Delhi District Court
Claimant / vs M/S. Optho Remedies Pvt. Ltd on 24 February, 2015
Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
LABOUR COURT APPLICATION (LCA) NO. 07/11
UNIQUE CASE IDENTIFICATION NO. 02402C0382642011
In the matter of:
Narender Gupta s/o. Late Sh. Satya Prakash Gupta
R/o. 1/5448, Balbir Nagar Extn., Shahdara, New Delhi
C/o. Indian Juris,
771/1, Paschim Puri, New Delhi.
..... Claimant / Workman
Vs.
1.M/s. Optho Remedies Pvt. Ltd.
C/o. New Adersh Medicos, CSC Shop No.14, Transport Centre 1040, Punjabi Bagh, Rohtak Road, New Delhi - 110036
2. M/s. Optho Remedies Pvt. Ltd.
28, Monereco Industrial Estate, Tehlarganj, Allahabad, U.P.
3. Mr. Rajesh Aggarwal, Director (Sales) M/s. Optho Remedies Pvt. Ltd.
28, Monereco Industrial Estate,
Tehlarganj, Allahabad, U.P.
.... Management(s)
Date of institution : 14.12.2011
Date of reserving for decision : 21.02.2015
Date of decision : 24.02.2015
APPLICATION UNDER SECTION 33 C (2) OF INDUSTRIAL DISPUTES ACT, 1947 Page 1 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 DECISION:
1. CASE OF WORKMAN AS PLEADED IN APPLICATION U/S. 33 C (2) OF INDUSTRIAL DISPUTES ACT, 1947.
(i) Claimant / Workman was working with management w.e.f. 05.03.1997 on the post of 'Zonal Sales Manager' and his last drawn wages were Rs.28,000/ per month. As alleged, though designation given was of managerial nature, however, claimant / workman was doing the job of clerical / manual nature. Claimant / workman had resigned on 20.06.2011, however, management has not settled the account / dues of claimant / workman. Claimant is entitled to amount of legal dues description of which is given below: Sl. No. Particulars Amount (Rs.)
01. Earned leave 1,68,000.00
02. Travelling Allowance 10,700.00
03. Incentive on Shri Nayar Sale 18,000.00
04. G S L I 25,000.00
05. Bonus 7,800.00 TOTAL 2,29,500.00
(ii) Claimant / workman demanded the abovesaid legal dues from the management, however, management did not respond favourably.
With these averments, workman prayed to direct the management to pay above legal dues alongwith interest at the rate 18% per annum.
2. CASE AS PLEADED BY MANAGEMENT IN WS / REPLY FILED UNDER THE SIGNATURES OF MR. RAJESH AGGARWAL (whose name appears at serial no.3 in memo. of parties) TO APPLICATION U/S 33 C (2) OF INDUSTRIAL DISPUTES ACT, 1947.
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PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 PRELIMINARY OBJECTIONS
(i) Application under section 33 C (2) of the Industrial Disputes Act, 1947 is not maintainable and the same could not have been filed by claimant under the Industrial Disputes Act, 1947.
(ii) Claim petition is misconceived inasmuch as claimant does not come within the definition of 'workman' as stated in the Industrial Disputes Act, 1947. Claimant has himself stated that claimant was working on the post of 'Zonal Sales Manager' and his last drawn wages were Rs.28,000/ p.m.. The averment of the claimant that claimant was doing job of clerical / manual nature is absolutely wrong. The claimant was working in managerial capacity looking after the sales department of the company.
(iii) Management no.1 has been wrongly made a party in these proceedings just to get the present claim within the jurisdiction of Delhi Courts. New Adarsh Medicos is not branch office of the company and it is a distributor of goods of management no.1 company like 100 of distributors throughout India. The New Adarsh Medicos is also one of the shop / distributor of company's product. Mr. Narender Gupta was not working with New Adarsh Medicos at New Delhi which is clear from 'No Objection Certificate' which was given in favour of Mr. Narender Gupta, Zonal Sales Manager.
Management no.1 has been wrongly made a party. It is not a necessary party as management no.1 is not the employer of claimant and management no.1 is just a distributor of goods of management company. The registered office of the company is at Allahabad and claimant was given appointment at Allahabad to Page 3 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 lookafter the sales of the company and, therefore, no cause of action has arisen in Delhi and Court at New Delhi has no jurisdiction to proceed with the same. After the enactment of UP Industrial Disputes Act, 1947 for any labour dispute which has arisen in the State of UP, the same shall be tried at Uttar Pradesh under the U.P. Industrial Disputes Act, 1947 and not under the Industrial Disputes Act, 1947 which is a Central Act. It is further submitted here that the proceedings under the Central Act can only been initiated as per section 12 of the State Government has the power to refer the industrial dispute to Central Government. (sic). ON MERITS
(i) Even otherwise claim of claimant is not maintainable as the claimant has demanded amounts which have already been paid / adjusted by the company. As per record of the company the claimant is entitled to 140 days earned leave only and as per section 80 of the Factories Act, 1948 claimant is entitled for payment to earned leaves on the basic salary and dearness allowance only. (i.e. Basic salary Rs.4850/ + dearness allowance Rs. 1650/ = Rs.6500/ / 30 X 140 days = Rs. 30333/). The House Rent Allowance, Conveyance allowance, Kit Allowance, Performance Allowance, Special Allowance, Medical etc. cannot be claimed as 'wages' under section 80 of the Factories Act, 1948 for the purpose of payment of earned leave.
