Delhi District Court
Sh. Raj Kumar Sethi vs M/S Delhi Flour Mills Co. Ltd on 21 October, 2009
-1-
IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 363/08/96
Sh. Raj Kumar Sethi
S/o Sh. B. N Sethi
C/o Sh. L.S Rana
45-A, Kamla Nagar
Delhi. ...... Workman
VERSUS
M/s Delhi Flour Mills Co. Ltd.
8381, Roshanara Road
Delhi - 7 ...... Management
Date of Institution of the Case : 23.02.96
Date on which the order has been reserved : 30.09.09
Date of delivery of order : 21.10.09
Order on preliminary issue no. 2
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F- 24(3448)/95/Lab./12745-50 referred the dispute for adjudication between the Management M/s Delhi Flour Mills Co. Ltd. and its workman Sh. Raj Kumar Sethi in 1/45 -2- the following terms of reference:
"Whether the dismissal of Sh. Raj Kumar Sethi from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. As per claim, the workman had been in the employment of the management w.e.f 4.01.77 as a Laboratory Clerk and promoted w.e.f 1.12.77 as Laboratory Incharge. The last drawn wages of the workman was Rs. 3420.25 per month as salary. It is further stated that the workman was performing his duties with sincerity due diligence and no faults or complaints were found on the part of the workman during his tenure of service in the establishment of the management. It is further stated that the management with its ill motive and malafide intention illegally terminated/suspended the services of the workman w.e.f 30.09.94. It is further stated that there was a settlement/compromise executed between the parties i.e management and the workman on dated 24.02.92 under section 18 (1) of ID Act, 1947 according to which the management and the workman were bound to abide each and every clause of the said settlement. It was settled between the parties that the dispute shall be settled with mutual discussion according to said settlement the workman along with other workers 2/45 -3- authorised representative of the workman and Mr. N.K Sawhney was appointed the authorised representative of the management and it was settled in the said settlement that any dispute arisen between the parties shall be decided with mutual consent by both the representative of the parties i.e workmen and Sh. N.K Sawhney, Factory Manager and the said settlement was valid up to 31.12.94 in which the service condition were clearly mentioned and from time to time by way of discussion made between the parties shall be settled accordingly. It is further stated that the management illegally stopped the telephone facilities to the workman with the pre- planned scheme w.e.f 23.08.93 which created anti-affect upon the workman along with other workers. It is further stated that Mr. Sushil Sharma, Raj Kumar Sethi, Naveen Kumar and Raj Mohan Lal were the representative of the workmen and the aforesaid management through factory manager on 6.09.93 called the authorised representative of the workmen for mutual discussion Mr. Naveen Kapoor representative of the workmen who used to sit in the office of the Factory Manager and on the call of the management, the workman along with other representative went in the office of the Factory Manager. The factory manager was not available in his office because the factory manager already informed Mr. Naveen Kapoor about his absence on that day and Mr. Naveen Kapoor conveyed the message to the factory 3/45 -4- Manager that if the other representative will come informed that about the adjournment of meeting to be held on 6.09.93 for next date after giving information to all the representative in advance because the factory manager further informed through Mr. Naveen Kapoor that he would remain absent for 7.09.93 and further Naveen Kapoor informed to the workman and other representative about the future plan of the factory manager. It is further stated that on next dated i.e 8.09.93 the General Manager with his pre-planned scheme affixed the notice on the notice board against the workman by leveling false allegations upon him because the management wants to get rid from the workman and even on talking with the management they did not act positively in the matter. It is further stated that on 10.09.93 the said management issued a charge sheet against the workman which was based on charge sheet dated 7.09.93 and the said letter was totally based on the false and frivolous grounds and thereafter the management illegally suspended the workman w.e.f 11.09.93 through the letter dated 10.09.93 thereafter the workman sent reply of it categorically denying all the false allegations. It is further stated that the management in violation of the standing orders dt. 22.03.48 initiated an enquiry proceedings against the workman. The suspension allowance was not being paid according to the 4/45 -5- Standing orders. The enquiry proceedings held by the management was only to show the fulfillment of the formalities which is against the principles of natural justice and illegal. It is further stated that the workman requested and demanded for necessary documents, papers regarding enquiry proceedings during the pendency of the enquiry but the request of the workman was not accorded. No sufficient opportunity was given to the workman to defend his case. The demands for providing legal assistance before the Enquiry Officer was rejected by the management and then dismissed the workman w.e.f 30.09.94. It is further stated that the enquiry proceedings were conducted partially without considering the valid proof and witnesses on the part of the workman. The action of the management is illegal, unjustified and bad in law. It is further stated that the workman is out of job since the date of his illegal termination. He could not get any other job despite of hectic efforts. It is further stated that the workman is fully entitled to be reinstated on his duty with full back wages and continuity of service along with all legal perks. It is further stated that later on the conciliation proceedings taken up in the matter but nothing has been materialised due to adamant and rude attitude of the management.
3. Notice of claim was issued to management. AR for 5/45 -6- management appeared and filed memo of appearance. Thereafter case was adjourned for filing of WS. Despite grant of several opportunities, WS was not filed. Accordingly, management was proceeded ex-parte vide order dated 18.12.97 and case was adjourned for ex- parte evidence. Late on an application was filed for setting aside ex-parte order 18.12.97. Subsequently, application was allowed.
