Delhi District Court
Between The vs The on 7 March, 2013
IN THE COURT OF SH. S.S. MALHOTRA, PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI I.D. NO. 139/12 Unique Case ID No. 02402C0112802012 BETWEEN THE WORKMAN Sh.Raj Narain Singh s/o Sh. Bandhu Singh, R/o I1278, Jahangirpuri, Delhi33 as represented by Engineering Workers Lal Jhanda Union, C12, Ramgarh, Jahangirpuri More, Delhi33.
AND THE MANAGEMENT OF M/s Vikas Electronics International Pvt. Ltd., 46, Rajasthani Udyog Nagar, GT Karnal Road, Delhi33.
Date of Institution : 21.04.2012
Date on which award reserved : 6.03.2013
Date on which award passed : 7.03.2013
A W A R D
1 Vide this award, I shall dispose off the reference as sent by the Ld.Deputy Labour
Commissioner, Distt. NorthWest, Govt. of the National Capital Territory of Delhi arising between the parties named above to this Labour Court vide Notification No. F.24/ID. (189)/11/NWD/(127)/12/Lab./578690 dated 18.04.12 with the following terms of reference: "Whether services of Sh. Raj Narain Singh s/o Sh. Bandhu Singh have been illegally and /or unjustifiably terminated by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2 After the receipt of the reference, notice was issued to the workman with directions to file the statement of claim along with list of witnesses which has been filed by workman and he has interalia stated that he joined the management establishment w.e.f. 24.08.1993 at the post of Operator and he had been working very sincerely and ID NO. 139/12 1/15 honestly without affording any chance of complaint to the management regarding his performance. However, the management had not been providing the legal facilities to the workman like appointment letter, attendance card, leave book,pay slip, weekly off, leaves, bonus and overtime etc. and even the ESI card was issued to the workman after a lot of persuasion. It is further stated that the management terminated the services of the workman w.e.f. 29.10.10 without assigning any reason and the management even withheld the earned wages of the workman for the month of October 2010. It is further stated that the management prior to terminating the services of the workman neither issued any notice nor paid notice pay in lieu of notice nor paid retrenchment compensation. The workman has worked for more than 240 days of continuous service in the preceding year at the time of termination of his service and as such his termination from the service is illegal and unjustified. It is further stated that at the time of termination of services of the workman, the management retained the services of such employees who were junior to him and as such the management has violated the principles of "last come.....first go". It is further stated that after the termination, the workman sent a demand notice to the management on 3.01.11 by registered post thereby seeking his reinstatement with full back wages but the management did not respond to the said notice and then the workman filed his statement of claim before the conciliation officer where also the management did not turn up and ultimately the present industrial dispute was referred to this court by way of aforementioned reference for adjudication by the Ld. Dy. Labour Commissioner, Distt. NorthWest and the workman in terms of the directions of the court has filed the present statement of claim with a prayer that the management be directed to reinstate him at the same post with full back wages including benefits of continuity of service and all other consequential benefits. 3 Management was served and it has filed its written statement thereby taking ID NO. 139/12 2/15 preliminary objections interalia that the present claim is not maintainable as the claimant is not coming within the definition of 'workman' as defined under section 2 (s) of the I.D. Act as he was performing the duties which were of supervisory and administrative in nature and even otherwise the management has never terminated the services of the claimant and it is claimant who himself has abandoned the services of the management and in fact he had started absenting from the duties w.e.f. 1.08.10 and in view of his unauthorized absenteeism, the operation of the factory got seriously and adversely affected. The management even written letters to the claimant thereby calling him back on duty and even stated that the management is facing problem because of his regular absence and it advised him for reporting on duty but the claimant did not accede to the advise of the management and did not report for duty and as such relinquished his right and lien over the employment. It is further stated that the present claim has been filed with malafide intentions to harass the management by dragging it into the present unnecessary and unwarranted litigation so that he may extract maximum possible money from the management. As far as merits are concerned, relationship is not denied and the date of appointment is stated to be matter of record. Last drawn salary of the workman as Rs.8250/ is denied. It is also denied that the workman was terminated on 29.10.10 or that legal facilities were not being provided to him or that he was performing the duties very sincerely and honestly or that he had not afforded any chance of complaint to the management and