Delhi District Court
Sh. Shashank Gupta vs Also Officer At on 3 August, 2013
IN THE COURT OF SH. SATINDER KUMAR GAUTAM
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER, LABOUR COURT
KARKARDOOMA CO URTS, DELHI.
DID No. 84/10 (Old DID No.161/09)
INDUSTRIAL DISPUTE BETWEEN :
Sh. Shashank Gupta
S/o Shri R.K. Gupta,
R/o 1793/8, Govindpuri Extn.
Kalkaji,
New Delhi110019
........Workman
VERSUS
M/s MIRC Electronics Limited
Having Office at: A19, B1,
Mohan Cooperative Industrial Estate,
Mathura Road, Badarpur,
New Delhi110044
Also officer at:
MIRC Electronics Limited,
B204/205, PhaseII
Noida201305, UP
......Management
Date of Institution : 30.03.2009
Date of award
: 03.08.2013
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 1 page our of 38
AWARD
The claimant filed a direct claim before the labour court on
30.05.09 with the submission that he was working with the management
from last 16 years with different company of M/s Onida Group etc. and
lastly employed with M/s MIRC Electronics Limited, the leading and
friendship company of the M/s Onida Group having employee no. 5722
since the year of 1992. The workman has been performed unintrrupted
continuous service with utmost sincerity, continuity and given prime time
of his life to the company. During the period of his service, the workman
was performing clerical duties like computer operation, assisting to the
Onida Company recorded the copy of the income tax file etc. in group
taxation department (financial & account) and has been performing the
duties as directed by his superiors with utmost sincerity. The last drawn
salary of the workman was Rs. 25,000/ per month including bonus,
gratuity and Provident Fund at the time of his illegal termination. The
workman was regularly shifting from one company to another company
of the group, the services of the workman were never being interrupted in
continuity till 30.06.08. The workman applied for leave which duly
sanctioned for 25 days. It was shocked and surprised to the workman
when at the end of his sanctioned leave, Mr. A.K. Dhingra, HR Manager
of the company did not allow the workman to resume his duty and
verbally intimated to the workman that his services have been terminated.
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 2 page our of 38
The workman has not been intimated at any account even during the
period of availing 25 days privilege leaves anything in writing about this
decision of sudden and illegal termination of services by the
management. No reason have been assigned nor any show cause notice
was given or that no departmental enquiry was conducted by the
management. The name of the workman have been deleted from the pay
roll of the company. The workman has never been provided any single
opportunity of being heard nor the management has provided the reasons
for the illegal termination of the workman from the service. Besides
these, the management has been using all possible coercive methods
against the workman by compelling him to submit his resignation to the
company. If the workman is not resign from the service his account will
not be settled and will not be payable any legitimate and entitled dues.
The workman was told that the company will not issue his experience
certificate of sixteen years which will create impediment in finding of
new employment. After being repeated request, the workman is
communicated on 25th September, 2008 in writing for illegal termination
from the service. The legal notice through advocate on 28.11.08 for
reinstatement of the workman and hand over the essential and relevant
documents related to his reinstatement and for payment of all dues within
ten days after the receiving of the notice but all goes in vain, as
management did not even bother to inclined the request or to give reply.
The action of the management in termination of services of workman is
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 3 page our of 38
illegal, arbitrary, unjustified, unlawful and malafide and the same has
been done in collorable exercise of power. The management terminated
the services of the workman without assigning any show cause notice,
chargesheet and without holding any domestic enquiry, hence the
management failed to comply with Section 25F of the Industrial Dispute
Act 1947. The termination of services of the workman tantamounts to
retrenchment as per section 2(oo) of the Industrial Dispute Act, 1947.
The management neither paid nor offered to pay the retrenchment
compensation to the workman as per the provisions of section 25F of
the Industrial Dispute 1947. The workman is still unemployed from the
date of illegal termination of the service despite his best efforts to get
alternative employment in absence of withheld experience certificate. As
such he is entitled to full back wages with continuity of service alongwith
all his pending and rightful dues, apart from his reinstatement in service.
2. In reply to the claim of the workman, the management filed
the written statement whereas contended that the claim filed by the
workman is misconceived untenable in law and deserved to be dismissed.
As the claimant is not covered under the definition of the 'workman' as
defined u/s 2 (s) of the Industrial Dispute Act. Since at the time of
termination the claimant was employed with management company as a
'Senior Executive' in managerial cadre at Noida in office of the company.