4. AR for management has stated that written statement has already been filed on record. It is stated in WS that it is an essential ingredient for the employee to be a workman as per section 2 (s) of ID Act, 1947 to move proceedings against the management under Industrial Dispute Act, 1947. So no proceedings can be initiated by him under this Act. Accordingly, the proceedings are not tenable legally and the employee is not entitled to any relief. It is further stated that the order of reference has been made in a stereo type manner without application of mind on law and facts relating to the matter. So on this ground also no proceedings can be held legally on such order of reference and no relief can be granted to the employees. It is further stated that the employee initiated two conciliation proceedings on one cause of action i.e his dismissal w.e.f 30.09.94. On this account also, the said proceedings were also illegal. It is further stated that the statement of claim has not 6/45 -7- been filed within fifteen days along with the relevant documents and list of witnesses. The specific direction given in order of reference and same has not been complied with. So, no relief can be granted on the present statement of claim which has not been filed as per the directions given in the order of reference. It is further stated that as per provisions of Industrial Dispute (Central) Rules 1957 made under the Industrial Dispute Act, 1947, the statement of claim has to be filed along with list of documents and list of witnesses within 15 days of receipt of order of reference. Even this statutory requirement has not been complied with. So no relief can be granted on such statement of claim. It is further stated that the proceedings of the labour court are activated only on the order of reference that has been issued by the appropriated Government, which is based on facts and law and has been issued legally. It is further stated that even otherwise no condonation of delay has been prayed by the employee nor the condonation of delay has been granted by this court, so on this account also no proceedings can be held on such order of reference.
In reply on merits it is stated that at the outset that the employee is not a workman. Wheresoever the employee has stated himself as workman, the same is denied because the employee is not a workman, as per provisions of section 2 (s) of ID Act, 1947. It is stated that 7/45 -8- the employee joined their services as Clerk w.e.f 4.01.77 and thereafter he was promoted as Clerk- cum-Chemist w.e.f 1.12.79 and again promoted as Lab Incharge w.e.f 1.04.91. It is also submitted that his main duty was that of supervisory nature. It is denied that the services of the employee were terminated with ill- motive or with malafide intention or illegally. In fact his services were dismissed on account of mis-conducts committed by him. The dismissal of the employee is legal and justified. It is further denied that the employee was suspended w.e.f 30.09.94. In fact, he was dismissed from the services w.e.f 30.09.94. Prior to dismissal, he was suspended for the mis-conducts committed by him w.e.f 11.09.93. It is further stated that the said settlement was reached at between the workmen and the management but as a goodwill gesture, it was also extended to the staff and employees other then managers/executive, so that they may also get these benefits. The management has not violated the terms of the said settlement, nor was there any clause that dispute of all types will be settled as per terms of the said settlement, nor was there any clause that dispute of all types will be settled as per terms of the said settlement. The settlement was in relation to general demands of workmen. The matter of disciplinary action cannot be linked with the terms of this settlement nor with service conditions of workmen or those of employees or staff. It is further denied that no 8/45 -9- telephone facility was given to the workmen or staff or employees as a matter of right. However, if there is any emergency call for any workman or staff member or even for the Manager/Executive, the same is informed to him accordingly. Telephones of the company are meant for the purpose of business of the company and not for the personal use to any workman or employee or staff or Manager of any officials of the company. Nor any employee or Manager is expected to leave his place of work for his personal talks during working hours. This facility was never given to any one nor it can be given. It is further stated that it came to the knowledge of the management that telephones of company were misused, which created problems of communication with customers and affected business of the company. So vide notices dated 23.08.93 employees were informed not to make personal calls without permission and they were also informed that in case of emergency call or message would be conveyed to them. So this facility was stopped w.e.f 23.08.93 is absolutely denied since there was no such facility as a matter of right. It is further stated that notices dated 7.09.93 and 8.09.93 were displayed at notice board. These were signed by General Manager. These notices were related to misconduct committed by the employees. These employees were also advised vide these notices to restrain from committing illegal activities. It is further 9/45 -10- submitted that the employee committed grave misconducts for which charge sheets dated 10.09.93 were issued to him. It is admitted that the employee was suspended w.e.f 11.09.93 vide management letter dated 10.09.93 but it is denied that suspension was illegal. It is denied that chargesheet dated 7.09.93 was issued to him. Management received letters dated 27.09.93 and 28.09.93 in reply to chargesheets dated 10.09.93 and 16.09.93 from the employee but the contents of the same were totally incorrect. Though the employee committed grave misconducts but even then he was given another opportunity to defend himself of the charges leveled against him vide chargesheet dated 10.09.93 and 16.09.93 for that purpose the enquiries were constituted. It is further stated that the employee has alleged that the management has violated the terms of standing orders dated 22.03.48. The fact is that employee is not a workman, so he does not come within the purview of Standing Orders Act. Presuming without admitting that employee was covered under Standing orders even then he was paid suspension allowance @ 50% of the salary for first 90 days and 75% of salary as suspension allowance after 90 days till the date of dismissal. It is further stated that the enquiry officers provided the copies of the enquiry proceedings and relevant papers and copies of the documents to the employee. The issues raised by the employee were properly dealt with by the 10/45 -11- respective enquiry officer during the enquiry. It is also denied that no sufficient opportunity was given to the employee to defend himself. In fact the enquiry officers gave various opportunities to the employee to defend himself in the enquiry and contention of the employee is again false. In fact the management put its objections on the issue of legal representative. It is admitted that after receiving the enquiry report and enquiry proceedings the management concurred with the findings of th enquiry officers and thereafter dismissed the employee from the services of the company w.e.f 30.09.94 in terms of its letter dated 29.09.94. It is further submitted that the employee has committed serious misconduct and does not deserve to be reinstated with full back wages or any other benefits as claimed by him. The employee is not entitled to any relief from the management. On the contrary he should compensate the management for his legal expenses being incurred by it for contesting the proceedings initiated by him against the management.
5. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
6. After completion of pleadings, following issues were framed on 13.11.98 :
11/45 -12-1. Whether the enquiries were fairly and properly and in accordance with the principle of natural justice by the management?
2. Whether the claimant is not a 'workman' within the meaning of section 25 F of ID Act?
3. As in terms of reference.
Issue of enquiry was treated as preliminary issue and case was adjourned for evidence of management on the issue of enquiry.
7. Parties led their evidence.
On behalf of management, Sh. Madan Mohan Gautam deposed as MW 1, Sh. Sunil Mohant Tyagi deposed as MW 2.
On behalf of workman, Sh. Raj Kumar Sethi examined himself.
8. MW 2 Sh. Sunil Mohan Tyagi was appointed as Enquiry Officer by the management of Delhi Flour Mills to inquire into the charges against the workman containing charge sheet dated 16.09.93. Enquiry report is Ex. MW 2/1 and enquiry proceedings are Ex. MW 2/2. The 12/45 -13- workman had participated in the enquiry.
MW 2 was cross examined on 18.01.02 before examining MW 1 since on that day MW 2 was present.
In cross examination of MW 2, he deposed that no minimum qualification is required for acting as Enquiry officer. He further stated that he knew the procedure for holding enquiry. He further stated that he did not conduct any enquiry of Delhi flour Mill before enquiry in dispute. He further stated that his appointment was done by the management according to the Standing Orders which were applicable on the management. He was appointed in accordance with standing order. He further stated that he did not intimate the first date of enquiry directly to the workman. He read over the charges to the workman during the enquiry. He further stated that in his findings it was concluded that charges against the workman stood proved. He admitted that before start of enquiry he did not supply documents to the workman. Late he reaffirmed that he supplied the documents during the course of enquiry and at the time when workman requested for documents. He further admitted that he did not allow outside persons to conduct the enquiry on behalf of workman. He further admitted that he did not send the enquiry report to the workman after completion of enquiry. He further admitted that during enquiry 13/45 -14- proceedings workman wrote 'underprotest'. He denied that he conducted the enquiry arbitrarily and without following the principle of natural justice.
MW 1 Sh. Madan Mohan Gautam has deposed that he was holding degree in Masters in Social Work. He was appointed enquiry officer by the management vide letter to enquiry into the charges leveled against Sh. Raj Kumar Sethi employee of management vide charge sheet dated 10.09.93. He further stated that his report was submitted by him after conclusion of the enquiry. The enquiry proceedings as well as the enquiry report are collectively exhibited are Ex. MW 1 and MW 2 respectively.
In his cross examination, he stated that he conducted enquiry when he was working as Industrial Law consultant. He conducted enquiry before conducting enquiry in dispute with the present management as well as with other managements. The management appointed him as enquiry officer as he sent letters to various management including present one informing that he was working as Industrial Law Consultant and that he could hold enquiries. He further stated that intimation to the workman regarding holding of enquiry was given to the workman on his instructions. He further stated that the management did not supply him any guidelines for 14/45 -15- holding enquiry. He further stated that he explained the charges to the workman. He further denied that he did not offer any opportunity to workman to defend himself and to produce defence evidence. He further stated that he did not sent any enquiry report to the workman.
9. WW 1 in evidence by way of affidavit supported the averments made in the claim and got exhibits copy of agreement Ex. WW 1/1 and copy of letter to this effect Ex. WW 1/2.
In his cross examination, he admitted that a case was filed by him in Labour court IX pertaining to the suspension allowance. He denied that the said case was decided against him. He further stated that suspension allowance was paid to him between the period date of his suspension till dismissal from service. He further admitted that enquiry officer told him the procedure of enquiry before start of enquiry proceedings in both the enquiries. He admitted that enquiry officer also explained him that his alleged conduct was misconduct under Clause 14 (3) (k) of the Standing Orders. He admitted that management informed him the first date of enquiry and it was also mentioned in that letter that first date of enquiry was fixed by the enquiry officer. He further admitted that the enquiry officer supplied all these documents demanded by him. He further admitted that 15/45 -16- all the documents filed by the management were supplied to him on the same day on which those documents were filed. He further admitted that he could not cross examine the management witness Sh. J.S Bhatia during the enquiry proceedings. He further reaffirmed that second time he asked to cross examine management witness Sh. J. S Bhatia and it was told to him that he had to examine that witness only on that day. He further admitted that the enquiry officer granted adjournments to him for the purpose of cross examination of MW 2, 3 and 4. He further admitted that MW 2 was not an eye witness of any incident and he merely filed documents. He further admitted that he also examined himself during the enquiry and was also produced other witnesses before the enquiry officer who were not the employees of the management. He further admitted that enquiry officer disposed all those letters which were received by him from him. He wrote two letters on 8.02.94. Letter dated 8.02.94 was taken by the enquiry officer only on 22.02.94 and that too under protest. He was also abused by the enquiry officer and threatened by the enquiry officer and told him that he was member of Sunil Tyagi Gang. He admitted that enquiry officer disposed of that letter in his proceedings dated 22.02.94. he wrote a letter to the enquiry officer that he was not recording his submissions correctly and completely and that letter is of dated 31.01.94 and it was 16/45 -17- given to Sh. M.M Gautam, Enquiry officer. He further stated that there was no letter of his which was not taken by the enquiry officer on record that was not disposed of by the enquiry officers. He had got the contents of the charge sheet dated 10.09.93 and 16.09.93. he had received letters dated 30.1.93 and 2.11.93. He further stated that he had written letters to both the enquiry officers that his submissions were not being recorded correctly or some times are not being recorded. He further stated that he demanded copy of attendance register and delivery register and production report from the management through the enquiry officer but the enquiry officer neither recorded his submissions nor disposed of his submissions in his order. He admitted that he did not write any letter to the enquiry officer complaining him about non recording of the submissions. He denied that he did not write any letter to the enquiry officer because the enquiry officer was recording his every submissions and he did not have any grievances against him.
