Delhi District Court
Smt. Maya Devi K vs The on 17 August, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LC 1315/16 (Old No. DID 85/09).
Unique ID No.02402C0267202009
IN THE MATTER OF:
Smt. Maya Devi K
W/o Sh. Sreekandan Nair
R/o A3/88B, Mayur Vihar, Phase3.
Delhi110096. ..............Workman
Versus.
THE MANAGEMENT OF
M/s Bennett, Coleman & Co. Ltd.
7, Bahadurshah Zafar Marg,
New Delhi110002. ............. Management
DATE OF INSTITUTION : 08.09.2009
DATE ON WHICH AWARD RESERVED : 08.08.2016
DATE ON WHICH AWARD PASSED : 17.08.2016
A W A R D :
1.This is a direct industrial dispute filed by the worklady under the Industrial Disputes Act, 1947 (hereinafter referred as "the Act") for reinstatement with continuity of service and full back wages.
2. Claimant's case is that she had joined the management as Steno Typist on 02.02.1990 and her last drawn salary was Rs.
LC 1315/16. 1/2116,455/ per month. She has unblemished service record. The management was harassing her since 1995 in order to transfer her to Non Wage Board category. When the harassment became unbearable, she bowed down before the management to accept appointment not governed by the Wage Board Structure. As per the terms of promotion letter dated 05.02.2008, she was to undergo medical examination after completion of 55 years of age and if found medically and mentally fit, she was to be given an extension of three more years. Accordingly, she appeared for medical examination and was allowed to continue for a period of three years w.e.f. 19.06.2008. The management again started harassing her in 2008 to take resignation from her which she refused. One Mr. Pushpal Dass, her Immediate Department Head, harassed her by withholding five annual increments from2001 to 2005. Sh. Pushpal Dass resigned from the services in 2006 and only thereafter she could get the annual increment in the year 200607. But he again joined the company in 2008 after which no increment was granted to her. She was not allowed to enter the office on 04.02.2009 against which she submitted representation dated 04.02.09 to Mr. Sidharth Khosla, Director, Times of India but there was no response. She reported for duty on 05.02.09 but she was not allowed to enter the office by the Security Guard on the ground that he had been instructed by the management not to allow LC 1315/16. 2/21 her to enter the office. She received the termination letter from the management on 06.02.09. Before it she had already approached the Delhi Commission for Women on 04.02.2009 by lodging a complaint that she was not being allowed to enter the office. DCW took cognizance of her complaint and summoned the management, which participated in the proceedings but refused to reinstate her in service. A fresh hand was recruited in her place. She sent a demand notice to the management on 25.07.09 but her demands were not accepted.
3. Written statement is to the effect that the claimant was discharging duties in an executive capacity and hence she is not a workman. She had herself requested vide letter dated 14.02.96 for upgradation to the executive cadre. Her request was accepted by the management vide letter dated 15.02.96. She availed the benefits of executive cadre for 14 years without any objection or dispute and hence she cannot be allowed to say that she was forced to work in executive cadre. She was transferred to the Times Syndication Services division in November 2002. That division was in the business of distributing high quality contents for use in print and online media. The contents of that division used to be drawn not only from Times Group publication but also from various external sources. The contents then used to be sold to various print and online clients of the management worldwide. So LC 1315/16. 3/21 it was essential that the selection and description of data/contents was done to the highest degree in order to ensure maximum level of sales. The claimant, as part of the said division, was engaged in the selection of cartoons from a common folder to be uploaded on to www.timescontent.com. Nature of job of the workman required her to provide an appropriate description to those contents in limited key words. In this way, she was directly linked to the sales of the cartoons/graphics uploaded to www.timescontent.com and had direct corelation to the business of times Syndication Services. In performing those duties, she was given free hand and complete independence. She was required to exercise discretion in selecting and describing the cartoons/graphics.
In the complaint filed before DCW, the claimant had herself stated that she was part of Times Syndication Services. But those facts have been deliberately concealed before this court. In that capacity, the claimant was getting target variable pay payable only to managerial personnel on the basis of their individual performance. The claimant was subject to annual evaluation in terms of her achievement against the agreed targets which, in turn, determined the extent of increment in her salary and also the amount of her target variable pay which was paid as a percentage of the projected 100% target pay depending on the level of efficiency and achievement of the concerned individual. She was also entitled to various reimbursements like conveyance LC 1315/16. 4/21 allowance, leave travel allowance, medical allowance that are allowed to Executive and Managerial staff.
