Delhi District Court
Sh. Som Nath Bhatt vs M/S Khanijau Industries (Engg.) Pvt Ltd on 1 July, 2008
1
IN THE COURT OF SHRI GIRISH KATHPALIA;
PRESIDING OFFICER, LABOUR COURT XIX
KARKARDOOMA COURTS:DELHI.
LIR. NO. 367/07
SH. SOM NATH BHATT,
C/O G-25, SECTOR-20,
NOIDA-30. ........WORKMAN
VS
M/s KHANIJAU INDUSTRIES (ENGG.) PVT LTD.,
5, OKHLA INDUSTRIAL ESTATE,
PHASE-III,
NEW DELHI-20. ......MANAGEMENT
Date of reference:14/09/99
Date of taking up the matter for the first time:09/01/08
Date of conclusion of arguments:24/05/08
Date of award:01/07/08
Ref no. F.24(3008)/99 Lab./38473-77 dated 14/09/99
AWARD
1. On being satisfied as regards existence of an
industrial dispute between the parties, the Secretary(Labour)
Government of NCT of Delhi in exercise of powers conferred by
section 10(1)(c) and section 12(5) of the Industrial Disputes Act
referred this dispute to the Labour Court IX for adjudication,
from where it was transferred to this court with the following
_____________________________________________________________
LIR NO. 367/07 Page 1 of 34 pages
2
terms of reference:
"Whether the services of Sh. Som Nath
Bhatt have been terminated illegally
and/or unjustifiably by the management,
and if so, to what relief is he entitled and
what directions are necessary in this
respect?"
2. Upon service of court notice, workman filed a detailed
claim statement and sought reinstatement of his services with
the management with continuity and back wages. As pleaded
by workman, he was appointed by M/s Luxor Pen Company
with effect from 04/05/1993 on a consolidated salary of
Rs.5,000/- per month. Subsequently services of the workman
were transferred to the respondent management vide letter
dated 18/03/1996. As per workman, he had been designated as Personnel Manager only for namesake; he had no supervisory or managerial powers and functioned as a miscellaneous clerk only. When the workman protested that his nature of duties were not of managerial capacity, the management got annoyed and verbally terminated his services on 04/05/1998 without assigning any reason. Despite _____________________________________________________________ LIR NO. 367/07 Page 2 of 34 pages 3 intervention of labour authorities, the management did not reinstate services of the workman. Hence this reference.
3. Management in their written statement raised a preliminary objection to the effect that the claimant is not a workman within the definition under section 2(s) of the Industrial Disputes Act. It was pleaded by the management that the claimant had been performing work of managerial nature by recommending names of the workmen for increments etc, passing the conveyance bills for reimbursement and signing the vouchers as head of personnel department. As such, not just the designation, even nature of work of the claimant was managerial as per the management. Management denied having terminated services of the workman in any manner what so ever and pleaded that the workman was discharged from service in terms with clause 4 of the appointment letter.
4. Workman filed a rejoinder denying the pleadings of the management and reaffirmed claim contents.
5. On the basis of pleadings my ld predecessor framed the following issues.
_____________________________________________________________ LIR NO. 367/07 Page 3 of 34 pages 4
1. Whether the claimant is covered within the definition of workman as defined under section 2(s) of ID Act as per preliminary objection no. 2 taken in WS?
2. Whether services of Sh. Som Nath Bhatt have been terminated illegally and/or unjustifiably by the management?
3. Relief.
6. At the stage of recording evidence of the workman, vide order dated 17/02/07 my ld predecessor requested for transfer of this case in view of an allegation of arbitrariness levelled by the workman against my ld predecessor in application dated 23/11/06. It is at that stage that vide order dated 12/11/07 of Pr. Secretary (Labour) this case was assigned to this court. It would be pertinent to record that the said application dated 23/11/06 of the workman sought review of order dated 06/11/06 of my ld predecessor whereby workman's application dated 04/05/06 for grant of interim relief was dismissed by my ld predecessor on the grounds that status of the claimant as workman is in dispute. During pendency of the proceedings before this court, only once on 15/03/08 the workman made a reference to the said review _____________________________________________________________ LIR NO. 367/07 Page 4 of 34 pages 5 application, though wrongly as interim relief application. However, no illegality in the order dated 06/11/06 of my ld predecessor was pointed out. But thereafter, the application was never pressed. In any case, since after assignment of case to this court the hearing was listed on very short dates and subsequently on day to day basis it being the oldest case of this court, claim for interim relief has by now at this final stage paled into insignificance. The said review application dated 23/11/06 is hereby disposed of as not pressed.