10. After leading entire evidence on enquiry issue case was adjourned for arguments on enquiry issue. Arguments on enquiry issue heard on behalf of workman. Perusal of file shows that during the course of arguments on enquiry issue, an application was moved on behalf of management for treating the issue of workman as 17/45 -18- preliminary issue. Arguments were heard on the said application and the same was allowed. Thereafter evidence was led on behalf of workman to proving the issue of workman.
11. WW 1 was examined on the issue of workman. WW 1 in evidence by way of affidavit supported the averments made in the claim and got exhibited copy of documents Ex. WW 1/1 and 2.
In his cross examination he stated that he had been working with the management since 1.01.77. He admitted that the management did not issue any letter to him either along with the letter dated 15.04.91 or thereafter stating therein that his service conditions will be governed according to certified Standing Orders. ESI facilities were provided to the employees accordingly to the ESI Act. He further admitted that the statement recorded during the enquiry proceedings hold by Mr. Gautam. He further admitted that the replies given in the cross examination in the enquiry was his reply. He admitted that his designation was Laboratory Incharge. He admitted that Pitambar Sati, Bhuvan Chand pant and Surender Bisht were Lab Assistants and Sudhir Kumar was helper. The persons namely Pitambar Sati, Bhuvan Chand pant, Surender Bisht and Sudhir Kumar were not working under him. He further 18/45 -19- admitted that his salary was more than the salary of Pitam Sati, Bhuvan Chand Pant, Surender Bisht and Sudhir Kumar. He further admitted that the Manager and Executives were not getting the benefit of settlements and rest of the employees used to get the benefit of settlement. He further stated that except Managers, cards of all the workers were punched including him. He denied that all the employees including the supervisors and workers used to get the benefits of settlement and they were party to the settlement and due to this reason the work employee was used in the settlement. The settlement for the year 1992-94 was signed by him. Prior to that the settlements were being signed by the labours and workers. He admitted that prior to 1992 he did not sign any settlement and the same were signed by the workers. He did not make any objection regarding the settlement to the labour department.
12. Perusal of file further shows that AR for workman has filed an application for disposing the issue of workman as per directions given by the Hon'ble High Court in WP (C) No. 5260/2006. Arguments were heard on the said application and subsequently the order was passed wherein it was held that only the management has to lead evidence on the issue of workman. The necessity to record evidence on the third issue will only arise in case the issue of enquiry is decided in 19/45 -20- favour of workman, as the management will be given an opportunity to lead the evidence in the present case to prove the charges against the workman in the court. In case the enquiry issue is decided in favour of management, there will be no necessity to lead evidence on the third issue. Accordingly, the issue of workman will be decided first, as if the issue of workman is answered in favour of the management there will be no necessity to adjudicate the matter further. After the decision on the issue of workman, the issue of enquiry will be decided. Necessity to lead evidence on issue no. 3 will only arise if the issue of enquiry is decided in favour of workman. Accordingly, case was fixed for management evidence on the issue of workman.
13. MW 1 Sh. R. S Yadav was examined on the issue of workman. MW 3 Sh. R. S Yadav in evidence by way of affidavit supported the averments made in the claim. He relied upon documents Ex. MW 1/1 and 2. He further stated that Sh. R. K Sethi used to supervise the work of pest control, rat control and fumigation.
In his cross examination, he stated that he was in the employment of the management in the Engineering Department since March 1981. He looked after the Engineering department. He further admitted that the appointment of Sh. R. K Sethi is prior to his appointment 20/45 -21- in the management. He denied that Sh. R. K Sethi was working as Clerk cum chemist from the very beginning. He was promoted to clerk cum chemist in the year 1979. He further stated that he did not file the letter of appointment issued to the claimant. He admitted that Sh. R. K Sethi from the date of his appointment till his dismissal was working in the Lab . He was however promoted in 1979 as Clerk cum chemist and in 1991 as Laboratory Incharge. He admitted that he had never worked in the Laboratory . He admitted that he used to send manpower to repair machinery in case of any complaint from the Laboratory. He used to do supervision only on maintenance work of Laboratory/heavy equipments. He denied that the production manager was incharge of the Laboratory and Laboratory is under the production manager. Laboratory work is a technical work including the testing work. He further admitted that the mill runs 24 hours in three shifts. Laboratory works from 6.00 in the morning till 10.00 p.m. He admitted that the workman works in the shift of 9.00 a.m to 5.00 p.m. Laboratory remained in working condition after 5.00 to 10.00 p.m. He further admitted that usually sampling is done every hour in the production. After 5.00 p.m the laboratory assistant continues testing of samples at their own. He further stated that the reports were prepared by his subordinate ad he used to check and verify the same. The reports 21/45 -22- were to be sent after verifying the norms in respect of the product. He further stated that along with Sh. Raj Kumar, other staff were Sh. Pitamber, Sr. Laboratory Assitant; Sh. Bhuvan Panth, Laboratory Asstt; Sh. Surender Bisht, Laboratory Asstt.; and Sudhir Kumar, Helper. Except Pitamber rest were working in Laboratory Department. He further stated that Mr. Sethi has no technical qualifications. He further admitted that the function of moisture machine was to check the water content in the wheat. Sh. Sethi used to check the moisture in the wheat and sent it to its subordinate. He used to get checked from the subordinate and sent the report to the Wheat Procuring Department. Extensograph meter checks the quality of the flour and it usually takes 6-8 hours. He admitted that this meter represent the quality in graphs.