He was responsible and authorized to take decision to look after all the
taxation matters and other incidental matter in respect of the opponent
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 4 page our of 38
company. He was drawing salary as Rs. 22, 215/ per month. The
management as an abundant precaution by its letter dt. 30.06.08
terminated the services of the claimant honorably by offering one month
salary and legal dues which he refused to accept. The management has
terminated the contract of employment as per the terms and conditions
set out in the said letter. The management company discontinued its
manufacturing operations pertaining to washing machines in June, 2010
and shifted said activities at Roorkee. The manufacturing activities of
electronic tuners were given on lease to another company in August,
2010. The claimant has given offer to join as 'Senior Executive' in
management cadre M2 at its factory village Kudus Bhiwandi, Wada
Road, Taluka Wada, Dist. Thane. There was no grievance in previous
employment. The management has nothing to do about the said company
as made allegation in para no.1 to 8 of the statement of claim. The
claimant was appointed on 08.05.02 in M/s Onida Savak Ltd. as
"Executive" in Grade OM1 with effect from 01.06.02, subsequently, M/s
Onida Savak Ltd. became a sick company owing to heavy financial
losses. The BIFR ultimately framed a scheme of rehabilitation of the said
company, pursuant to which it had directed the merger of the said
company with M/s MIRC Electronics Ltd. vide order dt. 07.11.05. The
assets and liabilities and the employees of the Onida Savak Ltd. became
the employees of M/s MIRC Electronic Ltd. He was promoted and
designated as "Senior Executive" M2 grade and was responsible for all
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 5 page our of 38
tax advisory services. The company is not aware of his earlier services in
companies like M/s Monika Electronics and such other companies as
alleged by the workman as they are not a part of M/s MIRC Electronics
Ltd. The claimant had resigned from those companies and has collected
his legal dues. It would be evidently cleared from the aforesaid statement
that the claimant had not approached to the court with clean hands as he
had suppressed the material fact that the complainant had collected his
legal dues post his resignation from his previous employer. Hereto
annexed and marked as ExhibitA is a copy of the full and final
settlement and also the copy of FormL under payment of gratuity Act
duly signed by the claimant. There is only one merger i.e. of M/s Onida
Savak Ltd. with MIRC Electronics Ltd. Therefore, the contents of the
claimant regarding merger of various alleged companies are denied. It is
therefore, denied that the claimant has given 16 years to several group of
companies of management. As per record available with the company, the
claimant has joined Onida Savak Ltd. w.e.f. 01.06.02. The management is
incurring financial losses because of the global recession in the market.
The companies sale of products drastically came down thereby it
incurred financial losses and in respect of the Noida Division order to
revive the company, the management felt that the company will have to
take steps and turn around the company and accordingly the company
has taken certain steps and one of the steps they took was reorganization
of various departments, sections. Accordingly, it was decided to
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 6 page our of 38
reorganize the taxation department whereas the claimant was working.
While organizing the said department it was found that there is no work
available to the claimant and he was sitting idle without any work and his
position became redundant and surplus to the requirement. Therefore, it
was decided to terminate his service by paying one month's wages in lieu
of notice period and legal dues in accordance with the terms of his
appointment letter. The claimant was informed about the aforesaid fact in
the meeting held on 17.06.08 and on 30.06.08, the claimant was offered a
letter of termination and after reading the said letter he refused to accept
the said letter. However, cheque bearing No.774657 dt. 09.07.08 for Rs.
40, 272/ and cheque bearing No. 010526 dt. 14.07.08 for Rs. 53, 240/
towards his legal dues were made afterwards when he refused to accept
the termination letter. Thereafter, as per terms & conditions of the
service, one month notice pay as well as legal dues was offered. The
claimant has suppressed the aforesaid fact. The management is not
concerned with the previous service of various employer. The
management has received the letter dt.29.08.08 which have been duly
replied vide letter dt. 23.09.09 and further sent a rectification letter dt.
28.11.08 in reply to the letter dt. 23.09.08, in which it was clearly
mentioned regarding the date of termination. The said letters are annexed
as ExhibitD. The management has stated that all the averments made in
the instant paragraph is irrelevant for the purpose of deciding the
present claim. The management has denied all the adverse allegation
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 7 page our of 38
made in the instant para. Hence the rest of the content of the claim are
wrong and denied in total. The management denied that the termination
of the service is forced and illegal as alleged or at all. It is also denied
each and every allegation and statement in the rest of the para. The
claimant is not a "workman" as defined u/s 2 (s) of the I.D. Act, 1947
there is no question of paying any retrenchment compensation u/s 25F of
the Industrial Dispute Act, 1947. The provisions of the Industrial dispute
Act, 1947 is not applicable to the claimant because he was doing all work
which is mainly and substantially of Managerial nature and therefore he
is excluded from the definition of 'workman' under the I.D. Act 1947.
The prayer made by the claimant is wrong and denied as the claimant is
not entitled for relief as he has suppressed the material facts about the
date of termination and that he was executive in management cadre in
view of the aforesaid facts and circumstances, the claim filed by the
claimant is deserved to be dismissed with cost.
3. Rejoinder on behalf of the claimant to the amended
reply/written statement filed on behalf of management M/s MIRC
Electronics Ltd. and denied all the averments made in the written
statement as well as revered the contentions made in the written
statement and prayer made therein that the statement of claim is filed
with malafide intentions.
4. From the pleading of the parties, on 26.04.2010 the
following issues were framed:
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 8 page our of 38
1. Whether the present workman is not covered under the definition of
'workman' as mentioned u/s 2(s) of the ID Act 1947 and if so, to
what effect?OPM
2. Whether the services of workman have been terminated illegally
and/or unjustifiably by the management and if so, to what effect?
OPM
3. Relief.
5. After framing of issues, both parties have lead their
evidence. The claimant in order to prove the contentions raised in
statement of claim as well as rejoinder examined himself through an
affidavit Ex.WW1/A and also relied upon documents Ex.CW1/1 to
CW1/23, the claimant was cross examined at length by AR for
management.
6. The management also examined MW1 Sh. A.K. Dhingra,
Manager (HR) on behalf of management and also relied upon documents
Ex.MW1/1 to Ex.MW1/47. This witness also cross examined by
authorized representative of workman.
7. Having heard the final arguments of the authorized
representative of both the parties and carefully gone through the written
submission as well as authority cited & material on record, the findings
on the issuewise are as under.
