Delhi District Court
Md Nisar vs M/S Sunlight Upkeep And Maintainance on 27 May, 2024
IN THE COURT OF MS. REKHA
PRESIDING OFFICER : LABOUR COURT - 07
ROUSE AVENUE COURTS : NEW DELHI
LIR No. 645/19
CNR No. DLCT13-000643-2019
Mohd. Nisar
S/o Sh. Rajudeen,
R/o 386, Block-H, Gali No. 16
Sangam Vihar New Delhi-110016
Through
Indian Steel and Metal Workers Union (Regd 4377)
46, Nehru Market (Patera), Badarpur,
New Delh-110044 ............ Workman
VERSUS
Sh. Neeraj Sehdev
M/s Sunlight Upkeep & Maintenance,
C-49, Basement, Kalkaji,
New Delhi-110019 .......... Management
Date of receiving of Reference : 23.01.2019
Date of passing Award : 27.05.2024
AWARD
1. Vide Reference No.F.24 (441)/Lab./SD/2018/9612
dated 11.05.2018, the following Reference was received for
LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 1
adjudication, from Joint Labour Commissioner, under Section 10
(1)(c) and 12(5) of Industrial Disputes Act, 1947 read with
Notification no. S-110011/2/75/DK (IA) dated 14.04.1975 and
Notification no. F-1/31/61/616/Estt./2008/7458 dated 03.03.2009
in respect of industrial dispute between the Workman and
Management:
"Whether the services of Md. Nisar S/o Sh.
Rajudeen, aged-43 years (Mobile
No.9818435253) 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 aforesaid Reference was issued to the Workman
and after service of said notice, Statement of Claim was filed by
workman. The brief facts in narrow compass, relevant and
necessary for the disposal of the present matter, as stated in his
Statement of Claim, are as follows:
i. That the workman had joined the
management on 01.04.1992 as Manager
and his last drawn salary was Rs. 20,000/
per month. Though, he had been appointed
as Manager with the management but his
work had already fixed. None was working
under his instruction. He did not have any
LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 2
power to appoint and terminate any of the
employee. During his service period with
the management, his services were neat and
clean and unblemished. During service
period, he never gave any chance of
complaint to the management. At the time
of his joining, the management got his
signatures on blank papers, blank
vouchers, settlement letter and blank
appointment letter but never gave the copy
of the same to the workman which might be
used by the management against the
workman if used, same will not be valid
from workman side. The management did
not use to give the salary on time. The
management also did not provide many
legal facilities like appointment letter,
wages slip, leave book, attendance card,
identity card, bonus, overtime, conveyance
allowance, weekly and festival leaves, yearly
promotion etc. He was orally demanding these
facilities from the management due to which
the management had grudges/grievances
against the workman and wanted to
LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 3
terminate his services. The management, in
order to take revenge, without any reason
and without following any seniority list,
without any notice, without giving earned
wages w.e.f. 01.07.2016 to 24.07.2017 and
after getting his signatures on full & final
settlement and on blank papers had
terminated his services on 25.07.2017.
ii That he also tried to get back his job
through Labour Department but the
management did not cooperate there. He
also filed Statement of Claim before the
Conciliation Offier which is part of the
demand notice but due to noncooperative
attitude of the management, the
Conciliation Officer could not get him
reinstate.
iii. That the workman is unemployed
since his termination and despite his best
efforts, he could not get the employment.
iv. That it has been prayed that he is
entitled to be reinstated in service with full
back wages and continuity of his service
along with all consequential benefits
LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 4
arising therefrom.
3. DEFENCES:
Notice of Statement of Claim was issued to
Management and Management filed its Written Statement in
which allegations leveled in the statement of claim have been
denied and certain preliminary objections have been taken. In the
Written Statement, the management raised following defences:
i. That the present claim is not
maintainable and liable to be dismissed
with cost and same is barred by limitation
as the same was filed after completion of
one year.
ii. That the workman never joined the
management dated 01.04.1992 on a
monthly salary of Rs. 20,000/- in the
capacity of Manager but he joined the
management on a monthly salary of Rs.
15,000/- on 01.04.2010. The workman had
left his services with his own sweet will as
he is doing his own business
simultaneously his services with the
management. There is also prayer for the
dismissal of the statement of claim.
4. To this Written Statement filed by the Management,
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the workman had also filed his rejoinder in which contents of the
statement of claim have been reiterated and allegations levelled
in the Written Statement have been denied. He also stated that he
also made complaint through his Union to Asst. Labour
Commissioner and representative of the management appeared
there but refused to reinstate the workman and also refused to
pay unpaid dues and also did not show any record.
