Delhi District Court
Sh. Santosh Kumar Rai vs M/S Vaishali Thread Corporation on 20 September, 2010
-1-
IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
LCA NO. 30/09
Sh. Santosh Kumar Rai
S/o Sh. Mahatam Rai
C/o Delhi Pradesh Wazirpur Industrial Area
Mazdoor Union
House No. 5, Gali No. 5
Sangam Vihar
Near Jhroda Village
Delhi. ...... Workman
VERSUS
M/s Vaishali Thread Corporation
G-5, Shree Ram Palace
Sadar Bazar
Delhi. ...... Management
Date of Institution : 28.05.09
Judgment reserved : 08.09.10
Date of decision : 20.09.10
ORDER
1. As per application, the application was employed in the management as Clerk @ Rs. 5300/- per month. It is stated that the management was not providing the labour facilities and on demanding the same, he was terminated. Dispute of which was LCA No. 30/09 1/15 -2- presented before Labour court where workman was reinstated by the management on 5.07.04 and he is still working there. It is further stated that the increment was not given to the workman since 2004 while increment was given to other workmen of the management. On volley of efforts, increment of Rs. 400/- was given for the year 2005-2006 and further an increment of Rs. 400/- was also given but retained the increment since 2007. Thereafter a demand notice was sent but till date no increment was made. It is further stated that Rs. 60,400/- was due toward to the management.
2. Notice of application was issued to management. AR for management appeared and filed authority letter.
3. WS filed by AR for management wherein it is stated that the concerned accountant Sh. Santosh Kumar Rai was drawing Rs. 5300/- per month as salary hence, he does not cover under section 2 (s) of ID Act. Hence, the amount of Rs. 60,400/- claimed by him are not the existing right and as such it cannot be claimed under section 33 C (2) of ID Act. It is further stated that the claim raised by the Accountant as alleged of Rs. 60,400/- is false and does not lie against the management.
In reply on merits, it is stated that the concerned accountant has abandoned the job and abstained from the neglecting the duties willfully and intentionally without taking prior permission from the management. It is further stated that the complaint of claim of increment was served through Labour Inspector and not individually and reply to the said complaint had LCA No. 30/09 2/15 -3- already been filed before the Labour Inspector on 22.12.08, 02.01.09, and 12.01.09 indicating therein the circumstances under which he was not entitled and deserve the increments. It is further stated that the amount of Rs. 60,400/- is totally baseless.
3. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
4. After completion of pleadings, following issues were framed on 25.08.09 :
1. Whether the claimant does not fall within the definition of workman?
2. Whether the claimant is entitled to file claim on the basis of increment?
Issues were again framed on 6.04.05. Since these issues were already covered, Hence these issues ignored.
7. Parties led their evidence.
On behalf of workman, Workman Sh. Santosh Kumar Rai examined himself.
On behalf of management, Sh. Vijay Kumar Karra deposed as MW 1.
8. WW 1 in evidence by way of affidavit supported the averments made in the claim and got exhibited copy of demand notice as Ex. WW 1/1, copy of letter to Asst. Labour LCA No. 30/09 3/15 -4- Commissioner Ex. WW 1/2, copy of UPC Ex. WW 1/3, copy of receipt no. 1896 Ex. WW 1/4, copy of letter to Labour Inspector Ex. WW 1/5, copy of letter dated 2.01.09 to Area Inspector Ex. WW 1/6, copy of letter dated 22.12.08 Ex. WW 1/7, copy of letter dated 2.01.09 Ex. WW 1/8, copy of claim Ex. WW 1/9, copy of letter dated 22.06.09 Ex. WW 1/10 and documents mark 32 to71.