Further cross of this witness was deferred. Perusal of file shows that on the next date of hearing main AR for the workman did not appear. Accordingly, ME was made closed on 18.04.09.
14. On 25.04.09 an application was moved for recalling of order dated 18.04.09. The said application dated 25.04.09 was allowed and AR for workman was given opportunity to cross examine the management witness.
22/45 -23-In further cross examination of MW 1, he admitted that Sh. R. K Sethi was employed in 1977 in the Laboratory. He further denied that he was the only person in the Laboratory at that time. He could not tell the name of the persons who were employed in Laboratory in the year 1977. he admitted that in the year 1977 moisture meter, muffle furnace and oven were the apparatus being operated by Sh. R. K Sethi. He joined the management in 1981 and he had seen the machines/equipments. He further admitted that Glutton Washing Machine, Pin Point Mixture, colour grader, Estenso Graph, Foiling number apparatus were imported by the management. He further admitted that the said equipments were being used for checking the wheat and wheat products quality in the Laboratory. He further admitted that when the claimant was clerk cum chemist in the year 1980, he used to operate these equipments. He further admitted that after the import of these equipments the laboratory work was increased as such the other persons namely B. C Pant, Surnder Bisth and Pitamber Sati were taken in the lab department. He further admitted that Sh. B. C Pant and Sh. Surnder Bisht were still working in the laboratory. He admitted that the claimant was not given the power of appointment and dismissal. He further admitted that he had no power to issue memo. He further admitted that the claimant had no 23/45 -24- power for grant of advance or loans. He further admitted that the claimant had no power to sanction leave. He denied that the claimant had no power to recommend promotion. He further stated that claimant, Raj Mohan Sharma and Ram Bilas Tripathi were the employees of supervisory category in settlement. The settlement was for all the employees. There was no separate settlement for supervisor. The wages/increment after the settlement were paid under the settlement. He further admitted that the benefits of mark X which is settlement was grated to the five categories i.e unskilled, semi skilled, skilled, Astt. and Sr. Asstt. He further admitted that the claimant used to get the benefit of designation of Sr. Asstt. as per settlement. He further admitted that the settlement is registered in labour office. He further admitted that the claimant was sent to International School of Milling Technology at Central Food Technological Institute, Mysore. He further stated that before promotion the claimant used to prepare extensograph. He further admitted that the duties in the lab were manual as well as technical in nature. The claimant was the lab incharge and he had supervisory function and used to monitor the functions of the laboratory. He denied that monitoring is a technical duties. He further stated that up to supervisory level all the employees get the increment including claimant. He further stated that 15 kgs flour used to given up to the 24/45 -25- supervisory level including claimant and this provision was not for executive level. He further admitted that the officers of managerial and administrative were not marking their attendance in time office. There was separate register for them.
15. Written arguments filed by both the parties on the issue of workman.
It is stated in the written arguments by AR for workman that workman has raised an industrial dispute challenging the dismissal from the services by the management by stating that he was in the employment of the management w.e.f 4.01.79 as Laboratory clerk and thereafter he was promoted as Laboratory incharge. He further stated that management has taken the plea that after promoting the workman as Laboratory incharge he does not fall within the definition of workman under section 2 (s) of ID Act. He further stated that while deciding the issue of workman the real test is primary and basic duties are to be seen and not the nomenclature, wages or the incidental duties performed by the workman. It is further submitted that the management has miserably failed to prove that the claimant was performing supervisory and administrative nature of duties. Even the management has not filed a single document on record to prove its contention. The workman is relying on the following judgments which 25/45 -26- clearly establish that nature of duties are material and not the glorified designation :
Anand Regional Co-opposite Party. Oil Seeds Growers Union Ltd. Vs. Shailesh Kumar Harshadbai Shah, 2006 LLR 1052 Burmah Shell Oil Storage and Distribution Co. India Ltd. Vs. Management of Staff Association, AIR 1971 SC 922 National Engg. Industries Ltd. Vs. Shri Krishan Bhageria and ors., 1988 (I) LLJ 363 Murlidharan K. Vs. Management of Circle Frieght Intl. (India) Pvt. Ltd. 2007 (III) LLJ 953 S. K Verma Vs. Mahesh Chandra and Anr., 1983 (II) LLJ 429 Arkal Govind Vs. Ciba Geigy of India Ltd., 1985 Lab I.C 1008 M/s Blue Star Ltd. Vs. N.R Sharma, 1975 (31) FLR pg. 102 (DHC) 26/45 -27- R. Agonsalves Vs. Hotel Corporation of India Ltd. Bombay, 2004 LIC pg. 2541 Cricket Club of India and ors. Vs. Baljeet Shyam and Anr., 1998 LLR 511 P. Maheshwari Vs. Delhi Administration and ors., 1993 (3) SCR 949 Ved Prakash Gupta Vs. Delton Cable, 1984 FLR 417 (SC) Balish India ltd. Vs. Presiding Officer Labour Court and ors., 2003 LLR Pg. 293 (DHC) Noble Paints (P) ltd. Vs. Ashok Tukkaram Shinde 2004 LLR 105 S. A Sarang and W. G Forge and Allied Industries Ltd. and ors., 1996 (I) LLJ 67 George Thomas Thakkeyil Vs. Sci-Tech Centre, 2007 II CLR 185 (BHC) It is further submitted that it is well settled preposition of law that the certified Standing Orders are 27/45 -28- applicable to the workman employed in the factory. So Sh. R. K Sethi is the workman as defined under section 2
(s) of ID Act.
