Delhi District Court
Between The vs The on 9 September, 2022
OLD CASE
IN THE COURT OF AJAY GOEL, PRESIDING OFFICER
LABOUR COURT-06, ROUSE AVENUE DISTRICT
COURT, D.D.U. MARG, NEW DELHI
LIR No. 4379/16
Date of Institution 04.03.2014
Date of Award 09.09.2022
BETWEEN THE WORKMAN
Smt. Madhu Mehra W/o Sh. Surender Kumar Mehra,
R/o C-2/5, Mangla Apartment, Plot No. 53, I.P. Extn.
Patparganj, Delhi-110092, Delhi-110092.
AND
THE MANAGEMENT OF
M/s Rotax Electronics Pvt. Ltd.
Through ITS Managing Director, 12, Shaheed Bhagat
Singh Marg, New Delhi-110001.
AWARD
1. By this award, I shall dispose of the reference sent
by the Joint Labour Commissioner (New Delhi District)
Labour Department, Govt. of the National Capital
Territory of Delhi arising between the parties named
above to this court vide notification No. F. No. C-
142/LO/NDD/2013/07/35 dated 21.02.2014 with the
following terms of reference:-
"Whether the services of Smt. Madhu Mehra
LIR No. 4379/16 Page No. 1/36
W/o Sh. Surender Kumar Mehra have been
terminated illegally and/or unjustifiably by the
management; and if so, to what relief is he
entitled and what directions are necessary in
this respect?"
2. Notice of the reference was issued to the
workman with directions to file statement of claim which
has been filed stating therein that workman was working
with the management from the past 24 years having
clear records of service, since the day of her
appointment i.e. September, 1989; that the workman
was posted as a Executive Secretary (Clerical) and her
last drawn salary was 28,200/- per month, though the
designation was Executive Secretary but her nature of
work was clerical only which included correspondence
with the customer, with stated police organization,
paramilitary forces (CRPF, NSG, BSF, SPG, IB, etc) and
armed forces (Indian Army, Indian Navy, Air Force),
preparing tenders, bills and invoices, net banking, online
TDS submission, Wire transfer of money to foreign
principals etc; that workman was diligent, obedient,
devoted and sincere in performing her duties; that
during her employment, she never gave any chance of
complaint to her seniors/management.
3. It is averred that management of the company
started harassing and illegally pressurizing the workman
from last 2-3 months to give resignation and
management wanted to appoint a new staff in her place,
LIR No. 4379/16 Page No. 2/36
which was refused with the request that she had been
serving the company for more than 24 years, during
which she worked diligently and with full sincerity in
discharging her duties; that the sole motive of the
management was to harass the complainant and compel
her to give resignation from the services.
4. It is averred that vide letter dated 23.09.2013,
issued by the management, the services of the workman
was illegally terminated on the same date, that too
without assigning any reason(s) and without providing
any opportunity to the workman for being heard. It was
stated in the termination notice that "we hereby serve
upon you a termination notice of 30 days and
accordingly your service is being terminated with the
effect from 23 September, 2013', therefore, the said
notice was totally illegal, arbitrary and without any
justification/reason for termination with immediate
effect; that the workman had been vigilant, diligent and
sincere in discharging her duties and had a clear service
record throughout her employment.
5. It is averred that being aggrieved with the said
decision, workman made a complaint to the Asstt.
Labour Commissioner, Govt. of NCT of Delhi, 1, K.G.
Marg, New Delhi against illegal termination of her
services and the workman also sent a demand letter
dated 01.11.2013 to the management vide postal receipt
no. ED795738209IN dated 01.11.2013 demanding
therein reinstatement of the workman to her services
with the full back wages and continuity of services, but
LIR No. 4379/16 Page No. 3/36
the management failed to comply with the same and did
not even send any reply to the abovesaid demand letter
dated 01.11.2013; that management instead of
reinstating the workman, chose to serve a legal notice
dated 05.10.2013 through their counsel, to the
workman, alongwith a cheque bearing no 198167 for Rs.
32,317/- dated 01.10.2013 drawn on Canara Bank, Gole
Market, New Delhi. The said notice was suitably replied
vide written reply dated 19.10.2013 through her counsel,
and the said cheque bearing no 198167 for Rs. 32,317/-
dated 01.10.2013 was returned back to the
management.
6. It is further submitted that the Labour Inspector, Sh.
Manish Thakur, had sent a notice dated 08.10.2013 to
the management for appearing before him on
17.10.2013, but the management appeared through
counsel and sought adjournment for exploring the
chances of settlement, accordingly the matter was
adjourned for 25.10.2013 for chances of settlement and
for filling of requisite documents by the management,
However, on the said dated the management failed to
file any of the document and also failed to re-instate the
workman, under such circumstances, Labour inspector
gave a report dated 01.11.2013 to the workman; that
management failed to assign any reason for the
termination of the workman; that neither any reason has
been assigned for termination nor any opportunity was
granted to the workman for giving any kind of
justification; that entire service record of the workman is
LIR No. 4379/16 Page No. 4/36
clear and meritorious, till the date of her last day of
employment.