it is stated that the workman was careless and irregular towards his duty and he used to remain absent for several days from his work without any prior information or approval from the management and it is further submitted that the management had been providing all the benefits and legal facilities to its employees to which they were entitled to, under various labour enactment. It is denied that the claimant during his service tenure was not issued appointment letter, wages slip, attendance card ID NO. 139/12 3/15 and leave book etc. and it is stated that every employee of the management was enrolled with ESIC from the date of his appointment. It is also denied that the management was not providing weekly off, leaves, bonus and overtimes etc. as alleged and it is reiterated that the services of the workman were never terminated by the management. As far as demand notice dt.3.01.11 is concerned, it is stated that management never received this notice and as far as proceedings before the conciliation officer are concealed, it is stated that the reference sent by the conciliation officer is bad in law and the present statement of claim is highly belated and it is prayed that the claim of the workman be dismissed. 4 The workman thereafter filed rejoinder in which he denied the contents of the written statement word by word and he reiterated and reaffirmed the facts of the statement of claim and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by him in the statement of claim. 5 After completion of pleadings, following issues were framed on 10.10.2012:
1 Whether the claimant does not fall within the definition of 'workman' and was a supervisor with the management?OPM.
2 Whether the workman has abandoned his services of his own by remaining absent?OPM.
3 In terms of reference?OPW.
4 Relief.
6 After the framing up of the issues, both the parties were given opportunity to lead their evidence to prove their respective contentions/pleas. The workman accordingly has examined himself as WW1 and then closed his evidence. Thereafter, opportunity was given to the management and the management has examined Sh.Rajesh Kumar (Personal Executive of the management) as MW1 and closed its evidence. Thereafter, matter was ID NO. 139/12 4/15 fixed for final arguments.
7 I have heard the arguments and perused the record. My issuewise findings are as follows:
ISSUE NO. 1:
8 The onus of this issue was upon the workman and he has to prove that he is workman within the definition of section 2 (s) of the I.D. Act and he was not discharging functions of a supervisor. While framing this issue the onus was put upon the management but as per settled proposition of law the onus to prove this issue is upon the workman and the same is accordingly being shifted upon the workman and it is rectified accordingly.
9 The workman in his statement of claim has stated that he had been working with the management as operator since 24.08.1993. The management has not denied this fact in para 1 of its written statement on mertis but in the preliminary objections it had stated that the workman was working with the management in the capacity of a supervisor and was discharging the administrative functions.
10 The evidence as filed by the workman is on the lines of statement of claim and in cross examination, he denied that he was working as a supervisor with the management and he volunteered that he was working as Crane Operator and no other person was working under him except the helper and the helper was directed by him to do particular work. There is no further cross examination on this aspect. 11 The management has filed its own evidence by way of affidavit and deposed in terms of its written statement that the workman was working as a supervisor. MW1 denied the suggestion that the management did not issue appointment letter and also denied that the workman was not working as a supervisor nor he was discharging any administrative or managerial work. He also denied that the workman was working as an ID NO. 139/12 5/15 operator and he volunteered that he was doing supervisory work. There is no further cross examination of MW1 by the Ld.ARW.
12 Workman claimed that appointment letter has not been issued to him and the management claimed that the same was issued to him. During the cross examination of WW1, the management put the appointment letter to the workman on which the workman has admitted his signatures and as such the same was exhibited as Ex.WW1/MX2. I have perused the appointment letter. The designation of the workman on the same is written as helper. Moreover mere designation of the workman in the appointment letter is not sufficient to confer the status of supervisor and it is well settled law that if the duties which are being performed by the workman are of supervisory in nature or if from the evidence it is clear that the workman was discharging administrative or managerial functions, then he would be deemed to be a supervisor and would not be covered within the definition of section 2 (s) of the I.D. Act and if from the nature of duties, it appears that he was functioning physically, manually, unskilled, skilled, technical and operational etc., then he would be deemed to be a workman irrespective of the designation given in the appointment letter.
