Delhi District Court
Sh. Surjeet Singh S/O Late Sh. S. Piyara ... vs M/S Manav Sathali Junior School on 22 April, 2019
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IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER
LABOUR COURT SOUTH-WEST DISTRICT, DWARKA
COURTS: NEW DELHI
LIR No.9428/2016
INDUSTRIAL DISPUTE BETWEEN :-
Sh. Surjeet Singh S/o Late Sh. S. Piyara Singh
R/o H No:4/194, Subhash Nagar,
New Delhi-110027
Through-General Secretary (Sh. Chotey Lal)
General Mazdoor Lal Jhanda Union (Regd.1664),
I-144, Karampura, New Delhi-110015 .....Workman
VERSUS
M/s Manav Sathali Junior School,
Double Storey New Rajender Nagar,
New Delhi-110060 .....Management
Date of receiving of reference : 28-10-2016
Date of Final Arguments : 25-03-2019
Date of final Award : 22-04-2019
AWARD
1. The Dy. Labour Commissioner (Central Disrict),
Government of NCT of Delhi vide its order No.
F.24(11)Lab./CD/16/61, dated 21-01-2016, referred an industrial
dispute of present worker with the above mentioned management
to the Labour Court with the following terms of reference:
"Whether the services of workman Sh. Surjeet Singh S/o Late
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School
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Sh. S. Piyara Singh, aged 58 years, is workman as defined
under ID Act 1947 and if so whether he has left his job after
receipt of his full and final dues or his services have been
terminated illegally and / or unjustifiably by the
management;and if so, to what reliefs is he entitled and what
directions are necessary in this respect ?"
2. Brief facts as stated in the statement of claim are that the
the Workman was working as "Transport Incharge" with the
Management since 11-07-2002 and his last drawn wages were
Rs.25000/- per month. The workman, during his services, worked
diligently and honestly and he never gave any chance of any
complaint against him to the management.
3. It is averred by the workman that management did not
provided legal facilities to the workman and when the workman
demanded the same, the management got annoyed with the
workman and on 15-01-2015, the management suddenly
terminated the services of the workman without giving him his
earned wages for 01-01-2015 to 14-01-2015 and without any
notice etc. It is stated that workman worked with the management
more thatn 240 days, therefore, the dismissal of the service of the
workman is illegal and against the law of natural justice.
4. It is stated that a complaint was filed by the workman
through its labour union in the Labour Office on 16-02-2015, there
management appeared before Labour Conciliation Officer but
management did not agree for reinstatement of the workman on
nor paid him any earned wages etc., which is against the labour
law. Hence, the present reference & statement of claim.
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School
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5. It is alleged that the termination of the Workman by the
Management is illegal and he is unemployed. The Workman has
claimed relief of reinstatement with full back wages and other
consequential benefits.
6. Notice of the statement of claim was issued to the
Management. Management filed written statement and it is stated
that claim of the workman is not covered under the definition of
"Workman" s defined under Section 2(s) of The Industrial Dispute
Act, 1947 as he was working as Transport Supervisor with the
management and his last drawn salary was Rs.25000/- per month,
therefore, liable to be dismissed. It is further stated that workman
lastly worked with the management from 12-05-2014 to 31-12-
2014, therefore, the claimant never completed 240 continuous
services with the school, as such there is no illegality in the
termination of his services and claim of the workman is liable to
be rejected. It is submitted that even otherwise the management
had settled the accounts of the claimant by paying him a sum of
Rs.28335/- vide cheque no:234790 dt. 31-12-2014 and the
claimant had duly executed a receipt to this effect, therefore the
statement of claim as such is not maintainable and liable to be
rejected on this ground alone. Management denied the allegations
of the claimant and prayed for dismissal of the claim of the
workman.
7. In his rejoinder the workman-herein has controverted the
averments of the management and reiterated his averments made
in the statement of claim.
8. From the pleadings of the parties the following issues were
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School
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framed for trial on 20-01-2017:-
(1) Whether the claimant is not covered within the
definition of workman u/s 2(s) of ID Act ? OPM
(2) Whether the claimant has completed 240 days in the
last preceding year ? OPW
(3) As per terms of reference.
(4) Relief.
9. The workman has filed his evidence by way of affidavit
which is Ex.WW1/A and reiterated the whole contents of the
statement of claim in his evidenciary affidavit. The documents ,
which have exhibited by the workman in his evidenciary affidavit
are Ex. WW1/1 to Ex. WW1/8.