7. It is stated that management gave a illogical and
irrelevant reply before the Labour officer stating that as
there were certain money decrees passed against the
workman and her husband, whereby court notices etc.
have started coming at the official address, which was
not liked by the management; that the said alleged
decree are already under challenge before the
appropriate judicial authorities, moreover, the
management is no manner connected or concerned with
the same, as the same pertains to the personal life of
the workman.
8. It is further stated that the act of the management
is arbitrary, discriminatory, perverse, illegal, volatile the
provisions of section 25F and 25G of the Industrial
Disputes Act, 1947, principles of natural justice and
Articles 14 and 21 of the constitution of India; that since
the date of illegal termination from the service, the
workman had time and again requested the
management to reinstate her with full back wages, as
she is unemployed till date, however the management
failed to reinstate the workman nor had paid her
legitimate dues.
9. Lastly, it has been prayed that an award be passed
in favour of the workman and against the management
directing the management to reinstate workman with
full back wages, continuity of service and with all
consequential benefits etc and further management be
LIR No. 4379/16 Page No. 5/36
directed to pay an amount of Rs. 31,000/ towards the
cost of the litigation expenses.
10. The management has contested the present case
and filed its written statement taking preliminary
objections that the present dispute raised by the
claimant is a gross abuse and misuse of process of law,
the same is devoid of any merits and substance as such
is liable to be set aside; the claimant herein is not a
workman in terms of Industrial Disputes Act, as such, has
no right and privilege to invoke the jurisdiction of this
Hon'ble Court, to make reference in terms of Industrial
Dispute Act. It was also stated that as admitted by the
claimant, the claimant had been employed with the
management as Executive Secretary and her salary was
Rs. 28,200/- (Twenty Eight Thousand Two Hundred Only).
Since the claimant had been working in managerial
capacity, she cannot claim herself to be workman to take
advantage of special/social legislation invoking the
jurisdiction of the Hon'ble Court. It was also averred that
the claimant was involved in multifarious litigations
before the various civil courts and had suffered money
decrees, which had been inviting the management
another responsibility to make deduction from her salary
account and to ensure its remission with court every
month as such had been reeling under the stress and
financial pressures owing to omissions and commissions
of the respondent; that during the course of the
employment of the claimant, the management was obliged to make deductions from the salary of the LIR No. 4379/16 Page No. 6/36 workman in a couple of cases, and to remit it with the courts, in discharge of responsibility foster on it; that the claimant was time and again advised to keep the respondent out from the untidiness created by the claimant and her husband, but since the claimant failed to keep the management out of the said mess, this constrained the management to dispense the claimant from her employment. It was also stated that even after dispensing her from employment, the management is responding to attachment decrees issued by the courts; that respondents had to respond to attachment warrants issued by the Hon'ble Court of Sh. Sumedh Kr. Sethi, Civil Judge Delhi in execution petition filed by Canara Bank against husband of the claimant namely Sh. Surender Kumar.
11. It was also stated that during employment of the claimant, the management was depositing payments in one of the Execution petition no. 506/2006 pending before the court of Sh. Vishal Gogne, Ld. ACJ, (East), Karkarduma Courts, Delhi, after deducting amount from the salary of the workman; that the claimant has cleverly attempted to brush the aforesaid facts under carpet by twisting and manipulating them to Invoke jurisdiction of the Hon'ble Court, which is patently vexatious in nature and gross abuse and misuse of process of law; that claimant had been released all the amounts due and payable in terms of dispensing her from the employment; that the claimant refused to accept the letter of termination, as such, the termination letter was LIR No. 4379/16 Page No. 7/36 sent to the workman by Regd Post; that thereafter, the salary of the workman was tendered vide cheque bearing No. 198167 amounting to Rs. 32,317/- (Thirty Two Thousand Three Hundred Seventeen Rupees Only) dated 01.10.2013 for the period of services rendered by the claimant together with one month salary in lieu of notice for termination of service of the claimant. It was stated that since the claimant had worked with the management till 23.09.2013, as such the said period was duly computed while preparing the cheque of the salary due that the claimant had also tendered another cheque, which had been on account of gratuity to the tune of Rs. 3,90,462 vide Cheque No. 966317 dated 05.12.20013, which had been duly accepted and encashed by the claimant but the cheque of salary was mischievously returned to camouflage a fictitious dispute before the Hon'ble court.
12. In para wise reply, it has been stated that claimant was working with the management as Executive secretary and job of Executive Secretary with any company is job of expertise and skills to extend managerial support to the management, as such to assert and reduce it to clerical status is nothing sheer a manipulation to invoke jurisdiction of the court; that management had on number of times Intimated the workman to mend her behavior towards the respondent/ management and to abstain herself from being involved in the cases and to bring the respondent in the ugly trap thereof, which not only brought disrepute to the name of LIR No. 4379/16 Page No. 8/36 the respondent but also invited financial implications for no fault of the management. Since despite notice of caution, the claimant failed in mending herself constrained the claimant to take unpleasant call to dispense with services of the claimant. It is further stated that it was the management which had been subjected to harassment for omissions and commissions of the Claimant; that management had to deposit the amounts as decreed against the workman by various courts of law, for which management time and again warned workman to mend her behavior but all in vain.