ISSUE WISE FINDINGS ARE AS UNDER
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 9 page our of 38
ISSUE No.1
Whether the present workman is not covered under the definition of
'workman' as mentioned u/s 2(s) of the ID Act 1947 and if so, to
what effect?OPM
8. The management through the
written statement has raised objection that
the claimant is not a 'workman' as defined
in section 2(s) of the I.D. Act. The
management alleged through the affidavit
of MW1 Mr. A.K. Dhingra that the claimant
Shashank Gupta was employed with M/s
MIRC Electronic as 'Senior Executive' in
Financial & Account Department. There
were other Senior Executive Ms. K.
Shyamala, Mr. Amarjeet Singh, Mr. Om
Prakash in Finance & Accounts department.
Their salaries were Rs. 22981/, 26506/,
19265/ with CTC allowance as per rule per
month. There were in the Executive Cadre,
there was supporting clerical staff
comprising of Ms. Shoba Bahukhandi, Mr.
Rajender Singh, Mr. Balmukund Shukla,
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 10 page our of 38
Mr. S. Gosh and Mr. J.P. Sharma working
under the executives. The salaries of these
clerical staff were Rs. 14,300/,
12508,12739/, 15830/ 13295/ onwards
and the CTC allowances per month. The
Managers, Executives and canteen at first
floor while the workers had separate
canteen in the basement. The management
and executives had the computers and
access to Internet. The workers had no
access to any computer or local area
network or outlook express, pertaining to
email etc., only staff cadre had local area
network or outlook express. All the senior
executives & executives of Finance &
Accounts department were under Head of
Finance & Accounts at Noida, Mr. S.C.
Rustogi M/s MIRC Electronics Ltd. its head
office at Mumbai. Mr. Manish Desai,
General Manager, finance & Accounts and
Mr. Satrajit Ray Vice President, Finance
and Accounts were working under the
Managing Director Mr. G.L. Mirchandani
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 11 page our of 38
who used to sit at Mumbai and still sits at
head Office at Mumbai and at the present
he is ChairmancumManaging Director of
the company. The clerical staff was
working under Senior Executive and
Executives. Mr. Shashank Gupta used to
take consultation from the consultant of the
company, Mr. S.K. Sachdeva as and when
required by him pertaining to taxation
matters and used to get clerical work from
his subordinates staff. Ms. K. Shyamala has
been retained at Noida office just to look
after pending excise, sales tax and other
related matters. The claimant was looking
after taxation matter of the company. There
were other group companies like M/s
Monika electronics, M/s Onida Saka
Electronics. The operations of these
companies were closed in the year 2002 and
2004 respectively, so some formalities have
to be taken care of for which Mr. Shashank
Gupta was involved to some extent. There
was no sale or purchase activities in the
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 12 page our of 38
companies after closure of their operations.
Sometimes there was sale of properties for
which the tax was paid. Mr. Shashank
Gupta came in employment of M/s MIRC
Electronics Ltd. after merger of M/s Onida
Savak Ltd. into MIRC Electronics Ltd. as
per scheme of amalgamation, already on the
court file. The full & final dues of Shashank
Gupta was paid by M/S MIRC Electronic
Ltd. for the period of his employment with
M/s Onida Savak Ltd. and MIRC
Electronics Ltd. and not for the past
employment with other group of companies.
M/s Onida Savak Ltd. or M/s MIRC
Electronics have not taken any liability of
the previous employment of Shashank
Gupta. It was not disputed among any other
company, in his cross examination MW1
A.K. Dhingra, has testified that: ".... there
were subordinate staff working under him
and he was discharging duties of
executives. In their company manager is
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 13 page our of 38
responsible for his department such as the
person of finance dept. will be responsible
for all finance and accounts related
activities of the company. It is denied that
there was no document to show that the
workman was discharging the duty of
'Executive'. The claimant was functioning
as 'Sr. Executive' in Taxation Department
who works under the manager and under
his there are subordinate staff and he gets
work done from his subordinate. The
departmental head used to do appraisals of
Shashank Gupta. Departmental head can
be Manager, AGM, DGM, GM. He do not
remember who was the HOD of Shashank
Gupta. Because time to time there were
different people. At the time of alleged
termination of the workman Sh. S.C.
Rastogi was the HOD. He cannot tell
without checking the record as to whether
the claimant had sanctioned any leaves or
signed any leave application or appraisals
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 14 page our of 38
letter or promotion letter. Ms. Shobha,
Bahukhandi, Rajinder Singh, Balmukund
Shukla, S. Gosh, J.P. Sharma were his
subordinate staff in accounts department.
He has not filed any documents on record
which show that the claimant used to give
any instructions to the above named
persons. Form 16 and TDS returns of all
the employees working in the country were
issued from Mumbai office....."
The management relied judgment of Workmen Nilgiri Co
op. Marketing Society Ltd. V/s State of Tamil Nadu and Others,
where it was held that:
" the onus to prove that the claimant was 'workman' as defined
u/s 2(s) of the Industrial dispute Act, 1947 was on the claimant and
not on the management."
9. It is alleged by the management that there were no document
to show that the claimant was doing the clerical job so far as the claimant
could have been summoned the same on the contradictory. The claimant
himself filed different documents which were issued by the different
company. He worked different point of time themselves that the claimant
was in managerial cadre.
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 15 page our of 38
10. Per contra, the workman submitted that for the purpose of
determined whether the claimant is a workman as defined u/s 2(s). The
Hon'ble Supreme Court and High Court of has laid down the judgments.
11. The workman has relied upon judgment of Sharad Kumar
Vs. Government of NCT of Delhi & Ors. 2002, LLR 545: AIR 2002
(SC) where it was held that:
" nature of duties and not the designation will
determine whether an employee is a 'workman' or
not"
Hussan Mithu Mhasvadkar V. Bombay Iron & Steel
Labour Board, 2001 LLR 1083 it is observed that:
" Designation of an employee will not determine as to
whether he is a workman."