Ex.WW1/1 is complaint dt. 16-02-2015 made by the
workman through his union. Ex.WW1/2 is a complaint to Police
Station Rajinder Nagar made by the workman on 26-05-2016. Ex.
WW1/3 is letter issued by the management to the workman dt. 18-
06-2014. Ex.WW1/4 to Ex. WW1/8 are the letter issued by the
management to the workman dated 12-08-2002, 19-10-2002, 04-
03-2003, 19-05-2004 & 24-09-2004 respectively.
The Workman has been cross examined by the AR for the
management. Thereafter, the workman closed his evidence on 01-
09-2017.
10. The management has examined MW1-Sh. Vijay Kumar
Chhabra, their Account Officer, who tendered his evidence by way of
evidenciary affidavit which is Ex.MW1/A, which bears his signatures at
point A and B. He also relied upon the documents exhibited and
marked in his evidenciary affidavit which are Ex.MW1/1(8 pages
collectively) and Ex.MW1/2 ( 8 pages collectively). Original of the
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School
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same seen and returned. He was also cross examined by Sh. Umesh
Dubey, ARW. The cross examination of the MW1 is reproduced as
under:-
"I joined the school management in April, 2005. I am still
working with the school management. My qualification is B.A. It is
wrong to suggest that the signatures on the attendance register have
been obtained through out with one pen. However, every worker has his
own pen to sign on the register. It is wrong to suggest that the
attendance and wages register produced in original by me today in the
court are forged and fabricated. I do not know whether claimant had
been working with the management since 11-07-2002. Vol. I have
joined in the year 2005. It is correct that last drawn salary of claimant is
Rs.25000/-. The claimant was the Transport Supervisor. It is wrong to
suggest that the claimant was terminated on 15-1-2015. We have
submitted full and final documents in the labour office at Pusa Road. It
is wrong to suggest that the claimant has not received/settled his full
and final account with the respondent. It is correct that the workman
has never tendered any resignation to the management. It is correct that no settlement was got registered by the parties in the labour office. I am not aware of the legal provision of rule 58 of the ID rules by which it is mandatory to register the settlement with the labour office. It is wrong to suggest that Mr. Vinay Kumar is the owner of the school. Vol. The school is being run by the educational society. No person by the name of Vinay Kumar Bhatnagar is there in the school since 2005 , the date when I joined in the school. Mrs. Ramitri is Principal of the school nowadays. No person named Ranjeet is working in the management school. It is wrong to suggest that Mr. Surjeet Singh had worked in the school w.e.f. 1-7-2002 till 15-1-2015. Vol. As per record of school Mr. Surjeet Singh joined the school w.e.f. 12-5-2014 and worked till 31-12- 2014."
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 6 Thereafter, the AR of the management closed the management's evidence on the same day i.e. on 20-03-2018.
11. I have heard the final argument on behalf of the workman and the management. My findings on the issues are as under:-
12. ISSUE No.1 "Whether the claimant is covered as "workman" under S.2(s) of the I.D. Act ? OPM"
13. The claimant has averred that he worked as "Transport In-
charge" in the management (School) and was getting a salary of Rs.25,000/- per month.
The expression "workmen" is defined in s. 2(s) of the Industrial Disputes Act means "any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward,. . . . . but does not include any such person-
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
The definition of "workman" as contained in Section 2 (s) of the Industrial Disputes Act, 1947 is exhaustive. Hence the position in law as it obtains today is that a person to be a workman LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 7 under the Industrial Disputes Act, 1947 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 such person is not covered by either of the four exceptions to the definition. Even if a person does not perform managerial / supervisory or administrative duties, with a view to hold that such person is a workman, it must be established that such person performs skilled or unskilled, manual, supervisory, technical, operational or clerical work for hire or reward. The question as to whether an employee is a "workman" as defined under section 2
(s) of the Industrial Disputes Act, 1947 has to be determined with reference to his dominant / principal / main / substantial nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the / each case and the material on record. It is not possible to lay down any strait
- jacket formula which can be determinative of the real nature of duties and functions being performed by an employee in all cases.
While interpreting this provision, the Constitution Bench of the Supreme Court in H.R. Adyanthaya and Others Vs. Sandoz (India) Ltd. and Others, 1994 (5) SCC 737 held that an employee is a workman under the Act if he is employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. In the other words, if the work of a person did not fall within any of the categories of manual, clerical, supervisory or technical, he would not qualify to be workman.
