Delhi District Court
Sh. Ashwinder Singh vs M/S Delhi Sikh Gurudwara on 3 November, 2009
IN THE COURT OF SHRI T. S. KASHYAP :
PRESIDING OFFICER : LABOUR COURTXIX :
KARKARDOOMA COURTS : DELHI.
LIR/ D No. 887/06 (Old No. ID520/05)
SH. ASHWINDER SINGH
S/o Sardar Santokh Singh
R/o WT93, Baljit Nagar,
Delhi110008. .................................Claimant/ Workman
Vs.
1. M/S DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE
Guru Govind Singh Bhawan,
Gurudwara Rakabganj, New Delhi.
Through its General Secretary/ President.
2. GENERAL MANAGER
M/s. Delhi Shikh Gurudwara Management Committee,
Guru Gobind Singh Bhawan, Gurudwara Rakabganj,
New Delhi. ........................Managements
Date of Institution of case : 20.12.05
Date of conclusion of arguments : 23.10.09
Date of passing of award : 03.11.09
A W A R D
This statement of claim u/s. 10 (4 A) of the Industrial Disputes
LIR/ D No. 887/06 (Old No. ID520/05) Page 1 of 27 pages
Act 1947 (hereinafter referred as 'Act') has been filed by
claimant/workman against the management with the prayer for
reinstatement in service alongwith full back wages and continuity of
service as well as consequential benefits submitting that General
Manager of the managements vide letter dated 07.05.04 appointed
him on the post of Supervisor (Technical) on a consolidated salary
of Rs. 5,000/ per month against regular post in Guru Updesh
Printing Press, Gurudwara Rakabganj Sahib, Delhi and his service
was regularized w.e.f .01.11.2004 by the General Secretary of the
managements. He claims to have performed his duties with
honesty and sincerity to the satisfaction of the management and
also claims to have completed 240 days continuous service in a
calender year without any break or any interruption. However, he
has alleged that on election of the new executive body of the
managements on 22.11.04, a new Board comprising of new
LIR/ D No. 887/06 (Old No. ID520/05) Page 2 of 27 pages
President and other office bearers and members had taken over
the management of the Governing Body and vide resolution dated
24.11.04 passed by the said management, services of the
workman were terminated by the General Secretary vide order
dated 11.01.05 mentioning the following terms :
(i). Your appointment shall be purely on
temporary basis.
(ii). Your services can be terminated without
notice and reason.
(iii).You can be transferred to any Branch/
Gurudwara under the management of Delhi
Shikh Gurudwara Management Committee and
you will be bound by these terms and
conditions.
Workman has submitted that there was no such terms and
conditions in the letter of appointment dated 07.05.2004 and dated
27.10.04 by which his services were regularised. He further claimed
that even though his designation was Supervisor (Technical) but he
LIR/ D No. 887/06 (Old No. ID520/05) Page 3 of 27 pages
was doing manual, clerical and other miscellaneous work and
workman was not having any supervisory power at all and
therefore, he was covered under the definition of workman as
defined u/s. 2(s) of the 'Act'. Workman has alleged that termination
of his service vide letter dated 11.01.05 was illegal, arbitrary and
against the provisions of law. He also filed a writ petition before
Hon'ble High Court bearing No. 6477/2005 but the same was
dismissed as withdrawn with opportunity to initiate appropriate
proceedings. He claims to have served legal demand notice on the
management dated 31.10.05, through registered AD and UPC but
the management neither replied nor reinstated him in service. He
further claimed that management did not serve any one month
notice in lieu of notice alongwith compensation at the time of
termination of his service nor any show cause notice, charge sheet
or any enquiry was conducted against the workman and hence this
LIR/ D No. 887/06 (Old No. ID520/05) Page 4 of 27 pages
claim.
2. Management contested the claim by filing writtenstatement
wherein management has taken preliminary objection such that as
per definition under section 2 (s) of the 'Act' claimant is not a
'workman' as he was employed in a supervisory capacity by the
management and he was drawing wages exceeding Rs. 1,600/ per
mensem. Moreover, his duties and powers were of managerial
nature.
On merits, contents of para 1 & 2 have been denied except
that the claimant was appointed on regular basis as Supervisor
(Technical) vide appointment No. 10448/21 dated 27.10.04 on
probation of one year subject to following terms and conditions :
(i). Your appointment is purely
temporary.