LKP Merchant Financing Ltd. V. government of NCT of
Delhi Ors., 2003, LLR 367(Del HC)
" Designation or salary of an employee is not the
criteria to determine whether an employee is a
'workman' or not.
12. The workman through the rejoinder and his affidavit has
controverted the said contention leading that the claimant was not
qualified as CA/ICWA nor B.Com/M.com. He was assisting and
reporting to Sh. S.K. Sachdev, General ManagerTaxation. Sh. S.K.
Sachdev and Sh. S.C. Rustagi were responsible for taking care of all
Taxation & Account related matters of all Delhi based companies of
ONIDA Group. They were solely responsible and authorized to take all
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 16 page our of 38
independent decisions and given advises on all taxation, accounting and
incidental matters of Onida Group companies and the workman was
performing clerical nature of duties and was primarily assisting them in
typing/dispatching the replies/appeals of Income Tax departments, data
entry/computer operation, filing and maintaining records which were
used during assessment proceedings of the group companies. The
workman was entrusted to do his job as per appointment letter interalia
taking details from payroll and Account Department of the Group
companies, feed them in computer as per the fixed format for necessary
actions and for finalisation of the I.T. Return & TDS Certificates. For all
these work the workman was getting too less salary which does not
commensurate to the work for being taken from the management. The
workman has taken last drawn salary of Rs.2,94,692/ per annum barring
premerger and postmerger existing benefits/dues including statutory
dues as claimed and explained in legal notice served by workman's
counsel which were denied by the management despite giving his sixteen
golden years of life to the company. The workman is within the meaning
of section 2(s) of the I.D. Act, 1947. The terms of the appointment may
be referred in this connection. The workman had been doing the work of
only clerical nature in taxation department as assigned to him by Sh. S.K.
Sachdev.
13. The workman in his cross examination has stated that:
"..... He do not know that the salary of non
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 17 page our of 38
executives/worker was prepared at Noida
or paid by cash or cheque. I never send any
mail regarding deduction of TDS of
employee but I used to collect the papers
and send it by post through taxation
department which was control by Mumbai
office and collection of papers relating to
taxation was collected in Noida on the
instruction of Mr. S.K. Sachdeva. It is
denied that any instructions relating to
collection of taxation papers was used to be
given by Mr. Sachdev as he was not
employee nor used to come office daily and
papers were collected by the clerical staff
on my instruction. Vol. I was the only
clerical staff. It is wrong to suggest that I
was not clerk but was an executive. I did
not join for employment at Wada factory of
the company in Maharashtra after getting
employment offer by company in the
court......"
Keeping in view of the facts noted above let examine the
provision of section 2 (s) of the "workman" Industrial Dispute Act 1947
which is reproduced as under :
"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 regard, whether the terms of employment be
express or implied, and for the purposes of any proceedings
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
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 18 page our of 38
led to that dispute, but does not include any such person
(i)who is subject to the Air Force Act, 01950 (45
of 1950) or the Army Act, 1950 (46 of 1950) or
the Navy Act, 1957 (62 of 1957); or
(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.
"...........Definition would show that workman
means a person employed in an industry to do
any manual, unskilled, skilled, technical,
operational, clerical or supervisory work for
hire or reward. A school of though that
somebody who does not fall under the
exceptions enumerated under Section 2(s) of the
Act shall be a workman was being followed. In
H. R. Adyanthaya and others v. Sandoz (1)
Limited and others, (1994) 5 SCC 737, Supreme
Court analysed all the previous judgments and
held that it was not sufficient for a person to be
a workman that he does not fall within the
exceptions given in Section 2 (s). In order to be
a workman the specific nature of work as given
under Section 2 (s) the Act must be shown to be
the one being 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. Supreme Court reiterated the
approach it had taken in May & Baker India Co.
Ltd. v. Their Workmen, AIR 1964 SC 472 and
Burmah Sheel Oil Storage & Distributing Co. of
Association and others, AIR 1971 SC 922. While
summarizing the legal position, Supreme Court
held as under:
"We thus have three three Judge Bench
decisions which have taken the view that a
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 19 page our of 38
person to be qualified to be a workman must be
doing the work which falls in any of the four
categories, viz., manual, clerical supervisory or
technical and two two Judge Bench decisions
which have by referring to one or the other of
the said three decisions have reiterated the said
law. As against this, we have three threeJudge
Bench decisions which have without referring to
the decisions in May & Baker, WIMCO and
Burmah Shell cases have been taken the other
view which was expressly negatived, viz., if a
person does not fall within the four exceptions to
the said definition he is a workman within the
meaning of the ID Act. These decisions are also
based on the facts found in those cases. They
have, therefore, to be confined to those facts.
Hence the position in law as it obtains today is
that a person to be a workman under the ID 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 that he is not covered by either
of the four exceptions to the definition. We
reiterate the said interpretation......"
14. As per the provision of Section 114 (g) of Indian Evidence
Act says that :
"(c)......the court may presumed the existence of any fact
which it thinks likely to have happened regard being had to
be common course of natural events, human and conduct and
public and private business, in their relation to the facts of
the particular case........"
"(g) ........evidence which could be and is not produced
would, if produced, be unfavourable to the person who
withholds its......"
