Delhi District Court
M/S. Le Meridien vs M/S. Thomas Cook India Ltd. 2000(6) on 2 May, 2008
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I.D. No. 75/02.
IN THE COURT OF SH. GURDEEP KUMAR
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF
M/s. Le Meridien,
Windsor Place,
New Delhi-110001.
...Management
Versus
Its workman
Sh. Kirat Ajwal,
R/o B-121, Brij Vihar,
Ghaziabad, U.P.
...Workman
A W A R D :-
Date of institution of case : 13.11.2002.
Date on which the judgment
has been reserved : 30.04.2008.
Date on which the judgment
has been delivered : 02.05.2008.
Secretary (Labour), Government of National Capital
Territory of Delhi has referred the dispute arising between the
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parties named above for adjudication vide its order No. F. 24
(1991) / 2002 / Lab. / 19956- 60 dated 25.10.2002 u/s 10(1)(d),
and 12(5) of the I.D. Act, 1947 with the following terms of
reference:-
"Whether Sh. Kirat Ajwal son of late
Sh. Sultan Singh Ajwal has been
discharged from service by the
management illegally and / or
unjustifiably, if so, to what relief is he
entitled and what directions are
necessary in this respect?"
Workman's case in brief is that he was appointed as "Bell
Boy" by the management for a salary of Rs. 700/- per month
with a probation of one year vide appointment letter dated
04.11.1987. His salary was revised to Rs. 800/- per month vide
letter dated 01.05.1988. He was given an increment of Rs. 80/-
raising his salary to Rs. 880/- per month vide letter dated
09.01.1989. He was promoted by the management as Trainee
Bell Captain vide letter dated 22.04.1992 issued by Senior Vice
President and General Manager.
Contd...
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2. It is further averred that he has been discharging his
duties with honesty and integrity and resultantly, the
management issued a certificate of appreciation for services
rendered by him vide a certificate dated 02.11.1992. On
completion of his probation, his services were confirmed by the
management w.e.f. 04.11.1988. On the directions of the
management, he had undergone the training of fire fighting and
fire safety techniques and had received a letter of appreciation
by the management on completion of the same. The
management found his services satisfactory and he started
getting annual increments / salary revision. His salary was
increased from time to time and lastly w.e.f. 01.04.2001 his
salary was increased from 6449/- to Rs. 7115. p.m.
3. Suddenly, however, on 26.10.2001 he was denied entry
Contd...
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into the hotel and was not allowed to join his services for the
reasons best known to Office Incharge of the entry gate of the
management. No reasons whatsoever were given for
denying him access to his place of work. He was shocked to
receive a letter purported to be of 31.10.2001 and received by
him on 08.11.2001 from the management containing false
allegations levelled against him that on 20.10.2001 when he
was in the morning shift duty, he had received a call from an
outsider; that the said outsider had requested him to arrange for
him a car for Agra - Jaipur overnight trip from the Hotel; that he
agreed to arrange the same and told the outsider that he will
arrange the car from outside Hotel, because car of Travel Desk
counter would cost him more. In that letter it was further
alleged that he personally met the said person at about 4.00
p.m. on 20.10.2001 outside the Hotel near staff gate on
Janpath at Pan Shop and he confirmed for arranging of car. It
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was further alleged in the said letter that the management felt
that hotel business gets affected with such kind of activities and
the image of the hotel has been tarnished. In that letter it was
further alleged that the management had lost confidence in his
integrity to discharge duties and in the circumstances, the
management arbitrarily discharged him from the services w.e.f.
31.10.2001.