TRAVELLING ALLOWANCE for the period of June is not payable to claimant as claimant had resigned in June and, further, earlier to resignation claimant was directed not to take travelling for the company's sales purposes.
As far as INCENTIVE ON SHREE NAGAR SALE to the tune of Rs. Page 4 of 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 18,000/ is claimed, management pleaded that no such incentive is pending.
Mr. Narender Gupta had resigned from the services of company vide email dated 21.05.2011 w.e.f. 20.06.2011. After resignation claimant was demanding his dues, salary and other emoluments from the company and company requested the claimant to provide a 'no dues certificate' from the stockist and distributors who were connected with the claimant. On 08.07.2011 Mr. Narender Gupta wrote a letter in his handwriting to the Director of the company stating that claimant has provided the 'noduescertificate' and, therefore, rest of the dues may be provided. It is pertinent to mention here that when Mr. Narender Gupta resigned from the services of the company, claimant was having Rs.1,54,426/ in cash of the company and in the letter dated 08.07.2011 Mr. Narender Gupta himself admitted that he is having Rs.1,54,426/ of the company in cash with him. It was the duty of Mr. Narender Gupta to have returned back the amount of Rs.1,54,426/ before resigning from the company. The company showing its bonafide and honesty made a final settlement of Mr. Narender Gupta after deducting the amount due to Mr. Narender Gupta from the cash which Mr. Narender Gupta had withheld. As per final settlement of account Rs.31,150/ was found due and a cheque of Rs. 31,150/ was received by Mr. Narender Gupta which he acknowledged vide letter dated 12.03.2012.
Management further pleaded that from the amount of Rs.154000/ (sic), which was pending with claimant at the time of his resignation, an amount of Rs. 25,000/ has been adjusted for G.S. L. I.. BONUS of Rs.7800/ claimed by claimant was also paid by cheque. AT LAST, management prayed for dismissal of petition filed by workman.
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PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11
3. REJOINDER In the rejoinder, workman denied the case as pleaded by management in its WS / Reply and reaffirmed the averments made in application under section 33 C (2) of the Industrial Disputes Act, 1947. As per workman, workman had received and encashed cheque for Rs.31,150/ after reserving his right to demand balance gratuity amount and so far as cash of Rs.1,54,426/ is concerned, same was withheld for deducting the same from the amount of legal dues payable by the management.
4. ISSUES Vide order dated 25.07.2012, ld. predecessor of this Court framed the following issues:
(i) Whether the claimant is entitled to receive any amount? If yes, what amount? OPW
(ii) Relief, if any.
5. EVIDENCE Workman examined himself as WW1 Mr. Narender Gupta by filing his examination - in - chief by way of affidavit Ex.WW1/A. Workman relied upon documents Ex.WW1/1 - Breakup of amount Rs.2,29,500/; Ex.WW1/2 - Legal notice dated 06.08.2011; Ex.WW1/3 - Letter dated 12.03.2012 addressed to management by workman as well as postal receipt dated 12.03.2012 and Ex.WW1/4 - Email dated 23.06.2011 sent to workman by management. Documents Ex.WW1/2 and Ex.WW1/4 were objected to by ld. counsel for management as the same were photocopies. WE was closed on 21.02.2013 by Mr. Page 6 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 Aniket, ARW.
Opportunities were given to management to lead ME but no ME was led and ME was closed on 27.05.2013 by COURT ORDER. On application of management, order dated 27.05.2013 was recalled and case was again fixed for ME. On 21.08.2013 management examined MW1 Mr. Nagendra Singh by filing his examinationinchief by way of affidavit Ex.MW1/A and management relied upon documents exhibited as Annexure - A1 - Authorisation letter dated 20.11.2012; Annexure - A2 Leave register; Annexure A3 - Leave Encashment of workers as on 31.03.2012; Annexure A4 - Leave Encashment (Ledger Account and Journal Voucher); Annexure A5 - Journal Voucher dated 21.07.2011; Annexure A6 Journal Voucher dated 10.02.2012 and Annexure A7 Journal Voucher dated 28.04.2013. After examinationinchief of MW1 Mr. Nagendra Singh on 21.08.2013, case was adjourned to 25.09.2013 for his cross examination.
6. ADDITIONAL ISSUES AND EVIDENCE LED THEREAFTER On 25.09.2013 ld. counsel for managements moved an application for framing additional issues. Ld. counsel for managements and ld. ARW were heard. Ld. ARW had no objection(s) to the framing of additional issues. Accordingly on 25.09.2013 following additional issues were framed: 1A. Whether, the claimant comes within the definition of workman as stated in Section 2 (s) of the Industrial Disputes Act, 1947 and further the claimant has a right to institute the present case or not? OPW / OPM.