15. The Hon'ble Supreme Court held in Arkal Govind Raj Rao
Vs. CIBA Geigy of India Ltd., Bombay Equivalent citation : 1985 AIR
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 20 page our of 38
985 wherein it is held that :
".......the test to be employed is what was the primary, basic or
dominant nature of duties for which the person whose status is
under enquiry was employed. A few extra duties would hardly
be relevant to determine his status. The words like
'managerial' or 'supervisory' have to be understood in their
proper connotation and their mere use should not detract from
the truth"
"......where an employees has multifarious duties and the
question is raised whether he is workman or not the court must
find out what are the primary and basic duties of the person
concerned and if he is incidentally asked to do some other
work, not necessarily in tune with the basic duties, these
additional duties cannot change the character and status of the
person concerned......."
16. In the present case, the management has not produced any
documentary evidence to show that the claimant was working in the
capacity of administrator, managerial or supervisory. The management
has not discharged the burden by producing the relevant record to show
that the claimant ever acted in administrative or supervisory capacity in
the management. As such the adverse inference will be drawn against the
management.
17 In a judgment Shankerbhai Mathalal Prajapat Versus
Maize Products 2003 (96) FLR 829 wherein it is observed in para no.
3.10 that :
".........Moreover the labour court has totally shit its eyes to
the fact that issue with regard to the maintainability of the
reference was agitated by the respondent and it was the
respondent's duty by placing adequate reliable evidence before the Labour Court to establish that the petitioner was not a workman. For that purpose, the respondent was required to place before the Labour Court the nature of duties assigned to the petitioner while he worked as Junior Shift Chemist in the starch department. Neither oral nor any DID No.84/10 Shashank Gupta Vs. MIRC Electronics 21 page our of 38 documentary evidence has been produced. The respondent has neither placed on record, the duty manual nor a copy of the advertisement that might have been issued inviting the applications to fill up the post of Junior Chemist. If that be so it can well be said that the respondent has totally failed to discharge its duty and the laour court has committed grave error in not deciding the issue in favour of the petitioner. Needless to say that is the respondent duty to produce cogent and reliable evidence to substantiate its say. It may be noted that the nature of objection that has been raised by the respondent goes to very root of this proceedings and therefore, it is for the respondent to establish the fact that the petitioner is not a workman within the meaning of section 2
(o) of the ID Act.
18 In case of LIC of India versus R. Suresh, 2008 (H8) FLR 1189 (SC), it is held that "29. A Development Officer has been held , to be a "workman." We, however, are not unmindful of a decision of a threeJudge Bench of the Court in Mukesh K. Tripathi V. LIC, 2004 (103) FLR 350; 2004 LLR 993 (SC), wherein the question was as to whether an apprentice would be a workman within the meaning of the provisions of section 2
(s) of the Industrial Dispute Act, 1947. It is not a case where case of an apprentice is involved."
19. It is well settled law that the designation and salary is not a criteria to decide the issue of workman. The nature of duties is to be described and management has not produced any oral or documentary evidence to show that the claimant has enjoyed any administrative/ministerial or supervisory work.
20. The judgment of Burmah Shell Oil Storage & Distribution Co. of India vs. Burmah Shell management staff association and Ors. DID No.84/10 Shashank Gupta Vs. MIRC Electronics 22 page our of 38 (1971) 2 SCR 758 wherein it held that : ".........a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. Therefore, in determining which of the employees in various categories are covered by the definition of 'workman' one has to see what is the main or substantial work which they are employed to do."
21. The determinative factor is main duties of the concerned employee and not some works incidentally done. The managerial or administrative function required a person to control the work of the other and it does not mean that a person who does that work and get assistance for doing that work, can be described as a person who is working in a managerial or administrative capacity. Similarly, a person cannot be said to be working in a supervisory capacity merely because he was to supervise persons who help him in doing the work he himself has to perform. The claimant was looking after the taxation matter of the company. He also used to get clerical work from his subordinates staff. The management alleged that claimant was also required to assist and facilitate other employees in the use and operations of the computer packages as available in the company. Apart from the nature of duties, the designation of the workman is itself at the initial stage as clerkcumtypist as used to typed letter he was being promoted in accordance with the rules and regulations of the management but the nature of work as given to the claimant was never been as supervisory. Mr. Shashank Gupta used to take consultation from the consultant of the company, Mr. S.K. DID No.84/10 Shashank Gupta Vs. MIRC Electronics 23 page our of 38 Sachdeva as and when required by him pertaining to taxation matters and used to get clerical work from his subordinates staff. He has not granted any power to control or command to any other employee for this good work for the purpose of promotions. The workman was also not the leave sanction authority or any kind of power has been assigned to sanction any amount of fund therefore, it cannot be said that the claimant was not covered under the provisions of section 2 (s) of Industrial dispute Act, 1947.
22. From the material placed on record as well as depositions made by the witnesses it do not find element which shows that the claimant not covered under the definition of 'workman' as defined u/s.2
(s) of I.D. Act. The claimant have denied that he was working in Administrative or management cadre. He was reported to Mr. S.K. Sachdev who was his immediate boss and followed his command at time to time. He do not have power to prepare Form 16 of TDS return or filled up the Annual Confidential report, sanctioned the leave to any subordinate staff etc. Therefore, in view of the aforesaid discussion the issue no.1 is decided in favour of workman.
ISSUE No.2 Whether the services of workman have been terminated illegally and/or unjustifiably by the managementand if so, to what effect?