7. In support of their respective case both sides examined one witness each.
8. Workman in his chief examination deposed on oath the above mentioned contents of his pleadings and placed on record the relevant documents as Ex.WW1/1-10. In fact, the workman in his lengthy chief affidavit stated averments not just irrelevant but also much beyond his pleadings. As reflected from record, my ld predecessor repeatedly rejected earlier chief affidavits of the workman holding that the same bore irrelevant and unpleaded facts. As such, only the relevant and pleaded facts are culled out of chief affidavit of the _____________________________________________________________ LIR NO. 367/07 Page 5 of 34 pages 6 workman as follows.
9. In his chief affidavit, the workman stated that he did not enjoy any managerial or supervisory powers in the sense that he could not issue appointment letter, charge sheet, suspension letter, dismissal letter, leave sanctioning, advance/increment sanctioning, issuing cheque, exercising control over anyone, representing the management before any authority, involvements in policy making, entering into correspondence with third parties and authority to make any commitment on behalf of management. The designation of Personnel Manager assigned to him as per the workman was mere window dressing. As per workman, his job profile included processing and verifying the conveyance vouchers of employees and putting up the same for approval of superiors, processing monthly pay roll, preparing monthly punctuality award sheets and submitting the same for approval of superiors, after obtaining approval distributing salary to employees, maintaining and sending daily report of manpower position to the superiors, preparing weekly and monthly report about leaving of employees, upkeep and maintenance of _____________________________________________________________ LIR NO. 367/07 Page 6 of 34 pages 7 service record of employees, preparing and sending six months attendance details of employees for confirmation, promotion and increment etc, preparing and sending monthly reports of employees resigned/relieved, processing and putting up papers pertaining to renewal of licenses under the Factories Act, processing annual balance sheet and putting up the same for arrangement of funds, ensuring cleanliness and accompanying visitors in the factories, collecting biodata of unskilled, casual workers and processing the details for approval of management and maintaining personnel files/service records of the employees. Workman further deposed that he used to record daily attendance by punching card like other workers; he was required to take gate pass approval from superiors for leaving the factory; he was using the same toilets and drinking water as the other workers; he was not extended services of the peon for placing lunch plates etc; he had to take tea from private shop unlike managers who were served special tea from front office; he was getting punctuality award as other workers; he was getting Diwali gifts and sweets as other workers; he was not provided company's _____________________________________________________________ LIR NO. 367/07 Page 7 of 34 pages 8 car; and he was getting same leave facilities as other workers. Workman also quoted certain instances when he was humiliated by the management.
10. In his cross examination the workman admitted having not placed on record his appointment letter but added that the same was one sided. He also admitted that as per clause 12 of the appointment letter his service was transferable but added that this condition also was one sided. He stated that at the time of appointment he never objected to the terms and conditions as he was in need of a job. Workman categorically stated in cross examination that he never signed any document in the capacity of Personnel Manager but on being confronted with the documents, workman admitted his signatures on Ex.WW1/M1 to Ex.WW1/M18 as Personnel Manager. In cross examination, the workman denied that documents mark M1 to mark M8 bear his signatures, but subsequently he filed an affidavit dated 09/05/08 to the effect that these documents also bear his signatures. In cross examination the workman proved his appointment letter as Ex.WW1/M19. Contrary to his statement of claim, the _____________________________________________________________ LIR NO. 367/07 Page 8 of 34 pages 9 workman stated that he never filed any complaint through union against the management and added that his authorized representative was perhaps secretary of the union but he did not have a copy of the complaint filed by him before the labour authorities against the management.