1B. Whether, the application under Section 33 - C (2) of the Industrial Disputes Act, 1947 filed by claimant is maintainable or not? OPW/OPM Page 7 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 On 25.09.2013 ld. ARW submitted that, in view of additional issues framed on that day, an opportunity be given to workman to lead evidence on these issues. Case was adjourned to 08.11.2013 for WE on additional issues. However, on 08.11.2013 ld. ARW stated that no WE is to be led on issues framed on 25.09.2013. Thus, case was again adjourned for ME to 06.12.2013, on which date MW1 Mr. Nagender Singh was cross examined at length and ME was closed by COURT ORDER. In his cross examination MW1 Mr. Nagendra Singh referred to document MarkA - Letter dated 25.07.2011 written by management to workman regarding Final Settlement of Account of workman and was put document Mark B
- Request dated 08.07.2011 made by workman raising his claims against the management. Case was adjourned to 15.01.2014 for Final Arguments.
On 15.01.2014 ld. counsel for management moved an application for recalling order dated 06.12.2013 and for placing on record additional documentary evidence. On 07.03.2014 ld. ARW submitted that he does not want to file any formal reply to the application of management moved on 15.01.2014 under Rule 15 of Industrial Disputes (Central) Rules. 1957. Ld. counsel for managements and ld. ARW were heard and vide order dated 22.03.2014 application moved by management under Rule 15 of Industrial Disputes (Central) Rules, 1957 was allowed subject to cost and case was adjourned to 07.05.2014 for payment of cost and ME. THEREAFTER, management filed additional affidavit Ex.MW1/B of Mr. Nagendra Singh who was again examined in chief on 03.07.2014, during which MW1 Mr. Nagendra Singh relied upon documents: Ex.MW1/B/1 - Letter of authorisation; Ex.MW1/B/2 - Letter dated 30.07.2010 written to workman by management; Ex.MW1/B/3 (colly. 5 pages) - Details of field staff under Mr. Page 8 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 Narender Gupta, ZSM; Ex.MW1/B/4 (colly. 11 pages) - Letters of recommendations by Mr. Narender Gupta with regard to various field staff which were appointed on the recommendation of Sh. Narender Gupta; Ex.MW1/B/5 (colly. 12 pages) - Expense Sheet(s) / Tour Programmes of Mr. Narender Gupta; Ex.MW1/B/6 (colly. 3 pages) - Letters issued under the signature of Mr. Narender Gupta to all the field staff; Ex. MW1/B/7 (colly. 2 pages) - Leave register; Ex.MW1/B/8 (colly. 2 pages) - Leave applications made by field staff and grant of leave by Mr. Narender Gupta; Ex.MW1/B/9 (colly. 9 pages) - Letter issued under the signatures of Mr. Narender Gupta for granting approval to change the tour programmes and deviated tour programmes of Mr. Narender Gupta; Ex.MW1/B/10 (colly. 4 pages) - Crossexamination of Mr. Narender Gupta. Exhibition of documents Ex.MW1/B/6 was objected to by ld. ARW as the same was photocopy. Ld. counsel for managements had submitted that original copy of the Ex.MW1/B/6 was lying with the workman and workman had sent the same to Field Officers for further action with CC to management relying upon the circular of the management which shall be produced on the next date of hearing. Witness was directed to bring originals of all the documents to be proved by him. On 13.08.2014 MW1 Mr. Nagender Singh was cross examined and discharged and ME was closed by Mr. Syed Faheem Ahmed, Adv. for management(s).
7. ARGUMENTS I have heard Mr. Neeraj Chaudhary, AR for workman and Mr. Sayed Faheem Ahmed, adv. for the management. Written arguments have also been filed by both the parties. Ld. ARW relied upon / mentioned in written arguments case Page 9 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 laws reported as (i) JEET LAL SHARMA (Delhi High Court); (ii) May and Baker Case, AIR 1967 SC 678 and (iii) Nick (India) Tools Vs. Ram Surat, 2004 LLR SC.
Ld. counsel for the management relied upon case laws reported as (i) T. P. Srivastava Vs. National Tobacco Company of India Limited LAWS (SC) 1991 10 37; (ii) Bharat Bhawan Trust Vs. Bharat Bhawan Artists Association LAWS (SC) 2001890; (iii) H. R. Adyanthaya Vs. Sandoz India Limited AIR (SC) 1994 0 2608; (iv) Uttar Pradesh State Road Transport Corporation Vs. Birendra Bhandari AIR (SC)200603220; (v) Anglo - French Drug Co. (Eastern) Ltd. Vs. Presiding Officer, Labour Court, Allahabad LLN20042913; (vi) G. K. Jha Vs. The Presiding Officer & Ors. W. P. (C) No. 5397 / 1998 DOD 03.05.2013 by Hon'ble Delhi High Court; (vii) Merino Ltd. Vs. Prescribed Authority / Labour Commissioner, Bijnore TLALL 2009 0 1377; (viii) PFIZER Ltd. Vs. State of Uttar Pradesh LLJ 20104104; (ix) S. K. Maini Vs. Carona Sahu Company Ltd. AIR (SC)199401824 and (x) Burmah Shell Oil Storage and Distributing Company of India Ltd. Vs. Burma Shell Management Staff Association AIR (SC)19710922. I have gone through the material available on judicial file very carefully. I have also gone through the case laws relied upon by ld. counsels for both the parties keeping in view the facts and circumstances of the case as they arise on the basis of material available on judicial file.