AR for management has stated in the written arguments that one of the contentions/preliminary objections of the management in this case is that the claimant is not a workman under the provisions of the Industrial Dispute Act, 1947. He further stated that it is pertinent to mention here that under the Industrial Dispute Act, an employee who is in the category of 'workman' can only invoke the jurisdiction of the Industrial Tribunal or Labour Court. The benefits of the Industrial Dispute Act are therefore, no available to other employees who do not fall in the category of a workman. It is well settled position of law that it is for the claimant to prove that he was employed in the workman category in the company. In case he fails to prove that some of the consequences would follow. This arguments get support from the judgment of Swapan Das Gupta and ors. Vs. The First Labour Court of West belgal and ors., 1975 LIC pg.
202.
The said judgment has been favourably considered by the judgment of Hon'ble Supreme Court of India titled as Workmen Nilgirii Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and ors., 2004 LLR pg. 351 and in N.C John Vs. Secretary 28/45 -29- Thodupuzha Talul Shopand Commercial Establishment Workers' Union and ors., 1973 LIC pg.
398. He further brought the attention to another judgment of Hon'ble Delhi High Court titled as M/s Tin Box Company Vs. Inderjeet Singh and ors., 2003 LLR pg 544. It is further stated that it is the claimant, who has to prove firstly the relationship of employer and employee between them and the management and thereafter that he is a workman under the Industrial Dispute Act, 1947. The Hon'ble Supreme Court has also laid down the law on the burden of proof in the matter of Shankar Chakaravarti Vs. Britania Biscuit Company, 1979 (II) LLJ pg 134 as under :
"Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led."
The observation of the Hon'ble court is this case is that 'Burden of proof' lies upon the workman and not on the management to lead his evidence at first instance before labour court adjudicating the dispute about the termination of his services. It is further stated that so far as the nature of duties performed by the claimant, the evidence of claimant himself, leaves no scope of doubt that the claimant is not a workman. The relevant facts 29/45 -30- shows that claimant was not a workman which are as under :
i. The wages/salary of the claimant at the time of dismissal i.e in the year 1994 was Rs. 3420.25/- per month.
ii. As per his affidavit filed in 2002 on enquiry issue, the claimant has admitted that he was promoted as Laboratory Incharge and he was given increment of Rs. 500/- per month on his promotion.
iii. The claimant has himself filed the promotion letter dated 15.04.91 as Ex. WW 1/1 which confirms the above facts. The kind attention of this court is invited to the language employed in the letter of promotion which reads as under :
"......you will be responsible for the smooth and efficient working of the Laboratory, supervising and monitoring the staff and workers of your department"
It is further stated that the duties performed by the claimant fall within the ambit of a judgment titled as Yadeshwar Kumar vs. M.S Bennet Coleman and Co. Ltd., 2007 LLR 1138. He further stated that all the supervisors and executives are not necessarily expected to be delegated the powers of appointing any employee, dismissing or taking disciplinary action. The important is such supervisors perform the duties of supervising the work of the subordinate working under them and to 30/45 -31- ensure carrying out the job of the department smoothly. AR for management cited S.K Maini and M/s Carona Sahu Co. Ltd. and ors., 1994 II LLJ pg. 1153 (SC) AR for management referred the case laws which are as under :
State of Haryana and ors., S.D Dubey, 2009 CLR 65 G. C Day Vs. Management of M/s Eureka Forbes Ltd. and Anr., 2009 III CLR 67 Muralidharan K. Vs. Management of M/s Circile Freight Intl. (India) P. Ltd., 2007 III CLR 161 Jagjit Singh Katara Vs. POLC Baghinda and ors., 2007 III CLR 170
16. Final arguments heard.
The wording of the issue appears to be wrong. During the course of final arguments both parties fairly concede that instead of section 25 F the wording should be section 2 (s). There appears to be typographical error in writing section 25 F and hence this word is treated as Section 2 (s) of ID Act.
31/45 -32-17. I have seen the file, written arguments filed by both the parties and further citations on record and my findings with respect to the issues no. 2 are as under :
REGARDING ISSUE NO. 2 - Workman issue Keeping in view the documentary evidence as well as written arguments, my inference is that the issue no. 2 i.e the issue of workman be decided against the workman on following grounds :
(i) Definition of workman has been provided under section 2 (s) of Industrial Dispute Act. Four categories of persons have been excluded from the definition of workman. First category of persons are member of armed forces which is not relevant here.
Second category for excluded persons are members of police service which is also not relevant here. Third category of excluded persons are the persons employed mainly in a managerial or administrative capacity. Hence for the purpose of decision of workman issue this clause of excluded person is also not relevant. In fourth category of excluded persons are those persons (a) employed in a supervisory capacity and
(b) who draws wages exceeding one thousand six hundred rupees per mensem. So far as wages of claimants are concerned his last paid wages or carry 32/45 -33- home salary was Rs. 3420.25/- at the time of dismissal. Hence, second condition of fourth category is fulfilled. Now, only question is to be seen whether the claimant was working in supervisory capacity or not.
(ii) Burden of proof My impression on the basis of authorities cited by the parties is that the burden of proof is on the workman to prove that he is covered under the definition of workman. I am supported by Supreme Court judgment;
In Workman Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and ors., 2004 LLR page 351 wherein Hon'ble Supreme Court has held that :
"The burden of proof being on the workman to establish the employer and employee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship."
I am also supported by Swapan Das Gupta and ors. Vs. The First Labour Court of West Bengal and ors., 1975 LIC pg. 202 wherein it has been held that :
"Where a person asserts that he was a workman of the company, and it is denied by the company, it is for him to prove the 33/45 -34- fact. It is not for the company to prove that he was not an employee of the company but of some other person."