4. On 02.11.2001 workman wrote a letter to the management
for issuance of necessary directions to the concerned official of
the management to permit him to report for duty. It is alleged
that the action of the management in terminating his services is
wholly illegal, bad, unjust and mala fide for the reasons inter-
alia that his services have been terminated not in good faith but
in colourable exercise of employer / management rights; that
his services have been terminated without adhering the
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principles of natural justice as no show cause notice was issued
to him nor any compensation was offered or paid to him; that
he had not committed the alleged misconduct and that he was
not served with any memo or chargesheet nor any domestic
enquiry was conducted against him affording him an opportunity
to defend himself; that it amounts to unfair labour practice. It is
further averred that the workman is unemployed since
26.10.2001 despite his best efforts to get an alternative
employment.
5. It is further averred that workman had replied to the
termination letter vide his letter dated 13.11.2001 followed by
demand notice dated 27.11.2000 sent by registered post and by
fax. He filed a statement of claim before the Conciliation Officer
but nothing positive came out in those proceedings. Hence,
this reference by the appropriate government. He has sought
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his reinstatement with full back wages from the date of
termination with continuity of service and other attendant
benefits.
6. The management has filed written statement taking
preliminary objections that claim is not maintainable for the
reasons that applicant is not a workman within the definition
and meaning of Section 2(s) of the Industrial Disputes Act,
1947; that no industrial dispute can be said to exist until and
unless a demand is made by the claimant on the management
and that has been rejected by the management; that filing of
statement of claim before Conciliation Officer without first
raising demand and / or submitting a demand notice to the
management is stated to be illegal.
7. On merits, the management admitted that he was
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appointed as "Bell Boy" vide appointment letter dated
04.11.1987 on a salary of Rs. 700/- which was enhanced from
time to time. The management also admitted to have confirmed
his services w.e.f. 04.11.1988 and also promoted him as Bell
Captain vide letter dated 22.04.1992. As regards the
appreciation letters, it is stated that as a matter of routine he
has been awarded certificate of appreciation from time to time.
Each and every employee of the establishment was also issued
said certificates after completion of five years services with the
management as policy matter. It is denied that claimant was
granted any special increments due to his extraordinary and
good conduct. It is submitted that each and every increment
suggests that claimant was an average employee. It is averred
that the claimant was charge sheeted vide chargesheet dated
31.10.2001 and that the charges mentioned therein are correct.
It is further averred that action of the management was just
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proper and legal exercise of management's right. It is further
averred that the claimant was not entitled for any compensation
as he has been discharged from his services due to grave and
serious misconduct committed by him while on duty. It is
denied that action of the management amounts to unfair labour
practice.
8. The claimant filed rejoinder denying averments in the
written statement and reiterating the facts stated in the
statement of claim.
9. On the pleadings / facts, vide order dated 25.07.2003 my
ld. Predecessor settled the issues which are reproduced
below:-
1. Whether the workman is not covered
in the definition of workman u/s 2(s)
of the I. D. Act? (OPM)
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2. Whether the action of management is
without holding legal and valid
enquiry? (OPW).
3. Whether the discharge of workman
from service is illegal and unjustified?
(OPW)
4. As per terms of reference.
10. The parties were directed to adduce their evidence.
Workman Kirat Aswal examined himself as WW1 wherein he
tendered his affidavit dated 06.11.2003 reiterating the aforesaid
narrated averments as spelled out in the statement of claim.
Besides he has relied upon the documents Ext. WW1/1/ to
WW1/17.
11. On the other hand MW1 - Mr. Y. K. Gupta, Deputy
Personnel Manager with the management appeared on behalf
of the management and tendered his affidavit dated 20.08.2004
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reiterating averments as spelled out in the written statement
filed by the management. Besides, he stated that claimant was
served chargesheet-cum-discharge order Ext. WW1/13 dated
31.10.2001 for committing several grave and serious
misconduct. He further stated that due to grave and serious
misconduct, the management has lost confidence in claimant to
discharge the duty.
The management also examined MW2 - Mr. Rajinder
Singh who is employed as Bell Captain with the respondent
management. In his deposition as MW2, he has tendered his affidavit dated 14.10.2004 that he is working with the management hotel Le Meridien as Bell Captain; that Bell Captain is Incharge of one shift. He further deposed that in fact Bell Captain is a shift Incharge of Bell Desk.