8. My ISSUEWISE findings are as under: ISSUE No.1A Whether, the claimant comes within the definition of workman as stated in Section 2 (s) of the Industrial Disputes Act, 1947 and further the claimant has a right to institute the present case or not? OPW / OPM.
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PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 ISSUE No. 1B Whether, the application under Section 33 - C (2) of the Industrial Disputes Act, 1947 filed by claimant is maintainable or not? OPW/OPM Both the issues being inter connected are being taken up under a common discussion. Here, undisputedly, workman was working with management at the time of his resignation as 'Zonal Sales Manager' and his last drawn wages were Rs. 28,000/ per month. Claimant in the statement of claim specifically pleaded that though designation given was of managerial nature, however, workman was doing the job of clerical / manual nature. On the other hand management pleaded in the WS that averments of the claimant that claimant was doing job of clerical / manual nature is absolutely wrong and the claimant was working in managerial capacity looking after the sales department of the company. Management in the WS did not elaborated the nature of functions / duties which were being performed by claimant. Management also did not file with the WS documents supporting the averment of the management that claimant was working in a managerial capacity looking after the sales department of company. Such documents were not filed even with the evidence affidavit Ex.MW1/A of MW1 Mr. Nagendra Singh. Documents purporting to show that claimant was employed by management in managerial capacity for the first time were tried to be brought on judicial file on 15.10.2014 at the stage the case was fixed for final arguments.
At this juncture, it would be relevant to refer to definition of 'workman' under section 2 (s) of the Industrial Disputes Act, 1947 and 'Definitions' under section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976 and the same read as under: Page 11 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 Section 2 (s) of the Industrial Disputes Act, 1947 "2 (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, included 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 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."
Section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976
2. Definitions. In this Act, unless the context otherwise requires,
(a) "establishment" means an establishment engaged in pharmaceutical industry or in any notified industry;
(b) "notified industry" means an industry declared as such under section 3;
(c) "prescribed" means prescribed by rules made under this Act;
(d) "sales promotion employees" means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or Page 12 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 reward to do any work relating to promotion of sales or business, or both, but does not include any such person,
(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or
(ii) who is employed or engaged mainly in a managerial or administrative capacity.
Explanation. For the purposes of this clause, the wages per mensem of a person shall be deemed to be the amount equal to thirty times his total wages (whether or not including, or comprising only of, commission) in respect of the continuous period of his service falling within the period of twelve months immediately preceding the date with reference to which the calculation is to be made, divided by the number of days comprising that period of service;
(e) all words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.
Further, Section 6 of the Sales Promotion Employees (Conditions of Service) Act, 1976 reads as under:
6. Application of certain Acts to sales promotion employees (1) The provisions of the Workmen's Compensation Act, 1923 (8 of 1923), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act. (2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion Page 13 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.
(3) The provisions of the Minimum Wages Act, 1948 (11 of 1948), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.
(4) The provisions of the Maternity Benefit Act, 1961 (53 of 1961), as in force for the time being, shall apply to, or in relation to, sales promotion employees, being women, as they apply to, or in relation to, women employed, whether directly or through any agency, for wages in any establishment within the meaning of that Act.
(5) The provisions of the Payment of Bonus Act, 1965 (21 of 1965), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.
(6) The provisions of the Payment of Gratuity Act, 1972 (39 of 1972), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employees within the meaning of that Act.
(7) Notwithstanding anything contained in the foregoing subsections,
(a) in the application of any Act referred to in any of the said subsections to sales promotion employees, the wages of a sales promotion employee for the purposes of such Act, shall be deemed to be his wages as computed in accordance with the provisions of this Act;
(b) Where an Act referred to in any of the said subsections provides for a ceiling limit as to wages so as to exclude from the purview of the application of such Act persons Page 14 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 whose wages exceed such ceiling limit, such Act shall not apply to any sales promotion employee whose wages as computed in accordance with the provisions of this Act exceed such ceiling limit.
Here management deals in medicines and is a pharmaceutical company / industry and, thus, falls within the definition of "establishment" under section 2 (a) of the Sales Promotion Employees (Conditions of Service) Act, 1976 and is governed by the provisions of Sales Promotion Employees (Conditions of Service) Act, 1976.
It is a settled proposition of law that the designation of the workman is no longer the criterion for determination of the status of an employee since the nature of duties are taken into consideration to ascertain whether an employee is a workman or not. In order to decide as to whether an employee, even though designated as an officer is a workman or not, the primary or substantial duties as performed by him are relevant. It is also made clear that if the main work of the employee is not manual or clerical or if little manual or clerical work which he does forms only a part of his duties, then such an employee cannot be deemed to be a 'workman' as defined in section 2 (s) of the Industrial Disputes Act, 1947.
For an employee in an industry to be 'workman' under the definition, after its amendment by the amending Act of 1982, it is manifest that he must be employed to do (a) Manual work; (b) Unskilled work; (c) Skilled work; (d) Technical work; (e) Operational work; (f) Clerical work and (g) Supervisory work.
