Delhi District Court
Sh. Satyapal Singh vs M/S Continental Fuse Gears on 3 October, 2009
1
IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 64/97/09
1.Sh. Satyapal Singh s/o Sh. Gajraj Singh
2. Sh. Ashok Sharma s/o Sh. Hari Swaroop Sharma C/o Bhartiya Mazdoor Sangh 668, Kabul Nagar, G.T. Road Shahdara, Delhi32. ...... claimant VERSUS M/s Continental Fuse Gears 125, Ram Nagar, Krishna Nagar Delhi51 ...... Management Date of Institution of the Case : 06.09.97 Date on which the judgment has been reserved : 25.09.09 Date of delivery of judgment : 03.10.09 A W A R D
1. The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24(2069)/97/Lab./23810 14 dated 24.07.97 referred the dispute for adjudication between 1/41 2 the Management M/s Continental Fuse Gears and its workmen Sh. Satyapal and Sh. Ashok Kumar Sharma in the following terms of reference:
"Whether the services of Sh. Satyapal and Sh. Ashok Kumar Sharma have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?"
2. As per claim, workman Satyapal worked with the said management on the post of General ClerkcumEngineer since February 1986 till 28.11.96 and Ashok kumar Sharma as Cash book, ledger, sales tax register and purchase register Clerk since January 1995 till 28.11.96 and their last drawn wages were Rs. 4625/ and Rs. 4975/ per month respectively. It is further stated that claimants had never afforded any chance of complaint to the management. It is further stated that the management has not registered the names of the workmen at the time of their joining. It is further stated that the name of workman Satyapal was registered in the register of the management on 02.04.86 instead of February 1986 and of workman Ashok Kumar Sharma on 01.04.96 instead of January 1995. It is further stated that the workmen orally requested the management to register their names since the date of their joining but management neither did so nor gave any appointment letter to the workmen. It is further stated that the 2/41 3 workmen were deprived of legal facilities e.g appointment letter, leave encashment, casual leave, minimum wages, leave book, attendance card etc. It is further stated that despite demanded verbally, they were not provided the said facilities. It is further stated that while paying the wages, management had not made the entry in the wages register and when verbally requested by the workmen for making entries in the wages register, management gave threat of terminating their services. It is further stated that when on 29.11.96 workmen again demanded their legal facilities i.e. Appointment letter, leave encashment, casual leave, wages slip, leave book, attendance card, entry in the wages register etc. and workman Ashok Kumar demanded bonus for the year 199495 as well as 9596, Sh. Pradeep Aggarwal s/o Sh. J.P. Gupta refused to take the workmen on duty and terminated their services w.e.f. 29.11.96. It is further stated that Sh. Pradeep Aggarwal also threatened the workmen to falsely implicate them in the criminal case. On this, workmen Satyapal and Ashok Kumar Sharma made a written complaint to SHO, PS Krishna Nagar, Dy. Commissioner, Commissioner of Police and Home Minister in this regard on 01.12.96 as well as on 04.12.96 respectively. It is further stated that the earned wages for the period 01.11.96 to 28.11.96, leave encashment and bonus for the year 199697 of workman Satyapal is due towards the management. It is further stated that bonus for the year 1994 3/41 4 95, 9596 and 9697, earned wages for the period 01.11.96 to 28.11.96 of workman Ashok Kumar Sharma is also due towards the management. It is further stated that workmen Satyapal Singh and Ashok Kumar Sharma sent legal demand notices dated 01.12.96 and 04.12.96 respectively through registered AD and UPC which were not replied by the management. It is further stated that claimants had made a complaint before Asst. Labour Commissioner regarding the said illegal termination. It is further stated that on 09.12.96 Labour Inspector visited the management and in his presence Sh. Pradeep Aggarwal admitted Sh. Satyapal Singh as his workman from seven years and Sh. Ashok Kumar Sharma from 1 ½ years. It is further stated that management had neither allowed the Labour Inspector to inspect the factory nor shown any record of the workmen to him on which Labour Inspector submitted his report dt. 15.01.97. It is further stated that workmen filed a complaint before Conciliation Officer and despite repeated directions of the Conciliation Officer, management neither appeared before Conciliation Officer nor replied to the statement of claim of the workmen. Hence, the present reference was filed by the workmen regarding their illegal termination. It is further stated that workmen are unemployed since the date of termination. They prayed for reinstatement in service with full back wages and all other consequential benefits.