12. I have heard the A.R for both the parties and considered Contd...
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the submissions made by them. I have also gone through the evidence and other relevant material placed on record by the parties.
My issues wise findings are as under :-
ISSUE NO. 1.
13. One of the contentions of A.R for the management is that claimant cannot lead evidence and argue beyond pleadings that he is a workman as defined under Section 2 (s) of the Industrial Disputes Act, 1947.
14. Bare perusal of the statement of claim para 1 reveals that the claimant claims to be a workman who was appointed as a Bell Boy by the management of Le Meridien vide appointment letter dated 04.11.1987. In the light of this, I do not find any Contd...
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substance in the contention of A.R for the management that there are no pleadings to that effect.
15. A.R for the management has further argued that initial burden lies on the workman to prove that he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947; that in his cross examination workman himself admitted that 4 - 5 boys used to work under him and under his supervision. It is further averred by A.R for the management that in the light of the said admission by the workman, he is deemed to have been working in supervisory capacity while drawing wages more than 1600/- and, therefore, the claimant is not covered by the definition of the workman in terms of the provisions of Section 2(s) of the Industrial Disputes Act, 1947.
16. On the other hand, A.R for the workman has argued that Contd...
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the management has not brought on record any document whatsoever to show that the workman was performing the duties of managerial or supervisory nature and, therefore, he is deemed to be a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947. A.R for the workman has relied upon the the case law reported as :-
1. Aloysius Nunes Vs. M/s. Thomas Cook India Ltd. 2000(6) SLR 991.
2. Rallis India Ltd. Vs. State of West Bengal & Others1983(II) LLJ 293.
3. M/s. Gwalior Investment Co. Pvt. Ltd. Vs. K.M. Desai 1992 LLR 911.
4. A.D. Inamdar Vs. M/s. Bajaj Tempo Limited 2000(86) FLR
345.
5. Bombay Dyeing and Manufacturing Vs. R.A. Bindoo 1990 (5) SLR 448.
6. Indian Iron & Steel Co. Ltd. Vs. Workmen 1958 SCR 667.
7. National Engineering Industries Vs. Sri Kishan Bhageria and others 1988 (56) FLR148.
Contd...
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He has also relied upon Management of Delhi Transport Corporation Vs. Ram Kumar and another 1982 (44) FLR
356. On the other hand, A.R for the management has relied upon the case law reported as :-
1. Municipal Council, Sujanpur Vs. Surinder Kumar 2006 LLR 662.
2. A.K. Patel and etc. Vs. The Indian Hotels Co. Ltd. 2005 LLR 663.
3. Mukand Ltd. Vs. Mukand Staff and Officer's Association 2004 (101) FLR 219.
4. Kukesh K. Tripathi Vs. Mukesh Sr. Divisional Manager, L.I.C. And others 2004 (103) FLR 350.
5. R.M. Yellatti Vs. Assistant Executive Engineer 2006 (108) FLR 213.
6. Karnataka State Road Transport Corporation, Hubli Division, Hubli (Now North West Karnataka Road Transport Corporation ) Vs. B.B. Tabusi 2000 II CLR 458.
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7. B. D. Tripathi Vs. Indian Airlines Corporation 1987 (55) FLR 33.
8. Kendriya Vidyalaya Sanghathan and Anr. Vs. S.C. Sharma 2005 LLR 275 SC.
9. Bennett Coleman and Co. Limited Vs. Yadeshwar Kumar 2006 III CLR 918.
10.BombayDyeing and Manufacturing Company Ltd. Vs. R.A. Bindoo and another 1990 (1) LLJ 98.
11.R. Kartik Ramchandran Vs. P.O. Labour Court and another 2006 (109) FLR 100.
I have gone through the aforesaid case law relied upon by A.Rs for the parties.