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 8 Similarly, in S.K. Maini Vs. M/s Carona Sahu Co. Ltd., (1994) 3 SCC 510 the Supreme Court held in paragraph 9 of the Report: --
"After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it."
Thereafter, in the same paragraph, it was said: --
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 9 "... the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as Section 2(s) of the Industrial Disputes Act."
It is settled proposition of law that designation of the workman is not the criterion for determination of status of an employee since nature of duties are taken into consideration to ascertain whether an employee is a workman or not. In order to decide as to whether an employee, even though designated as an officer, is a workman or not, the primary or substantial duties are performed by him are relevant.
In the present case the workman has admitted in his cross- examination:-
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 10 "I am 11th pass. I put signatures. .....I was working in the Manav Sathali as Transport Incharge.....It is correct that I already passed 58 years. ......It is correct that in December 2014 I received salary by cheque. It is correct that I received an amount of Rs.28,335/- vide cheque no. 234790 on 31.12.2014 Ex. WW1/M1 bear my signature at point A. It is correct that on 31.12.2014 I have received my full and final payment from the management. It is correct that I had joined on 12.05.2014 and worked till 31.12.2014 and my last drawn wages were Rs.25,000/- per month.
......It is correct that I am well versed with the job of transport Incharge."
The nature of the work of the claimant-herein is well depicted from his own documents such as Ex.WW1/3 which is an authorization by the management to the claimant that he shall represent the school in matter of bus challan and impounding bus etc. with regard Bus No. DL1PC 5185". The claimant-herein was given powers to interact and discuss the paper work etc. Another documents:
1. Ex. WW1/4 (dated 12th Aug. 2002)
2. Ex. WW1/5 is (dated 19.10.2002)
3. Ex.WW1/6 (dated 04.03.2003) LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 11
4. Ex.WW1/8 (dated 24.09.2014) where the claimant-herein is submitting a hand written report on the bus no. 3040 wherein certain shortcomings of the said bus were pointed out by him to the management. The claimant is also pointing towards the absence of the driver of the said bus. This depicts not only a supervisory but also an administrative element in the work-nature discharged by the claimant-herein.
1. Ex. WW1/7 is the letter dated 19.05.2014 wherein the claimant-herein is seeking approval of the permit from the Delhi Transport Department regarding a Vehicle No. DL-
IV-A 5054.
(This communication / letter also depicts an administrative function of the work-nature discharged by the claimant-herein.
The claimant's own assertions of a monthly salary of Rs.25,000/- per month and his own documents show that he is not covered under the definition of "workman" u/s 2(s) of the I.D. Act and the claimant-herein does not satisfy the tests laid down by the Hon'ble Supreme Court in a catena of judgments Thus the ISSUE No.1 is decided in favour of the management and against the claimant-herein.
14. ISSUE No.2 LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 12 "Whether the workman has completed 240 days in service ? OPW"
It was held in the judgment titled Automobile Association Upper India Vs. P.O. Labour Court II & Anr. 130 (2006) DLT 160, Delhi High Court, in which it was interalia held that:-
"engagement and appointment of the workman in service can be established either by direct evidence like existence and production of appointment letter or written agreement, or by circumstantial evidence of incidental and ancillary records, in nature of attendance register, salary registers, leave record, deposit of PF contribution, ESI etc. or even by examination of co¬-workers and this onus can be discharged by evidence of the co¬-worker who may depose before the Court that the workman was working with the management."
The following principle laid down by the Supreme Court in Range Forest Officer Vs. S.T. Hadimani, 2002 (3) SCC 25, wherein while dealing with the question of proof of employment observed as under:
"3........In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 13 statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."
In (2005) 5SCC 100 entitled Manager, Reserve Bank of Bangalore vs. S. Mani & Others, the Apex Court observed thus:-
"Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore, not correct to contend that the plea raised by the respondents herein that they had worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse...."
In the present case the workman has admitted in his cross- examination:
"It is correct that I had joined on 12.05.2014 and worked till 31.12.2014 and my last drawn wages were Rs.25,000/- per month.
The workman has thus admitted that he had not completed 240 days LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 14 In the present case there is no evidence to infer that the workman had completed 240 days of service in the last preceding year. As the workman has not worked continuously for 240 days in a year with the management, hence his services were not required to be dispensed with in accordance with provisions of Section 25F of the Industrial Disputes Act, 1947.