4/41
5
3. Notice of claim was sent to management. AR for management appeared and filed WS wherein it is stated that the reference is bad in law as the Govt. of NCT of Delhi has failed to refer the contentions of the management raised by it vide its WS before Conciliation Officer cum Asstt. Labour Commissioner, Vishkarma Nagar. It is further stated that the claimants have abandoned their services by not resuming their duties of their own sweet will w.e.f. 29.11.96 when the son of the proprietor asked them to give the details of sales and stock when his father was admitted in hospital on 22.11.96 and expired on 23.12.96 due to the said sickness. It is further stated that both the claimants were working and performing the managerial and supervisory duties including appointment of employees and sanction of leave etc. as such they are not covered under the definition of section 2(s) of the I.D. Act 1947. It is further stated that workman Satyapal was working as Manager in the establishment and Ashok Kumar Sharma was working as Manager (Sales). It is further stated that the proprietor of management Sh. J.P. Gupta was not capable to visit the establishment in the last two years before he expired. It is further stated that earlier Mr. Satyapal Singh was working exclusively and was looking after the total business activity of his own and later on Mr. Ashok Kumar Sharma also joined him to control the sales affairs as Manager (Sales) w.e.f. 01.04.96 and both of them worked uptil 28.11.96 and thereafter abandoned 5/41 6 their services of their own by not resuming their duties w.e.f. 29.11.96. It is further stated that in their absence, on scrutiny of accounts and other business papers, it was revealed that both of them in collusion and connivance of each other, not only removed the relevant documents, records etc. but also misappropriated the funds and stocks taking benefit of the sickness of the proprietor of the management Sh. J.P. Gupta. It is further stated that the claimants raised the present false and frivolous Industrial Dispute against the management with the sole motive to pressurize the management not to initiate any legal proceedings against them.
In reply on merits, It is stated that the last drawn wages of the claimants were Rs. 3300/ per month and apart from the same they were drawing a sum of Rs. 825/ as HRA and a sum of Rs. 500/ as conveyance allowance. It is specifically denied that the legal facilities were not provided to the claimants. Rather the claimants were themselves working in managerial capacity as such they have got no legal right to make such false and after thought complaints. It is further submitted that the huge amount is due to the management from the claimants on account of misappropriation and embezzlement and nothing is due to the claimants from the management. It is further submitted that the claimants were duly offered duties in the conciliation also as is evident from the contents of 6/41 7 para no.5 of the written statement duly submitted by the management before the conciliation officer. It is denied that the services of the claimants were terminated by the management without giving any notice or charge sheet. On the contrary, it is submitted that since the management has never terminated the services of the claimants as such there was no question of leveling any charge or issuing of any charge sheet to the claimants. It is further stated that as per knowledge of the management, the claimants are gainfully employed somewhere else and the management reserves its right to prove the same at the appropriate stage by adducing evidence. It is prayed that the statement of claim filed by the claimants may kindly be dismissed being false and frivolous.
4. Subsequently, Rejoinder to the W.S. of the management was filed wherein the claimant has denied the allegations made in the WS and reiterated the averments contained in the claim.
5. After completion of pleadings, following issues were framed on 10.03.00 :
1. Whether the claimants are not workmen as per definition U/s 2(s) of the I.D. Act 1947?
2. Whether the claimants abandoned their services by not resuming their duties of their own sweet will 7/41 8 w.e.f. 29.11.96, if so, its effect?
3. As per terms of reference.
6. Parties led their evidence.
On behalf of claimants, claimants Sh. Satyapal Singh and Sh. Ashok Kumar Sharma examined themselves as WW1 and WW2 respectively, one Sh. B.S. Chauhan, Ex. Labour Inspector was examined as WW3, Sh. V.K. Rao, Inspecting Officer as WW4 and Sh. Jagdish Chand, Ahlmad of the office of Labour Commissioner as WW5.
