Delhi District Court
Dist. & Sessions Judge: Presiding ... vs "Whether The Retrenchment Of Ms on 11 March, 2010
IN THE COURT OF SH. SUKHDEV SINGH, ADDL.
DIST. & SESSIONS JUDGE: PRESIDING OFFICER,
LABOUR COURT NO. VII, DELHI.
I.D. NO. : 47/2003
Date of institution : 28.6.2003
Award reserved for : 11.3.2010
Award passed on : 11.3.2010
BETWEEN
The workman
Ms. Urvashi Panwar
W/o Shri Gopal Singh Panwar
R/o A-7, Nar Vihar
Part-I, Sector-34
Noida ( U.P)
AND
The management of
M/s Taj Trade & Transport Co. Ltd.
Taj Palace office, Sardar Patel Marg,
Diplomatic Enclave
New Delhi -1100 20
Also
Mandlik House, Mandlik Road
Mumbai-400001
Ref.: F.24(2862)/ 2002Lab./1569-73 dated 9.4.03.
AWARD
1.Workman had raised an Industrial Dispute against her illegal termination from the services which was referred to this court for adjudication by the Secretary (Labour), Govt. of NCT of Delhi in the ID No.47/2003 Page 1/ 27 following terms of reference :-
"Whether the retrenchment of Ms. Urvashi Panwar W/o Shri Gopal Singh Panwar by the Management is illegal and/or unjustified, if so, to what relief is she entitled and what directions are necessary in this respect ?"
It is, inter alia, stated in the statement of claim that the Workman was appointed as 'Store Assistant' in the General Export Division on 1st August, 1987 and promoted as Senior Store Assistant for a period from April, 1999 to 31st December, 2001 by the Management. Her last drawn salary was Rs.3,300/- (basic) plus Rs. 1579/- alongwith other allowances.
It was stated that on promotion, she joined the duties on 31.12.201 as Senior Store Assistant and on the same day, she received a letter issued by Shri Hemant Deve, stating that existing strength of Senior Store Assistant was in excess than the actual requirement. Thus, her services were terminated by way of retrenchment. She signed the letter under protest. The Management deposited an amount of Rs. 1,03,178/- by way of cheque ID No.47/2003 Page 2/ 27 dated 31.12.2001 in her account. The Management also issued a cheque dated 31.12.2001 amounting to Rs. 68,306/- towards her gratuity. The cheque was also accepted by her under protest. On 1.1.2002, the Workman was not allowed to join her duty or to sign the attendance register.
Thus, she has challenged her termination by way of retrenchment on various grounds such as; the same violative to the provision of Section 25 (G) of the Act, her termination by way of retrenchment was based on false reason; no legal procedure was adopted before retrenchment and even no seniority list was provided under Rule 76 of the Act.
She got sent a legal notice to the Management under A.D demanding reinstatement with continuity of service and full back wages, but Management did not reply the same. Hence, the claim.
2. In the Written Statement, the Management has taken the main plea that the claimant was not a "Workman" as defined under Section 2 (s) of the Act. She was performing the work of Supervisory nature. ID No.47/2003 Page 3/ 27 They have further stated that the Workman was retrenched from the services of the Management on close of the working hours on 31.12.2001. She was duly paid retrenchment compensation and she also applied for release of termination benefits. She also withdrew her termination benefits such as Provident Fund and Gratuity. They have further stated that the claimant attended her duties on 31.12.2001 as the existing strength of Sr. Stores Assistant was found to be in excess than the requirement. She was junior most, still she was retrenched from the services. She duly accepted her compensation without any demur. Other pleas of the Workman have been denied parawise and they have reiterated their stand that the claimant was not a "Workman" as defined Sec. 2 (s) of the Act and she being the junior most Sr. Stores Assistant, her services were retrenched from the services on the close of working hours on 31st December, 2001.
3. No rejoinder was filed by the Workman. On the pleadings of the parties, following issues were framed: ID No.47/2003 Page 4/ 27
(i) Whether the claimant was a "Workman"?
(ii) Whether the Workman is entitled to reinstatement with consequential benefits?
(iii) Relief.
4. I have heard Ld. Authorised Representatives (A.Rs) for the parties and have also perused the material placed on record. My findings on the above issues are as follows:
ISSUE NO. 1:
The onus to prove this issue lies upon the workman. In support of this, she has examined herself as WW-1. She has deposed on affidavit which has been got exhibited as EX.WW1/A alongwith documents from EX.WW1/1 to 7. Relevant portion of her testimony is taken up. She has stated in her testimony that she was appointed as Store Assistant in the General Export Division from 1.8.1987 and thereafter, she was promoted as Senior Store Assistant for a period from April 1999 to 31st December, 2001 by the Management. Her last drawn basic salary was Rs.3,300/- plus D.A. of Rs.1579/- ID No.47/2003 Page 5/ 27 alongwith other usual benefits.