11. Assistant Manager of the management appeared as MW1 to depose on oath the above mentioned contents of written statement. He stated that the workman had been working with the management as Personnel Manager vide appointment letter dated 12/08/93 and was confirmed with effect from 01/11/93. MW1 stated that the workman had been performing duties of the Personnel Manager as he was head of personnel department and used to sign the ESI and PF returns, pass conveyance bills for reimbursement, pass vouchers of petty cash, recommend workmen for increments and sign all the correspondence as head of personnel department.
12. In his cross examination MW1 denied the suggestion that the workman had no role in appointment of casual employees and stated that the employment forms of casual _____________________________________________________________ LIR NO. 367/07 Page 9 of 34 pages 10 employees used to be signed by the workman. In response to a specific question, MW1 stated that the workman is an expert and would take about 10-15 minutes per applicant for screening the employment forms. MW1 admitted a suggestion extended by the workman that in a day about 25-30 employment forms and applicants for job used to come to the workman. The workman used to report day to day matters to Mrs. Monika, Manager Administration and her husband Sh. Ashish, AGM. MW1 stated that the workman was empowered to sanction petty cash vouchers though he had no power to sign cheques. He admitted the suggestion that the workman used to sign reports prepared by him and the workman himself also used to prepare and sign confidential reports. MW1 admitted that the workman used to mark attendance by punching card but stated that the workman used to use staff toilet and not the workmen toilet. In cross examination MW1 stated that Ex.WW1/M1 is used as a recommendation of the personnel department for increments and Ex.WW1/M6 after signatures of the workman was sent to the accounts department for payment. MW1 admitted a suggestion given by _____________________________________________________________ LIR NO. 367/07 Page 10 of 34 pages 11 the workman himself that promotion and increment of employees used to be on the basis of recommendation by the workman, though MW1 could not admit or deny if despite recommendations of workman on Ex.WW1/17, Ravinder Nath was declined promotion. In the course of cross examination of MW1, the workman produced 32 sheets on which MW1 admitted signatures of senior management officers of the company (but on being asked as to how and when the official documents came into his possession the workman could not explain). MW1 also stated that depending upon performance, the workman could have recommended any employee out of turn for promotion. He admitted that employees of the management used to approach the workman whenever they had any grievance.
13. No other evidence was adduced. I heard both the sides and also perused written arguments filed by them. Even in rebuttal to the arguments of the management, the workman filed counter arguments, which also have been perused.
14. It would be pertinent to record that not only unnecessarily lengthy chief affidavits bearing irrelevant and _____________________________________________________________ LIR NO. 367/07 Page 11 of 34 pages 12 unpleaded facts were filed by the workman (which affidavits were rejected by my ld predecessor), even written arguments are unnecessarily voluminous in the sense that not just the provisions of law including the schedules of the Industrial Disputes Act in verbatim, even order sheets have been reiterated. Not only this, the workman in his written arguments went on to allege that certain oral directions (not even relevant for present purposes) had been issued by my ld predecessor. Workman in the written arguments even challenged the correctness of orders passed on his interlocutory applications, which orders were never assailed by him through appropriate proceedings before the Hon'ble High Court or even this court. Further, the workman in his written arguments went to the extent of imputing averments contrary to the records in the sense that what was denied by MW1 in cross examination is alleged to have been affirmed. In the name of arguments on facts, workman has simply copied down the averments of cross examination without explaining as to how the same help him in establishing his case. Rather, the workman added facts contrary to the evidence on record, _____________________________________________________________ LIR NO. 367/07 Page 12 of 34 pages 13 alleging the same to be his personal knowledge. Even as regards discussion on law, the workman has quoted a large number of judicial precedents on aspects which are not even in dispute; even unchallenged legal propositions which are not relevant in present case have been described. As such, after filtering out the unnecessary, I have recorded only relevant portions of arguments submitted by the workman. My issue wise findings are as under.
