outsider.
It is alright that there also existed supervisor in the hierarchy but it is not the case of management even that the said supervisor was subordinate of claimant / workman and was working under the control, directions and supervision of claimant / workman. Workman in his statement of claim as well as evidence affidavit specifically pleaded / deposed that no other employee was ever assigned to claimant / workman to subordinate the claimant / workman. Despite this specific averment / deposition, management has not examined anyone who was subordinate to claimant / workman. Meaning thereby averments / depositions of workman are true / worth credit. Here, initially management pleaded that claimant / workman was appointed in grade M5. Also, MW1 Mr. Manish Parashar in his cross -
examination in this regard deposed as under: Page 33 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 ".....Q. In your affidavit Para. 2 you say that the claimant is of M5 Grade employee of the management and at the same time in para. 4 you say that claimant was working in M6 category. Select your final words? Ans. As per your appointment letter, you are in M5 grade. To my mind, in para. 4 of my affidavit his category as M6 has been wrongly mentioned by mistake.
Q. I put it to you that you are trying to mislead in fact M5 is a typographical mistake and I belong to M6 category. What have you to say?
Ans. I have already replied that claimant belong to M5 category. Q. It is put to you that grade mentioned on salary slips which are at page no. 36 and 37 of Ex. WW1/1 (colly.) as M6. What have you to say? Ans. I do not know as to why it is so mentioned in the salary slips. As per stand of the management, appointment letter is the final document to know the category to which workman belong as employee of the management.
Q. It is also put to you that on page nos. 32 also grade of claimant is mentioned as M6. What have you to say?
Ans. I have already replied that claimant as per appointment letter belong to M5 grade.
Q. It is put to you that document at page no. 19 (exhibited as Ex. WW1/M10 of the document filed by management on 09.11.2014 shows that selection comittee suggested grant of M6 grade to the claimant. What have to say?
Ans. It is only a suggestion from the authority and the final authority is the HR department which has appointed the claimant on M5 grade. Q. It is put to you that the it is the HR authority which releases he salary and increment letter wherein also category of M6. What have you to say?
Ans. It is correct that HR authority/outsourced agency releases the salary and increment letters. May be that there were mistakes in the salary slips and increment letters..."
However, MW2 Mr. Amit Pandey in para. 3 of his evidence affidavit deposed as under: "3. I say that in the appointment letter dated 12.03.2010 inadvertently the Grade of claimant was stated as M5, whereas the actual grade of the claimant was M6."
Page 34 of 41 (ANAND SWAROOP AGGARWAL)POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 Thus, finally, it is concluded that admittedly claimant / workman was appointed in grade M6 and not M5. Again MW2 Mr. Amit Pandey also failed to identify any document whereby management complied with its due obligations under clause 1 of the appointment letter.
It is noted that as per section 2 (s) of the Industrial Disputes Act, 1947 previous service / career record of claimant, as such, is not relevant to determine whether claimant / workman falls under section 2 (s) or not. Nature of work performed by claimant / workman or his job responsibilities while in the employment of management under consideration are only to be considered by the Court adjudicating the industrial dispute. Educational qualification(s), as such, is / are also not very material consideration. Who interviewed the claimant / workman and record prepared, if any, at the time of interview, as such, is also not of much relevance inasmuch as emphasis is on the dominant / primary / main / substantial nature of work / job performed by claimant / workman while in the employment of the management. It is reiterated that management at so stage of the employment of claimant / workman brought out the job responsibilities of workman in black and white. Designation / grade given by management in its hierarchy is also not of vital importance. Facilities provided to claimant / workman by management while in the employment of management are not relevant consideration(s) for deciding whether claimant / workman is / is not a "workman" under section 2 (s). Except for the purposes of exception clause (iv) to section 2 (s), salary given to claimant / workman is also not a criteria to determine whether an employee is a "workman" under section 2 (s) or not. Creativity / skills / expertise on the part of claimant / workman also does not take the claimant / workman out of purview of section 2 (s) inasmuch as creativity / skills / expertise are essential elements of work of 'technical nature' Page 35 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 which find mention in section 2 (s) of the Industrial Disputes Act, 1947.
