Delhi District Court
Sh. Pankaj Tyagi S/O Sh. Om Prakash Tyagi vs Sh. Amrish Gupta on 4 January, 2014
IN THE COURT OF SHRI CHANDRA SHEKHAR: POLCV:
KARKARDOOMA COURT: DELHI
DID No : 618/08
Unique Case ID No : 02402C0662202006
In the matter of:
Sh. Pankaj Tyagi S/o Sh. Om Prakash Tyagi
R/o A198, near Shiv Mandir, Gali no. 1, Village Mandoli,
Nand Nagri, Delhi110093.
.........Workman
VERSUS:
M/s. Seema Overseas
through its partners:
1. Sh. Amrish Gupta
2. Sh. Rajeev Gupta
at B11/46, Mohan Cooperative Industrial Estate,
Delhi110044.
......... Management
Date of Institution : 23.11.2006
Date of reserving award : 04.01.2014
Date of pronouncement : 04.01.2014
AWARD
The workman filed his statement of claim (without reference of
Govt.) stating that he joined the management since 28.02.1998 as "Store
Incharge" and his last drawn salary was Rs. 7,600/ p.m. (plus allowances)
alongwith other charges. He was doing his duties diligently, but he was not
provided the facilities of holidays, leave, bonus, overtime etc. On
10.01.2006 when he was on duty respondent no. 2 called him at his office
and misbehaved with him. He reported the matter to respondent no. 1 but DID No : 618/08 1/11 respondent no. 1 did not pay any heed to the same. On 02.04.2006 at about 02:00 pm when he was on duty, he was called by both respondents in the office where, his signatures were obtained by the management on various blank papers, blank forms etc. by putting him in fear of dire consequences. He moved a detailed complaint before the Commissioner of Police at Police Head Quarter, New Delhi. The management did not allow him to join his duty despite his best efforts and illegally terminated his services on 02.04.2006 without giving any show cause notice or without holding any enquiry against him and without giving him one month's notice pay before terminating his services. His salary is due for the last four months. He served a legal notice to the management but, management did not reply. He has been regularly approaching the management but management has not reinstated his services. He is unemployed since the day of termination of his services despite his best efforts. A request is made that directions be given to the management to reinstate his services with continuity of service, full back wages and all other consequential benefits.
3. A notice of aforesaid claim was sent to the management. The management contested the aforesaid claim by filing written statement stating that the claimant was working with the management in management cadre as Stores Incharge and the present claim is without jurisdiction; he was involved in misappropriation, theft and other activities detrimental to the reputation of management. He was involved in theft of costly chemical from the stores, the matter was reported to the police which is under investigation with the police. He enjoyed all the facilities of leaves, holidays etc. Management never obtained his signatures on blank papers.
DID No : 618/08 2/11He was under obligation to render true accounts of the stocks on 31.03.2006 due to financial closure but he did not report the same and abandoned his job. He did not refund the loan amount of Rs. 52,500/ taken from the management. Management denied all other facts as stated by the claimant in his claim. A request is made that claim filed by the claimant may be dismissed as the claimant has concealed the true facts and his claim is not sustainable under the law.
4. The workman filed rejoinder restressing the same facts stated by him in his statement of claim and on 19.02.2007, as per pleadings of the parties, following issues were framed for adjudication and disposal of the case:
(1) Whether this court has no jurisdiction as claimed in preliminary objection no. 1 in the written statement?
(2) Whether the services of the workman have been terminated illegally and unjustifiably by the management?
(3) Relief.
5. The opportunities were given to the workman to lead his evidence. He examined himself as WW1, exhibited his affidavit as Ex. WW1/A and relied upon documents Ex. WW1/1 to Ex. WW1/6. He also faced cross examination conducted by the management and on 30.08.2007 workman evidence was closed.
6. Thereafter, opportunities were given to the management to lead management evidence. Management examined Sh. Pramod Chandola, DID No : 618/08 3/11 General Manager of the management as MW1. He exhibited his affidavit as Ex. MW1/A and documents MarkA, B and C. He also faced cross examination conducted on behalf of the workman and thereafter, management evidence was closed on 02.08.2008.
7. I have heard the submissions of both parties.
AR for the workman has submitted that workman was only assisted by some other Helpers in maintaining the record in store but, none of the employees of the management was working under him and he was not having any supervisory or managerial control on other employees of the management. He was only working as Store Keeper. AR of the workman further stated that services of the workman were illegally terminated by the management.