ISSUE NO.1
15. It was argued by workman that the testimony of MW1 and the documentary evidence establishes that he had been doing only routine jobs of clerical and not supervisory or managerial nature. It was argued that while deciding as to whether the claimant is a workman within the definition under section 2 (s) of the Industrial Disputes Act, undue importance need not be given to the designation and what is to be looked into is the primary duties being performed by the claimant; where supervisory duties are carried out incidentally, the same would not convert clerical nature of job into supervisory one. Workman placed reliance on a number of judicial _____________________________________________________________ LIR NO. 367/07 Page 13 of 34 pages 14 pronouncements which laid down the said undisputed legal proposition.
16. Management in their arguments did not dispute the well established legal proposition that for deciding the issue under consideration, nomenclature and salary of the claimant is not the decisive factor; what is to be looked into is the nature of work performed by the claimant. It was argued that the nature of work being performed by the workman as reflected from evidence on record clearly establishes that he was discharging managerial and supervisory duties, hence he is not covered under section 2(s) of the Act.
17. Workman in his counter arguments also quoted the meaning of the word "manager" from Oxford Dictionary as a person controlling the affairs training etc of a person or team in sports, entertainment etc. With the help of a Privy Council judgment (citation in counter arguments illegible), it was argued that "unless a person is incharge of an entire business of a company, he cannot be deemed to be a manager thereof; a person entrusted with the business of a branch can be regarded as merely an agent and not manager". But a copy of _____________________________________________________________ LIR NO. 367/07 Page 14 of 34 pages 15 the said judgment, filed in compilation by the workman reflects that in the said case titled BASANT LAL & LYALLPUR BANK vs THE CROWN, the connotation of the term "manager" under section 87 of the Indian Companies Act was in consideration and relying upon the judgment of GIBSON vs BARTON, Law Reports 10 Queens Bench 329 (1) it was held that a "manager" is a person "who has the management of whole affairs of the company; not an agent who is to do a particular thing, or a servant who is to obey orders, but a person who is entrusted with power to transact the whole of the affairs of the company". Workman has wrongly read the said judgment to infer that it is only a person entrusted with whole of the affairs of the company who is manager and not a person entrusted with affairs of a branch. Even otherwise, the context of the present dispute is totally different from the judgment cited above.
18. So far as legal position is concerned, both sides agreed that mere nomenclature and salary is not the decisive factor for the present purpose; what is to be seen is the nature of primary functions discharged by the workman; and if _____________________________________________________________ LIR NO. 367/07 Page 15 of 34 pages 16 supervisory functions discharged by the workman were only incidental to the clerical functions, the workman would qualify the test of section 2(s) of the Act.
19. There is plethora of judicial pronouncement on the factors to be looked into for deciding as to whether or not a claimant before the court is a workman within the meaning of section 2(s) of the Act. It is trite position of law that mere designation of the claimant is not to be taken as decisive test; what is to be seen is the nature of work being discharged by the claimant.
20. In the case of STATE BANK OF BIKANER & JAIPUR vs HARIHAR NATH, AIR 1971 SC 2200 Hon'ble Supreme Court held that the grant of power of attorney is a very important circumstance showing that the employee is discharging the functions of a supervisory nature.