The claimant has deliberately concealed the fact that she had filed a complaint against the management in DCW which was contested by the management. The management had brought to the notice of DCW that services of the claimant have been terminated in terms of her appointment letter dated 02.02.1990. The said commission had directed the claimant to approach the HR department of the management to settle her accounts. In pursuance of said direction, the management had paid her an amount of Rs. 4,40,291/ towards settlement of PF account. She was also paid a sum of Rs. 1,20,423/ as full and final settlement of her all claims. After making payment of those amounts, claimant's complaint was closed by DCW, vide order dated 23.07.2009 but those facts have been intentionally concealed by the claimant.
4. Following issues were framed on 05.05.2010:
(a) Whether the workman proves that she is covered under the definition of workman under ID Act?
(b) Whether the workman further proves that she was illegally terminated by the management?
(c) If so, what relief.
5. In order to substantiate the case, the claimant tendered her affidavit in evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. She LC 1315/16. 5/21 relied upon following documents:
(i) Ex.WW1/1 is demand notice.
(ii) Mark A is letter dated 17.06.2008 written by management.
(iii) Mark B is another letter dated 04.02.2009 of the management.
6. The management examined two witnesses.
MW1 Mr. V.P. Jacob, Manager in Corporate Human Resource of management repeated the contents of written statement and he relied upon following documents:
(i) Ex.MW1/1 is result of board resolution dt. 22.12.14.
(ii) Ex.MW1/2 is letter dt. 26.11.02.
(iii) Ex. MW1/B is excerpt of board resolution.
(iv) Appointment letter dt. 02.02.90 is already Ex.WW1/M1.
(v) Letter dt. 14.02.96 written by the claimant to the management is already Ex. WW1/M2.
(vi) Letter dt. 15.02.96 written by the management to the claimant is already Ex.WW1/M2.
(vii)Letter dt. 15.04.09 written by the claimant to the PF is already Ex. WW1/M5.
(viii) Mark A is letter dt. 04.11.07 written to the claimant by management.
MW2 Ms. Sabitha Dass is record keeper for Delhi Commission for Woman. She produced following documents: LC 1315/16. 6/21
(i) Complaint dated 21.01.2009 by claimant to DCW as Ex.MW2/1.
(ii) Registration of the said complaint was done vide document Ex.MW2/2.
(iii) Orders of DCW dated 27.01.2009, 12.02.2009, 24.03.2009, 12.06.2009 and 23.07.2009 are collectively Ex.MW2/3.
Issue No. a:
7. Ld. ARW argued that the claimant was appointed by the management as steno / typist on 02.02.1990 w.e.f. 01.01.1990 vide appointment letter Ex.WW1/M1. Later, the management forced her to come out of the category of wage board employee threatening that if she did not opt that course, her service would be terminated. Under fear of termination of service, the claimant had written a letter Ex.WW1/M2 on 14.02.1996 that she was willing to become executive in the management. Consequently, she was brought in the executive cadre vide appointment letter Ex.WW1/M3, but her service conditions remained the same. Even after coming in the executive cadre, she was initially performing the function for typist. Later, she became data entry operator. She was working as data entry operator when her service was illegally terminated vide termination letter Ex.MW1/2 dated 04.02.2009.
He submitted that the typist and data entry operators are workman within the definition of Section 2(s) of the I.D. Act, 1947. He LC 1315/16. 7/21 relied upon (i) Ved Prakash Gupta Vs. M/s. Delton Cable India Pvt. Ltd. 1984 2 SCC 569, (ii) S.K. Verma Vs. Mahesh Chandra & Anr. AIR 1984 SC 1462 and (iii) Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd. AIR 1985 SC 985.
On the other hand, Ld. ARM submitted that initially the claimant was appointed as a typist but in 1996, she wrote a letter Ex.WW1/M2 that she had acquired additional qualification and so, she be brought in the category of executive. On her asking, she was appointed as confidential assistant in executive cadre vide appointment letter Ex.WW1/M2 and she used to perform function of an expert as her duty in Times Syndication Services Division was to select cartons from a common folder to be uploaded on www.timescontent.com. That division was in the business of distributing higher quality contents for use in print and online media. The contents of that division used to be drawn not only from times cadre publication, but also from various other sources. Those contents used to be sold to various print and online clients of the management worldwide. So, it was essential that the selection and description was of the highest degree in order to ensure maximum level of sales. She was required to exercise discretion in selecting and describing the cartoons. She was required to perform job of an expert and that is why her salary was based upon her performance and it was variable. He relied upon LC 1315/16. 8/21 Chauharya Tripathi and Others Vs. Life Insurance Corporation of India and Others (2015) 7 SC 263.