The question as to whether an employee is a 'workman' as defined in s 2(s) of the Industrial Disputes Act, 1947 has to be determined with reference to his principal nature of duties and functions. Such question is required to be Page 15 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 determined with reference to the facts and circumstances of the case and the materials on record. It is not possible to lay down any strait - jacket formula which can be determinative of the real nature of duties and function being performed by an employee in all cases.
In his cross examination claimant WW1 Mr. Narender Gupta has been made to depose as under: "I was appointed as Area Manager at Delhi H.Q. I do not recollect my salary. vol same is mentioned in management's record. I do not recollect as to how many times I was promoted during my service tenure. vol same is mentioned in management's record. At the time of resignation my designation was Zonal Sales Manager. I used to sell medicines to Doctors as well as markets and to receive payment for the same.
Qus. I put to you what type of clerical work you used to discharged at the time of service with the management?
Ans. I used to sell medicines to Doctors as well as markets and to receive payment for the same and to deposit the same to the management and the concerned parties in the market. It is correct that my last drawn salary was Rs.28000/pm. It is wrong to suggest that I received Rs.30,333/ as leave encashment. It is wrong to suggest that your calculation as made in statement of claim is incorrect. It is wrong to suggest that I received Rs.31,115/ as full and final settlement of my account. Vol I received above said amount under protest.
It is wrong to suggest that I am deposing falsely and filed a false affidavit."
As per above depositions of claimant which the claimant has been made to depose in his cross - examination, the designation of claimant was Zonal Sales Manager and claimant used to sell medicines to Doctors as well as in markets and to receive the payment for the same and to deposit the same to the management Page 16 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 and concerned parties in the market. Abovesaid work done by claimant herein comes within the definition of clerical / manual work inasmuch as both manual and clerical work in the sense in which these terms have been used in section 2 (s) connote more or less routine work, skilled or otherwise, which does not require any material amount of initiative in its performance. Hon'ble Delhi High Court in case law reported as Delhi Consumer Coopt. Wholesale Store Ltd. Vs. S. L. Thakural MANU / DE / 0027 / 1999 has held / observed that an employee in charge of sales section and entrusted with the duties of salesman is a 'workman'. None of the case laws relied upon by ld. counsel for management is applicable in the facts and circumstances of this case particularly keeping in view the nature of duties as deposed by workman / claimant in his cross - examination and management failing to establish on judicial file the stand pleaded by it in its WS. Management in the WS pleaded that claimant was working in managerial capacity looking after sales department of the company. But management in the cross - examination of claimant / workman did not confront the claimant / workman in terms of stand taken by management in the WS or in terms of documents relied upon by management which came to be filed on judicial record for the first time on 15.01.2014 when the case was fixed for final arguments. It is alright that an application moved by management on 15.01.2014 for recalling order dated 06.12.2013 and placing on record additional documentary evidence was allowed vide order dated 22.03.2014 and, thereafter, MW1 Mr. Nagendra Singh was again examinationinchief qua these documents and cross examined by ld. ARW. But what deserves to the noted is that, firstly, there is no cross - examination of, or even suggestions to, claimant / workman qua these documents; it has not been even Page 17 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 suggested to claimant / workman that claimant / workman was working with management in managerial capacity; no attempt even was made to recall the claimant / workman for his further cross examination so that fresh documents brought on record by management vide application moved on 15.01.2014 could be put to claimant / workman for his explanation or claimant / workman could be confronted with these documents, and, secondly, even otherwise those document cannot be said to have been duly / properly proved on judicial file by virtue of depositions of MW1 Mr. Nagendra Singh who in his cross - examination deposed as under: "....... (vol. most of the documents relied upon by the management have not been written in my presence. It is not possible in as much as I have always been posted in the Accounts Department in Allahabad). None of the documents relied upon by the management have been sent to me as addressee or copy being sent to me through endorsement.....".
Thus, documents relied upon by management cannot be taken to have been duly / properly proved by virtue of depositions of MW1 Mr. Nagendra Singh. Merely because MW1 Mr. Nagendra Singh in his cross - examination submitted as under does not mean that these documents stands duly / properly proved on judicial file: "......Witness submits that today he has brought the originals of all the documents produced and exhibited by him in his evidence on the judicial file and same are open for inspection by the court or by ld. ARW."
Mere production of original documents / copies thereof by the management on judicial file does not amount to proving the documents on judicial file. Documents have to be proved by examination of proper / appropriate witness (i.e. Page 18 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 either author of the documents or anyone in whose presence the documents were prepared or anyone who received the documents / copies thereof in ordinary course of his duties with the management). In the absence of due / proper proof of documents relied upon by MW1 Mr. Nagendra Singh, management can be said to have miserably failed to prove that claimant / workman was working with the management mainly in managerial capacity.
Following depositions made by MW1 Mr. Nagendra Singh in his cross - examination also support the depositions made by claimant / workman / WW1 Mr. Narender Gupta: "...........It is wrong to suggest that workman was engaged in the duty of collecting the payments from the clients. (Vol. 90% payment used to be receive directly in the company account through DD / RTGS and remaining 10% used to be collected through Medical Representative (MR) / claimant / workman himself.)..... Parties used to place order to the company, manager / workman / claimant.......".