13. It is further stated that the workman initially was served with the termination letter to which she refused to accept the same and later on, it was sent to her through registered post which was served on her on 23.09.2013. It is further submitted that the workman was not maintaining the honesty and used to misbehave with the fellow colleagues while working in the office of the respondent/ management. It is further stated that management replied specifically about each and everything related to the claim of the workman vide reply dated 13.01.2014, wherein the reasons and conduct of the workman was narrated thoroughly, after being appraise of facts and circumstances by the management, the Ld. Labour commissioner did not find any fault on the part of the management and prepared a report dated 01.11.2013. It is further stated that the Claimant is not covered under the definition of 'Workman' as stipulated in the Act, as she is working as LIR No. 4379/16 Page No. 9/36 executive secretary in the office of the management as such, management did violate the provisions of section 25F & 25G of the Industrial Dispute Act, 1947. It is further stated that that since the Claimant is not covered under the definition of Workman in the meaning of Industrial Dispute Act, 1947, therefore, this Hon'ble Court has no jurisdiction to try the instant claim petition as such, same is liable to be dismissed. Rest of the contents of the claim are stated to be totally false, misleading and vehemently denied. Lastly it has been prayed that present claim be dismissed.
14. The workman filed rejoinder in which she denied all the contents of the written statement word by word and has reiterated and reaffirmed the facts of the statement of claim as correct and prayed that an award may kindly be passed in her favour in terms of the prayer made by her in the statement of claim.
15. After completion of pleadings, the following issues were framed vide order dated 07.10.2015:-
1. Whether the claimant was working in a managerial capacity and is not a workman as claimed by the management? OPM
2. Whether the claim of the workman is not maintainable under the Industrial Disputes Act, as alleged by the management ? OPM
3. Whether the workman has suppressed the material facts as stated by the management in paragraph Nos. 3 and 4 of the preliminary objections of the written statement, if so, its LIR No. 4379/16 Page No. 10/36 effect? OPM
4. Whether the services of the workman have been terminated by the management illegally and unjustifiably? OPW
5. Whether the workman is entitled to the relief claimed in the statement of claim? OPW
6. Relief.
16. In workmen evidence, workman examined herself as WW1. She tendered her evidence by way of affidavit Ex WW1/A and relied upon documents i.e. Ex CW1/A to Ex CW1/C, Mark A (exhibited as CW1/D in affidavit) and Ex CW1/E to Ex CW1/N. She was cross-examined on behalf of the management.
17. Workman further produced her husband Sh. S. K. Mehra in WE as WW2. He tendered his evidence by way of affidavit Ex WW2/A and relied upon documents i.e. Ex WW1/1 to Ex WW2/3. He was also cross-examined on behalf of the management. The workman closed her evidence on 10.08.2018.
18. Thereafter, opportunity was given to the management to lead its evidence. In ME, statement of Sh. Sushil Kumar, Sales Manager of the management company was recorded as MW1. He was cross- examination on behalf of the workman. The management closed his evidence on 06.05.2022.
19. I have heard the arguments addressed on behalf of workman as well as management and perused the record. My issue-wise findings are as follows:-
LIR No. 4379/16 Page No. 11/3620. Issue No. 1. Whether the claimant was working in a managerial capacity and is not a workman as claimed by the management? OPM and Issue No.
2. Whether the claim of the workman is not maintainable under the Industrial Disputes Act, as alleged by the management?OPM:- Issues No. 1 and 2 are taken up together being inter-connected. The onus to prove issues No. 1 and 2 is on management.
21. It is the case of claimant that she was working with the management from the past 24 years having clear records of service, since the day of her appointment i.e. September, 1989. It is argued that that the workman was posted as a Executive Secretary (Clerical) and her last drawn salary was 28,200/- per month, though the designation was Executive Secretary but her nature of work was clerical only which included correspondence with the customer, with stated police organization, paramilitary forces (CRPF, NSG, BSF, SPG, IB, etc) and armed forces (Indian Army, Indian Navy, Air Force), preparing tenders, bills and invoices, net banking, online TDS submission, Wire transfer of money to foreign principals etc. It is argued that management of the company started harassing and illegally pressurizing the workman from last 2-3 months to give resignation and management wanted to appoint a new staff in her place, which was refused with the request that she had been serving the company for more than 24 years, during which she worked diligently and with full sincerity in discharging her duties. It is argued that vide letter dated LIR No. 4379/16 Page No. 12/36 23.09.2013, issued by the management, the services of the workman was illegally terminated on the same date, that too without assigning any reason(s) and without providing any opportunity to the workman for being heard. It is argued that management gave a illogical and irrelevant reply before the Labour officer stating that as there were certain money decrees passed against the workman and her husband, whereby court notices etc. have started coming at the official address, which was not liked by the management. It is further argued that the said alleged decree are already under challenge before the appropriate judicial authorities, moreover, the management is no manner connected or concerned with the same, as the same pertains to the personal life of the workman. It was lastly argued that the act of the management is arbitrary, discriminatory, perverse, illegal, volatile the provisions of section 25F and 25G of the Industrial Disputes Act, 1947, principles of natural justice and Articles 14 and 21 of the constitution of India.