(ii).Your services can be terminated
without any reason and without giving
LIR/ D No. 887/06 (Old No. ID520/05) Page 5 of 27 pages
any notice.
(iii). You can be transferred to any
Branch/ Gurudwara under the
management of DSMC and you are
bound to follow these terms and
conditions.
It has been denied that he has completed 240 days
continuous service in a calender year without any break or
interruption. Management has claimed that a meeting of the
executive body was held on 22.11.04 and not on 24.11.04 and
alleged termination of the workman was simpliciter as per terms &
conditions of his appointment. It has been denied that terms &
conditions were part of letter of appointment dated 27.10.04.
According to the management, document dated 27.10.04 filed along
with the statement of claim by the alleged workman is not the
appointment letter issued by the management to him but in fact he
has filed the office note dated 27.10.04 pertaining to his
LIR/ D No. 887/06 (Old No. ID520/05) Page 6 of 27 pages
regularisation, which he was not supposed to have. It has been
denied that he was doing manual, clerical and other miscellaneous
work. It has also been claimed that workman was paid one month
salary in lieu of the month notice (which was not necessary in the
instant case as per the terms and conditions of the appointment)
vide cheque No. 114564 dated 12.01.05 drawn on Punjab & Sind
Bank, Mata Sundri College. Moreover, he was not entitled to any
service compensation at the time of termination of his service, as
such no service compensation was given to him at the time of
termination of his service. It has been denied that the workman
has represented to the management against the said termination.
However, it is submitted that legal notice was served on the
management only after withdrawal of the writ petition. Therefore,
under these circumstances, claimant was not entitled to any
service compensation and the claim is liable to be rejected.
LIR/ D No. 887/06 (Old No. ID520/05) Page 7 of 27 pages
3. Workman has also filed rejoinder controverting the pleas
taken by the management in writtenstatement and reiterating
those as in the claim. On pleadings of the parties, on 14.11.06, my
the then learned predecessor had framed the following issues :
1. Whether the workman herein is a workman
within the meaning of section 2 (S) of the
Industrial Disputes Act ?
2. Whether the services of the workman was
terminated illegally and/ or unjustifiably ?
3. Relief.
4. In support of his claim, the claimant/workman examined
himself as WW1 and WE was closed on 29.08.07. On behalf of
management, MW1 Sh. Hardeep Singh was examined and
management's evidence was closed on 07.04.2008. It is pertinent
to mention that vide order dated 22.02.08 passed by my learned
predecessor, workman's application was partly allowed and the
LIR/ D No. 887/06 (Old No. ID520/05) Page 8 of 27 pages
management was directed to produce the following records :
(i).The attendance and wage records of the
workman from 07.05.04 to 31.01.05.
(ii).Application for employment given by
the workman to the management.
(iii).Service record of Satwant Singh from
April 2004 to April 2005.
However, management failed to comply this order. Vide order
dated 11.09.08, management's application for seeking permission
to place on record certain documents was allowed subject to cost
of Rs. 3,000/ with direction that management shall be granted one
and only one opportunity to prove photocopies filed in the court by
producing the original records through MW1 or any other witness of
their choice. But the management failed to prove the said record by
examining any witness and the management's evidence was again
closed vide order dated 16.12.08.
LIR/ D No. 887/06 (Old No. ID520/05) Page 9 of 27 pages
It is also pertinent to mention that vide order dated 01.05.09,
management was granted last and final opportunity to join final
arguments subject to cost of Rs. 3,000/ but that was also not
complied.
5. I have heard the arguments from learned AR for workman
and case was fixed for orders but on oral prayer on behalf of
management, arguments on behalf of management were heard
who also filed written notes without any direction from the court. I
have gone through the record and considered the submissions in
view of the relevant provisions of law and my findings on the issues
are as under :
ISSUE NO. 1 :
6. As per section 2(s) of the 'Act', '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
LIR/ D No. 887/06 (Old No. ID520/05) Page 10 of 27 pages
terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an
industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as
a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute, but does
not include any such person
(i).who is subject to the Air Force, Act, 1950 (45 of 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 one thousand six hundred rupees per
mensem or exercise, 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.
LIR/ D No. 887/06 (Old No. ID520/05) Page 11 of 27 pages
On behalf of the management, it was submitted by learned
AR that the workman herein does not fall within the category of
workman as admittedly, he was appointed as Supervisor
(Technical) and management has pleaded that he was getting the
salary exceeding Rs. 1,600/ per month which is admitted fact also.