MW1 Mr. Nagendra Singh in his cross - examination, conducted on 13.08.2014, by ld. ARW has been made to depose as under: "It is correct to suggest that management was possessing all the documents now being relied upon by the management at the time of crossexamination of the workman. It is wrong to suggest that list exhibited as Ex. MW1/B3 is forged and fabricated. It is further wrong to suggest that none of those persons worked under the workman. Appointing authority in respect of persons whose biodatas are collectively exhibited Ex. MW1/B4 pages 1 to 9 was the management company. (vol. workman was recommending authority). Directors of the company Mr. Rajesh Aggarwal and Mr. Rakesh Aggarwal are the appointing authority individually. It is wrong to suggest that workman was not authorized to recommend regarding the appointment of any person. I do not exactly remember/know whether the persons whose Biodatas are there as Ex. MW1/B4 (pages 1 to 9) called by the Page 19 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 management for interview or not. (vol. in 90% cases management did not call candidates for interview and management used to act on the recommendations of workman herein).
Q. It is put to you that salary and other allowances of the employees as the employees mentioned in the Ex. MW1/B4 (pages 1 to
9) were determined by the management. What you have to say? Ans. It is correct to so suggest. However, concerned manager used to be given hearing by the Director of the management. DA element was fixed as per the policy of the company and the same was not negotiable by the manager with the candidates seeking service with the management. However, salary part was negotiable. It is wrong to suggest that workman did not recommend any person for appointment to the management. There is no documentary proof on record to show that workman herein was authorized by the management company to interview any candidate seeking employment in the management company or to recommend appointment of any such candidate by the management. It is incorrect to suggest that workman was having no authority to negotiate salary with the candidates seeking employment with the management. All the persons detailed in Ex. MW1/B4 (pages 1 to 9) were interviewed by workman herein and they were also recommended by for appointment by the workman. Interviews were not taken in my presence. I do not know as to where the interviews were taken. It is wrong to suggest that Ex. MW1/B4 (pages 1 to 9) are forged and fabricated ................... Preliminary interview as well as final interview as mentioned in page no. 10 and 11 of Ex. MW1/B4 were both taken by workman herein. Management cannot produce any document or witness to show that interviews as mentioned in Ex. MW1/B4 (pages 1 to 11) were taken by the workman herein. It is wrong to suggest that page no. 10 and 11 of Ex. MW1/B4 are false and fabricated. It is wrong to suggest that Ex. MW1/B6 is false and fabricated document. Ex. MW1/B6 (3 pages) were not written in my presence. (vol. most of the documents relied upon by the management have not been written in my presence. It is not possible in as much as I have always been posted in the Accounts Department in Allahabad). None of the documents relied upon by the management have been sent to me as addressee or copy being sent to me through endorsement. Ex. MW1/B7 is the leave register of the workman. Workman lastly worked up to the management till 20.06.2011. It is Page 20 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 correct to suggest that in Ex. MW1/B7 leaves have been calculated up to year 2008. It is wrong to suggest that Ex. MW1/B8 is also false and fabricated document. (vol. document is correct. Leaves have been sanctioned by the workman and workman has signed thereon). Ex. MW1/B10 is the crossexamination of workman conducted in the case of gratuity. It is correct that Ex. MW1/B10 is not certified copy.........". (underlining by me) Above cross - examination by ld. ARW shows that claimant / workman did not admit of the documents relied upon by management as correct. As already noted neither these documents were put to claimant / workman in his cross - examination nor these documents have been proved by management by examining proper / appropriate witness before the Court. Thus, documentary evidence led by management cannot be taken to establish / prove on judicial file that workman was employed by management in mainly managerial capacity.
In view of above detailed discussion claimant deserves to be held to be workman under section 2 (s) of the Industrial Disputes Act, 1947. As already noted, management is governed by the provisions of the Sales Promotion Employees (Conditions of Service) Act, 1976. Workman being engaged as salesman of medicines can also be taken as covered under the provisions of section 2 (d) of the Sales Promotion Employees (Conditions of Service) Act, 1976 inasmuch as reasonably speaking duties of salesman can be taken to be including the job of a "sale promotion employee" under section 2 (d), as above, as well. Workman herein, as already noted, is not covered under any of the provisos to section 2 (d) of the Sales Promotion Employees (Conditions of Service) Act, 1976. Management has not even pleaded that workman was employed in supervisory capacity. Therefore, there is no possibility of workman being covered under Page 21 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 proviso (i) to section 2 (d).
ISSUE NO. 1A IS ACCORDINGLY DECIDED IN FAVOUR OF CLAIMANT / WORKMAN.
Management in the WS pleaded that Court at New Delhi has no jurisdiction to proceed with this case. MW1 Mr. Nagendra Singh in his cross - examination as deposed as under: "......Workman was working in Delhi. Again said workman was also supervising on tour programme basis of business of the company at Jammu, Haryana, Punjab, Himachal Pradesh, UP and about 40% of the time of the claimant was consumed outside Delhi. Remaining 60% of the time of the claimant was consumed in Delhi......"