8. Following are the admitted facts:
(i) Claimant was appointed as steno/typist on 02.02.1990 w.e.f. 01.01.1990 on a basic salary of Rs.1950/ per month in the grade of Rs.1950 95 2425105295011534101253910. She was also getting dearness allowance of Rs.221.71 and HRA of Rs.200/ per month.
(ii) The claimant has moved an application Ex.WW1/M2 dated 14.02.1996 to become executive in the management.
(iii) In pursuance to the application, the claimant was promoted as Confidential Assistant in the Executive Cadre vide appointment letter Ex.WW1/M3 dated 15.02.1996 and she was getting salary of Rs. 4060/ per month, HRA of Rs.1125/ per month, medical expenses of Rs.3600/ per annum, LTA of Rs.3,000/ per annum, newspaper and periodicals of Rs.150/ per annum and conveyance expenses of Rs.3225/ P.Q.
(iv) Date of birth of claimant as per Ex.WW1/M5 is 19.06.1953.
(v) As per terms and conditions of appointment letter Ex.WW1/M1, the retirement age is 58 years. However, an extension of two years may be granted by the management.
LC 1315/16. 9/21(vi) As per terms and conditions of appointment letter Ex.WW1/M1, the claimant's service could be terminated by written notice on either side of one month or salary in lieu of such notice.
(vii) As per terms and conditions of appointment letter Ex.WW1/M3, the claimant was to retire on attaining the age of 55 years. However, an extension of three years may be granted by management if she was found physically and mentally fit.
(viii) The management had extended the service of the claimant up to 58 years i.e. for three more years effective from June 19, 2008 vide letter Ex.MW1/W1 dated 17.06.2008.
(ix) Claimant's service was terminated vide letter Mark B dated 04.02.2009.
9. In Ved Prakash Gupta Vs. M/s. Delton Cable India Pvt. Ltd. (supra), the claimant was working as a security inspector and a telephone was provided in his room. He did not have power to appoint or dismiss or even take any disciplinary action against any workman of the establishment. He was to do writing work only for 10 to 30 minutes in the second shift and almost no writing work at all in the first and third shifts . The Hon'ble Supreme Court held him workman. In Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd. (supra), the Apex Court propounded the LC 1315/16. 10/21 following law:
(i) Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant.
10. In the case in hand, it has been admitted by MW1 that the claimant did not have any power to appoint anyone in the company. She was not empowered to sanction leave of any employee or to grant annual increment. He is not aware whether any worker was working under her. In Chauharya Tripathi and Others (Supra) (relied upon by management), it was held by the Hon'ble Supreme Court that even if the person did not have authority either to appoint any person or to take disciplinary action against them and even if the employee did not have authority to supervise the work of the agents though he was required to train them and assist them, such a person was not workman. That LC 1315/16. 11/21 citation cuts to size the arguments of Ld. ARW that the claimant did not have authority to appoint any person or to take disciplinary action against them.
11. It is correct that MW1 could not tell whether the salary of the claimant was less than even the fourth class employee governed under wage board. He could not tell for how many months, the claimant had got variable pay. He could not tell the name of the employee who was drawing less wages than the claimant. But it is the admitted fact that the claimant had moved an application Ex.WW1/M2 for promotion in executive of the management. Ld. ARW argued that the claimant had preferred to come to executive section because the management had threatened to terminate her service if she did not choose that course. Admittedly, as per appointment letter Ex.WW1/M3, the claimant had come into Executive Section in 1996. Her service was terminated in the year 2009. In this way, she had enjoyed the facility of executive cadre for long 15 years. After consuming such facilities for such a long time, she cannot be allowed to turn and say that she was forced to go to Executive Section. Moreover, she admitted in crossexamination that she had not lodged any complaint against the management when she was forced to go to executive section. Comparison of her salary contained in appointment letter Ex.WW1/M1 and Ex.WW1/M3 shows that she LC 1315/16. 12/21 was getting quite high salary than the salary of steno / typist which she was initially recruited.