22. On the contrary, the management has argued that the claimant herein is not a workman in terms of Industrial Disputes Act, as such, has no right and privilege to invoke the jurisdiction of this Hon'ble Court, to make reference in terms of Industrial Dispute Act. It was also argued that claimant had been employed with the management as Executive Secretary and her salary was Rs. 28,200/- (Twenty Eight Thousand Two Hundred Only) and since the claimant had been working in managerial capacity, she cannot claim herself to be LIR No. 4379/16 Page No. 13/36 workman to take advantage of special/social legislation invoking the jurisdiction of the Hon'ble Court. It is also argued that the claimant was involved in multifarious litigations before the various civil courts and had suffered money decrees, which had been inviting the management another responsibility to make deduction from her salary account and to ensure its remission with court every month as such had been reeling under the stress and financial pressures owing to omissions and commissions of the respondent. It is argued that during the course of the employment of the claimant, the management was obliged to make deductions from the salary of the workman in a couple of cases, and to remit it with the courts, in discharge of responsibility foster on it. It was argued that the claimant was time and again advised to keep the respondent out from the untidiness created by the claimant and her husband, but since the claimant failed to keep the management out of the said mess, this constrained the management to dispense the claimant from her employment. It was also stated that even after dispensing her from employment, the management is responding to attachment decrees issued by the courts. It was also argued that claimant had been released all the amounts due and payable in terms of dispensing her from the employment and the salary of the workman was tendered vide cheque bearing No. 198167 amounting to Rs. 32,317/- (Thirty Two Thousand Three Hundred Seventeen Rupees Only) dated 01.10.2013 for the period of services rendered by LIR No. 4379/16 Page No. 14/36 the claimant together with one month salary in lieu of notice for termination of service of the claimant. It was argued that since the claimant had worked with the management till 23.09.2013, as such the said period was duly computed while preparing the cheque of the salary due that the claimant had also tendered another cheque, which had been on account of gratuity to the tune of Rs. 3,90,462 vide Cheque No. 966317 dated 05.12.20013, which had been duly accepted and encashed by the claimant but the cheque of salary was mischievously returned to camouflage a fictitious dispute before the Hon'ble court.
23. While offering challenge to the locus standi of the claimant, the management is to demonstrate on record that the claimant is not a workman in terms of ID Act, to invoke jurisdiction for raising a dispute, before the Court. To demonstrate the same, it becomes incumbent on the management to establish the aforesaid defense before the Court from the material collected in course of trial on claims raised by the claimant/workman.
24. To analyse the facts emerged in course of trial, it is important to examine the observations made by the different courts, how to determine who would be the workman in terms of ID Act, to justify him/her to invoke jurisdiction of the authorities/court constituted in this regard in terms of mandate of statute. To begin with, who would be workman In terms of ID Act, we need to refer to Section 2(s) of ID Act, that defines who shall be Workman to invoke jurisdiction under ID Act, which reads LIR No. 4379/16 Page No. 15/36 as under:
25. 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-
1) 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
2) who is employed in the police service or as an officer or other employee of a prison; or
3) who is employed mainly in a managerial or administrative Capacity; or
4) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
26. Reliance is placed upon judgment titled as Kirloskar Brothers Ltd. Vs. Presiding Officer, Labour Court, Delhi and Anr reported at 1976 ILR 1 DL 565, wherein the Hon'ble Apex Court observed that "Trial Court should adopt a positive approach to examine LIR No. 4379/16 Page No. 16/36 whether particular employee is a workman or not". To explain in candid term, the principle evolved and adopted by the Hon'ble Apex Court is reproduced hereunder for ready reference of this Hon'ble Court.
"10. In order to make a reference to a Labour Court or a Tribunal of an Industrial dispute the first point that must engage the attention of the appropriate Government is to decide whether the complaining employee is a "workman". Even if reference is made of a dispute then the Labour Court or the Tribunal must first apply its mind to this problem for unless the employee concerned is a workman the question of adjudication of an industrial disputes does not arise. In my opinion the approach has to be a positive approach and not a negative approach. In other words, what has to be seen is whether the particular employee is a workman and not whether the employee concerned falls within the exceptions mentioned in Section 2(s) and if he does not fall in one of the exceptions then by process of elimination he is held to be a "workman". A social legislation like the Industrial Disputes Act confers certain rights and obligations upon certain categories of persons. Those rights and obligations must be limited to be attracted only in the case of such persons as are covered by the statute. Certain rights are conferred upon a "workman" as defined by Section 2(s) of the Act. Therefore, those rights are available only to persons who can be called workman and not to all those who are not covered by the exceptions given in Section 2(s). To LIR No. 4379/16 Page No. 17/36 put in another way what has to be seen is whether a person is a workman as opposed to what may be called "non-workman and not whether he is a workman because he is not a Manager or one employed in an administrative capacity. It is possible that an employee in a given case may not be employed in managerial and administrative capacity or in supervisory capacity and yet he may not be a workman. If the approach is that every employee is a "workman" but the benefits of raising an industrial dispute is not available to those who are subject to the Army Act, or the Air Force Act or the Navy (Discipline) Act or who is employed in the police