In support of his contention that initial burden lies on the management to prove that the claimant is not a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 is on the management, A.R for the workman has relied upon a decision by Hon'ble Bombay High Court reported as Aloysius Nunes Vs. M/s. Thomas Cook India Ltd. (supra). Therein Contd...
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Their Lordships have held that burden of proof must always be on the person who disputes that character of the person in case of an industrial dispute. On the other hand, A.R for the management relying upon a recent decision by our own Hon'ble High Court in R. Kartik Ramchandran Vs. P.O. Labour Court and another (supra) has argued that it is the employee who required to set up such a plea and to lead evidence in support thereof. Therein Their Lordships have laid down that designation of an employee is not of importance and it is the real nature of duties being performed by the employee which would decide as to whether an employee is a 'workman' under Section 2(s) of the Industrial Disputes Act. The determinative factor is the main duties performed by the employee and not the work done incidentally. The nature of duties performed by the workman is a question of fact. An employee is required to set up such plea and to lead evidence in support thereof.
Contd...
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Same is the proposition of law laid down by the Hon'ble Apex Court reported as Mukesh K. Tripathi Vs. Sr. Divisional Manager, L.I.C. And others. (supra). In that case the offer of appointment dated 16.07.1987 read with the Scheme clearly proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. It was held by Their Lordships that onus was on the appellant (Mukesh Tripathi) to prove that he is a workman.
In the light of the proposition of law laid down by our own Hon'ble High Court in R. Kartik Ramchandran Vs. P.O. Labour Court and another (supra), the case law relied upon by A.R for the workman does not help the workman in any manner. Therefore, I am of the view that the initial burden lies on the workman to plead and prove that he has been performing the duties of a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947 and also to prove the same by Contd...
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adducing evidence in support of that plea.
17. In order to find out whether an employee is a workman or not, the Court has to look into the definition of the workman under Section 2(s) of the Industrial Disputes Act, 1947 which reads 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 Contd...-:20:-
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(ii) who is employed mainly in a managerial or administrative capacity; or
(iii) 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.
It is settled proposition of law that for determining whether an employee is workman or not under Section 2(s) of the Industrial Disputes Act, the dominant factor will not be his designation but the nature of duties performed. Question of class to which employees belong is not to be decided on the basis of grades in which they are placed but on the basis of their duties, responsibilities and powers as laid down in Section 2(s) of the Industrial Disputes Act. In order to be a workman, the specific nature of work as given under Section 2(s) of the Industrial Disputes Act must be shown to be the one being Contd...
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done by the person. There may be employees who do not do any supervisory or administrative work but may be out of the scope of the definition. A person to be a workman under Section 2(s) of the Industrial Disputes Act must be employed to do the work of any of the categories viz. Manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough if he is covered by either of the exceptions to the definitions of the Section 2(s) of the Industrial Disputes Act. A person who performs one or the other jobs mentioned in Section 2(s) of the Industrial Disputes Act only would come within the purview of the definition of workman. The job of a clerk, ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. 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 regards dominant nature thereof. With a view to give effect to Contd...
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the expression to do "any manual, unskilled, skilled, technical, operational, clerical or supervisory work", the job of the employee concerned must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not performing any managerial or supervisory duties, ipso facto he would be a workman.
The word "supervisory" means a person who oversees the work of others. It means 'overseer'. A person can be said to be a Supervisor if there are persons working under him, over whose work he has to keep a watch. He is that person who examines and keeps a watch over the work of his subordinates and if they err in any way, corrects them. It is his duty to see that the work in an industrial unit is done in accordance with a manual if there is one or in accordance with the usual procedure. It is not his function to bring about any innovation; it Contd...
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is not his function to take any managerial decisions, but it is his duty to see that the persons over whom he is supposed to supervise, do the work assigned to them according to the rules and regulations. The central concept of a Supervisor is the fact that there are certain persons working under him. If a person is doing any work which does not require him to look after or inspect or examine the work of persons who are subordinate to him or working under him, that person can never be said to be a Supervisor.