5. In defence, management has examined Shri Pankaj Khanna MW-1. He has deposed on affidavit which has been got exhibited as EX.MW1/A alongwith document EX.MW1/1. The relevant portion from his testimony is taken up. He has deposed that claimant was not a "Workman". She was promoted as Senior Store Assistant w.e.f. April 1999 which was a supervisory post. Her job profile included maintenance of stocks, follow up with the buyers, ensuring timely dispatch of stocks and supervising the work and discipline of the 5 stores Assistant working under her.
6. It has been argued on behalf of the Management that the claimant was not a "Workman" as she was performing supervisory duties.
On the other hand, Ld. AR for the Workman has argued that she was a workman as her duties were not supervisory in nature.
7. To appreciate the arguments of parties, a look ID No.47/2003 Page 6/ 27 has to be made to the testimony of Workman Smt. Urvashi Panwar WW-1 as well as Shri Pankaj Khanna, Manager (Finance) MW-1.
8. To answer whether the Claimant is a "Workman"
or not, it would not be out of place to have a look to the meaning of the workman explained by the Hon'ble Supreme Court as well as of different High Courts. Some of these judgments are as under:-
The Hon'ble Supreme Court in Arkal Govind Raj Rao. Vs. Ciba Geigy of India Ltd., AIR 1985 SC 985, has laid down that where an employee has multifarious duties and a question is raised whether he is a Workman or someone other than a Workman, the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the persons concerned. In other words, dominant purpose of employment must be first taken ID No.47/2003 Page 7/ 27 into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person.
In Management of Sonepat Co-operative Sugar Mills Ltd. Vs. Ajit Singh, 2005, Vol. 1 L.L.J, 1122, S.C., it was held that the question as to whether the employee has been performing a clerical work or not is required to be determined upon arriving at a finding as regard the dominant nature thereof.
In Narsinha Anand Joshi V. Centuary Shipping, LLR 440, it was laid down that to ascertain whether an employee is a Workman, the nature of work of employee, the various duties performed by him, his status and position in the company, his ranking all clearly go to show that he was employed mainly in administrative capacity and any work which can be termed as work of clerical nature done by him was only incidental to his employment in the ID No.47/2003 Page 8/ 27 administrative capacity.
9. Authorised Representative (AR) for the claimant/ workman has vehemently argued that the claimant was a workman as the nature of her job was of a clerical nature. He has further argued that even if, she used designation as Senior Store Assistant that will not oust her from the definition of 'Workman'. In support of his arguments, AR for the workman has relied upon the judgment of Kerela High Court in Mar Baselius Medical Mission Hospital Vs. Joseph Babu, 2007 LLR 411, wherein it has been laid down that it is the nature of the duty which a determining actor, but not designation.
10. The principles which emerge from the above judgments are as follows:-
(i) Where an employee has multifarious duties, his preliminary and basic duty must be identified and if incidentally, he does some additional duties, they cannot change the character and status of the ID No.47/2003 Page 9/ 27 employees i.e. the dominant purpose of the employment, firstly, is to be taken into consideration.
(ii) Whether an employee is in a supervisory capacity or not, has to be decided by total consideration of the essential nature of his work office, designation and the entire context of his employment.
(iii) It is the nature of duty which is a determining factor, not designation.
11. In the light of the above principles, it has to be seen whether the Claimant was a "Workman" or not. For this, a look has to be made to the evidence led by both the parties.
12. Firstly, the testimony of Smt. Urvashi Panwar WW-1 is taken up. She has stated in her testimony that she was appointed as Store Assistant in the General Export Division from 1.8.1987 and thereafter, she was promoted as Senior Store Assistant for a period from April 1999 to 31st December, 2001 by the Management. Except this, she has not explained the nature of duties ID No.47/2003 Page 10/ 27 performed by her. However, in her cross-examination she has stated that when she was promoted as Senior Store Assistant, seven Store Assistants were working under her. To quote from her testimony, " When I was promoted as Senior Store Assistant, seven Store Assistants were working under me." Except her designation on promotion as Senior Store Assistant, she has not explained her duties in her testimony, though she has admitted that seven Store Assistants were working under her. The fact that she has not explained the nature of her duties though she has admitted that seven Store Assistants were working under her, to know more about the same, the testimony of management witness has to be examined.