13 Definition of section 2 (s) of the I.D. Act is reproduced hereinbelow and before appreciating the evidence, the law points covering this issue is as follows:
Section 2 (s): "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 expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, 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 ID NO. 139/12 6/15 i who is subject to Air Force, 1950 (45 of 1950), 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 ten thousand rupees per mensem (Rs.1600/ in 1990) 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."
14 In the judgment titled as Anand Bajar Patrika (Pvt) Ltd. Vs. The Workmen, 1970 (3) SCC 248, it was inter alia held that "the question, whether a person is employed in a supervisory capacity or on clerical work depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk."
15 Simultaneously in the judgment titled S.K. Maini Vs. Carona Sahu Co.Ltd. & Ors., 1994: Supreme Court Cases (L&S): Page 776, it was inter alia held that "Industrial Dispute Act.1947 - Section 2 (s) "Workman is an employee who is doing more than one duties and functions, whether or not, a workman and the test is the nature of duties and not the designation."
16 Further, in the judgment titled as Yogender Kumar Vs. B.R. Kohli & Co., 106 (2003) DLT 232, it was interalia held by the Hon'ble High Court of Delhi that "Whether or not an employee is a workman under section 2(s) of the I.D. Act is required to be determined with reference to his principal nature of duties and functions. Such question is ID NO. 139/12 7/15 required to be determined with reference to the facts and circumstances of the case and material on record and it is not possible to lay down any straitjacket formula which can decide the dispute as to the real nature of duties and functions performed by an employee in all cases. When an employee is required to do more than on kind of work it becomes necessary to determine under which classification under section 2 (s) the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. 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. 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 work. 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 'workmen' as defined in section 2 (s) of the I.D. Act."
17 Further, it was inter alia held in the judgment titled Deepak Kumar Vs. Presiding Officer Labour Court, Bhatinda, Punjab & Haryana High Court (SCT 1992) Page 220 that mere fact that one of the functions of workman was also to get service and repair of tractors perse would not make him a workman when all other functions of petitioner were managerial or supervisory in nature and it was inter alia held that what the court is required to see is the main activity of the employee and not his all such functions which were being performed by him."
18 Now coming to the facts of the present case. Apart from a single suggestion in the cross examination of the workman by the Ld.ARM that the workman was being assisted ID NO. 139/12 8/15 by a helper and he used to do the work under his instructions, there is no other evidence on court record from where it could be inferred that the claimant was working as a supervisor. There is no explanation even on the court record brought by the management that the workman was supervising a particular jobs or in totality the different job i.e. whether he was supervising the operation of the cranes or whether he was supervising the administrative or managerial work or whether he was maintaining the attendance record or he was supervising the incoming and outgoing of the material or of the manpower.
There is no evidence on these lines on court record. In para 1 of the statement of claim, the workman has stated that he had been working with the management as an operator, whereas the management in para 1 of the written statement stated the same to be matter of record. As far as preliminary objection is concerned, this plea was taken but there is no documentary or orally evidence on court record which may help the court to arrive the conclusion that the functioning of the workman was supervisory and managerial in nature. Accordingly, issue no. 1 is disposed off by holding that the workman has been able to prove that he is a 'workman' within the definition of section 2 (s) of the I.D. Act and he was not discharging the functions of a supervisor. ISSUES NO.2 & 3:
19 The onus to prove issue no. 2 was upon the management and it had to prove that the workman has abandoned his services of his own by remaining absent, whereas the onus to prove issue no. 3 was upon the workman and he had to prove that his services have been terminated by the management illegally and unjustifiably. Both these issues are interrelated as if the management is able to prove that the workman has abandoned the job of his own, then the workman would fail to prove that his services have been terminated illegally and unjustifiably and if the management is unable to prove that the workman has abandoned the job, then the workman would be deemed to have been ID NO. 139/12 9/15 terminated from the services illegally and unjustifiably.
20 Coming to the facts of the present case. In the written statement the management has stated that the workman started absenting from the duty w.e.f. 1.08.10 and it has written letters to the workman thereby calling him back on duty but he has not turned up and as such he has abandoned the job of his own. The workman otherwise has claimed that he has never left the services of his own, rather his services were terminated by the management on 29.10.10.