In cross examination of WW 1, he stated that his salary was above from the minimum wages. He further stated that as an accountant he used to do all written accounts work. He further stated that he was deputed to work for other companies also. He also used to maintain stock register, ledger, daily day book, cheque issue register. He stated it wrong that he never sought prior permission before proceeding on leave. He was not able to state whether he was on leave for 38 ½ days in the year 2007-08. He further unable to state that he was on leave for 37 days in the year 2005-06. He again unable to state that he was absent for 63 ½ days in the year 2006-07. He again unable to state that he remained absent for 981/2 days in the year 2007-
08. He further unable to state that he was absent for 116 ½ days in the year 2008-09 and for 65 days in the year 2009-10. He further stated that he had received notice of warning on 25.02.08. He admitted that the demand notice does not mention the date. He admitted that he was part time employee in Reliance Insurance.
9. MW 1 Sh. Vijay Kumar Karra in examination in chief supported the averments mentioned in the WS.
In cross examination of MW 1, he started the business of LCA No. 30/09 4/15 -5- management in 1979. Since then all the registers have been maintaining properly. He further stated that the workman performed his duty on 26.04.04. He further stated that he was not able to state whether there was election of Lok Sabha on 26.04.04 and holiday was declared on that day. He further stated that on the even of Dushhera, half day was declared in his office. He further stated that on 18.12.04, workman was absent from his duty. He further stated that on 3.02.05 he reported for his duty in the morning, however, left without information. He further stated that on 7.05.05 the workman was absent, however, he marked his presence. He further stated that stated that on 15.07.05 the workman was absent and he marked his presence and later on himself deleted his presence. As per register of attendance, 15.08.07 was shown as holiday. He further stated that as per record, workman Alam has marked his attendance. He further stated that on 24.09.08 and on 27.09.08 workman did not sign. He further stated that on 29.08.08, 30.08.08 and 31.08.08 workman did not sign, however, he was present and paid for these days. He further stated that on 1.11.08 to 6.08.10 also workman did not sign, however, he was present and paid for these days. He admitted that the salary has been shown to be dispersed on 7.02.07. He further admitted that the workman Nageshwar was paid on 7.11.07. he further admitted that the workman Allaudin has been shown to be absent and paid salary on 6.12.08. He further admitted that on 31.04.04 workman Subash Kuamar marked his attendance and later on the attendance was erased. On 21.02.05 the workman marked his attendance but since he left, he has been shown absent. He admitted that his brother Prakash Kumar helped him LCA No. 30/09 5/15 -6- in maintaining attendance register. He admitted that in the dispute there was a settlement and in the settlement he paid Rs. 20,000/- to the workman which the workman had filed in the labour court. He further stated that the salary of the workman was further increased in the financial year 2006-07. he further stated that the workman was not given increment due to long absence. He further stated that on 25.02.08 notice of warning was issued to the workman for his absence and poor performance of workman. He further stated that the management has not received the application of the workman dated 5.12.08.
10. Written arguments filed on behalf of workman. It is stated by AR for workman that workman made requests severally for increment. It is further stated that Rs. 400/- per year were increased. Workman was made unemployed after terminating his services. Vide a dispute, workman was taken on duty. Hence, workman is entitled for annual promotion. Increment of workman was retained due to annoyance of filing of labour dispute. A demand notice was also sent vide registered AD and UPC which was not replied by the management. A complaint dated 22.12.08 was made to Labour Inspector. In reply of which it was stated that due to absence of workman, he was not given annual promotion. It is further stated that due to repeated requests of Labour Inspector, annual promotion was not given. It is further stated that no notice or charge sheet was given. Neither any enquiry was made against him. It is further stated that the attendance of workman was shown on the day of holiday since the attendance was marked on the same day.
LCA No. 30/09 6/15 -7-They did not obtain attendance from the workman on day to day basis. It is further stated that the payment to the workman was shown on the day when the establishment was closed. It is further stated that overwriting was shown on the attendance register. These facts have been admitted in the cross examination. Hence, the workman is entitled for his dues. It is further stated that as per management, workman does not fall under the category of workman. It is stated in this regard that the workman was working field work, bank work and work in firm, hence, he fall within the category of workman.