21. In the case of PIARE LAL ANAND vs STATE BANK OF INDIA, 1973 LAB. I.C 761, Hon'ble Delhi High Court held that holding of power of attorney on behalf of management by the workman is one of the very important circumstances in holding that the claimant is not a workman. _____________________________________________________________ LIR NO. 367/07 Page 16 of 34 pages 17
22. In the case of HUSSAN MITHU MHASVHADKAR vs BOMBAY IRON & STEEL LABOUR BOARD, (2001) 7 SCC 394 Hon'ble Supreme Court held as under:
"No doubt, in deciding about the status of an employee, his designation alone cannot be said to be decisive and what really should go into consideration is the nature of his duties and the powers conferred upon as well as the functions assigned to him. Even if the whole undertaking be an industry, those who are not workmen by definition may not be benefited by the said status. It is the predominant nature of the services that will be the true and proper test. Operations of the Government which are pure and simplicitor administrative and of a governmental character or incidental thereto cannot be characterized to be "industrial" in nature, be they performed by a department of the government or by a specially constituted statutory body to whom anyone or more of such functions are delegated or entrusted with. When, as in this case, as disclosed from Section 15 of the Act as also the _____________________________________________________________ LIR NO. 367/07 Page 17 of 34 pages 18 provisions of the Scheme, the primary duties of an employee and the dominant purpose, aim and object of employment was to carry out only certain specific statutory duties in the matter of effective enforcement and implementation of the Welfare Scheme in order to ameliorate and rehabilitate a particular cross section of labour, and, if need be, on the basis of his own decision which calls for a high degree of discretion and exercise of power to prosecute the violator of the provisions of the Act, Rules and the provisions of the Scheme, we are unable to accord our approval to the claim made on behalf of the appellant that he can yet be assigned the status of a "workman", without doing violence to the language of Section 2(s) and the very purpose and object of the ID Act, 1947. That apart, even judging from the nature of powers and the manner of its exercise by an Inspector, appointed under the Act, in our view, the appellant cannot be considered to be engaged in doing any manual, unskilled, technical, operational, clerical or supervisory work and the mere _____________________________________________________________ LIR NO. 367/07 Page 18 of 34 pages 19 fact that in the course of performing his duties he had to also maintain, incidentally, records to evidence the duties performed by him, day to day, cannot result in the conversion of the post of "Inspector" into any one of those nature noticed above, without which, as held by a Constitution Bench of this Court in the decision in H.R. Adyanthaya case the appellant cannot fall within the definition of "workman". The powers of an Inspector and duties and obligations cast upon him as such are identical and akin to law enforcing agency or authority and also on a par with a prosecuting agency in the public law field."
23. In the case of MUIR MILLS UNIT OF NTC (UP) LTD vs SWAYAM PRAKASH SRIVASTAVA, (2007) 1 SCC 491 Hon'ble Supreme Court held that professionals (Legal Assistant in that case) can never be termed as "workman" under any law. It was held that an occupation is a principal activity that earns money for a person while profession is an occupation that requires extensive training, study and mastery of specialized knowledge and usually has a professional association, ethical _____________________________________________________________ LIR NO. 367/07 Page 19 of 34 pages 20 code and process of certification/licensing. Hon'ble Supreme Court observed that the claimant who was working as legal assistant and used to supervise court cases is a professional and could not be termed as "workman".
24. In the case of C. GUPTA vs GLAXO SMITHKLINE PHARMACEUTICAL LTD, 2004 LLR 574, Hon'ble Bombay High Court held that an industrial relation executive could not be termed as "workman" under section 2(s) of the Act. It was held that if an employee's predominant work is advising and guiding his subordinates, it will be mainly supervisory and he cannot be treated as a workman.
25. The view taken by Hon'ble Bombay High Court in C. GUPTA (supra) was upheld by the Hon'ble Supreme Court in the case of C. GUPTA vs GLAXO SMITHKLINE PHARMACEUTICAL LTD, (2007) 7 SCC 171 holding that the duties undertaken by claimant of that case fell within managerial cadre as Industrial Relations Executive. It was held that nomenclature is not of any consequence; whether or not a particular employee comes within the definition of "workman" has to be decided factually.
_____________________________________________________________ LIR NO. 367/07 Page 20 of 34 pages 21
26. In the case of MANAGEMENT OF M/s SONEPAT COOPERATIVE SUGAR MILLS LTD vs AJIT SINGH, JT 2005(2) SC 370 Hon'ble Supreme Court held that the issue as to whether an employee answers the description of "workman" or not has to be determined on the basis of conclusive evidence and it would not be correct to contend that merely because the employee had not been performing managerial or supervisory duties, ipso facto he would be a workman. The claimant of that case, appointed as legal assistant had not been performing any stereotyped job; he used to render legal opinion, draft pleadings and appear in courts as well as act as enquiry officer in domestic enquiries. Hon'ble Supreme Court held the claimant as not a workman.