21 Now coming to the evidence part. The management in its evidence has relied upon the documents already exhibited/marked in the testimony of the WW1 i.e. Ex.WW1/XM1, Ex.WW1/XM2, WW1/XMark1, WW1/XMark2, Ex.WW1/MX1 and Ex.WW1/MX2. The management has also exhibited the documents i.e.Ex.MW1/1 which is postal receipt dt.13.08.10, Ex.MW1/2 which is postal receipt dt. 13.08.10, Ex.MW1/3 is postal receipt dt.20.08.10, Ex.MW1/4 is postal receipt dt.20.08.10 in support of the letters written to the workman. These documents were earlier put to the workman in cross examination and in cross examination, the workman deposed that he has never received the letter Ex.WW1/XM1 and he further deposed that the second address mentioned on point B on Ex.WW1/XM1 is not his address and he further deposed that presently he is residing at I1278, Jahangirpuri, Delhi33 for last ten years and he had already informed the management about leaving his previous address and shifting to new address and he volunteered that even new ESI card which was issued to him is bearing new shifted address. He further deposed that he has not given reply to the letters of the management dt. 20.08.10 and 9.09.10 as he has never received them and these letters were marked as WW1/XMark1 and WW1/XMark2 respectively.
22 MW1 in his cross examination has admitted as correct that the management has not sent any letter to the workman on the address which is mentioned on the last ESI card ID NO. 139/12 10/15 as issued by the management i.e. I1278, Jahangirpuri, Delhi33. In further cross examination, he admitted as correct that the ESI card was issued on the address i.e. I1278, Jahangirpuri, Delhi33 and the photocopy of this ESI card was exhibited as Ex.MW1/XW2. He denied the suggestion that the management has not sent the letters even at the permanent address of the workman. He further admitted as correct that no notice was sent on the address mentioned on ESI card.
23 I have gone through the piece of evidence. Initially the management was harping upon the point that the notice has been issued to the workman at the address which is given in the appointment letter but in cross examination of WW1 as well as in cross examination of MW1, it has now become clear that it is the management who has issued new ESI card to the workman at the address i.e. I1278, Jahangirpuri, Delhi and at this address no notice was ever given to the workman thereby calling the workman back on duty. Further even if the workman would have received such letter then it is not clear that if the workman had not been joining the duties then what action against the workman has been taken by the management. It is otherwise admitted fact that admittedly the workman has been serving the management since 1993 as per the admission of the management in the written statement.
24 Ld.ARW has argued that the name of the workman is still continuing in the muster roll of the management and his absence is being marked in the muster roll. I have perused the same. The alleged absence of the workman is from 1.08.10 and the attendance register which is being filed shows that the workman had been running absent even upto the date of filing the written statement. If the workman who had been working since last 17 years with the management and he has been shown as absent without taking any follow up of conducting any domestic enquiry against him, in the considered opinion of the court, even if the workman has been running absent, the management has not been ID NO. 139/12 11/15 able to prove that he has abandoned the job by any positive evidence. No doubt in the judgment titled Diamond Toys Co.(P) Ltd.vs Toofani Ram & Anrs., it was interalis held the Hon'ble High Court of Delhi that the termination of a workman is a positive act and the workman has to prove that he has been terminated on some count but in that judgment it was simultaneously held that the onus is heavy upon the workman if the grounds of termination have been knocked out by the management. In the present case, the management has not been able to prove even that if the workman has left the job of his own or is not coming to the duty then what action has been taken against him. 25 Section 2 (oo) of the I.D. Act is relevant here which is reproduced as under: "retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include a voluntary retirement of the workman; or b retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf."
26 From this evidence it is clear that neither any enquiry has been conducted against the workman nor any follow up action has been taken against the workman due to his absence. Therefore, the contentions of the management that the workman has left the job himself has not been proved by the management, rather the workman has been able to prove that he was terminated without any reason and it amounts to retrenchment of the workman without conducting any enquiry of his alleged absence. Therefore, it is held that the management has failed to prove that the workman has abandoned his services of his own by remaining absent, whereas the workman has been able to prove that his services have been terminated by the management illegally and unjustifiably. Issue no. 2 and 3 are ID NO. 139/12 12/15 answered accordingly.