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 24 page our of 38
23. The onus to prove this issued is upon the management. It is alleged by the management that the operation of M/s Monika electronics & M/s Onida Saka Electronics were closed in the year 2003 and 2004 respectively activities in the companies after closure of their operations. Sometimes there was sale of properties for which the tax was paid. The claimant was employed with MIRC Electronics after merger of M/s Onida Savak Ltd. into MIRC Electronics Ltd. as per scheme of amalgamation, already on the court file. The full & final dues of Mr. Shashank Gupta was paid by M/S MIRC Electronic Ltd. for the period of his employment with M/s Onida Savak Ltd. and MIRC Electronics Ltd. and not for the past employment with other group of companies. The claimant has been given offer by the management company vide letter dt. 15.11.10 at this factory Village Kudus, Bhiwandi, Wada Road, Taluka Wada, Distt. Thane but the claimant refused the offer of management by not responding over the employment given by the management company. The offer of employment had again sent to him on 30.10.11 copy of the said letter is Ex.MW1/39 and MW1/40 but the claimant has not joined the management because he is gainfully employed elsewhere. The copy of the service certificate given to him is Ex.MW1/41. The service of the claimant was dispensed with vide letter dt. 30.06.08 and he was also offered one month notice pay in lieu of notice as per terms of his appointment letter dt. 28.05.02 alongwith his other dues. Copy of the DID No.84/10 Shashank Gupta Vs. MIRC Electronics 25 page our of 38 termination and appointment letter are already placed on court file. Since there was recession in the industry so services of other employee of the company from other branches and also some other employees of this unit like Mr. Kaushal Tyagi, Ms. Shakti Sehdev, Ms. Veena Popli, Mr. Kesh Bahadur, Mr. Gopal Upadhyaya, Mr. Dev Singh etc. were dispensed with. The workman was never asked to submit his resignation by the management. The notice dt. 28.11.08 sent on behalf of Mr. Shashank Gupta has been replied vide letter dt. 17.12.08 copy of the same is enclosed as Ex.MW1/42. Copy of the letter dt. 30.06.08 is Ex.MW1/43. The copy of full and final dues and the cheque is Ex.MW1/44 (Colly.) and copy of gratuity cheque and details is Ex.MW1/45 (colly.) copy of corrigendum letter dt.28.11.08 Ex.MW1/46. Copy of letter dt. 17.12.08 in reply to legal notice dt. 28.11.08 of Mr. Shashank Gupta is Ex.MW1/47. In his cross examination the MW1 Mr. A.K. Dhingra has stated that:
"...... the continuity of service of MIRC for the purpose of gratuity was taken into consideration. The claimant joined the employment of Onida Savak Ltd. in terms of appointment Ex.WW1/10 after taking his full & final settlement including gratuity of previous employment. Monika Electronics & Onida Saka Ltd. were group companies and Mr. Shashank Gupta was paid his full and final settlement alongwith gratuity on 30.08.02, the documents is on the court record, same is Ex.WW1/M1 & Ex.WW1/M2.
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 26 page our of 38 He cannot tell the basis of calculation on Ex.WW1/M1 & ExWW1/M2 & because the said documents were executed by Monika Electronics and belongs to them. He cannot say as to whether Monika Electronic had given him full & final settlement for his employment with Onida Saka and Monika Electronics as well. No person has been employed at present as a fresh joined for the Account & Finance Department in M/s MIRC Electronics. The operations of the any company is closed some documentation such as filing of returns etc. are required to be filed. Services of Mr. Shashank Gupta was retained for the said purpose. Till he was in the employment of MIRC Electronics he performed said duties....."
The management has not placed on record the document made delivery of the cheque to the claimant, the termination letter was mentioned on the full & final dues. The letter dt.19.08.09, Ex.WW1/20 mentioned that since the claimant has not collected the termination letter dt.30.06.13 alongwith cheques. The termination letter dt.30.06.08 was given to him by hand on the same date as he refused to receive the same, it was sent through post. They have not sent any experience certificate alongwith letter dt. 19.08.09 and cheque. The experience certificate was issued to the claimant before the court during the pendency of the present proceedings and on the direction of the court. The management has not sent any letter of appointment alongwith terms and condition except the DID No.84/10 Shashank Gupta Vs. MIRC Electronics 27 page our of 38 aforesaid letter to join the services, if the claimant joined the services of the management then the appointment letter will be issued. He do not remember whether the claimant is telephonically called upon by the management through him to give experience certificate or offer for appointment. The management with held all the legal dues. The services of the claimant was terminated alongwith some other employee due to recession. The document relied by the management clearly shows the adverse effect of recession on the profitability of the company from year to year. Due to recession, though the expenses of the company increased but the net profit after tax fell steeply. The name of the persons of the employee of the management has been given in aforesaid paras whose services were came to an end due to recession alongwith the claimant, the said fact was not disputed by the workman during the evidence of the management witness. The company shifted its washing machine unit from Noida to Roorkee and the shifting has been proved by the management witness with relevant documents, which are unrebutted. The fifty eight workmen were offered transfer benefits at Noida which were not accepted but lateron they received their full and final settlement. There was no connection of any dispute of these 58 workmen with the alleged dispute raised by claimant at Delhi in 2008. Mere retaining factory license does not mean that the factory is running. The management retained the factory license but did not start any manufacturing activities. Only one person Ms. K. Shyamala has been DID No.84/10 Shashank Gupta Vs. MIRC Electronics 28 page our of 38 retained by the management at Noida just to comply the legal formalities pertaining to the pending matters of excise, salestax, etc. and no other person whose names have been mentioned by the claimant are not in the employment of the management and have taken full & final after resignation and thereafter joined IWAI Electronics (P) Ltd.
24. It is further alleged by the management that the offer of employment by the management to the claimant is bonafide one, it was the claimant who refused the offer at the first stage before the court and did not join the employment of the company at plant of the company at Wada.