12. Ld. ARW argued that despite promotion to executive section, the claimant was working as steno. His this argument has been cut short by examinationinchief of claimant herself in which she deposed that she was working as data entry operator.
It has been admitted by claimant that she was getting variable pay. Had she been a worklady, she would have got bonus which she was not admittedly getting. Receiving variable salary shows that her salary was based upon her performance. On this, Ld. ARW argued that even the wage board employees were also getting variable pay but he could not place on record any document to that effect.
It is the admitted case of claimant that she had given complaint Ex.WW1/M4 to Delhi Commission for Woman. In that complaint, it is mentioned that she was working in Times Syndication Service Department of the management. It has been deposed by MW1 that Times Syndication Service Department was in the business of distribution of high quality contents for use in print and on line media. The claimant was transferred to that department on 26.11.2002. The contents of that department were drawn not only from Times Group Publication, but also from external sources. The contents used to be sold to print and on line LC 1315/16. 13/21 customers worldwide. MW1 further deposed that claimant's duty in that department was to select cartoons from various folders to be uploaded on www.timescontent.com. She was further required to provide appropriate description of the contents in limited keywords. In this way, she was directly linked to the sale of cartoons/graphics to be uploaded on www.timescontent.com and hence, was in direct corelation to the business of times Syndication Services. Above deposition makes it clear that it was claimant who used to choose cartoons and graphics from publications of Times groups and other external sources. Thereafter, she was required to give appropriate description to those contents in limited keywords. After doing so much work, she was required to upload the cartoons and graphics on the website of the management. It shows that her main work was the selection of cartoons / graphics and giving them appropriate description. Her incidental duty was to upload them on website of the management. Uploading of such contents on the website amounted to the work of data entry operator, but that duty was incidental.
Before coming to the executive section, she had completed graduation from Kerala University. She had obtained one year diploma in secretarial practice. She had acquired good command in language. She had done computer diploma to increase her LC 1315/16. 14/21 knowledge and skills. All those skills have been mentioned in application Ex.WW1/M2. It may be true that she may be at bottom level of Times Syndication Service Department. It may be possible that she might be getting lowest salary in that department, but all these factors are irrelevant for determining whether she was worklady or not because the main factor is her nature of duty. Her nature of duty required higher knowledge and expertise which she was using in selecting cartoons and graphics and describing them in few words.
13. In Divyash Pandit Vs. The Management of National Council for Cement and Building Materials, 2012 LLR 463, the sole question before the Hon'ble High Court of Delhi was whether the claimant was a workman or not. In that case, the workman was an engineer graduate. He used to carry out research work in process engineering field related to cement industry claiming to have special knowledge in research work. Considering the nature of work which the workman was performing, the Hon'ble High Court held that it cannot be said that he was doing any manual, unskilled, skilled, technical, operational or clerical work within the meaning of Section 2(s) of the I.D. Act, 1947.
In May and Baker (India) V. Their Workman, AIR 1961 SC 678, the Apex Court held that if the nature of duties is manual or clerical then the person must be held to be workman. On the LC 1315/16. 15/21 other hand, if manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman.
In Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and others AIR 1988 SC 1700, the question before the Apex Court was whether a teacher was a workman or not. The Apex Court held that imparting of education which the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The Supreme Court concluded that the clerical work, if any they may do, is only incidental to their principal work of teaching. The Court held them not workmen.
In Jamia Hamdard Vs. Delhi Administration and others 44 (1992) DLT 210 (DB), following was held by the Apex Court : "Research of course is usually for the benefit of mankind but when it is successfully carried out it primarily and essentially brings credit to the researcher various Nobel Laureates have achieved distinction in sciences through research which was carried out by them in the very nature of things research means bringing out a creative work. It is difficult for us to LC 1315/16. 16/21 comprehend as to how a highly qualified post graduate research fellow can possibly be regarded as a workman within the meaning of Section 2(s) of the Act".