15. Thus the ISSUE No.2 is decided in favour of the management and against the claimant-herein.
16. ISSUE AS PER TERMS OF REFREENCE WHETHER THE CLAIMANT HAD LEFT HIS JOB AFTER RECEIPT OF FULL AND FINAL DUES?
The workman has himself admitted in cross-examination :
"I am 11th pass. I put signatures. .....I was working in the Manav Sathali as Transport Incharge.....It is correct that I already passed 58 years. ......It is correct that in December 2014 I received salary by cheque. It is correct that I received an amount of Rs.28,335/- vide cheque no. 234790 on 31.12.2014 Ex. WW1/M1 bear my signature at point A. It is correct that on 31.12.2014 I have received my full and final payment from the management. It is correct that I had joined on 12.05.2014 and worked till 31.12.2014 and my last drawn wages were Rs.25,000/- per month.
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 15 As far as the Rule 58 if the I.D. Act is concerned the same is applicable during the conciliation proceedings and not when the claimant himself settles while leaving the job. In the present the claimant has himself admitted that he received an amount of Rs.28,335/- vide cheque no. 234790 on 31.12.2014. Ex. WW1/M1 bear my signature at point A. It is correct that on 31.12.2014 I have received my full and final payment from the management. It is correct that I had joined on 12.05.2014 and worked till 31.12.2014 and my last drawn wages were Rs.25,000/- per month.
The perusal of the admitted document WW1/M-1 clearly reveals that the workman has received his salary as Full and Final Settlement and that there was no due outstanding.
In Automotive and Allied Industries v. Regional Provident Fund (1990) 95 BOMLR 740, the Bombay High Court expressly stated that once a full and final settlement has taken place between the employee and the employer through a contract, including all claims for compensation and loss of office, then the employee cannot hold the employer liable for any other claim whatsoever. It also rejected the trial court's verdict, in which the trial judge had held that payment of provident fund arises from statutory provisions and they cannot be given up through contractual means. The Court further applied the principle of approbate and reprobate to negate the employee's claim. According to this common law principle, a party cannot be allowed to accept and reject the same instrument. It was enunciated in England in the LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 16 early 1920s and has been subsequently applied by Indian courts. One court stated:
"A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn around and say it is void for the purpose of securing some other advantage."
The Court in Automotive and Allied Industries went into the specific terms of the settlement contract and stated that the ambit of several clauses was so wide that they swept away any claim arising out of the employment.
In L. Ravi v. The Presiding Officer (W. P. No.2442 of 2008), the Madras High Court was faced with a claim by an employee who had resigned from his post and also received all his dues from the employer in the form of full and final settlement on that very day. Subsequently, he alleged that he was coerced to resign from his post and was threatened by his General Manager to whom he had addressed his resignation letter. The Court, in its well-reasoned judgment, rejected the employee's claim by citing the fact that:
"he received all the dues by way of full and final settlement from the company on the same date, thereby bringing the relationship of master and servant to an abrupt end. Had the LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 17 petitioner really been forced by threat to put up his paper, he would not have received the full dues on the same day without protest."
In view of the clear finding that the claimant-herein had admittedly received his Full and Final dues it cannot be said that there was any sort of removal of the claimant from the service.
Thus this ISSUE AS PER THE REFERENCE is also decided in favour of the management and against the claimant- herein.
17. Relief In view of my findings on the issue no:1, 2 & 3, the present reference is decided accordingly against the workman. The workman is not entitled to any relief from this court. The claim of the workman is hereby dismissed.
18. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court.
Dated:22-04-2019
( VEENA RANI )
Digitally
signed by Presiding Officer Labour Court
VEENA VEENA RANI
Date: South-West District,Dwarka Courts,ND
RANI 2019.05.07
15:06:26
+0530
Judge Code : DL0271
LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 18 IN THE COURT OF MS.VEENA RANI :PRESIDING OFFICER LABOUR COURT, SOUTHWEST DISTICT, DWARKA COURTS, NEW DELHI LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School 22-04-2019 Present : Sh.Umesh Dubey, AR for workman.
Sh. A.K. Jain, counsel for the management. Vide my separate detailed order the claim of the workman is dismissed. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court.
Dated:22-04-2019 ( VEENA RANI ) Presiding Officer Labour Court SouthWest District,Dwarka Courts,ND Judge Code : DL0271 LIR No.9428/2016, Sh. Surjeet Singh Vs. M/s Manav Sathali Junior School