Hon'ble Delhi High Court in the case law reported as Shri Muralidharan K. Vs. The Management of Circle Freight Intl. (India) P. Ltd. MANU / DE / 1547 / 2007 has observed as under: "27. It is well settled that neither the appellation to the post to which an employee is stated to be employed nor the salary which he is being paid would decide the issue as to whether a person is covered within the definition of "workman" as given in Section 2(s) of the Industrial Disputes Act, 1947. It has been repeatedly emphasised by the Apex Court and the high courts that the expression "industry, workman and industrial disputes" etc are not be interpreted so as to whittle down the object of the enactment. Disputes between employees and the management are not to be excluded from the operation of the enactment Act by giving narrow and restricted meaning to the expressions contained in the Act. Taking a pragmatic approach, the Apex Court has repeatedly held that the courts have to look beyond glorified designations and names assigned to posts by managements and examine the nature of duties to discover what precisely what duties the employee is performing."
In my considered opinion, in view of above detailed discussion and on the basis of entire material available on judicial file, it can be safely concluded that principle of preponderance of probabilities suggest that case as pleaded / deposed by the workman is more probable than the case as pleaded / attempted to be proved by the management. In such circumstances claimant / workman Mr. Ashok Sachdeva deserves to be held to be a "workman" as defined under section 2(s) of the Industrial Disputes Act, 1947. Issue no. (i) is decided in favour of workman and against the management.
ISSUE No. 2: In terms of reference.
(''Whether services of said Sh. Ashok Sachdeva have been terminated illegally and/ Page 36 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 or unjustifiably by the management and if so, to what relief is he entitled?") Here workman joined the duties with the management w.e.f. 03.03.2010.
Workman was confirmed in service vide letter dated 06.12.2010 w.e.f. 03.09.2010 and his services were terminated by the management vide letter of separation dated 10.04.2013. Thus, obviously, workman completed not less than one year of continuous service with the management which is one of the essential requirements of section 25 F of the Industrial Disputes Act, 1947. Document Annexure - A Details of full and final settlement dated 10.04.2013 relied upon by management mentions the date of joining of workman as 03.03.2010 and date of resignation as 10.04.2013. Also it is mentioned in the said document, "Date of Leaving 10 - Apr 2013 Reason - Resigned." But it is not the case of management in its WS that workman had himself resigned from service. As per WS of management, management terminated the services of workman under clause 6 of appointment letter dated 12.03.2010. Clause 6 of the appointment letter of workman can be said to be voidabinitio inasmuch as the same is in conflict with provisions of section 25F of the Industrial Disputes Act, 1947 so far as right given to the management under the said clause to terminate the service of workman is concerned.
Management has not even pleaded that it complied with the provisions of section 25F of the Industrial Disputes Act, 1947 nor document Annexure - A Details of full and final settlement suggest that management complied with provisions of section 25F of the Industrial Disputes Act, 1947 while terminating the services of workman. Hence, it is observed that management terminated the service of workman illegally / unjustifiably in violation of provisions of section 25F of the Industrial Disputes Act, 1947.
NOW, merely because management terminated the service of workman Page 37 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 illegally / unjustifiably does not mean that workman is automatically entitled to be reinstated in service with full back wages. In my considered opinion, in the totality of facts and circumstances of this case particularly keeping in view the short length of service of workman with the management and the issues which have already arisen between the parties, order of reinstatement of workman in service with management may not result in coordinal industrial relations between the workman and management. The finding on issue no.1 has been given by the Court on the basis of principle of preponderance of probabilities only. Thus, reinstatement is denied.