AR of the management has submitted that the workman himself has stated in his statement of claim that he was working as a Store Incharge in the office of management. Hence, he is not covered within the definition of workman provided u/s 2 (s) of the ID Act, 1947. AR of the management further submitted that the workman himself had abandoned the services of the management.
8. I have considered the submissions of both parties and perused the record. My findings on the issues are as follows:
(A) FINDINGS ON ISSUE No. 1:
"Whether this court has no jurisdiction as claimed in preliminary objection no. 1 in the written statement?"DID No : 618/08 4/11
The management has stated in preliminary objection no. 1 in its WS that this court has no jurisdiction to adjudicate upon the claim of the workman as the workman was in the management cadre and he was working as Store Incharge.
In view of the submissions of AR of both parties and the facts and circumstances of the case, it seems that a close scrutiny is required to be made to see as to whether the claimant is covered within the definition of workman as provided u/s 2 (s) of the ID Act, 1947 or not? The definiton of workman is provided in the ID Act, 1947 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 reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(i)who is subject to the Air Force Act, 1950 (45 of 1990), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii)who is employed in the police service or as an officer or other employee of a prison, or
(iii)who is employed mainly in a managerial or administrative capacity, or
(iv)who, being employed in a supervisory capacity, draws wages exceeding 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.] DID No : 618/08 5/11 The Supreme Court has submitted several tests in case law titled as Union Carboid (India) Ltd. Vs. D. Samual and Ors., 1999 LLR 21 for considering "whether the claimant comes within the definition of the workman provided under Industrial Disputes Act, 1947 or it comes in the exceptions provided therein." Those tests are:
(1)Designation is not material but what is important is the nature of work.
(2)find out the dominant purpose of employment and not any additional duties, the employee may be performing.
(3)Can he bind the Company/employer to some kind of decisions on behalf of the Company/employer. (4)Has the employee power to direct or oversee the work of his subordinates.
(5)Has he power to sanction leave or recommend it; and (6)Has he the power to appoint, terminate or take disciplinary action against workmen.
The aforecited judgment also incorporated some tests which were laid down by various High Courts in India. The same are:
(a)Whether the employee can examine the quality of work and whether such work is performed in satisfactory manner or not;
(b)Does the employee have powers of assigning duties and distribution of work;
(c)Can he indent material and distribute the same amongst the workmen;
(d)Even though he was no authority to grant leave does he have power to recommend leave;
(e)Are there person working under him;
(f)Has he the power to supervise the work of men and not merely machines;
(g)Does he mark the attendance of other employees;
(h)Does he write the confidential reports of his subordinates.DID No : 618/08 6/11
ALSO HELD:
These tests are not the only tests. There can be a situation where there may be other tests to indicate whether the person is doing supervisory work or not. However, what is material is to note that a supervisor must be in a position to bind his employer in respect of the decisions that he has taken or in exercise of such power have control on them.
The initial onus was on the workman to show that he is covered within the definition of workman provided u/s 2 (s) of the ID Act, 1947. The workman has stated in his cross examination that he was the only person working in the stores and there is no other employee working in the stores with him. He used to count the material with the help of labour and he used to maintain records. He used to receive the material on bills of suppliers and used to sign on the same in confirmation of having received the material. The material was issued on issue challans and he used to sign them as a Store Keeper. He used to undertake the stock with the help of labour and other staff and then used to report the same to the Manager. He denied the suggestion of management that he was working in the management cadre therefore, it seems that the workman has discharged his initial burden of proof to show that he was actually working as Store Keeper.
After the aforesaid averments of workman, the onus is shifted and now it is the duty of the management to prove from the concrete evidence that the workman was not merely working as Store Keeper but, actually he was working as Store Incharge and was having the powers and facilities which were supervisory or managerial in nature but the management witness Sh. Pramod Chandola has admitted in his cross DID No : 618/08 7/11 examination that:
"it is correct that the Store Incharge does not have any power to appoint and terminate any person."
"it is correct that after taking decision about the stocks, Store Incharge has to seek the approval from the management."