18. Reference in this regard may be made to the case law reported as A.K. Patel and etc. Vs. The Indian Hotels Co. Ltd. (supra), Bennett Coleman and Co. Limited Vs. Yadeshwar Kumar (supra), Bombay Dyeing and Manufacturing Company Ltd. Vs. R.A. Bindoo and another (supra) and R. Kartik Ramchandran Vs. P.O. Labour Court Contd...
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and another (supra).
In the case of Sonepat Cooperative Sugar Mills Limited Vs. Ajit Singh (2005) 3 SCC 23, the Hon'ble Apex Court has again surveyed the entire case laws as to who is workman and held as under:-
"Thus the person who performs one or the other jobs mentioned in the aforementioned provisions only would come within the purview of the definition of workman. The job of a clerk, ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. 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 regards dominant nature thereof. With a view to give effect to the expression to do "any manual, unskilled, skilled, technical, operational, clerical or supervisory work", the job of the employee concerned must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not performing any managerial or supervisory duties, ipso Contd...-:25:-
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facto he would be a workman."
19. Our own Hon'ble High Court in Bennett Coleman and Co. Limited Vs. Yadeshwar Kumar (supra) has laid down as under :-
"By this petition, the Management challenges the Award passed by the Labour Court in favour of the respondent a Night Court Supervisor granting him relief of reinstatement with back wages, whose services were terminated for misconduct committed by him. It is held that obviously, the approach of the Labour Court has been contrary to the law laid down by the Supreme Court in a series of judgments. A person can be called a supervisor if he is entrusted with the job of supervising other workmen who work under him. It is not necessary that a supervisor has to be top cadre management person. A supervisor may occupy a lower position in the organization chart of the company. It has been laid down by the Supreme Court that in order to be a workman a person must be performing one of the functions as specified in section 2(s) of Contd...-:26:-
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the Act and it was not sufficient that he was not performing administrative or managerial function.
The Hon'ble Bombay High Court in Bombay Dyeing and Manufacturing Vs. R.A. Bindoo (supra) has held as under :-
"Supervision of a plant or machines does not make that work supervisory within the meaning of Section 3(13) of Bombay Industrial Relations Act, 1947. The word "Supervisor" means a person who oversees the work of others. It means 'overseer'. A person can be said to be a Supervisor if there are persons working under him, over whose work he has to keep a watch. He is that person who examines and keeps a watch over the work of his subordinates and if they err in any way, corrects them. It is his duty to see that the work in an industrial unit is done in accordance with a manual if there is one or in accordance with the usual procedure. It is not his function to bring about any innovation; it is not his function to take any managerial decisions, but it is his duty to see that the persons over whom he is supposed to supervise, do the work Contd...-:27:-
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assigned to them according to the rules and regulations. The central concept of a Supervisor is the fact that there are certain persons working under him. If a person is doing any work which does not require him to look after or inspect or examine the work of persons who are subordinate to him or working under him, that person can never be said to be a Supervisor. In other words the supervision is necessarily by reference to the persons working under a Supervisor."
Our own Hon'ble High Court in R. Kartik Ramchandran Vs. P.O. Labour Court and Another (supra) has held as under:-
"It is well settled that the designation of an employee is not of importance and it is the real nature of duties being performed by the employee which would decide as to whether an employee is a 'workman' under Section 2(s) of the Industrial Disputes Act. The determinative factor is the main duties performed by the employee and not the work done incidentally. The nature of duties performed by the workman is a Contd...-:28:-
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question of fact. An employee is required to set up such plea and to lead evidence in support thereof. Only then can the Labour Court go into the facts and circumstances of the case and based material on record, decide as to the real nature of duties and functions being performed by the employee in all cases."