On behalf of workman, it has been submitted by learned AR that
mere designation as Supervisor (Technical) does not make the
claimant as Supervisor but it has to be seen whether he was
actually having any supervisory work or was merely doing manual
or clerical work. He has relied on the authority reported as "HCL
Infosystems Limited Vs. JPS Malik and Another, 2002 III AD
(Delhi) 1067".
Admittedly the workman was appointed on consolidated
salary of Rs. 5,000/ per month which was more than Rs. 1,600/.
However, other requirement u/s. 2 (s) of proviso(IV) of the 'Act'
LIR/ D No. 887/06 (Old No. ID520/05) Page 12 of 27 pages
whether he was employed in supervisory capacity is also required
to be considered. In his affidavit, Ex. WW1/A, claimant has
testified that even though his designation was Supervisor
(Technical) but his nature of duties was purely manual, clerical in
nature and he was not having any supervisory powers over the
employees working under him. He was not having any power to
recommend or to take the disciplinary action, to grant or sanction
leave or other powers over the employees working alongwith him.
In his crossexamination, he has denied the suggestion that he has
falsely stated that he was merely discharging duties of manual and
clerical nature. He also stated that even though, management had
given designation of Supervisor (Technical) but the management
never gave him supervisory work. He used to receive instructions
from General Manager, Incharge, Press and other higher officials
to do the manual work. Management had not given him any letter
LIR/ D No. 887/06 (Old No. ID520/05) Page 13 of 27 pages
to the effect that he should not discharge supervisory duties. He
denied the suggestion that his job was entirely of supervisory
nature, looking after the quality of product and giving guidance to
the workers working in the press in the technical department. He
denied the suggestion that all the persons working in the technical
department of the press were working under his supervision. MW1
Sh. Hardeep Singh examined on behalf of management has
testified that the workman was appointed on regular basis as
Supervisor (Technical) but in his crossexamination, he denied the
suggestion that workman was working in printing press of the
management and he used to do job of plate making, pasting and
colour cutting, although, he admitted that it is not the job of
supervisor and in the printing press said work is done. He claims
that there were 23 persons during his service tenure who used to
do the work of plate making, pasting and colour cutting but he
LIR/ D No. 887/06 (Old No. ID520/05) Page 14 of 27 pages
could not give the names of 23 persons. He admits that workman
did not have any power to mark any employee absent or to
sanction leave or to take disciplinary action against any employee
or to sanction any payment. In the authority relied by learned AR
for workman reported as "HCL Infosystems Limited Vs. JPS
Malik and Another, 2002 III AD (Delhi) 1067", Hon'ble High Court
has held that
"In the context in which the term
'Supervisor' has been used in the Act, it is
necessary that the person concerned
should have some disciplinary authority
over and above his subordinates to initiate
some disciplinary action without making a
reference to his own seniors and bosses.
If seen in this light, there is nothing on
record to show that any authority was
assigned to the respondent to issue a
LIR/ D No. 887/06 (Old No. ID520/05) Page 15 of 27 pages memo or a warning or an authority to recommend or to withhold promotion of his subordinate, leave aside the question of discretion to suspend, appoint or remove any person working under him. If the term 'Supervisor' is understood in this context in the Industrial Disputes Act, then its meaning has been raised to a very high pedestal as compared to the meaning of the term 'Supervisor' in ordinary parlance. Consequently, it does not appear that the learned Labour Court has committed any error in rejecting the contention of the petitioner that the respondent was not a "workman".
Reference was made on the authorities reported as :
1. BurmahShell Oil Storage and Distributing Company of India Ltd., Madras Vs. their employees [1995I LLJ 21].
LIR/ D No. 887/06 (Old No. ID520/05) Page 16 of 27 pages
2. Lloyds Bank Vs. Panna Lal Gupta, 1961 (1) LLJ 18.
3. Ved Prakash Gupta Vs. M/s. Delton Cable India (P) Ltd., 1984 Lab. 658 = AIR 1984 SC 914.
Keeping in view the said authority, admission of MW1 that the workman was not having any power to mark any employee absent or to sanction leave or to take disciplinary action against any employee or to sanction any payment, it is established that the workman was not having any power to supervise other employees in any way. Therefore, this issue is decided in faovur of workman and against the management.