On the other hand, AR for management stated that the accountant Sh. Santosh Kumar Rai was drawing Rs. 5300/- per month and does not cover under the definition of workman u/s 2(s) of ID Act. Hence, the said amount of Rs. 60,400/- claimed by him in the shape of increment and as such it cannot be claimed under section 33 C (2) of ID Act whereas the concerned account had availed the increments up to March 2006. It is further stated that the accountant was working in the Administrative Capacity does not cover under the definition of workman exceeding Rs. 1600/- per month under the Industrial Dispute Act. It is further stated that the accountant does not cover under the definition of workman under section 2 (s) of ID Act, 1947. Hence, the amount of Rs. 60,400/- claimed by the said accountant are wrong.
11. Citations were filed:
AR for management filed :LCA No. 30/09 7/15 -8-
Umakant S. Deshpande Vs. G.E.B and another, 2002 LLR 374 Basant Lal Vs. Management of M/s A.F Fertuson& Co. & Anr., 96 (2002) Delhi Law times 770 Surendra Nath Pandey & ors. Vs. U. P Cooperative Bank Ltd. and ors., III (2010) SLT 240 AR for workman filed :
Arkal Govind Raj Rao Vs. Ciba Gelgy of India Ltd., Bombay, 1985 II LLN 270 Sanjeev Kumar Gupta Vs. Presiding Officer, Labour Court (II), Faridabad and anr., 2001 (1) LLN 447 Mohinder Singh Vs. Presiding Officer Labour Court, Amritsar and anr., 2001 (1) LLN 450 Mysore Vegetable Oil Products Ltd., Vs. Labour Court Madras and anr., 1961 II LLJ 508 Vinyl Products Vs. Ram Ujjagar & Ors., 145 (2007) DLT 219 Basant Lal Vs. M/s A.F Ferguson & Co. and anr., 2002 (93) FLR 1220 LCA No. 30/09 8/15 -9- Management of Messers Roneo Vickers India Ltd. Vs. Lt. Governor of Delhi & Ors., 1994 (262)LLR 253 A. Sambanthan Vs. Presiding Officer III, Addl. Labour Court, Madras and anr., 1998 LLR 731 Rhone Pouleno (India) Ltd. Lucknow & Anr., Vs. State of U.P & Ors., 1998LLR 157 Delhi Consumer Co-op. Wholesale Store Ltd. Vs. S.L Thakural & Ors., 1999 LLR 644 Kulwant Singh Vs. M/s Reliance petrochemicals ltd., 2000 LLR 895 U. P State Sugar Corporation Ltd. Vs. Presiding Officer, Labour Court, Gorakhpur and anr. 2000 LLR 899 Premjit Kaur Takhi Vs. Hindustan Paper Corp. Ltd., 2007 LLR 968 Anand Regional Co-op. Oil Seedsgrowers Union Ltd.
Vs. Shaileshkumar Harshadbhai Shah, 2006 (6) Supreme 455 Hussan Mithu Mhasvadkar Vs. Bombay Iron & Steel Labour Board, 2001 LLR 1083 Assembly of God, Hospital and Research Centre, Vs. LCA No. 30/09 9/15 -10- Ist Industrial Tribunal, West Bengal, 2002LLR 1030 Shankarbhai Nathalal Prajapati Vs. Maize Products, 2003 LLR 192 M/s Prakash Talkies, Budaun Vs. State of Uttar Pradesh and others, 2003 LLR 1133 Management of Christian Medical College and Hospital, Vellore Vs. Presiding officer, Labour Court, Vellore and L. Chinnappan, 2003 LLR 595 Secretary, Larambha Service Coop. Society Ltd., Suresh Chandra Chhuria and anr., 1998 LLR 1119
12. I have seen the file, written arguments filed by both the parties and further citations filed by the management and my findings with respect to the issues are as under :
REGARDING ISSUE NO. 1Whether the claimant does not fall within the definition of workman?
(i) Section 2(s) of ID Act "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act LCA No. 30/09 10/15 -11- 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-
(a) 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
(b) who is employed mainly in a managerial or administrative capacity; or
(c) who is employed mainly in a managerial or administrative capacity; or
(d) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercise, 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.