Workman in the statement of claim as well as in his evidence affidavit has nowhere pleaded / deposed that after termination of his service by the management workman made efforts for getting alternative service / employment but failed to get the same. However, it is pertinent to note that workman had also moved an application under section 11 A of the Industrial Disputes Act, 1947 on the same very date (19.09.2013) on which workman had filed statement of claim. In the said application workman had pleaded as under: "3. Ever since the illegal termination, the workman / applicant continues to be unemployed in spite of best efforts. Unavailability of service report from the Management/respondent and in view of the covert circumstances which led to this illegal termination, especially at this age of 55 years added with huge recession in real estate market, workman/applicant has not been able to find any job so far."
The said application was contested by management and dismissed by the Court by order dated 09.06.2014. What is pertinent to note is that as regards issue of backwages workman in his cross - examination has been made to depose as under: "..... My family consists of myself, my wife and two children. I tried to search a job after my termination by the management. I do not want Page 38 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 to disclose where I tried to search the job. Presently, I am unemployed. I do not want to disclose whether I have got myself registered with any of the webportal like Naukri.com and Monster.com.
Court advised the witness to answer the witness specifically and the witness answered.
I have registered myself with Naukri.com and many other sites. I received some calls and appeared for interview. I was interviewed at Embience Mall, Earth Infrastructure Ltd., Wardhman Builders and some other also. In Embience Mall, I met Mr. Jain to my understanding he was HR Head. At Earth Infrastructure I met Mr. Verma Vice President and at Wardhman, I met Mr. Narender Passi, Vice President.
Q. What was the reason that you were not selected for the job in aforesaid companies?
Ans. On technical interview I passed but on the issue of this termination in the light of full and final payment, every employer raised eyebrows for the reasons as to why the management herein terminated my services at the age of 55 when I was having substantial experience............................................................................................. It is wrong to suggest that I am running my own business, which I used to run prior to joining the management. My monthly household expenses are approximately Rs.35,000/ which includes Rs.14,000/ as house rent and in these days these all expenses are being born by my children and partly from my savings which I received in the shape of PF. As on date, in my bank account only Rs.700/ remains, which I can show at any time, if asked for. It is wrong to suggest that I am gainfully employed and I am myself incurring all my household expenses................................................................................................. I have no documentary proof to show that I have appeared for interviews for job. (Vol I had appeared for interviews through contacts and one SMS Message and perhaps one mail also received by me from Naukri.com etc.) I can produce the print out of the SMS and mail, if same has not been deleted as yet. Witness is checking his mobile to know whether the said SMS is still in the memory or not. Witness has been able to find the said SMS in the memory of the mobile phone. Witness is at liberty to produce the print out of the Page 39 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 SMS and Email..."
Pursuant to liberty given to workman to produce the print out the SMS and email, on 20.09.2014 workman filed certain documents regarding attempts made by him for alternative service. Here it is pertinent to note that it has come in the cross
- examination of workman that workman had also for some time carried out his own business with the name and style of M/s. Sachdeva Diesel Sales and Service which was a proprietorship concern of the workman. Workman had even employed three persons in the said company. In the totality of the facts and circumstances of this case particularly keeping in view the absence of requisite averments in the statement of claim and depositions in the evidence affidavit of workman, and the fact that workman is a person of vast experience in his field of work who at one point of time had even carried out his own business by even employing the other employees under him, it cannot be believed by a judicial mind that workman is absolutely unemployed or is earning anything since the date of termination of his service by the management. Accordingly, workman is held to be not entitled to full back wages.
In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.3,00,000/ (Rupees Three Lacs only) to the workman for illegal / unjustified termination of his services by the management and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.3,00,000/ (Rupees Three Lacs only) is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.15,000/ (Rupees Fifteen Thousand only) is also awarded to workman as costs of litigation payable by the management. It is observed that relief granted to workman only pertains to the terms of reference and the relief which a Page 40 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015 Ashok Sachdeva Vs. M/s. PVR Ltd. ID No. 293/14 Labour Court can grant while answering the reference in question.
9. Reference is answered accordingly.
10. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 31.03.2015 (ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 41 of 41 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:31.03.2015