ISSUE NO. 2 :
7. On behalf of workman, learned AR has submitted that workman was appointed vide letter of appointment dated 07.05.04 Ex. WW1/1 and was regularized vide letter dated 27.10.04 Ex.
WW1/2 and his services were terminated vide letter dated 11.10.05 LIR/ D No. 887/06 (Old No. ID520/05) Page 17 of 27 pages Ex. WW1/3 wherein reference was made to certain conditions whereas in the appointment letter no terms and conditions were mentioned. Workman also served legal demand notice dated 31.10.05 Ex. WW1/5 vide postal receipt Ex. WW1/6 and UPC Ex. WW1/7 to which management did not respond and workman was never supplied the copy of annexure M1 which was concocted and fabricated. According to him, MW1 in his crossexamination has admitted that management have no documents/ evidence to show that letter Ex. MW1/2 was served on the workman and therefore, termination of services of workman was illegal and unjustifiable.
On behalf of management, learned AR has submitted that the management never issued letter Ex. WW1/2 to the workman which was merely office note and workman was not entitled to have this document. On the other hand, management has regularized services of the workman through letter Ex. MW1/2 wherein it was LIR/ D No. 887/06 (Old No. ID520/05) Page 18 of 27 pages specifically mentioned that his appointment was purely temporary and his services could be terminated without any reason or without giving any notice besides other conditions and management has validly terminated services of workman according to the terms and conditions of the letter of appointment Ex. MW1/2. He has relied on authorities reported as :
1. Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam Prakash Srivastava & Anr, (2007) 1 SCC 491.
2. Gurjeet Singh Bhatia Vs. Management of Narang International Hotel Pvt. Ltd., (2007) 1 LLJ 403.
3. Meenakshi Sondhi & Ors. Vs. Guru Harkishan Public School, Hemkunt Colony, W.P. (C)No. 15881/2006.
4. Registrar, High Court of Gujrat & Anr.
Vs. C.G. Sharma, AIR 2005 SC 344.
5. Rajasthan State Road Transport Corporation & Ors. Vs. Zakir Hussain, LIR/ D No. 887/06 (Old No. ID520/05) Page 19 of 27 pages 2005 (6) SCALE 641.
6. A.K. Verma Vs. Union of India, 2004 III A D (DELHI) 625.
7. Rajajinagar Corporation Bank Ltd. Vs. K. Gururaj & Ors., (2001) 10 SCC 681.
8. Life Insurance Corporation of India & Ors. Vs. Raghvendra Sheshagiri Rao Kulkarni, (1997) 8 SCC 461.
9. M. Venugopal V. Divisional Manager, LIC, Machilipatnam, A.P. & Anr., (1994) 2 SCC 323.
10.Dr. (Mrs.) Rajni Kapoor Vs. V.C. Kurushetra University, 1984 (1) SCR 362.
There is no dispute that the management had appointed the workman as Supervisor (Technical) vide letter dated 07.05.04 as this fact has not been denied in the writtenstatement filed on behalf of management. MW1 in his crossexamination has also admitted that Ex. WW1/2 was issued by the management. He LIR/ D No. 887/06 (Old No. ID520/05) Page 20 of 27 pages denied the suggestion that Ex. MW1/2 was never issued to the workman and at the same time, he denied that he has no documentary evidence to show that letter Ex. MW1/2 was received by the workman. Therefore, there is no evidence on record that the management had either issued or delivered to the workman letter of appointment No. 10448/21, dated 27.10.04 Ex. MW1/2 and therefore, terms and conditions mentioned in the said letter cannot be made binding on the workman who was admittedly appointed by the management vide letter Ex. WW1/1 followed by letter of regularisation of his letter WW1/2. Therefore, relying on document Ex. MW1/2, the management could not invoke terms and conditions that the workman was appointed purely on temporary basis and his services could be terminated without any reason and without any notice. With due respect the authorities relied by learned AR for the management are not applicable on the LIR/ D No. 887/06 (Old No. ID520/05) Page 21 of 27 pages facts and circumstances of this case as there were no terms and conditions mentioned on letter of appointment Ex. WW1/1 and Ex. WW1/2. Ex. WW1/1 is the initial letter of appointment dated 07.05.04 and it has been followed by letter of regular appointment Ex. WW1/2 dated 27.10.04, but none of these letters of appointment show any terms and conditions which has been allegedly incorporated by the management in their letter Ex. MW 1/2 and was never served on the workman and therefore, workman was not appointed on probation nor his services could be terminated in terms of Ex. MW1/2. Admittedly he continuously worked with the management from 07.05.04 till 11.01.05 which establishes that workman had continuously worked with the management for more than 240 days but the management had admittedly terminated his services vide Ex. WW1/3 relying on terms and conditions of document Ex. MW1/2 which was never LIR/ D No. 887/06 (Old No. ID520/05) Page 22 of 27 pages served on the workman. It is pertinent to mention that MW1 did not produce the original record in the court despite opportunity rather he denied the suggestion that management has deliberately withheld the said record. Moreover, even if the contention raised on behalf of the management that Ex. MW1/2 was not meant for the workman and was merely an office note is believed it does not make much difference because admittedly the workman was working with the management since 07.05.04 and Ex. WW1/2 is only letter of regularisation of his services and it was not a case of fresh appointment.