service or as an officer or other employee of a prison or who is employed mainly in a managerial or administrative capacity; or who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature, then, in my opinion, the approach would be incorrect. The proper approach in law would be to first see whether an employee is a workman and then see whether any of the exceptions are attracted. Reading the definition of the word "workman" I find that it is necessary that a person must be employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. Thus the first thing to find out is whether the employee concerned is employed to do manual or clerical work, be LIR No. 4379/16 Page No. 18/36 it skilled or unskilled, technical or non-technical. If that be so, then he would be workman even if he is employed in a supervisory capacity line less by virtue of being employed in supervisory capacity his wages exceed Rs. 500.00 or his duties or powers convert his employment into one mainly of managerial nature. On the other hand, if manual or clerical work is only small part of the duties of the person concerned and incidental to his main work, which is not manual or clerical then such a person would not be a workman. In Management of M/s. May and Baker (India) Ltd. v. Their workmen and Appellants, that court was concerned with construing Section 2(s) of the Industrial Disputes Act as it stood before the amendment of 1956. The rule laid down was similar to the one which I have propounded above and I think the rule still holds good despite the substitution of clause (s) of Section 2 by the amendment Act, 36 of 1956. In the case of M/s. May and Baker, referred to above the Supreme Court came to the conclusion that inasmuch as the main work of the employee in that case was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing the employee could not be regarded as a person falling within the ambit of the term "workman". On good authority, therefore, I hold that the approach has to be positive, as said by me earlier and not negative to find out whether an employee would fall within the ambit of the term workman."LIR No. 4379/16 Page No. 19/36
27. It was further observed by Hon'ble Apex Court in case titled as in ARKAL GOVIND RAJ RAO VS. CIB GEIGY OF INDIA PVT. LTD. BOMBAY reported at 1985 (11) IL 401(403) SC wherein it was held that "the dominant purpose of employment must be first taken into consideration and gloss of some additional duties must be rejected while determining the status and character of the person."
28. In the view of the law settled in above said judgments, it is observed that the profile of the Workman, as admitted in para 4 of statement of claim becomes relevant, wherein, the nature of job assigned to the claimant was not restricted to the clerical work of making correspondence with the clients, but involved repairing of tenders, bills and invoices, to do net banking and wire transfer of money to the Foreign Principals demonstrates that the predominant nature of job of the Workman was managerial, involving personal skills of the workman In discharge of duties.
29. As far as cross-examination of MW-1 is concerned, the witness of management has specifically deposed regarding administrative powers vested in the work lady in his cross examination recorded on 18.03.2021 wherein deposed that "She also used to handle all other administrative work like documentation, finance and administrative Work".
30. The nature of work being professed by the workman was further tested and verified during cross examination of the workman. The attention is drawn to LIR No. 4379/16 Page No. 20/36 cross examination of WW1 recorded on 18.03.2017 wherein at last para of page No. 1 the witness has deposed that "after allocation of tender, I used to place order to such identified vendors after negotiating with them".
31. In her further cross-examination recorded on 31.08.2017 in para 1 the WW-1 deposed that "The payments were used to be made to the vendors for the orders placed by the management through accounts section voln. I am not related with the accounts section. I was retaining online password for current bank account of the management voln. Since the accountant of the management was an old person not conversant with the operation of online account, as such, the said assignment of handling online account was handed over to me".
32. Further in reply to question put to the WW-2 Sh.
Surinder Kumar Mehra, who was husband of the work lady) recorded on 10.08.2018 at Pg7 the witness deposed that "the work lady was working as Secretary of Director and had been managing the affairs of the directors in day to day course."
33. Reliance is further placed upon judgment titled as S.K. MAINI VS. CARONA SAHU COMPANY LIMITED AND ORS. MANU/SC/0429/1994, wherein it was held by Hon'ble Apex Court that "whether appellant was workman - his predominant duty was administrative or managerial and to some extent supervisory in nature - although some of duties undertaken by him like LIR No. 4379/16 Page No. 21/36 maintaining accounts filling certain proformas were clerical in nature but his major job was managerial in nature - appellant cannot be workman within meaning of Section 2 (s)".
34. Further, the profile of the employee falls in exception IV of Section 2(s) of ID Act, as such, the instant proceedings initiated by the workman are nothing but abuse of process of law. Exception IV of Section 2(s) of ID Act is reproduced herein below:-
"Workman does not include any such personal ..... (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."
35. Reliance is further placed upon judgment passed by Hon'ble Delhi High Court in case of YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF INDIA VS JYOTSNA PAUL Reported at 2004 ILR 2 DL 440 wherein the Hon'ble Court observed that "I am of the view that the presumption is that an employee does the job that he or she is employed to do. This is, of course, a rebuttable presumption, the onus being on the employee to show that he or she was actually doing some other work than what he or she was employed to do. In the present case it appears to me, as mentioned above, that the Respondent has overstated her case; in the process she has distorted the truth, which is that she was primarily LIR No. 4379/16 Page No. 22/36 concerned with managerial and supervisory functions, clerical and manual duties being incidental and occasionally necessary. The Respondent has not been able to successfully rebut the presumption that she was doing what she was employed to do".