I am also supported by Shanker Chakravarti Vs. Britania Biscuit Company, 1979 (II) LLJ pg. 134 wherein it was held that :
"Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led."
The management in the WS as well as in the preliminary objections and reply on merits has denied the claimants to be workmen. Accordingly, the workmen have to prove that they are covered within the definition of Section 2(s) of the I.D. Act. AR for workmen states that since the workmen have stated themselves to be workmen and the management had denied the stand, the burden of proof is on the management.
In view of the above judgments by the Courts, it is for the claimant to prove that he is a workman as defined u/s 2(s) of the I.D. Act. Unless and until, it is proved by the workman or admitted by the management, this court has no jurisdiction to further to entertain or decide the dispute. Hence, my conclusion is that it is for the 34/45 -35- claimant to prove that he is a workman.
(iii) Nature of Duties
(a) Claimant has stated that he was not
appointed on supervisory capacity as he was doing both clerical and manual work where as the management has stated that the claimant was appointed on supervisory duty and hence the claimant be held to be supervisor and hence excluded from the definition of section 2 (s) of ID Act.
(b) Whether a person is doing supervisory work or not is the nature of duties and functions assigned to whom. Supervisor means a person who oversees the work of others. Hence, it means overseeing a person can be said to be supervisor if there are persons working under him over whose work he has to keep a watch. Hence, supervisor keeps a watch over the work of person and if they err in any way, corrects him. It is the duty of the supervisor to see that the work is done by the person under his control in accordance with the manual or in accordance with the usual proceedings. It is not his function to take any managerial decision but it is the duty of the supervisor to see that the person over whom he is, suggests to supervise the work assigned to them according to rule and regulations. Hence, Supervisor 35/45 -36- need not be a Manager or an Administrator. A person may not be a Manager or Administrator still he can be outside the purview of 'workmen' as he may be doing supervisory function.
(iv) Designation
(a) It has been repeatedly held by the superior courts that the designation of the person be not given undue importance nor on the name assigned to the class to which he belongs. [Lloyd Bank Ltd. Vs. P.L Gupta (1961) 1 LLJ 18 (SC)].
(b) In LKP Merchant Financing Ltd. vs. Govt. of NCT, Delhi & Ors, 2003 LLR 367, it was held that the claimant was Executive (Customer Support). Without evidence, it cannot be held that the claimant was in managerial or administrative capacity. Since the question is of mixed law and fact and has to be decided after evidence by both the parties. Similarly, in Anand Regional Co-op. Oil Seedsgrowers Union Ltd. vs. Shailesh Kumar Harshadbhai Shah, 2006 LLR 1052, it was held that though the designation of the claimant was Assistant Executive, still he was not having any supervisory or managerial duties as he was not authorized to initiate any departmental proceedings against his subordinates. Similarly, in Sharad Kumar 36/45 -37- vs. Govt. of NCT, Delhi & Ors. 2002 LLR 545, it was held by their Lordship of Supreme Court that to prove whether the designation of Area Sales Executive is supervisory or managerial function or not, evidence is required and can be decided only after evidence. It was held by the lordship of Delhi High Court in State of Haryana and ors. Vs. S. D Dubey, 2009 III CLR 65 that :
"merely because a person was designated at Dy. Mining Manager unless he has been given or proved to be give administrative or managerial function, he will remain a workman and entitled to all the benefits of Industrial Dispute Act."
In Muralidharan K. Vs. Management of M/s Circile Freight Intl. (India) P. Ltd., 2007 III CLR 161, it was held by their lordship of Delhi High Court that :
" Operations supervisor designation does not mean that he was in managerial or administrative capacity.
It was further held that :
" it is well settled that neither the operation to the post, nor the salary, would decide as to whether th employee is covered within the definition of workman. Courts have to look beyond glorified designations assigned by the management and to examine the nature of 37/45 -38- duties."
In S. K Verma Vs. Mahesh Chandra & Anr., 1983 (II) LLJ 429, it was held that :
"Development Officer is not a workman."
In Arkal Govind Vs. Ciba Geigy of India Ltd., 1985 LAB I. C, 1008, wherein it was held that :
"The appellant was the group leader was held not to be Supervisor."
In R. A Govsalves Vs. Hotel Corporation of India Ltd. Bombay, 2004 LIC pg. 2541 wherein it was held that :
"Job description and nature of work performed by employee none other than that of manual and clerical in nature."
In Cricket Club of India and ors. Vs. Baljeet Shyam and anr., 1998 LLR 511, it was held that :
"since the workman had no power to sanction leave was held not to be supervisor."38/45 -39-
(v) Primary Duty
(a) What is to be seen whether a person is working in supervisory or managerial capacity and as to what is his primary duty. If the primary duty of a claimant is supervisory or managerial, then merely because he was doing some incidental clerical work, will not make him workman. In S.K. Maini vs. Carona Sahu Co. Ltd.
Ors. 1994 LLR 321, 1994 (68) FLR 1101 1994(3) SC Pg 510, it was held by their Lordship of Supreme Court that for determining the status of workman, his primary duty must be seen. AR for workman cited In Burmah Shell Oil Storage and Distribution Co. India Ltd. Vs. Management of Staff Association, AIR 1971 SC 922, it was held that :
"the duties carried out by a Chemist is workman and small amount of supervision is merely incidental."