25. The workman has submitted that the termination of the service of the workman was on false & frivolous ground which is practice of unfair labour practice and violation of provision of section 25 F of Industrial Dispute Act 1947 etc. The management has made contradiction during the cross examination of MW1 Sh. A.K. Dhingra in para no. 6 of the said affidavit in documentary evidence. There were recession during the said period. The management also failed to prove the transfer of any other employee whose services were terminated due to recession. The management witness has admitted that these employees have taken their full & final settlement. No termination letter were issued to them. It is needless to submit that Financial Highlights of company of Eight years taken from annual report of 200708. The annual report for the year 20072008 is exhibited as Ex.CW1/23 by the claimant, proves DID No.84/10 Shashank Gupta Vs. MIRC Electronics 29 page our of 38 that management, was making profits during the said periods. The management never denied the authenticity of this financial highlight document by producing their own records as they were fully aware that financial high lights document under annexures of Ex.CW1/23 belongs to the management and also a public document.
26. The management belatedly filed the annual report for the year 20082009 and management failed to file annual report for previous four years 2004 to 2008. The management in para no.1 of the written statement alleged that the services of Shashank Gupta was terminated in view of the to recession in the market globally and regionally since the last three to four years. the Noida division of the company started incurring financial losses, and there was drastic reduction in the sales of the company's products. The scrutiny of the said four years shows that there was no such recession during the aforesaid period for the four years more over company earning huge profit. The claimant was terminated at the first stage of the annual financial year 20082009. The annual performance of company in the year 20082009 was reported to CMD, J.L. Malhotra in whose presence this termination letter dated 30.06.08 was handed over to the claimant. It is further alleged that the termination of workman is illegal on account of discretion and not paid his legal dues as per the terms and condition of employment welfare scheme. MW1 A.K. Dhingra during his cross examination has testified that:
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 30 page our of 38 "..... the termination letter was sent by some official of the company and also relied upon to the annual report of the company for the year 20082009. Sh. S.K. Shachdev, HOD. Sh. A.K. Dhingra removed the workman from service and the services of the workman was terminated because he raised issue against the management by exercising. It is clear that the act of the management adopting in termination of service of 58 workers including the workman. Since the company has adopted different procedure in full & final settlement of 58 employees including workman Shashank Gupta."
27. It is further contended by the workman that the management has adopted unfair labour practice while terminating the service on 30.06.08 which is manufactured later on. The MW1 A.K. Dhingra, in his cross examination dt. 29.09.12 has admitted that " since the the claimant refused to to receive the said letter dt. 30.06.08, the same was sent through post. Since the termination letter dt. 30.06.08 was sent through post alongwith termination benefits but postal receipts were placed on record. It is alleged by the management that the termination letter was refused by the claimant in presence of Mr. J.L. Malhotra, Sanjay Bhatt but both the witness was not examined by the management. It is stated by the workman that the said termination letter was manufactured/created by the management on later stage after receiving of the demand notice dt. 28.11.08 sent by the claimant. On 16.06.12 Mr. DID No.84/10 Shashank Gupta Vs. MIRC Electronics 31 page our of 38 A.K. Dhingra, rejected the leave but till expiry of the leave, no intimation for rejection of leave was sent to the workman nor any proof of rejection was submitted by the management.
28. It is further submitted that the management has taken stand while terminating the service that due to recession, reorganization of several department including taxation was done. As such the service of the claimant was terminated. The management has not comply with the provision 9(A) (10& 11) was not made since the claimant have been received notice in the prescribed manner from the management though the management have called meeting on 17.07.08 regarding recession, re organization of the Taxation Department. The management have also violated the provision of section 25J, 25N, 25F, 25FFF & 25 (O) of I.D. Act 1947, while terminating the service of the claimant as Rajbir who joined the same department of the company in which the claimant was working. MW2 was not dispensed with of this rule before the claimant. The management has taken prior permission from the Labour Department as required u/s 25N & 25 (O) of the Industrial Dispute Act. The necessary procedure contemplated under the I.D. ACT has not been followed. The 16 years service benefit is provided u/s 25F of Industrial Dispute Act was not granted to the claimant.
29. The management has contended in the written statement that the termination of the claimant was not due to any misconduct. Admittedly, it is stated that there was no domestic enquiry or any charge DID No.84/10 Shashank Gupta Vs. MIRC Electronics 32 page our of 38 sheet was required as termination is granted on the terms & condition of the appointment letter. The management accordingly, maintained the requirement of section 25F as well as Catiena of judgment laid down by Apex Court. The termination letter was issued by Sr. Manager (HR) Sh. A.K. Dhingra, though the appointment letter was issued by Sh. S.K. Shachdev, HOD of Finance & Account Department which is against the constitution of India.
29. In view of the contention raised by the authorized representative of the parties and material placed on record as well as aforesaid discussion. The discussion previous paragraph of the award be read part & partial of this issue too and same is not repeated here for sake of brevity. It's held that the claimant is covered under the definition of 'workman' and while terminating the services of the workman, necessary notice/chargesheet, domestic enquiry has to be done by the management. The management also bound to conduct the regular domestic enquiry but same is not done by management which is violation of principle of natural justice. In the facts and circumstances, the management has terminated his service on the basis of recession of the management between reorganization of the several department including taxation, however, there is no ocular, trustworthy evidence with respect to the recession in the management though the balancesheet filed by the workman is contrary to the contention raised by the management which shows that the management was in those benefits on the several accounts. DID No.84/10 Shashank Gupta Vs. MIRC Electronics 33 page our of 38 The management while terminating the services of the workman have not terminated the service of the Rajbir Singh who is also in the same department of the management which is violation of section 25G of the Industrial dispute Act. For the purpose of closure of the Unit, management has to follow the provision of section 25N & O of I.D. Act which require prior permission from the Government, same has been categorically violated by the management. It is matter of fact that the service of the permanent employee in any government or semi government agency cannot be terminated in an arbitrarily manner by violating the principles of natural justice. The Supreme Court of India in case Uptron India Limited vs. Shammi Bhan & Anr1998 96) SCC 538 wherein it is held that : ".........It is now well settled that the services of a permanent employee, whether employed by the government, or got. Company or govt. instrumentality .........., cannot be terminated abruptly and arbitrarily, either by giving him a month's or three month's notice or pay in lieu thereof ......."