13. Coming to the testimony of Shri Pankaj Khanna, MW-1, he has stated in his testimony that she was promoted as Senior Store Assistant w.e.f. April 1999 and her job profile included maintenance of stocks, follow up with the buyers, ensuring timely dispatch of stocks and supervising the work and discipline of the 5 stores Assistant working under her. If his cross examination is looked into, it is noticed that he has given the names of ID No.47/2003 Page 11/ 27 five juniors Store Assistant who worked under the claimant. To quote from his testimony, " Five Junior Stores Assistants worked under the claimant at the time of retrenchment were viz. Ms. Harkanwal Kaur, Ms. Seema Devi, Ms. Monika Yadav, Ms. Manju Lata and Ms. Sarla Kaul."
This witness has also stated that the claimant was authorized to sanction the leave . However, no record has been produced to substantiate this due to the fact that the same was not traceable. However, no suggestion has been put to this witness with regard to her job profile which has been stated by Shri Pankaj Khanna, Manager (Finance) MW-1. Thus from the job profile stated by Shri Pankaj Khanna, Manager (Finance) MW-1 and the fact that workman herself has admitted in her testimony that 7 Store Assistants were working under her when she was promoted as Senior Store Assistant, if the dominant purpose of her employment is kept in mind, from the duties performed such as maintenance of stocks, follow up with the buyers, ensuring timely dispatch of stocks and supervising the work and discipline of the 5 stores Assistant working under her, the nature of her ID No.47/2003 Page 12/ 27 employment was in the supervisory capacity.
14. Thus, from the evidence on record it is evident that claimant Smt. Urvashi Panwar WW-1 was working as Senior Store Assistant whose work was of supervisory nature. Therefore, she does not fall under the definition of workman. Thus, this issue is accordingly decided in favour of the Management and against the claimant. ISSUE NO. 2:
15. Though the findings on issue no. 1 have gone against the workman, even then this issue is taken up . The onus of this lies upon the workman.
Workman Smt. Urvashi Panwar has deposed on affidavit which has been got exhibited as EX.WW1/A alongwith documents from EX.WW1/1 to 7. She has stated in her testimony that she was appointed as Store Assistant in the General Export Division from 1.8.1987 and thereafter she was promoted as Senior Store Assistant for a period from April 1999 to 31st December, 2001 by the Management. She joined the duty on 31.12.2001 and on the same day received a letter dated 31.12.2001 issued ID No.47/2003 Page 13/ 27 by Shri Hemant Deve authorized signatory of the Management stating that the existing strength of Senior Store Assistant was found to be excess and she was found surplus and her services were terminated by way of retrenchment.
She has further deposed that she signed the letter under protest and without prejudice to her legal right. The Management directly deposited a cheque bearing No. 33013 dated 31.12.01 amounting to Rs.1,03,178/- in her account without her consent. Her Saving account was operating in the Central Bank of India, Taj Palace Hotel, S.P. Marg, New Delhi. The Management also issued a cheque bearing No. 68871 dated 31.12.01 for Rs. 68,306/- drawn on State Bank of India, main Branch Mumbai towards the gratuity and the said cheque was also accepted by her under protest.
She has further deposed that on 1.1.2002, she was not allowed to join the duty or to sign the attendance register and even not allowed to talk to her seniors. The termination letter issued by the Management was false, wrong and justified. No retrenchment could have been effected without taking prior permission from the ID No.47/2003 Page 14/ 27 appropriate Government. Thus her termination was in violation of the provisions of Section 25 (G) of the Act.
She has further deposed that she has become unemployed due to illegal and wrongful retrenchment from the services by the Management. No seniority list provided u/s 76 of Act was ever displayed which deprived her of an opportunity to make submission to the Management.
She has further deposed that she sent a legal notice against her illegal termination to which she has not received any reply. Her job was transferable and the entire company was to be treated as one industrial establishment and therefore, no retrenchment could have been effected without taking permission from the appropriate Government. She has got exhibited the salary slip, retrenchment letter dated 31.12.2001, legal notice and postal receipt from EX.WW1/1 to 7 respectively.
16. Shri Rajesh Kumar Raman, Social Security Assistant from the office of Employees Provident Fund, WW-2 has deposed in respect of the employees who were working with the Management. He has deposed that in ID No.47/2003 Page 15/ 27 the year 2000-2001, 210 employees and in the year 2001- 2002, 161 employees were working with the Management.
17. Shri Pankaj Khanna, Manager (Finance) MW-1 has stated in his testimony that the claimant being the junior most Senior Store Assistant was retrenched from the services of the Management on the close of the working hours on 31.12.2001.