Thus, Court at New Delhi / this Court is held to be having jurisdiction to try this case. Also, it is noted that issue no.1A has already been decided in favour of claimant / workman and that there is no dispute as to the entitlement, as such, of the claims raised herein by claimant / workman and the issue / dispute is only as regards whether the claims have already been paid or as regards the extent of the claims. Hon'ble Delhi High Court in case law reported as King Airways Vs. Captain Manjit Singh MANU / DE / 0748 / 2013 observed that, "11. It would be thus seen that it is not necessarily that only a pre - determined right on a reference under Section 10 of the ID Act can be enforced under Section 33 - C (2) of the ID Act. Even if the benefit is recognized by the employer, the same can be also calculated and awarded to the workmen by the Tribunal in exercise of its power under Section 33 - C (2) ID Act". Thus, this application under section 33 C (2) of the Industrial Disputes Act, 1947 is held to be maintainable. ISSUE NO. 1B IS ACCORDINGLY DECIDED IN FAVOUR OF CLAIMANT / WORKMAN. Page 22 of 29 (ANAND SWAROOP AGGARWAL)
PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 ISSUE No.1 Whether the claimant is entitled to receive any amount? If yes, what amount? OPW EARNED LEAVE Workman is claiming Rs.168000/ (i.e. 28000.00 / 30 x 180) towards earned leaves.
Management has already paid Rs.30,333/ to workman towards encashment of 140 earned leaves stating that workman had 140 unavailed earned leaves in this account. MW1 Mr. Nagendra Singh in his cross - examination deposed as under: "......Qus. It is put to you that during the service tenure claimant / workman had earned 196 earned leaves?
Ans. It is correct to so suggest. (Vol However workman has not deducted the leaves availed by him during the service period.) I can tell about the leaves availed by the workman after going through the records available in the office records. I have not brought the said records today. It is wrong to suggest that I have not intentionally brought the records as the workman had earned 196 earned leaves and did not avail such leaves....." If workman wants encashment of 180 earned leaves, workman was supposed to give his own calculations / basis thereof. But workman did not do so. Admittedly, workman during his service tenure earned 196 earned leaves but workman at no point of time pleaded / deposed that it never availed any earned leave. If workman had earned 196 earned leave and did not avail / earned leave(s), then why workman claimed encashment of 180 earned leaves only has not been pleaded by workman in the application in hand. In the totality of facts and circumstances of this case document Ex. Annexure A2 showing 140 earned leaves to the credit of workman, can be acted upon by the Court. On a combined reading Page 23 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 of provisions of rules (2) and (3) of the Sales Promotion Employees (Conditions of Service) Rules, 1976 and section 11A (2) of the Sales Promotion Employees (Conditions of Service) Act, 1976 workman is held to be entitled to encash 140 earned leaves inasmuch as management itself is not disputing the right of workman to encash 140 earned leaves.
Rule 14 (6) of the Sales Promotion Employees (Conditions of Service) Rules, 1976 reads as under: "14. Earned leave and cash compensation for earned leave not availed of. (6) The cash compensation payable under this rule in respect of earned leave shall be equal to the amount of wages due to the sales promotion employee for the period of leave not availed of or refused."
In view of provisions of section 2 (e) of the Sales Promotion Employees (Conditions of Service) Act, 1976, "wages" as under defined under section 2 (rr) of the Industrial Disputes Act, 1947 are to be taken into account under rule 14 (6) hereinabove. Section 2 (rr) of the Industrial Disputes Act, 1947 defines "wages" as under:
2. Definitions: In this Act, unless there is anything repayment in the subject or context, (rr) "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; Page 24 of 29 (ANAND SWAROOP AGGARWAL)
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(iii) any travelling concession;
(iv) any commission payable on the promotion of sales or business or both;
but does not include
(a) any bonus;
(b) any contribution paid or payable by the employer to any
pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his service; Thus, earned wages are to be encashed on the basis of total salary of workman @ Rs.28,000/ per month break up of which is as follows:
1. Basic Salary Rs. 4,850.00
2. Dearness Allowance Rs.1,650.00
3. House Rent Allowance Rs.5,000.00
4. Conveyance Allowance Rs.4,000.00
5. Kit Allowance Rs.2,500.00
6. Performance Allowance Rs.5,000.00
7. Special Allowance Rs.5,000.00 Total Rs.28,000.00 Thus, workman is held to be entitled to receive from the management Rs. 100333.00 [(Rs. 28000/ / 30 x 140) Rs. 30,333/ (payment already made to workman towards encashment of earned leaves) = Rs.100333.00] towards encashment of earned leaves.