30. It is also held in West Bengal State Electricity Board & Ors vs. Desh Bandhu Ghosh & Ors (1985) 3 SCC 116 wherein it is held that : "........any provision in the regulation enabling management to terminate the services of a permanent employee by giving three months notice or pay in lieu thereof, would be bad as violative or article 14 of the constitution."
As such in view of the law laid down, facts and DID No.84/10 Shashank Gupta Vs. MIRC Electronics 34 page our of 38 circumstances, the principles of natural justice has been totally ignored while terminating the services of the workman illegally and unjustifiably. Accordingly, the issue no. 2 is decided in favour of the workman.
RELIEF
31. In view of the finding on the above issues, it is a matter of record that the claimant is covered under the definition of 'workman' as defined u/s. 2 (s) of the Industrial Dispute Act, 1947. The workman has not received the full and final settlement dues and the services of the workman was terminated illegally and unjustifiably by the management. The claimant was employed with the management in the year 1992. The management terminated the services of the workman vide termination letter dated 30.06.08 without assigning any reason and without holding any enquiry, by giving him one month's salary in lieu of one month's notice, stating that their services are no longer required. Though the nature of work of the workman was clerical duties pertaining to the taxation matter assisting to the Onida Company recorded the copy of the income tax file etc. in group taxation department (financial & account). The claimant was responsible for the management's taxation system including tax data of the management. He was also required to compute the taxes & file the statement account of employee. The management throughout has testified that there was no complaint whatsoever against the workman. The claimant was performing his duties honestly and DID No.84/10 Shashank Gupta Vs. MIRC Electronics 35 page our of 38 sincerely. The management has alleged that the services of the workman terminated due to business exigencies including administrative reasons. But there is no verbal or written evidence brought on record to show what was the business exigencies including administrative reasons to terminate the services of the workman. The workman has served the management more than 16 years of his service. The claimant do not wish to join outside Delhi even offer was made by the management. Thus, question of reinstatement in the service at Delhi does not arise since the recession, alleged reorganization of the management department.
32. In 2011 LLR529CR DasIAlias Chittaranjan Das Vs. Personal Manager, Jute Corporation of India & Anr. held that : "............An Enquiry Officer will not be imparial if he perform the role of a prosecutor by cross examining the witnesses hence the enquiry as held is liable to be vitiated.
Since the enquiry as held against the delinquent employee who was chargesheeted for stealing of Rs. 3,342 has been vitiated, the petitioner (delinquent) will be paid Rs. 50,000 since thirty years have elapsed and he has suffered all along....."
33 In another judgement in 2012 LLR 718 DSIIDC Vs. Pravin Kumar Sharma wherein it is held that "
".........Termination of workman, without compliance of section 25 F the Industrial Disputes Act, is illegal retrenchment attracting reinstatement with back wages.
Award of reinstatement with full back wages should not be granted mechanically when termination is held to be illegal.
Lump sum compensation of reasonable amount in lieu of reinstatement with back wages is justified..."
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 36 page our of 38
34. Keeping in view the facts and circumstances of the case and considered the period of time in litigation to the claimant and referred to allow to join outside posting, it will be better to meet the ends of justice by awarding the lump sum compensation instead of reinstatement to the workman. The relevant factor for awarding the lump sum compensation is that the nature of appointment, the period of appointment, the availability of job, long period of time in litigation etc. The Hon'ble High Court and the Apex Court in large number of decisions observed that the payment of amount of compensation are to meet the ends of justice in the cases the workman involved in prolonged litigation. Accordingly, the claimant workman Shashank Gupta be awarded sum of Rs. 5 lacs (Five Lacs) only as lump sum compensation in lieu of reinstatement and back wages. The amount of compensation will not cause any hindrance in the other dues of the workman & for future employment in other group of companies. If the management fail to to pay the amount of compensation of Rs. 5,00,000/ (five lacs) to the workman after 30 days of the publication of the award, the workman is entitle to be get interest @ 9% p. a. till its realisation. Accordingly the reference is answered.
35. Copy of award be also sent to Ld. Civil Court, Delhi in compliance of provisions of Section 11(10) of the Act as amended by Industrial Disputes (Amendment) Act, 2010 (No. 24 of 2010), which runs as under: "(10) The Labour Court or Tribunal or National Tribunal, as DID No.84/10 Shashank Gupta Vs. MIRC Electronics 37 page our of 38 the case may be, shall transmit any award, order or settlement to a Civil Court having jurisdiction and such Civil Court shall execute the award, order or settlement as if it were a decree passed by it."
36. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in the open Court on 3rd August, 2013 (SAINDER KUMAR GAUTAM) Additional District & Sessions Judge Presiding Officer : Labour Court Karkardooma Courts, Delhi.
DID No.84/10 Shashank Gupta Vs. MIRC Electronics 38 page our of 38