5. ISSUES:
On the basis of the pleadings of the parties, the
following issues were framed:
1. 1. Whether there exist any relationship of
employer and employee between the
management and the workman? OPW
2. Whether the services of workman were
terminated illegally and/or unjustifiably
terminated by the management and if so, to
what relief is he entitled? OPW
3. Relief
6. WORKMAN EVIDENCE:
7. In order to prove his case, the workman stepped into
the witness-box as WW-1. He tendered his evidence by way of
affidavit EX. WW1/A and relied upon the following documents:
Ex.WW1/1 Demand notice dated 30.10.2017
Ex.WW1/2 Two Postal Receipts
LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 6
Ex.WW1/3 Complaint dated 06.11.2017 filed before the
Asst. Labour Commissioner
Ex.WW1/4 Report dated 22.12.2017 of Labour Inspector
Ex. Statement of claim filed before the
WW1/5
Conciliation Officer
Ex.WW1/6 Complaint dated 16.04.2018 filed before the
Asst. Labour Commissioner
Ex.WW1/7 Copy of ESI Card
EX. Complaint dated 07.04.2018 alongwith postal
WW1/8
receipt sent to the Additional Central PF
commissioner
EX. RTI Application dated 20.05.2019 alongwith
WW1/9
postal receipt sent to RTI Officer, EPFO
Ex. Reply dated 18.06.2019 to the aforesaid RTI
WW1/10
application alongwith copy of documents
attached thereto
Ex. Copy of Experience Letter dated 25.06.2001
WW1/11
issued to him by the management
8. RESPONDENT EVIDENCE:
The management got examined Neeraj Sehdev as MW1 and relied upon the following documents:-
Mark-A Copy of Police complaint dated 09.10.2019 against the workman Mark-B Copy of order dated 07.02.2022 passed by Sh.
Amar Deep-Authority under the Delhi Shop and Establishment Act LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 7
09. I have heard the arguments and perused the material available on record.
10. The issuewise findings are as under: ISSUE No. 1
1. Whether there exists any relationship of employer and employee between the management and the workman?
OPW The onus to prove this issue was conferred upon the Workman.
The WW1/workman deposed that he had joined the management on 01.04.1992 as Manager and his last drawn salary was Rs. 20,000/ per month.
Per contra, MW1Sh. Neeraj Sehdev deposed that the workman was working on Managerial post and the workman regularly used to take commission from the other workmen during his services. Further, MW1 during crossexamination stated that at the time of appointment of workman, appointment letter was given to the workman.
From the above testimony/statement on behalf of the management, it is crystally clear that the workman/claimant was working with the management.
In light of above, it stands prove that there was relationship of employer and employee between the management and the workman.
Hence, issue no. 1 is decided in favour of the workman and LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 8 and against the management.
11. ISSUE No. 22. Whether the services of workman were terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled? OPW The onus to prove this issue was conferred upon the Workman.
WW1/workman deposed that the workman had joined the management on 01.04.1992 as Manager and his last drawn salary was Rs. 20,000/ per month. Though, he had been appointed as Manager with the management but his work had already fixed. None was working under his instruction. He did not have any power to appoint and terminate any of the employee. Further, he was also not having any power to sign any cheque, hence, he comes within the definition of the workman. During his service period with the management, his services were neat and clean and unblemished. During service period, he never gave any chance of complaint to the management. At the time of his joining and during services period, the management got his signatures on blank papers, blank vouchers, settlement letter and blank appointment letter but never gave the copy of the same to the workman. The management did not use to give the salary on time. The management also did not provide many legal facilities like appointment letter, wages slip, leave book, attendance card, identity card, bonus, overtime, conveyance allowance, weekly LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 9 and festival leaves, yearly promotion etc. He orally demanded these facilities from the management but all in vain. The management got annoyed and in order to take revenge, without any reason and without following any seniority list, without any notice, without giving earned wages w.e.f. 01.07.2016 to 24.07.2017 and after getting his signatures on full & final settlement and on blank papers had terminated his services on 25.07.2017. He also made complaint through his union to the Asst. Labour Commissioner, Pushpa Vihar, New Delhi but despite best efforts by the Labour Inspector, the management did neither give his earned wages nor reinstate him and also did not show any record. He also filed Statement of Claim before the Conciliation Officer but due to noncooperative behaviour on behalf of the management, no compromise materialized between the parties.
On the other hand, MW1Neeraj Sehdev deposed that the workman was working on a managerial post and taking commission from the other workers during his services and voluntarily left his services without intimating the management being a Manager, the workman does not come under the definition of the workman. The workman/claimant had stolen important documents and CPU from the office of the management in the presence of accountant on 22.07.2017 after the information received by the management, the management had lodged a police complaint against the workman on 09.10.2019 which is MarkA. The Sunlight had been closed due LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 10 to his cheating and on the other hand, workman is running firms and doing good business.
In light of above, here it is said that the main defence of the management/respondent is that the workman was working on a managerial post, hence he does not come under the definition of the workman.
Hence, the first question that has to be decided is whether the claimant/workman was in fact a workman or not, as defined in Section 2(s) of the ID Act.
Here, it would be relevant to refer to the provisions of Section 2(s) of the ID Act, which read as under:
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, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal,discharge or retrenchment has led to that dispute, but does not include any such person-- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 11 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 3 [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.]"
From the bare perusal of above, it is clear that to squarely fall within the exception of Sec. 2 (ii) in Clause (s) in subclause (iv), the person must be (a) employed in a supervisory capacity; (b) draw more than INR 10,000/ as wages; and (c) primarily perform the functions of managerial nature.