It has been claimed by the management through MW1 that there was no need to give one month notice or one month salary in lieu thereof but the alleged workman was paid one month salary in lieu of one month notice vide cheque No. 114564 dated 12.01.05 drawn on Punjab & Sind Bank, Mata Sundri College alongwith LIR/ D No. 887/06 (Old No. ID520/05) Page 23 of 27 pages letter of termination dated 11.01.05. However, in the cross examination, WW1 has categorically denied the suggestion that alongwith Ex. WW1/3 there was a cheque given to him, details of which were given on point X in the said letter. He clarified that he has received the letter on 14.01.05 and on the next date he had visited the management and asked the management to give the said cheque but the management had refused, on the other hand MW1 Sh. Hardeep Singh in his crossexamination denied the suggestion that the management never sent cheque No 114564 dated 12.01.05 to the workman. He could not admit or deny the suggestion that amount of said cheque was never debited from the bank account of the management. He also admits the receipt of demand notice Ex. WW1/5 to which no reply was sent by the management wherein it was submitted that the service of workman were terminated without assigning any reason. Had the LIR/ D No. 887/06 (Old No. ID520/05) Page 24 of 27 pages management made the payment through cheque No. 114564 dated 12.01.05 drawn on Punjab & Sind Bank, Mata Sundri College, the management's witness could have categorically stated so or could have proved the same by producing the statement of bank account to show the payment had been credited to the account of the workman and therefore it is established that no such payment was made to the workman. Admittedly, no notice of one month was given to the workman by the management nor any payment in lieu thereof was made to the workman. Moreover, the management also did not pay retrenchment compensation and therefore, there was violation of provisions of section 25 of 'Act'.
Admittedly, the management terminated the services of workman vide Ex. WW1/3 without assigning any reason which clearly shows that services of the workman were terminated without holding any enquiry on account of any misconduct or LIR/ D No. 887/06 (Old No. ID520/05) Page 25 of 27 pages charge and there was noncompliance of provisions of section 25 of the 'Act". As such, is is held that services of workman were terminated by the management illegally and/ or unjustifiably. Issue is accordingly decided in favour of workman and against the management.
ISSUE NO. 3 (RELIEF) :
8. On this issue, the workman has testified through his affidavit Ex. WW1/A that after termination of his services, he was unemployed despite his best efforts and is on the verge of starvation. In his crossexamination, he has denied that he was gainfully employed. MW1 in his affidavit Ex. MW1/A has not claimed that workman was gainfully employed and therefore, is is established that the workman was not employed anywhere and there is no evidence on record that he was earning during the period after his termination. Therefore, workman is entitled for the LIR/ D No. 887/06 (Old No. ID520/05) Page 26 of 27 pages relief of reinstatement in service with full back wages.
Accordingly, management is directed to reinstate the workman within a period of 30 days from the date of publication of this award alongwith full back wages failing which the workman shall be entitled to interest @ 12% per annum till the date of actual payment. Claim is disposed of accordingly. Copy of award be sent for publication. File be consigned to Record Room. Announced in the open court on 3 Day of November, 2009 rd (T. S. KASHYAP) PRESIDING OFFICER, LABOUR COURTXIX, KARKARDOOMA COURTS, DELHI.
LIR/ D No. 887/06 (Old No. ID520/05) Page 27 of 27 pages