27. In the case of M/s BLUE STAR LTD vs N.R. SHARMA & ORS., 1975 (31) FLR 102, Hon'ble Delhi High Court held that supervision contemplates direction and control and an ordinary supervision is not "supervisory" within the meaning of section 2(s) of the ID Act; rather supervision of a higher type over ordinary supervision would be entitled to be called "supervisory" within the meaning of section 2(s) of the Act. _____________________________________________________________ LIR NO. 367/07 Page 21 of 34 pages 22
28. In the case of MATHUR AVIATION vs LT. GOVERNOR DELHI, 1977 LLJ 255, Hon'ble Delhi High Court held as under:
"......As I understand, managerial or administrative functions require a person to control the work of others. It does not mean that a person who does some work and gets assistance for doing that work, can be described as a person who is working in managerial or administrative capacity.
Similarly, a person cannot be said to be working in a supervisory capacity merely because he has to supervise persons who help him in doing the work he himself has to perform. When one talks of a person working as a supervisor, one understands it to mean a person who is watching the work being done to see that it is being performed properly."
29. In the case of ANAND REGIONAL CO OP OIL S UNION LTD vs SHAILESHKUMAR HARSHADBHAI, 2006(7) SCALE 603, Hon'ble Supreme Court held as under:
"15. For determining the question as to whether a person employed in an industry is a workman or not; not only _____________________________________________________________ LIR NO. 367/07 Page 22 of 34 pages 23 the nature of work performed by him but also terms of the appointment in the job performed are relevant considerations.
16. Supervision contemplates direction and control. While determining the nature of work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being incharge of the section alone and that too it being a small one and relating to quality control would not answer the test.
17. The precise question came up for consideration in Anand Bazar Patrika (P) Ltd vs Workmen, (1970) 3 SCC 248 wherein it was held:
"The question whether a person is employed in supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal _____________________________________________________________ LIR NO. 367/07 Page 23 of 34 pages 24 duties carried out by him are those of a supervisory character or of a nature carried out by a clerk. If a person is mainly doing a supervisory work but incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity...."
18. A person indisputably carries on supervisory work if he has power of control in regard to recruitment, promotion etc. The work involves exercise of fact and independence."
30. In the case of YOGENDER KUMAR vs B. R. KOHLI & CO., 106 (2003) DLT 232, Hon'ble Delhi High Court set aside the award passed by the labour court on the infirmity that the labour court proceeded merely on the basis of nomenclature of the post held by the claimant without examining the nature of principal duties entrusted to him.
31. In the case of K.H. PANDHI vs THE PRESIDING _____________________________________________________________ LIR NO. 367/07 Page 24 of 34 pages 25 OFFICER, ADDITIONAL LABOUR COURT, 110 (2004) DLT 101 Hon'ble Delhi High Court recapitulated the entire law on this aspect and observed as under:
"18. On a review of the above decisions of the Supreme Court, it is quite clear that the designation of an employee is of no consequence. To determine whether an employee is a workman or not, what is of consequence is his main or primary duties. If the employee performs some duties which are incidental or even in addition to his main or primary duties, that by itself will not take away his status as a "workman" provided, as a result of his main or primary duties, he falls within the definition of workman under the Act."
32. In the case of MURALIDHARAN K vs MANAGEMENT OF M/s CIRCLE FREIGHT INTL. 2007 (96) DRJ 14 Hon'ble Delhi High Court observed thus:
"27. It is well settled that neither the appellation to the post to which an employee is stated to be employed nor the salary which he is being paid would decide the issue as to whether a person is _____________________________________________________________ LIR NO. 367/07 Page 25 of 34 pages 26 covered within the definition of "workman"
as given in section 2(s) of the Industrial Disputes Act 1947. It has been repeatedly emphasized by the apex court and the High Courts that the expression "industry, workman and industrial disputes" etc are not to be interpreted so as to whittle down the object of enactment. Disputes between employees and the management are not to be excluded from the operation of the enactment by giving narrow and restricted meaning to the expressions contained in the Act. Taking a pragmatic approach, the apex court has repeatedly held that the courts have to look beyond glorified designations and names assigned to posts by managements and examine the nature of duties to discover precisely what duties the employee is performing.