36. It is not an out of place to mention herein that in manners, in which the locus standi of the claimant is to be tested has been meticulously examined and defined by the various courts in the aforesaid judgments, including that construed by the Hon'ble Apex Court, which has to be examined from the pleadings made and the evidence lead by the parties.
37. From the perusal of the statement of claim filed by the workman, it is clear that the designation of the claimant was of Executive Secretary (clerical), who had last drawn salary to the tune of Rs.28,200/-, which was further qualified in para 3 of the claim petition, where the workman claims to be designated as Executive Secretary but her nature of work was clerical only.
38. In para 4 of the statement of claim, the claimant defines her profile by stating that the job of the claimant included correspondence with the customer, including police organization; paramilitary and armed forces; preparing tenders, bills and invoices, handling online net banking, submitting TDS and wire transfer of money to the foreign principles etc.
39. Contrary to the aforesaid assertions made in the statement of claim, the management raised objection as to locus standi of the claimant in para 2 of the LIR No. 4379/16 Page No. 23/36 preliminary objection and stated that since, the claimant was working in managerial capacity, as such, the claimant had no locus standi.
40. In examination of MW1, the witness candidly deposed the that the claimant was working as Executive Secretary whereas in his cross examination, the MW-1 candidly deposed about dominion of the claimant in managing affairs of the respondent company, as much as Salary register, attendance register were prepared and maintained by the Claimant and she was managing administrative works like documentation and finance.
41. The perusal of deposition of MW1 shows that witness of management was consistent and he has maintained the defence of the management. The witness of management has denied the suggestion of claimant's counsel.
42. Further the attention is drawn to the cross examination of work lady recorded on 18.03.2017 in para 2 at page 1, wherein the witness has explained her profile, asserting that "after allocation of tender, I used to place order to such identified vendors, after negotiating with them". In the same paragraph, the witness further deposed that "after placing of order with the vendor, her boss used to follow up the same for which drafting was made by me". From the above deposition, it is apparent that the decision as to placing of order, fixing of price after negotiation was falling in the work profile of the claimant.
LIR No. 4379/16 Page No. 24/3643. In further cross examination of WW-1 recorded on 31.08.2017 in para 1, the claimant admitted the fact that for online operation of bank account, the password for said account was also with her. Thus, from the above deposition of claimant it is clear that the claimant was allowed to handle the accounts of the company to make online payments, which further vindicates the stand taken by the management in defense, on claims set up by the claimant.
44. Further the conduct of the Claimant is also relevant.
The claimant during her cross-examination deposed that her designation cited in the statement of claim was given by mistake of her AR. She further deposed that her attorney or lawyer did not rectify the same despite being asked by the claimant whereas perusal of affidavit tendered in evidence also narrates that the claimant was working as Executive Secretary.
45. It is not an out of place to mention here that the last drawn salary of claimant is much more than the slab fixed by the Statute, as such is not qualified to be Workman in terms of the Act.
46. From the perusal of cross examination of WW1, it is observed that the witness has tried to make candid effort to improvise her statement by reducing her job to clerical in nature. In her cross examination recorded on 18.03.2017 at page No. 2, para 2, the witness has admitted herself to be stenographer, instead of what she mentioned in para 1 of her affidavit, claiming herself to be the executive secretary, which the workman was LIR No. 4379/16 Page No. 25/36 consistently maintaining right from her first claim. Thus, the aforesaid discussion manifests that the management has successfully discharged onus put on it to demonstrate that the workman presenting the claim petition before the Hon'ble Court was having no locus standi as per Section 2 (s) of the ID Act in respect of issue no. 1 & 2.
47. From perusal and discussion of abovesaid cross-
examination of witnesses who appeared before the court, it is crystal clear that the nature of profile was not clerical but was managerial in nature which does not falls in the ambit of Workman as defined in Sec. 2 (s) of the ID Act.
48. In view of the observations made above, it is held that claimant was working in a managerial capacity and is not a workman. It is also held that the claim of the workman is not maintainable under the Industrial Disputes Act. Both issues No. 1 and 2 are decided against the work lady and in favour of management.
49. Issue No. 3. Whether the workman has suppressed the material facts as stated by the management in paragraph Nos. 3 and 4 of the preliminary objections of the written statement, if so, its effect? OPM:- The onus to prove this issue was on the management.
50. It has come on record that the claimant was involved in various litigations before the various civil courts and had suffered money decrees, which had been inviting the management another responsibility to make LIR No. 4379/16 Page No. 26/36 deduction from her salary account and to ensure its remission with court every month as such had been reeling under the stress and financial pressures owing to omissions and commissions of the respondent.
51. It has further come on record that during the course of the employment of the claimant, the management was obliged to make deductions from the salary of the workman in a couple of cases, and to remit it with the courts, in discharge of responsibility foster on it and the claimant was time and again advised to keep the management out from the same, but since the claimant failed to keep the management out of the said mess, this constrained the management to dispense the claimant from her employment.
52. It has come on record that even after dispensing her from employment, the management is responding to attachment decrees issued by the courts and reference of some cases have been given in the written statement also wherein the management had to respond to attachment warrants issued by the Hon'ble Court and even the management was depositing payments in courts after deducting amount from the salary of the workman.