It is also worthy to note here that while interpreting this provision, the Constitution Bench of the Supreme Court in H.R. Adyanthaya and Others Vs. Sandoz (India) Ltd. and Others, 1994 (5) SCC 737 held that an employee is a workman under the Act if he is employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. In the other words, if the work of a person did not fall within any of the categories of manual, clerical, supervisory or technical, he would not qualify to be workman.
Now coming to the fact and circumstances of the present case.
It is worthy to note here that during the crossexamination, LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 12 WW1/workman denied the suggestion that he had been appointed as Manager by the management in the year 1992 and voluntarily said that he was appointed as Supervisor and not as Manager. He denied the suggestion that he was deposing falsely in this regard as he had already mentioned in his Statement of Claim and his affidavit of evidence that he had been working with the management since 01.04.1992 as Manager at monthly salary of Rs. 20,000/.
It is relevant to pen down here that in Statement of Claim as well as Evidence by way of affidavit, workman/claimant has claimed that he had worked with the management since 01.04.1992 as Manager but suddenly there was a sharp U turn by the claimant regarding his posting with the management as Supervisor.
Further, perusal of Ex. WW1/1 i.e. copy of Demand Notice dated 30.10.2017, Ex. WW1/3 i.e. Copy of complaint dated 06.11.2017 filed before the Asst. Labour Commissioner, Ex. WW1/5 i.e. Statement of Claim filed before the Conciliation Officer shows that in all these documents also, the workman has claimed that he had worked with the management w.e.f. 01.04.1992 as Manager.
I have also gone through the photocopy of alleged Experience Letter dated 25.06.2001 Ex. WW1/11 which was allegedly issued to him by the management.
Perusal of same, it is found that it has been allegedly issued LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 13 by Proprietor of Sun Light Upkeep and Maintenance and it does not bear any stamp. Further, it has been certified that Mohd. Nisar had been working as a House Keeping Sr. Supervisor since April, 1992.
Although, this document has not been admitted on behalf of the management but for the sake of arguments, if it is assumed that this document EX. WW1/11 is genuine still, it is admission on the part of the claimant that since the April, 1992, he had been working as House Keeping Sr. Supervisor.
Now coming to the plea of the claimant that although, he had been appointed at the post of Manager but neither any employee was allegedly working under the claimant/workman nor the claimant was having any power to appointment and termination of anyone. Further, he was also not having any power to sign any cheque.
It is worthy to note here that MW1Neeraj Sehdev Proprietor of management stated during crossexamination that the workman was doing the managerial work in the management such as distribution or salaries, supervision of sites and dealing with the clients on behalf of the management. He denied the suggestion that the workman was not doing the managerial work in the management such as distribution or salaries, supervision of sites and dealing with the clients on behalf of the management. He also denied the suggestion that the workman was doing only field work not managerial work as stated before. He also denied LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 14 the suggestion that the workman was not having leave sanctioning power to the other employees and he was also not appointing authority. He also admitted that the last drawn salary of the workman was Rs. 20,000/ p.m. In light of above, here it is said that since the claimant himself admitted that he had joined management as Manager but he was not performing primarily the functions which were of managerial in nature, in other words, as per claimant, his managerial post with the management was only nomenclature but actually, he was not doing any job which was managerial in nature. Hence, in view of the Court, it was the duty of the claimant to prove that he was not doing any job which was managerial in nature but instead of proving the above said fact, he during his crossexamination took a different stand that he was working as a Housekeeper Supervisor.
Here, further view of the Court is that nothing came out from the testimony as well as documents relied upon by the claimant to prove that he was doing the works which were not the managerial nature. Mere bald assertions on behalf of the claimant that he was not doing the work which were in the managerial nature is not sufficient. The claimant should have at least got examined any witness who was working with him to prove that the claimant was doing the job which were not the managerial in nature but he failed to do so.
Further, a person is doing work which is supervisory in nature also cannot be defined as workman in view of Section 2 (s) LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 15 of the Industrial Disputes Act, 1947.
In light of above, view of the Court is that the claimant does not fall within the definition of category of "Workman" as defined in Section 2 (s) of the Industrial Disputes Act, 1947.
As the claimant does not fall within the definition of category of "Workman" as defined under the Industrial Disputes Act, 1947, hence this Court has no jurisdiction to adjudicate upon the issue no. 2 regarding alleged illegal termination of the claimant by the management.
Therefore, issue no. 2 is disposed off accordingly.
12. RELIEF:
In view of the above observations, Statement of Claim of the workman is dismissed. Reference stands answered in aforesaid terms. Copy of Award be sent to Labour Commissioner for publication. File be consigned to Record Room after due compliance.
Digitally
signed by
REKHA
REKHA Date:
2024.05.28
16:14:16
+0530
Dictated in the open Court (REKHA)
th
on 27 May 2024 Presiding Officer Labour Court - 07
Rouse Avenue District Court, New Delhi
LIR No. 645/19 Md Nisar Vs. M/s Sunlight Upkeep and Maintainance Page 16