30. So far as the consideration of the nature of functions is concerned, managerial, supervisory or administrative functions would require that a person who is so employed, controls the working of others. Merely because the person who does some work and gets assistance for _____________________________________________________________ LIR NO. 367/07 Page 26 of 34 pages 27 doing that work would not be sufficient by itself to describe or hold that the person was working in a managerial or administrative capacity. A person who has to thus only supervise those who are helping him in doing the work he has to perform, is also not working as a supervisor. A supervisor is a person who is watching the work being done by others to see that it is being done properly."
33. Falling back to the present case, nomenclature of the post held by the claimant as Personnel Manager is not in dispute. In my view, marking of attendance by punching card, use of staff toilet, non providing of peon to lay table and source of tea etc., on which the workman strongly relies, are of no relevance in deciding the issue under consideration. What is required to be deciphered from the evidence on record is as to whether primary duties of the workman were clerical in nature so as to bring him within the ambit of section 2(s) of the Act.
34. In his cross examination, the workman described his duties as making daily reports of incoming and outgoing employees, verifying conveyance vouchers of the employees _____________________________________________________________ LIR NO. 367/07 Page 27 of 34 pages 28 and putting up the same for sanction, processing casual workers biodata for approval of management for recruitment, routine sanitary checking, processing of punctuality award for sanction by the management, processing and disbursal of monthly salary/wages of employees. Although workman in cross examination stated that he never signed any document in capacity of Personnel Manager, on being shown he admitted his signatures on documents Ex.WW1/M1-M18 and mark M1- M7, which belie his oral testimony as regards nature of functions discharged by him.
35. Ex.WW1/M1, Ex.WW1/M2, Ex.WW1/M16 and Ex.WW1/M17 are Annual Performance Appraisal forms of workers/peons/drivers which bear signatures of the claimant with recommendations pertaining to the increments and promotions. In these appraisal reports, the claimant has described the performance of the concerned workers and recommended increments and promotion, which would reflect that the claimant had supervision of a higher type over those workers.
36. Ex.WW1/M3-M15 are various bills cum vouchers _____________________________________________________________ LIR NO. 367/07 Page 28 of 34 pages 29 which were passed under the signatures of the claimant. Ex.WW1/M4 is claimant's own bill of conveyance and even the said bill was passed for reimbursement by claimant himself. A number of petty cash vouchers in Ex.WW1/M5-15 reflect the release of payment to different employees, authorized by the claimant.
37. Ex.WW1/M18 is the employment form whereby a person was engaged as unskilled temporary worker with the management under the signatures of the claimant.
38. Mark M1 to Mark M8 are the set of documents on which the claimant initially during his cross examination denied his signatures but subsequently at the stage of final arguments he filed an affidavit, admitting his signatures on these documents. Not only did the claimant deny his signatures on these documents during cross examination, he even stated that he did not remember as to whether he ever corresponded with the Commissioner of Provident Fund on behalf of the management in his capacity has Personnel Manager. Such a statement of inability to remember was patently false as would be reflected from documents mark M1- _____________________________________________________________ LIR NO. 367/07 Page 29 of 34 pages 30 M7 on which he subsequently admitted his signatures.
39. Mark M1 and M4 are the covering letters addressed to the Provident Fund Commissioner on the letter heads of the management, whereby PF returns were submitted; the said letters and the returns annexed with the same bear signatures of the claimant on behalf of the management. Mark M8 also are PF returns signed by the claimant on behalf of the management.
40. Mark M2 and M3 are the declarations submitted before the ESI authorities under the signatures of the claimant on behalf of the management.
41. Mark M5 to M7 are the notices issued by the claimant to different workers of the management, calling them upon to render explanation for their unauthorized absence.