He has further deposed that though the provisions of Industrial Disputes Act were not applicable to the applicant as she was performing supervisory duties since April 1999, however, as an abundant precaution, the retrenchment compensation was paid to her. She has withdrawn her Provident Fund and gratuity at her own volition.
He has further stated that the Company was registered under the Shops and Establishment Act and no manufacturing activity was done in the Management. He has got exhibited registration certificate of the Management as EX.D-1.
He has further deposed that no junior to the claimant has been employed or retained in the ID No.47/2003 Page 16/ 27 establishment of the Management. The retrenchment of the claimant was in accordance with "Last Come First Go". The seniority list was displayed on the notice board every year. Thus, he has deposed that no unfair labour practice has been perpetrated by the Management. He has also got exhibited the seniority list as EX.D-2.
18. It has been argued on behalf of the workman that the Management has violated the procedure prescribed under Chapter VB of the Act before retrenchment of the workman as the prior permission of the appropriate Government has not been taken as there were more than 100 workmen working with the Management. Particular reference has been made to Section 25 N of the Act.
It has further been argued that Mr. Ved Prakash, who was junior to the workman continued to work, whereas the workman was retrenched.
On the other hand, Ld. AR for the Management has argued that the procedure envisaged under Chapter IV B of the Act was not applicable as the Management is not an "industrial establishment". However, the Management as an abundant precaution has retrenched ID No.47/2003 Page 17/ 27 the workman by following the principle of "Last Come First Go".
19. To appreciate the arguments of Ld. AR for the parties, it would not be out of place to have a look to the relevant provisions of Chapter VB of the Act which are reproduced hereunder:-
25K Application of Chapter VB - (1) The provisions of this Chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than [one hundred] workmen were employed on an average per working day for the preceding twelve months.
(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final.
25L. Definitions. - For the purposes of this Chapter, -
(a) "industrial establishment" means -
(i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
(ii) a mine as defined in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952); or
(iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);ID No.47/2003 Page 18/ 27
(b) notwithstanding anything contained in sub-clause (ii) of clause (a) of section 2, -
(i) in relation to any company in which not less than fifty-one percent of the paid-up share capital is held by the Central Government, or
(ii) in relation to any corporation [not being a corporation referred to in sub-
clause (i) of clause (a) of section 2] established by or under any law made by Parliament, the Central Government shall be appropriate Government.
25N. Conditions precedent to retrenchment of workmen.- (1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,-
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and
(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf. (2) ................................................................. (3) ................................................................ (4) ................................................................. (5) ................................................................. (6) ................................................................. (7) ................................................................. (8) .................................................................ID No.47/2003 Page 19/ 27
(9) .................................................................
20. From the above provisions, it is noticed that Chapter IV B has been made applicable: i) to an "industrial establishment" where not less than 100 workmen on an average per working day for the preceding twelve months have been employed; ii) an industrial establishment has been defined as (i) a factory as defined under Factories Act; (ii) a mine as defined under the Mines Act; and (iii) a plantation as defined under Plantation Labour Act; iii) in respect of a company of which paid-up share capital of more than 51% has been held by the Central Government; and iv) in respect of the Corporation the same has been established under any law made by the Parliament.
21. If all the above essentials are fulfilled then the workman can be retrenched provided that he has been given three months notice in writing indicating the reasons for retrenchment and the notice period has ID No.47/2003 Page 20/ 27 expired, or he has been paid wages in lieu of such notice and prior permission of the appropriate Government has been taken.
22. Thus, the first and foremost condition for the applicability of this Chapter is that the establishment must be an "industrial establishment" and it should have not less than 100 workmen on an average per working day for the preceding twelve months.
23. The sole argument which has been advanced on behalf of the Management is that the Management is not an "industrial establishment" and the provisions of Chapter VB were not attracted to the Management.
24. Whether the Management is an "industrial establishment" or not?, it has to be gathered from the testimony of Shri Pankaj Khanna, Manager (Finance) MW-1. If his cross examination is looked into, he has stated in his cross examination that the Management was a Public Limited Company which carried the business of ID No.47/2003 Page 21/ 27 the shopping of shops dealing with handicraft, shawls, carpets, etc. It was also doing trading business. He has denied the suggestion that the Management was a manufacturing unit. He has further deposed that the Company was registered under Delhi Shops and Establishment Act as well as under Companies Act.
25. Coming to the testimony of Smt. Urvashi Panwar WW-1, she has denied that the Company was registered under Delhi Shops and Establishment Act. She has shown her ignorance in respect of registration of the Management under any of the Act. The fact that workman herself has denied in respect of registration of the Management under any of the Act, the testimony of Shri Pankaj Khanna, Manager (Finance) MW-1 has to be relied upon which goes to show that the Management was a Public Limited Company under the Companies as well as Delhi Shops and Establishment Act which did the business of the shopping of shops dealing with handicraft, shawls, carpets, etc. as well as trading business.