During the course of arguments, A.R for the workman has relied upon the case law reported as Rallis India Ltd. Vs. State of West Bengal & Others 1983 (II) LLJ 293. Therein also it has been laid down by the Hon'ble Calcutta High Court that in deciding the status of the employee his designation is not decisive and what determines the status is a consideration of the nature and duties of the function assigned to the employee concerned. In that regard Their Lordships have relied upon an earlier decision by the Hon'ble Apex Court reported as Ananda Bazar Patrika Vs. Its Workmen 1969-II LLJ 670. Therein Their Lordships have held that mere Contd...
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designation as manager cannot be decisive of the nature of employment.
During the course of arguments, A.R for the workman has also relied upon the case law reported as A.D. Inamdar Vs. M/s. Bajaj Tempo Limited 2000 (86) FLR 345 wherein it was held by the Hon'ble Bombay High Court the term, supervision' includes supervision over subordinates and not over the computers. Checking of ledgers, statements, registers, records or computer print-out cannot be, by any stretch of imagination, held to be a supervisory or managerial function.
Same is the proposition of law laid down by the Hon'ble Apex Court in Indian Iron and Steel Co. Ltd. And Another Vs. Their Workmen (supra) and National Engineering Industries Ltd. Vs. Sri Kishan Bhageria and others (supra).
The proposition of law laid down in the aforesaid case law relied upon by A.R for the workman is the same as laid down by Contd...
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the Hon'ble Apex Court and various Hon'ble High Courts in the aforesaid case law relied upon by the management. Therefore, the evidence brought on record by the parties has to be examined in the light of the aforesaid proposition of law.
20. It is the admitted case of the parties that claimant Kirat Aswal was appointed as Bell Boy by the Le-Meridian management vide appointment letter dated 04.11.1987 for a salary of Rs. 700/- per month. It is also not in dispute that his salary was increased from time to time upto Rs. 880/- per month vide letter dated 09.01.1989 before he was promoted as Bell Captain vide letter dated 22.04.1992 issued by the management. It is also not in dispute that at the relevant time when he was removed from the services vide letter dated 31.10.2001 he was drawing a salary of Rs. 7115/- per month.
21. It is noticed that in the statement of claim, the claimant has Contd...
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not spelled out the nature of the duties which he used to perform as Bell Captain at the time he was removed from the services vide letter dated 31.10.2001 received by him on 08.11.2001, in order to make out a case that at the time of his removal from services he was employed to do the work of any of the categories, viz. manual, skilled, unskilled, technical, operational, clerical or supervisory. However, as mentioned earlier in the pleadings, the claimant has claimed to be a workman being posted as Bell Captain. He was not required to plead evidence in the statement of claim.
Similarly, the management in its written statement separately stated that the claimant is not a workman within the definition and meaning of Section 2(s) of the Industrial Disputes Act. However, in the pleadings, the management also did not spell out the basis of that claim in their pleadings in the written statement. In the pleadings in the written statement, the Contd...
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management did not aver anything with regard to the nature of duties assigned and which the claimant used to perform during the course of his employment till the date he was removed from the services. However, the management was not required to plead evidence in that regard in its written statement. As already discussed above, in the light of the law laid down by our own Hon'ble High Court in R. Kartik Ramchandran Vs. P.O. Labour Court and another (supra), A.K. Patel and etc. Vs. The Indian Hotels Co. Ltd. (supra) by the Hon'ble Bombay High Court and by the Hon'ble Apex Court in Mukand Ltd. Vs. Mukand Staff and Officers' Association (supra) and in Mukesh K. Tripathi Vs. Sr. Divisional Manager, L.I.C. And others (supra), initial burden is on the claimant to plead and prove that he is a workman under Section 2(s) of the Industrial Disputes Act, 1947.
Contd...
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22. As laid down by our own Hon'ble High Court in Bennett Coleman and Co. Limited Vs. Yadeshwar Kumar (supra) a person can be called a Supervisor if he is entrusted with the job of supervising other workmen who work under him. It is not necessary that a supervisor has to be top cadre management person. A Supervisor may occupy a lower position in the organization chart of the company.