53. It has further come on record that claimant had been released all the amounts due and payable in terms of dispensing her from the employment and the claimant refused to accept the letter of termination, as such, the termination letter was sent to the workman by Regd. Post and thereafter, the salary of the workman was LIR No. 4379/16 Page No. 27/36 tendered vide cheque bearing No. 198167 amounting to Rs. 32,317/- (Thirty Two Thousand Three Hundred Seventeen Rupees Only) dated 01.10.2013 for the period of services rendered by the claimant together with one month salary in lieu of notice for termination of service of the claimant. It has also come on record that since the claimant had worked with the management till 23.09.2013, as such the said period was duly computed while preparing the cheque of the salary due and claimant had also tendered another cheque, which had been on account of gratuity to the tune of Rs. 3,90,462/- vide cheque No. 966317 dated 05.12.20013, which had been duly accepted and encashed by the claimant but the cheque of salary was mischievously returned to camouflage a fictitious dispute before the Hon'ble court.
54. Rather, during the course of arguments, the claimant has fairly admitted the factum of receiving the gratuity to the tune of Rs. 3,90,462/- vide cheque No. 966317 dated 05.12.20013. It is also not disputed that salary of the workman was tendered vide cheque bearing No. 198167 amounting to Rs. 32,317/- (Thirty Two Thousand Three Hundred Seventeen Rupees Only) dated 01.10.2013 for the period of services rendered by the claimant together with one month salary in lieu of notice for termination of service of the claimant.
55. During cross-examination of the WW-2, it has come on record that the witness was consciously aware of the reasons for termination of her services, but did not disclose the same before the Court and said fact is LIR No. 4379/16 Page No. 28/36 admitted by the WW-1 in her cross examination recorded on 31.08.2017 on page No. 6.
56. The management led evidence to establish the reason and justification for termination of her services. The WW-1 did not dispute the aforesaid reason rather, she has admitted in her cross-examination on page No. 3 recorded on 31.08.2017 that "The management was served with a warrant of attachment of his salary by different civil courts in respect of decree of recovery against me and my husband. It was being deducted since March 2012. (Vol. It may be even prior to this). It is correct that after making deductions from my salary, the management was to deposit the amount with the court and the aforesaid process was continuous till my termination."
57. In order to counter the reason being assigned for termination of services of the witness, the claimant further examined WW2, who was her husband. In his affidavit, the WW-2 claimed having made settlement with some bankers, with a motive to offer challenge to the reason being assigned to termination.
58. In this connection, it has been argued that all settlements allegedly made with the banker are post termination of workman. Further in his cross examination WW-2 admitted that the disputes of the witness and his wife with canara bank were yet not resolved.
59. Attention of court has been drawn to the cross-
examination of WW-1 recorded on 31.08.2017 on page LIR No. 4379/16 Page No. 29/36 No. 3 last para and page No. 4 first para wherein the "WW-1 has denied the suggestion to the effect that management tendered a cheque of Rs. 32,317/- vide letter dated 03.10.2013, giving details of amount due and payable for the salary of the work done with one month salary in lieu of the notice period. WW-1 further voluntarily deposed that it was tendered before the labour court but I do not remember the date. It was also given cheque on account of gratuity thereafter when I asked for the same. I did not demand gratuity in writing. It is correct that I received the cheque on account of salary as well as on account of gratuity on the same date".
60. So from above deposition, it is clear that the Witness concealed the factum of having received the amount tendered towards gratuity and appropriated the same but this fact was not stated in the statement of claim, which fact was confronted to the witness, who candidly admitted the same during her cross examination.
61. From the foregoing submissions, it is held that management has been successful in discharging onus to put on them to prove the same and work lady has failed to prove the same. Accordingly, this issue No. 3 is decided in favour of management and against the workman and it is held that workman has suppressed the material facts as stated by management in para No. 3 and 4 of the preliminary objections of WS.
62. Issue No. 4. Whether the services of the workman have been terminated by the LIR No. 4379/16 Page No. 30/36 management illegally and unjustifiably? OPW and Issue No. 5. Whether the workman is entitled to the relief claimed in the statement of claim? OPW:- Both these issues No, 4 and 5 are taken up together being inter-connected. The onus to prove these issue was on the workman.
63. At the first instance, the credibility of the witness was tested during her cross examination on 31.08.2017 whereby she was confronting the notice EX.CW1/E stating candidly the reasons for termination of her services and also regarding the cheque tendered towards salary for her work done besides one month salary in lieu of notice by putting a specific question, which is recorded at page no. 5 to which witness has deposed in affirmative. Attention of court is further drawn to the cross-examination of workman recorded on 31.08.2017 at page No. 6 wherein the aforesaid fact is again admitted in her cross examination and the witness has deposed to be aware of reasons for termination of her services. Thus, the allegation of termination of services without assigning reason, as being alleged in the claim petition does not hold any water.