Besides the aforesaid admissions, the management has not filed any record to show that the workman was having powers to direct or oversee the work of his subordinates, he had powers to sanction leaves or recommend it, he had powers to appoint, terminate or take disciplinary actions against other employees of the management, he had the powers to examine the quality of work performed by other workmen of the management, he had the powers to assign duties and distribution of work to other workmen of the management, he had the powers to indent material and distribute the same amongst the other workmen of the management, he had powers to mark attendance of other employees of the management and he had powers to write confidential reports of his subordinates.
The judicial record shows that the only work of the workman was to deposit, release and maintain the record of the store of the management. Therefore, it seems that it is apparent that management has bitterly failed to show from any proof that the workman was enjoying the powers which were supervisory or managerial in nature. Hence, issue no. 1 is decided in favour of the workman and against the management.
(B) FINDINGS ON ISSUE No. 2:
"Whether the services of the workman have been DID No : 618/08 8/11 terminated illegally and unjustifiably by the management?"
The onus to prove this issue was on the workman. The workman has stated in his claim, in his affidavit Ex. WW1/A and in his deposition in the court that he was working with the management since 28.02.1998 and was getting his salary a sum of Rs. 7,600/ per month with some allowances and other charges. His services were illegally terminated by the management on 02.04.2006. He is unemployed since the date of his illegal termination despite his efforts. In his cross examination, he has admitted that the management did not issue any letter of termination and he has filed the claim directly in the court without filing the complaint before the conciliation officer for redressal of his industrial dispute but he denied the suggestion that he committed theft which was detected by the management therefore, he stopped going to the office of management to avoid any enquiry against him. The management stated in its written statement that the workman himself had abandoned the services of management when management lodged a complaint to the police against his act of theft and did not render the true accounts of the stocks to the management on 31.03.2006 but the management witness Sh. Pramod Chandola has admitted that:
"management did not take any action against the workman when he failed to come for stock taking."
"the management has not filed any document to show that claimant had taken advance."
"the claimant was not served any memo in respect of deficiency of performance of his duties."
"it is correct that claim was discharging his duties to the satisfaction of the management."DID No : 618/08 9/11
"the management did not pay the dues and outstanding salary of the workman."
The management witness is also not sure since when the workman stopped coming to the office of the management though the management has taken the stand that workman had himself abandoned the services of the management. Management witness firstly, stated that workman himself stopped attending the duties after 15.04.2006 and again said that he is not sure of the exact date. Thereafter, he admitted that it is correct that in his affidavit he has stated that claimant did not report for work on 31.03.2006 and abandoned the job and again stated that on 31.03.2006 stock taking was to be done and claimant abandoned the job thereafter. The management has not stated in its written statement that management issued letters to the workman asking him to join his duties or made any endeavour to call the workman on duty. The management has not stated in its written statement that any notice, chargesheet was given to the workman or any enquiry was conducted against him. Therefore, it seems that an inference may be safely drawn in the facts and circumstances of the case that the management illegally terminated the services of the workman on 02.04.2006. Hence, issue no. 2 is also decided in favour of the workman and against the management.
(C) RELIEF:
In view of the above discussion and observation, it is apparent that services of the workman were illegally terminated by the management. The management has pleaded against the conduct of workman in written statement, though not proved the same. However, it seems that it shall not DID No : 618/08 10/11 be justified in the facts and circumstances of the case to give directions to the management to reinstate the services of the workman as the management has made a complaint MarkC against the workman to the police on 09.05.2006. The workman has stated that he is unemployed since the date of his illegal termination. The management has not cross examined the workman on the point of unemployment of workman. The management has also not led any evidence to show that the workman is gainfully employed therefore, it seems that the workman has suffered a lot due to the conduct of management and requires to be compensated. Hence, the management is directed to pay 50% of the last drawn salary of the workman to the workman since 23.11.2006 i.e., from the date of filing of claim till the date of passing of this award alongwith litigation cost of Rs. 10,000/ within a period of one month from the date of publication of the award and if the management fails to pay the same within aforesaid period with interest @ 8% p.a. till actual realization of the payment of aforesaid amount to the workman. The claim of the workman is disposed of accordingly.
A copy of this award be sent to the appropriate Government for its publications as per rules and a copy be also sent to the court of Senior Civil Judge, South District, Saket through Ld. District and Sessions Judge, East, KKD Courts for execution of award by the concerned court or by allocating the same to some other Civil Judge working under him.
ANNOUNCED IN THE OPEN COURT (CHANDRA SHEKHAR)
ON 04th January, 2014 POLCV:KKD:DELHI
DID No : 618/08 11/11