RELIEF 27 Keeping in view my findings on the issues no. 1 to 3, it is held that the workman is entitled to relief claimed for. However, the workman has claimed reinstatement in service but the court is of the opinion that since both the parties have lost faith of each other, reinstatement of the workman in service would not be in the interest of justice of both the parties and a lump sum compensation instead of reinstatement would be a better option. 28 In coming to the above conclusion, the court also find support from the judgment of Hon'ble Delhi High Court given in the case of Rameshwar Dayal Vs. Presiding Officer Labour Court No. VI, Delhi & Anr. 2007 (3) LLJ 729 (DHC) wherein the Hon'ble Delhi High Court came to the conclusion that "a lumpsum amount of Rs. 50000/ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropriate relief". 29 In Kishan Lal & Ors. Vs. Govt. Of NCT of Delhi & Ors., 2007 VI AD (Delhi) 13, the Hon'ble Delhi High Court held mainly to the effect that "in lieu of grant of relief of reinstatement and full back wages, the management was directed to pay to each of the workmen a lumpsum compensation of Rs.40000/ towards full and final settlement of all claims of each of such workmen".
30 In PGI of Medical Education & Research, Chandigarh Vs. Raj Kumar & Ors., AIR 2001 Supreme Court 479, the Hon'ble Apex Court observed that "a discretion was available to an Industrial Tribunal in the matter of grant of back wages and such discretion was to be exercised in a judicial and judicious manner depending upon the facts and circumstances of each case".
31 In Indian Railway Construction Company Ltd. Vs. Ajay Kumar, AIR 2003 ID NO. 139/12 13/15 Supreme Court 1843, the Hon'ble Supreme Court of India awarded one time lumpsum compensation to the workman in this case towards full and final settlement of all his claims.
32 Now coming to quantum of compensation. Keeping in view the total facts and circumstances i.e. length of service, his unpaid salary for 20 days of October 2010, gratuity and yet another aspect if the workman has claimed that his services have been terminated on 29.10.10, whereas the management claimed that the workman was running absent from 1.08.10. The best available evidence regarding absence of the workman was salary register of the management which is not being filed. If the workman would have been running absent from August 2010 then definitely he would have got the salary for the month of August 2010 and September 2010 and if he had been running absent, then the management by way of positive evidence would have brought the salary register and should have proved by showing that he was running absent and only for that reason he was not entitled to any salary for these two months and this fact becomes more relevant as the workman is not claiming that he has not received the salary for the months of August 2010 and September 2010, rather he has only claimed that his salary for the months of August 2010 and September 2010 has been paid and his salary for the month of October 2010 has not been paid to him before his termination, otherwise he definitely would have been claiming that his salary for the months of August 2010 and September 2010 has been withheld by the management. It is not averred by the workman which inter alia means that the workman has received the salary for the months of August 2010 and September 2010 which also falsifies the contention of the management that the workman was running absent from 1.08.10. On the basis of abovementioned discussion and taking into consideration the overall facts and circumstances of the instant case and in the light of abovementioned authorities, particularly keeping in view the fact that the services of ID NO. 139/12 14/15 the workman have been terminated by the management illegally and also keeping in view that the workman is an able bodied person and it cannot be presumed that he would remain without any job for all this period, it would be in the interest of justice that a lump sum compensation is given to the workman in lieu of his reinstatement, back wages and all other consequential benefits.
33 Accordingly, the workman is given a lump sum compensation to the extent of Rs. 140000/ in lieu of all his claims, back wages, compensation in lieu of reinstatement and all other consequential benefits and the management is directed to pay the lump sum compensation to the extent of Rs.140000/ to the workman within a period of one month from the date of award, failing which this amount shall carry a simple interest @ 8% per annum from the date of award till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN THE OPEN COURT ON 7th March, 2013 (S.S. MALHOTRA) POLCIX/EAST DISTRICT/ KARKARDOOMA COURTS/DELHI ID NO. 139/12 15/15