It is the admitted case of the claimant himself that initially he was appointed as Bell Boy and was promoted as Bell Captain vide letter dated 22.04.1992 by the management. As claimed by him, his last drawn wages were Rs. 7115/- per month and i.e more than Rs. 1600/- as mentioned in Section 2(s) of the Industrial Disputes Act, 1947. In order to prove nature of his duties, claimant has placed on record the documents Mark A and Mark B. Mark A & B are not the original documents nor the same are authenticated. No efforts Contd...
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were made by the claimant to call upon the management to produce the original of those documents on the plea that originals were in their possession. In the light of the this, it cannot be said that the documents Mark A and Mark B have been proved in evidence as required under the law. As a result, both documents Mark A & B cannot be read in evidence and are of no help to the workman. In his cross examination as WW1, claimant admitted that 4 - 5 Bell Boys were working under his directions. MW1 - Mr. Y.K. Gupta also deposed that 6 - 7 Ward Boys were under Bell Captain in the management. He further deposed that the claimant as Bell Captain was empowered to recommend leave for 6 - 7 workers working under him. It is noticed that except making bare and bald suggestions in his cross examination, the claimant did not elicit anything to disprove that part of the statement of MW1 - Mr. Y.K. Gupta.
Contd...
-:35:-I.D. No. 75/02.
MW2 - Mr. Rajinder Singh in his cross examination admitted that the Bell Captain has no powers to sanction the leave of the workers working under him. However, he stated that the Bell Captain recommends the leave but the sanction of leave is done by the Manager. He denied the suggestion that Bell Captain has no powers for making recommendations of the leave. It is noticed that except making bare and bald suggestions in his cross examination, the claimant did not elicit anything further to disprove the statement of MW2 - Mr. Rajinder Singh that the Bell Captain recommends the leave of the workers working under his directions / supervision. The claimant did not call upon the witness to disclose the name of the workers whose leave were recommended by him and the date, month and year when any such leave of those workers admittedly working under his directions / supervision was recommended by him as Bell Captain.
Contd...
-:36:-I.D. No. 75/02.
It is further noticed that claimant did not make an attempt to ask the management witness to produce the record of his recommendation of leave to those working under his directions / supervision. In the light of this, the statement of MW1 - Mr. Y.K. Gupta and MW2 - Mr. Rejinder Singh which happens to be in consonance with the aforesaid admissions by the claimant in his cross examination, cannot be disbelieved.
23. In the light of the findings that has come on record, I am of the considered view that the claimant has failed to discharge the initial burden which is placed on him to prove that he is a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947. The evidence that has come on record goes to show that the claimant has been working in supervisory capacity having powers to oversee the work of four
- five Bell Boys admittedly working under him, over whose work Contd...
-:37:-I.D. No. 75/02.
he was to keep a watch besides having the powers to recommend leave to those Bell Boys working under his directions and supervision. Admittedly, while discharging the said nature of duties as Bell Captain he has been drawing salary which is more than Rs. 1600/- per month. Therefore, the claimant failed to prove on record that he is a workman as defined under Section 2(s) of the Industrial Disputes Act. The issue is accordingly decided against the claimant and in favour of the management.
ISSUES 2 & 3.
24. In view of the findings on issue No. 1 above, this tribunal ceases to have powers to adjudicate the dispute referred for adjudication vide the reference referred to above. The issues are answered accordingly.
Contd...
-:38:-I.D. No. 75/02.
ISSUE NO. 4.
25. In view of the findings on issue No. 1, 2 & 3 and for the reasons given therein, the claimant is not entitled to any relief or any directions from this Tribunal.
The reference is answered accordingly. File be consigned to record room after due compliance by the Ahlmad.
(GURDEEP KUMAR) ANNOUNCED IN THE OPEN COURT PRESIDING OFFICER nd ON 2 Day of May, 2008. INDUSTRIAL TRIBUNAL II, K.K.D COURTS, DELHI Contd...