42. Ex.MW1/W1 (colly) are 32 sheets of original documents of the management which were produced by the workman during cross examination of MW1 but the workman could not explain as to how the original official documents of the management came in his possession. Most of these documents are the weekly staff reports bearing signatures of _____________________________________________________________ LIR NO. 367/07 Page 30 of 34 pages 31 the claimant as Personnel Manager. The first sheet of Ex.MW1/W1 (colly) is an intra department letter written by the claimant to the General Manager Personnel reflecting that the claimant used to be a part of policy making on taskforce/employee welfare.
43. Ex.WW1/3 is a circular dated 06/03/96 issued by the President and General Manager of the management, courtesy copies whereof were sent to the senior functionaries of the management including the claimant, calling upon them to advise the management for appropriate actions in order to empiricise the under current amongst the workers and staff and to understand their sentiments and grievances.
44. Ex.WW1/8 is workman's own letter dated 31/07/97, wherein his own claim is of a professional experience of 21 years during which period he had been holding up the companies policies, principles and initiated lot of steps to bring about discipline honesty and sincerity etc in the company and he suggested/implemented various measures to safe guard company's interest.
45. The above mentioned documentary as well as oral _____________________________________________________________ LIR NO. 367/07 Page 31 of 34 pages 32 evidence denude the falsity of the claimant's argument that his designation as Personnel Manager was only a window dressing and he was performing only clerical functions.
46. As reflected from employment form Ex.WW1/M18, the claimant had powers to recruit temporary/casual workers. Claimant himself extended suggestions to MW1 in cross examination that in a day, the claimant used to screen about 25-30 employment forms as well as applicants for job.
47. Claimant himself extended suggestions to MW1 in cross examination that promotion and increment of the employees used to be on the basis of his recommendations. The fact that the claimant had been writing appraisal reports and recommending increments/promotions of the workmen of the management, issuing notices to the workers calling for their explanations, sanctioning reimbursement and clearing cash vouchers establish that he had a control over work of other employees of the management.
48. Not only did the claimant represent the management before the PF and ESI authorities and bound the management through statements and declarations, he was also a part of _____________________________________________________________ LIR NO. 367/07 Page 32 of 34 pages 33 think tank of the management who actively formulated policies of the HRD department. It cannot be said by any stretch that the workman discharged only clerical duties or that his primary functions were clerical in nature with certain incidental managerial functions. For, the claimant was not just filling up the proformas and/or entries in the PF and ESI returns, he submitted the same before the authorities under his signatures with a covering letter signed by him on behalf of the management; he was not just filling up and forwarding the vouchers/bills, he sanctioned the same and allowed withdrawal of money by the workers.
49. The evidence on record establishes amply that the claimant was not just posted as Personnel Manager, he was primarily discharging only supervisory and managerial functions.
50. In view of above discussions, issue no.1 is decided against the claimant and I hold it not proved that the claimant is covered within the definition of "workman" under section 2(s) of the Industrial Disputes Act. _____________________________________________________________ LIR NO. 367/07 Page 33 of 34 pages 34 ISSUE NO. 2
51. In view of findings on issue no. 1 it is held not proved that services of the claimant were terminated illegally and/or unjustifiably by the management. Accordingly issue no. 2 is decided against the claimant.
ISSUE NO. 3 (RELIEF)
52. In view of above findings, it is held that the claimant is not entitled to any relief against the management.
53. In view of submissions made by the claimant repeatedly during the course of proceedings and also in his written arguments as regards his financial conditions, worsened by his wife being on death bed, I do not feel inclined to burden the claimant with management's cost of litigation.
54. Reference accordingly stands answered. Copy of this award be sent for publication and file be consigned to records leaving the parties bear their own cost.
ANNOUNCED IN THE OPEN COURT ON 1st July, 2008 (GIRISH KATHPALIA) ADDITIONAL DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER, LABOUR COURT-XIX, KARKARDOOMA COURTS, DELHI.
_____________________________________________________________ LIR NO. 367/07 Page 34 of 34 pages