64. It is admitted position on record that the workman was tendered a cheque of Rs.32,317/- with details of its calculation, comprising the salary payable for the work done with one month salary in lieu of notice period. The witness admitted tendering of cheque in her cross examination before the Labour Commissioner vide receipt executed on 18.12.2013. It is also come on LIR No. 4379/16 Page No. 31/36 record that with the aforesaid cheque, another cheque was tendered towards gratuity payable to the workman but claimant/workman returned the cheque tendered towards the outstanding salary and salary for notice period. There is no challenge to amount payable on gratuity that was tendered against receipt EX.CW1/N. In absence to the challenge of amount payable towards gratuity and appropriation towards the gratuity amount indicates that if at all the workman had any grievance as to her termination being illegal, the same is acquiesced off by the witness, by appropriating the aforesaid gratuity amount. Thus, it is held that the instant petition is nothing but patent abuse of process of law.
65. It is not an out of place to mention here that tendering of cheque of salary for the Work done with one month salary in lieu of notice is also admitted by WW2 in his cross examination.
66. Though it has been argued by claimant that her services have been terminated by management illegally and ground taken by management regarding termination of services of claimant that they have to suffer decrees of court apart from harassment, is not a valid ground but this argument also does not hold any water and this argument has become irrelevant because it has been held by court that claimant is not workman and court is not required to give discussion to this issue still the court has considered the same. It is also made out that there was no need of any domestic inquiry also on the ground of conduct of workman with respect to dealing with LIR No. 4379/16 Page No. 32/36 banks and taking loans from banks and resultingly, harassment to the employer because that was not termed as misconduct by the employer.
67. Even otherwise, reliance is placed upon judgment passed by Hon'ble High Court of Delhi, titled as State Bank of Travancore Vs. Prem Singh, W. P. (C) 11160/2004, decided on 10.04.2019. The relevant para of this judgment are reproduced as under:-
"34. In case of misconduct resulting in loss of confidence, the employer is not bound to hold any inquiry to visit the employee with penal action even if such reason happens to be misconduct of the employee. The employer, in its discretion, may invoke the power to discharge simplicitor for loss of confidence while dispensing with inquiry into the conduct of the workman. The department inquiry in such a case is not necessary".
68. The law settled in above judgment is fully applicable to the facts of the present case because in the present case also, the claimant had taken loans from banks and she committed defaults in making payments and later on, the management has to suffer decrees of the courts and in this manner, the management had lost confidence in claimant and terminated her services.
69. Reliance is also placed upon judgment titled as Workman of Motipur Sugar Factory Pvt. Ltd. Vs. Motipur Sugar Factory (1965) IILJ162SC, wherein the Hon'ble Apex Court has held that "It is now well- settled by a number of decisions of this court that LIR No. 4379/16 Page No. 33/36 where an employer has failed to make an inquiry before dismissing or discharging a workman, it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case, the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held, but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified".
70. This court also finds support for this view from judgment passed by Hon'ble Supreme Court of India in case titled as Workman of M/s. Firestone Tyre & Rubber Company of India Vs. Management & Ors. dated 06.03.1973 wherein, the Hon'ble Apex Court has held that "If the enquiry was defective or no inquiry had been held, as required by the standing orders, the entire case would be open before the tribunal and the employer would have to justify, on evidence as well that its order of dismissal or discharge was proper. There is no provision either in the Industrial Employment (Standing Orders) Act 1948 or in the Industrial Disputes Act which states that an order of dismissal or discharge is illegal, if it is not LIR No. 4379/16 Page No. 34/36 recorded by a proper and valid domestic inquiry."
71. Though claimant had argued that there was no misconduct on her part in her services and her services were terminated illegally and unjustifiably but from perusal of judgments relied upon above and the law settled therein, it is clear that even if no inquiry had been held by an employer, it was upon for both the parties to adduce their respective evidence before the court and claimant in support of her case has produced herself in witness box apart from her husband who was examined as WW-2 and they were given sufficient opportunities to prove their case but she failed to create dent to the case of management and it is not proved that her terminated was illegal and unjustifiable. The argument of workman that inquiry should have been held on so-called misconduct alleged by management does not hold water in view of the above pronouncement and the management was justified in terminating the services without holding any inquiry in the facts and circumstances of the case. Though it is again emphasised that first of all, the claimant was not workman and secondly, all formalities were completed by management and thirdly, they had made out a case during the trial against the claimant.
72. From above discussion, it has already been held that services of the workman were not terminated illegally and unjustifiably. Rather, her due amounts and benefits were also given to claimant by management as per law as it is made out that notice of termination was LIR No. 4379/16 Page No. 35/36 given and dues were cleared as per I.D. Act even though she was not workman. Though section 25 (F) was not applicable to her as she was not workman U/s 2 (s) still her dues were cleared.
73. Accordingly, both issues No. 4 and 5 are decided in favour of management and against the claimant and it is held that services of the workman have not been terminated by the management illegally and unjustifiably and it is held that workman is not entitled to the relief as claimed in the statement of claim.
74. Relief:- In view of the findings of the court on all the above issues, it is held that the workman is not entitled to reliefs as claimed against the management as she is not workman and claim of workman stands rejected and award to that effect is hereby passed. However, the management will give the payment /cheque of salary to claimant which was returned by her.
75. A copy of this award be sent to the Dy. Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Pronounced in open court on 09.09.2022 (AJAY GOEL) PRESIDING OFFICER LABOUR COURT-06/ ROUSE AVENUE COURT, NEW DELHI.
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