(i) Burden of proof The burden of proof is on the workman to prove that he is covered under the definition of workman. Despite giving citations on workman evidence, the fact whether the workman is a workman or not has been given during evidence. What are the nature of duties of the claimant which entitles or dis-entitles him as workman has not been given. Hence, this court has no option, except to hold the claimant to be workman only for the purpose of disposal of the present dispute. However, I am supported by Supreme Court judgment; In Workman Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and LCA No. 30/09 11/15 -12- ors., 2004 LLR page 351 wherein Hon'ble Supreme Court has held that :
"The burden of proof being on the workman to establish the employer and employee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship."
In Swapan Das Gupta and ors. Vs. The First Labour Court of West Bengal and ors., 1975 LIC pg. 202 wherein it has been held that :
"Where a person asserts that he was a workman of the company, and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person."
In Shanker Chakravarti Vs. Britania Biscuit Company, 1979 (II) LLJ pg. 134 wherein it was held that :
"Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led."
The management in the WS as well as in the preliminary objections has denied the claimant to be workman. Accordingly, the workman has to prove that he is covered within the definition of Section 2(s) of the I.D. Act. AR for workman states that since the workman has stated himself to be workman and the management had denied the stand, the burden of proof is on the LCA No. 30/09 12/15 -13- management.
In view of the above judgments by the Courts, it is for the claimant to prove that he is a workman as defined u/s 2(s) of the I.D. Act.
(iii) Nature of Duties
(a) Perusal of files shows that in the written arguments, AR for workman has stated that workman fall within the category of Section 2 (s) of ID Act. He further stated that work of banking, submission of forms and field work was taken from the workman and which fall under the category of workman. Although there is nothing on record on the point of section 2 (s) of ID Act yet it will be necessary to decide the claimant to be workman or not. Hence, for the disposal sake, it is held the workman to be a workman.
In South India Bank Ltd. Vs. A. R Chacko, AIR 1964 SC 1522 : (1964) 1 LLJ 19. See also (1975) 4 SCC 696 : 1975 SCC (L&S) 394 : (1968) 1 LLJ 589 & (1968) 1 LLJ 840.
"Accountants who are merely senior clerks with supervisory duties."
In R. Kartik Ramchandran Vs. P.O Labour Court and anr., 2006 (109) FLR 100, it was held by Delhi High Court that :
"The nature of duties performed by the LCA No. 30/09 13/15 -14- workman is a 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."REGARDING ISSUE NO. 2
Whether the claimant is entitled to file claim on the basis of increment.
(i) Claimant is claiming increment w.e.f 5.07.04 to 31.03.09. The claimant has not placed any agreement/term of appointment order on record to show that the claimant is entitled to increment as a matter of right. Unless and until claimant shows that he has a right to claim increment the amount of alleged or claimed increment cannot be awarded or given.
(ii)For the purpose of entitlement and award under section 33 C (2) of ID Act there should be a pre-existing right to money or benefit to be convertible into money. Claimant has not proved or shown any fact relating to his pre- existing right to money or benefit converted into money.
(a) there should be pre-existing right and that right has to find out or calculated. However, under this guise benefit which is just and fair cannot be determined by the labour court.
LCA No. 30/09 14/15 -15-(b) The ratio of all these decisions are that under section 33 C (2), a right should exists (a) to claim the amount. (b) It may be that that the right has not been calculated if that is true that under section 33 C (2), right can be calculated by the labour court (c) However while calculating the right an amount was which is just and fair cannot be given under section 33 C (2) and in the garb of deciding the right, a matter which can be decided and has to be decided under Industrial Dispute Act cannot be decided by the Labour Court.
(iii)Workman has admitted in his cross examination that he was working as part time employee in Reliance Insurance. When the fact is admitted there is no requirement to rebut the fact. It goes against the workman.
In view of the above, it is clear that claimant is not entitled to file claim on the basis of increment since he cannot claim increment as a matter of right.
5. The application of the workman is dismissed. File be consigned to Record after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH) th on 20 September, 2010 Additional District & Session Judge Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
LCA No. 30/09 15/15 -16- LCA No. 30/09 16/15