In Shanker Bhai Nathalal Prajapati vs. Maize Products 2003 LLR 192 Guj, it was held by their Lordship of Gujarat High Court that where a person was appointed as Starch Chemist and he was also given the work of supervision of subordinate staff but his primary duty was of workman i.e. Starch Chemist and it was held that he was workman. Similarly are the findings of the 39/45 -40- court in Management of May & Baker (I) Ltd. vs. Workman, 1967 SC 678 and B.S. Oil & Distt. Co. vs. Management Staff Association, 1970 (3) SC 378. In Heavy Engineering Corporation Ltd. Vs. P.O. 11 SCC 236, it was held that if many duties of claimant is of supervisory, his incident work of manual and clerical cannot take him out for the category of supervisor. In this case, the claimant was supervising the work of sweepers and was also countersigning on casual leave register. It was held by their Lordships of Supreme Court that he was working in supervisory capacity. The above principle has to be applied in case of the claimant as claimant supervised four persons working in Laboratory Department.
(vi) Secondary Duty
(a) If the primary duty of the workman is manual
and clerical i.e as of workman, then merely because he was sometimes given supervisory work will not make him Supervisor. Here again what is to be seen is that is his primary duty. If the primary duty is akin to workman i.e manual and clerical then merely because for sometime he was given supervisory duty will not make him supervisor.
(vii) Regarding claimant
(a) It is an admitted fact that the claimant Raj 40/45 -41- Kumar S/o Sh. Bisahamber Nath joined the management on 4.01.77 as Clerk-cum-Chemist. It may be noted that at the time of joining the claimant was not having any technical qualification. He was just B.Com (Pass) i.e he was having general qualification.
(b) On 11.12.79 a special increment was given to the claimant as goodwill gesture by the management. On 15.04.91 admittedly claimant was promoted as Laboratory Incharge granting a special increment. In this letter of promotion following sentences are relevant :
"You will be responsible for the smooth and efficient working of the Laboratory , Supervising and monitoring the staff and workers of your department."
Thus the promotion letter shows that the claimant having promoted as Laboratory Incharge along with Supervising and Monitoring staff and workers of the Laboratory department. This letter itself shows that the claimant was given supervisory role.
(c) In Mathur Aviation Vs. L.G Delhi (1977) 2 LLJ 255 (Del), it was held that when one talks of a person working as Supervisor, one understands it to mean a person who is watching the work done by others to see that it is being done properly.
41/45 -42-(d) The basic concept of supervisor is there are some persons working under him. The claimant admits that the Laboratory in which he was working there used to work Pitamber Sati, Bhuvan Chand Pant and Surender Bisht as Laboratory Assistants and Sudhir Kumar as Helper. The claimant further states that these persons were not under him. If these persons were not under him then under whose supervision they used to work and it is admitted that claimant was Lab Incharge on that very Laboratory in which these persons were working. While stating that these persons were not working under him the claimant avoided to say under whom they were working. The statement of the management is clear that these persons were working under the claimant. My impression on the basis of evidence are that Pitambar Sati, Bhuvan Chand Pant and Surender Bisht were working as Laboratory Assistants and Sudhir as Helper under the Inchage-ship of claimant.
(e) At the time of cross examination of MW 1, it was pointed out that since the claimant had no power of appointment and dismissal, for grant of advance or loan, power to issue memo, power to sanction leave and power to recommend promotion. Hence, the claimant was not working in supervisory capacity. I feel that the AR for workman is confused between Supervisory, managerial 42/45 -43- and administrative functions. The functions of appointment and dismissal, power to issue memo, power for grant of advance or loan, power to sanction leave and power to recommend promotion is essentially a managerial or administrative functions. Admittedly claimant was not assigned managerial or administrative functions. What is alleged by the management is that he was appointed in a supervisory capacity and in my view the management has proved the same.
(f) To come to a conclusion that a person is working in supervisory capacity, it is necessary to prove that there were at least some persons working under him whose work he is required to supervise. It is proved that four persons were working under the claimant in Laboratory who were under the incharge-ship of the claimant.
(g) It was alleged by the claimant that he was doing manual and clerical work. May be along with the function as Laboratory incharge the claimant might be doing some manual or clerical work but what is to be seen is what is his predominant nature of work. In my view he predominant nature of work of the claimant was to supervise clerical or manual work, he might be doing was incidental work.
43/45 -44-(h) It is stated that since the claimant was beneficiary of ESIC, getting of bonus, used to get his card punch and also used to get 50 kg of Aata and also get double the overtime which can also be given and received by the workman. Hence, the claimant is a workman. So far as the membership of ESIC is concerned, it is mentioned that the employers not a workman. Admittedly claimant is an employee of management. So far as getting bonus, punching of card, double the overtime and 50 kg of aata is concerned, it is stated by MW 1 as well as by the management that these facilities were granted up to supervisory level and since the claimant was supervisor, he was getting these facilities. There is no case cited by the claimant that any other supervisor was not getting these facilities.
(i) Laboratory is a separate department. The claimant is admittedly the Incharge of the Laboratory. Admittedly in the Laboratory four persons were working. Despite denial by the claimant that these four persons were working under him, In my view they were working under the claimant.
In view of above, my inferences are that the claimant as Laboratory Incharge was working in supervisory capacity and since his last carry home salary was Rs. 3420.25 at the time of dismissal. He is excluded 44/45 -45- by sub section (iv) of section 2 (s) of ID Act. He is not a workman.
18. In view of my findings on issue no. 2, wherein it is held that the claimant is not a workman, this court has no jurisdiction to give findings on other issues.
19. Hence, issue of workman is decided accordingly. Reference is answered accordingly. File be consigned to Record Room After necessary compliance by Ahlmad. Copies of award be sent to the appropriate Government for publication as per law.
Announced in the (DAYA PRAKASH) Open Court on Add. District & Session Judge st
21 October, 2009 Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
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