In Management of M/s. Sonepat Coop. Sugar Mills Ltd. Vs. Ajit Singh Appeal (Civil) 845354 of 2002 decided by Apex Court on 14.02.2005., the claimant was working with the management on the post of Legal Assistant. The nature of his duties was to prepare written statements and notices, recording enquiry proceedings, giving opinions to the management, drafting, filling the pleadings and representing the management in all types of cases viz., civil, labour and arbitration references independently. The Apex Court held that the job of a clerk ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. The Apex Court held that the claimant's job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the appellant as also represent it before various courts / authorities. He would also discharge a quasijudicial functions as an Enquiry Officer in departmental enquiries against the workmen. Such a job, would not make him a workman.
14. In view of above discussion, this issue is decided in favour of management and against claimant by holding that the claimnat LC 1315/16. 17/21 is not a workman.
Issue No. b:
15. After holding that claimant was not a workman, the labour court loses jurisdiction to decide other issues. But taking into account the fact that if the higher courts come to the conclusion that the claimant was a workman, decision of this court on this issue shall be helpful for the higher courts to decide the case fully and finally. Due to that reason, this issue is being taken up.
16. Ld. ARM argued that as per terms and conditions of appointment letter Ex.WW1/M1, the service of the claimant may be terminated by the management by one months written notice or salary in lieu of such notice. He further submitted that when the claimant was taken in executive section vide appointment letter Ex.WW1/M3, that condition remained unchanged. He further argued that the service of the claimant was terminated by way of notice Mark B dated 04.02.2009 mentioning therein that an amount equivalent to one month salary in lieu of notice would be paid to her along with final settlement.
On the other hand, Ld. ARW argued that when a person has worked with the management for 240 days, the provisions of Section 25F of the I.D. Act, 1947 are applicable. The management was required to pay retrenchment compensation also which was LC 1315/16. 18/21 not paid to her and hence, termination is illegal.
17. As per Section 25F of the I.D. Act, 1947, the service of a workman can be terminated by management by giving one month notice or notice pay in lieu of notice and by tendering retrenchment compensation @ 15 days salary for every completed year with the management. If the terms and conditions of appointment of the employment are in derogation to any Statute, the same are void. The appointment letters Ex.WW1/M1 and Ex.WW1/M3 do not talk of any retrenchment compensation and hence, those terms and conditions cannot be relied upon. The claimant had worked with the management from 1990 to 2009 i.e. 19 years. While terminating her service, the management was required to pay her salary of 9 ½ months as retrenchment compensation which it did not give and hence, her termination is illegal.
Issue No. c:
18. Ld. ARM argued that the claimant had filed a complaint in Delhi Commission for Women where she was paid all dues and hence, she is not entitled to any relief.
On the other hand, Ld. ARW argued that Delhi Commission for Women is not a proper forum to decide the labour disputes. Moreover, the proceedings dated 23.07.2009 Ex.MW2/3 of DCW do not bear the signature of the claimant proving that the claimant LC 1315/16. 19/21 was not satisfied with payment made by management.
19. It is correct that Delhi Commission for Women is not an appropriate forum for resolution of labour disputes. Despite it, it was claimant who had approached the said Commission. It was claimant who had forced the management to appear before that Commission. Now she cannot be allowed to say that the Commission was not the proper forum to decide her dispute.
The claimant concealed the proceedings of Delhi Commission for Woman. Those proceedings have been proved by management by examining MW2. The last ordersheet of DCW is dated 23.07.2009 in which it is mentioned that the claimant was very much present before the Commission. Mr. Siddharth Ganguli was present on behalf of management. It is further mentioned that the management had paid claimant her full and final dues and hence, the claimant's complaint was being closed. The claimant did not state in statement of claim and affidavit in evidence Ex.WW1/A as to what amount was paid by management to her. It has been deposed by MW1 that the management had paid her PF of Rs.4,40,291/. The management had paid her a sum of Rs.1,20,423/ as full and final settlement of her all claims. That amount has not been disputed by claimant. It is correct that the last proceedings dated 23.07.2009 of DCW do not bear signature of the claimant. She was very much present before the LC 1315/16. 20/21 Commission and her presence has been marked. She concealed all these facts from this court and perhaps deliberately. So, it is held that claimant's service was though terminated illegally but subsequently, she settled the matter with management. In view of this fact and of the fact that claimant was not a workman, it is held that she is not entitled to any relief. Statement of claim is dismissed. Award is passed accordingly. Parties to bear their own costs.
20. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 17.08.2016. POLCXVII/KKD, DELHI.
LC 1315/16. 21/21