26. Thus, from her this testimony it cannot be said ID No.47/2003 Page 22/ 27 that the nature of trade carried out by the Management was of a factory, mine or plantation, the definition of which has been taken in respect of industrial establishment to make the provisions of Chapter IV B of the Act. Therefore, from the testimony of Shri Pankaj Khanna, Manager (Finance) MW-1 as well as Smt. Urvashi Panwar it cannot be said that the Management falls within the definition of "industrial establishment". Since the Management does not fall within the definition of "industrial establishment", the provisions of Chapter VB are not applicable to it.
27. Not only from the nature of work being carried out by the Management, even otherwise also, for the application of Chapter IV B, the "industrial establishment" must have 100 workmen on an average per working day for the preceding twelve months.
28. To ascertain the employment of the workman in the Management, if a look has made to the testimony of Smt. Urvashi Panwar WW-1, she has categorically stated ID No.47/2003 Page 23/ 27 in her testimony that there were only 25 to 50 employees working with the Management at the time of her termination. This she has confirmed from the record which she has seen. To quote from her testimony, "There were 25 to 50 employees working with the Management at the time of my termination. I can say that the employee strength of the Management was from 25 to 50 on the basis of record which I have seen".
29. Shri Rajesh Kumar Raman, Social Security Assistant from the office of Employees Provident Fund, WW-2 has also stated in his testimony that the total employees for the year 2000-2001 was 210 and for the year 2001-2002 was 165. Even if this figure is taken as it is, it means that the total strength of the employees of the company for the year 2000-2001 was 210 and for the year 2001-2002 was 165 . This is the total strength which the Management was having, but the strength of the workmen should not be less than 100 employees on an average per working day for the preceding twelve months. It means that the Company should maintain on an average 1200 employees per year. On this score ID No.47/2003 Page 24/ 27 also, Chapter IV B cannot be said to be applicable to the Management.
30. Though Chapter IV B of the Act is not applicable to the Management as it does not fall within the concept of "industrial establishment", even otherwise also Smt. Urvashi Panwar WW-1 has stated in her cross examination that the Management used to display the seniority list on the notice board and she used to see it. She has further admitted that Mr. Ved Prakash, who was junior to her, was still in the Management as Senior Store Assistant when she left the job. She has further stated that she never objected to the seniority list displayed by the Management. The fact that she stated that the Management used to display the seniority list which was seen by her and Mr. Ved Prakash, though junior most, was appointed to the post of Senior Store Assistant when she left the job. Her argument that Mr. Ved Prakash was junior to her and he has not been retrenched has no force.
Further, she has admitted that she received retrenchment letter EX.WW1/2 though she has stated that ID No.47/2003 Page 25/ 27 she accepted this letter under protest, but she has further admitted that she has not written " under protest" on the said letter. She has further deposed that she received the cheque of Rs.1,03,178/- and further applied for provident fund and gratuity. Though she has stated that she did not accept cheque for an amount of Rs.1,03,178/- voluntarily, but there is nothing on record to show her protest in any way. The fact that she has accepted the cheque of Rs.1,03,178/- and applied for provident fund and gratuity after accepting retrenchment letter EX.WW1/2 without putting any protest on the said letter, it cannot be said that she has not accepted the same voluntarily. Her conduct shows that she has accepted the retrenchment letter EX.WW1/2 as well as other monetary benefits voluntarily.
31. Thus from the above, it cannot be said that retrenchment of the workman was illegal or unjustified. Therefore, this issue is decided against the workman and in favour of the Management. The Workman is not entitled to any relief.
ID No.47/2003 Page 26/ 27
32. In view of above discussion, reference is answered in above terms and award is passed accordingly. Six copies of the award be sent to the appropriate Govt. for publication. File be consigned to record room.
Announced in open court (SUKHDEV SINGH) Dated: 11.3.2010. Addl. Distt. & Sessions Judge POLC-VII, Karkardooma, Delhi.
ID No.47/2003 Page 27/ 27 ID No. 47/03 11.3.2010 Present: None.
Vide my separate order award is passed in favour of the Management and against the Workman. Six copies of the award be sent to the appropriate Government for publication. File be consigned to record room.
(SUKHDEV SINGH) Dated: 11.3.2010. Addl. Distt. & Sessions Judge POLC-VII, Karkardooma, Delhi.
ID No.47/2003 Page 28/ 27