TRAVELLING ALLOWANCE Workman is claiming Rs.10,7000/ towards travelling allowance. MW1 Mr. Nagendra Singh in his cross examination deposed as under: ".......Workman / claimant was not being paid TA. (Vol. Workman Page 25 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 was being paid on the basis of actual expenses incurred by him while travelling for the business of the company.) It is correct that no TA was paid to workman from 01.06.2011 to 20.06.2011. (Vol working of the claimant had already been stopped. Workman had made visits and had raised the bills without company instructions.) Workman instructed to stop the work through letter in writing. I do not remember exactly whether the said letter is on judicial file or not. Witness is given judicial file to search the said letter. On judicial file said letter was not found. It is wrong to suggest that no letter was issued to the workman to stop his work. (Vol. I can produce the said letter.) It is wrong to suggest that workman is entitle to Rs.10,700/ towards TA for the month of June 2011.......". Also MW1 Mr. Nagendra Singh in his cross examination deposed that, ".... Workman lastly worked up to the management till 20.06.2011.....".
What is pertinent to note is that MW1 Mr. Nagendra Singh did not produce document instructing workman to stop work. Admittedly, workman made visits, raised bills and worked upto 20.06.2011 but management has failed to show that workman made visits despite written instructions of management not to make the visits. Workman is, thus, also held to be entitled to recover Rs.10,700/ from the management.
INCENTIVE ON SHRI NAYAR SALE MW1 Mr. Nagendra Singh in his cross examination deposed as under: "........It is correct to suggest that it was one of the service conditions of the workman that he would be pay incentives / commissions. (Vol. Incentives was to be paid after the achievement of certain targets.) It is correct to suggest that commissions / incentives to the tune of Rs.18,000/ is due to the claimant / workman for the sales effected in Sri Nagar......." Thus, workman is held to be entitled to receive Rs.18,000/ from Page 26 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 management towards commission / incentive for sales effected in Sri Nagar. GSLI TO THE TUNE OF RS.25000/ MW1 Mr. Nagendra Singh in his cross examination deposed as under: "....... It is wrong to suggest that a sum of Rs.25,000/ is due to the workman / claimant towards Group Saving Link Insurance (GSLI). (vol. It has been paid to the claimant / workman.) Qus. Have you filed any document to show that payment of Rs.25000/ towards GSLI to the workman?
Ans. Witness has referred to final settlement account dated 25.07.2011 mark - A and referred to entry at point - A which mentions the amount as Rs.24,263/.
There is no independent or separate proof of payment of amount towards GSLI to the workman. (Vol. However, same stand adjusted as per document mark - A as a sum of Rs.1,54,426/ of the company was available with the claimant / workman. It is correct to suggest that amount towards Bonus was credited to the account of workman / claimant after filing of this case. It was credited through NEFT. It is correct to suggest that after filing of this case a sum of Rs.31,150/ was also paid to workman through cheque. (Vol. Whatever was remained to be paid to the claimant / workman was finally paid to the claimant / workman with the payment of Rs.31,150/.)...........". Mark - A shows payment / adjustment of Rs.24263/ towards GSLI. Undisputedly workman received Rs.31150/ (but mentioned as Rs.31115/ in Mark
- A) pursuant to document Mark - A. Thus, it is held that workman has already received payment towards GSLI.
BONUS TO THE TUNE OF RS.7800/ MW1 Mr. Nagendra Singh in his cross examination has been made to depose that, "........ It is correct the amount towards Bonus was credited to the account of workman / claimant after payment of this case. It was credited through Page 27 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015 Narender Gupta Vs. M/s. Optho Remedies Pvt. Ltd. & Ors. LCA No. 07/11 NEFT....". Also, ld. ARW in the course of arguments submitted that workman received Rs.7800/ towards bonus after the filing of this case. Thus, workman is held to have already received payment towards bonus to the tune of Rs.7800/.
FINALLY TOTAL ENTITLEMENT OF WORKMAN FROM THE MANAGEMENT COMES OUT TO BE: Rs.100333.00 + Rs.10700/ + Rs. 18000/ = Rs.1,29,033/.
Workman has claimed interest @ 18% per annum. However, Division Bench of Hon'ble Gujarat High Court in case law reported as Durlabhbhai Naranbhai Parmar Vs. Divisional Controller MANU / GJ / 0338 / 2011 has observed that in the absence of any statutory provision, the Labour Court does not possess jurisdiction to award any interest to the workman. Also, Hon'ble Delhi High Court in the case law reported as King Airways Vs. Captain Manjit Singh MANU / DE / 0748 / 2013 has observed that in a petition under section 33 C (2) of the Industrial Disputes Act, 1947 no new right can be conferred on the workman and, thus, no interest can be awarded. Hence, request for grant of interest @ 18 % per annum is declined.
Accordingly, workman is held to be entitled to recover a sum of Rs.1,29,033/ from the management and management is, accordingly, directed to pay the said sum to workman.
ISSUE No. 2: Relief, if any.
As per my above findings on various issues management is directed to pay a sum of Rs.1,29,033/ to the workman. Also workman is held to be entitled to receive a sum of Rs.10,000/ towards cost of litigation from management. Page 28 of 29 (ANAND SWAROOP AGGARWAL)
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9. Copy of this decision be sent to appropriate government in terms of section 33 C (4) of the Industrial Disputes Act, 1947.
10. File be consigned to record room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 24.02.2015 (ANAND SWAROOP AGGARWAL) POLCXI, Karkardooma Courts, Delhi* Page 29 of 29 (ANAND SWAROOP AGGARWAL) PO-LC- XI:KKD:DELHI:24.02.2015