On behalf of management, Sh. Pradeep Aggarwal deposed as MW1.
7. WW 1 in evidence by way of affidavit supported the averments made in the claim and got exhibited copy of demand notice dated. 04.12.96 Ex. WW 1/1, copy of postal receipt no.0961 Ex. WW 1/2, copy of UPC dated 04.12.96 Ex. WW 1/3, registered AD Ex. WW 1/4, Certificate of Diploma in Electrical Engineering of workman Satypal Ex. WW1/5, complaint dt. 01.12.96 Ex. WW1/6, postal receipt no. 0958 to 0963 Ex. WW1/7 to WW1/11, acknowledgment receipts Ex. WW1/12 to Ex. WW 1/14, complaint before Labour Office Ex. WW1/15, report of Labour Inspector Ex. WW1/16, demand notice dt. 03.02.97 Ex. WW1/17, copy of postal receipts dt. 03.12.97 Ex. WW1/18, UPC Ex. WW1/19, complaint before Conciliation Officer dt. 05.12.97 8/41 9 Ex. WW1/20, complaint dt. 22.09.97 Ex. WW1/21, complaint dt. 05.12.97 Ex. WW1/22, report of Labour Inspector (Bonus) dt. 02.12.98 Ex. WW1/23, copies of bank vouchers Ex. WW1/24 to WW1/27, statement July 1995 Ex. WW1/28 and Ex. WW1/28A, Cheque deposit slips of Saving Account of workman Ex. WW1/29 to Ex. WW1/31, copy of bank Pass Book Ex. WW1/ 32 and Ex. WW1/32A, statement of claim Ex. WW1/33.
WW 1 was cross examined. In cross examination of WW1, he deposed that no appointment letter was issued to him at the time of his appointment. He further deposed that he worked with the management till 28.11.96 and at that time, his salary was Rs. 4,625/ per month. He suggested it wrong that he had been working with the management on the post of Manager. In his cross examination, he admitted his signatures on Ex. WW1/M1 and Ex. WW1/M2. He further admitted his signatures on Ex. WW1/M3 to Ex.WW1/M9. He deposed that he worked with the management as Engineercumgeneral Clerk. He further deposed that he worked with the management till 28.11.96 and thereafter he never went to the management. In his deposition, he deposed that Sh. Jai Prakash Gupta was the proprietor of the management in November 1996. He further deposed that Sh. Jai Prakash Gupta was hospitalized in the month of November 1996 that is why his son Pradeep Aggarwal was looking after the business. He suggested it wrong that in 9/41 10 November 1996 Sh. Pradeep Aggarwal asked him about Sales and Stock. He suggested it wrong that Sh. Jai Prakash Gupta was unable to look after the work of factor for the last two years. He further suggested it wrong that in absence of Sh. Jai Prakash Gupta, he was the whole sole incharge of the factory. He again suggested it wrong that Sh. Ashok Kumar Sharma appointed as Manager Sales with the management on 01.04.96. He deposed that during the tenure of his service, he looked after the excise work as he was authorized for the same. He also looked after the work of Excise Deptt. Sales Deptt., Bank etc. on behalf of management. He suggested it wrong that he maintained funds and stock of the management. He admitted that Sh. Jai Prakash Gupta remained ill continuously about two years. He suggested it wrong to due to illness of Sh. Jai Prakash Gupta, Sh. Pradeep Aggarwal could not come to the factory. He suggested it wrong that the other workers used to give application for the job to him. He further suggested it wrong that he also used to take interview of the workers applied for the job. He admitted his signatures on Ex. WW1/M10 to Ex. WW1/18. He further admitted that Ex. WW1/M17 and WW1/M18 are the reports submitted to the Excise Deptt. before budget in a year regarding stock position. He further admitted that he was authorized signatory of the management in the said two exhibits.
8. WW 2 in evidence by way of affidavit supported the 10/41 11 averments made in the claim and got exhibited copy of demand notice dated. 04.12.96 Ex. WW 1/1, copy of postal receipt no.3157 Ex. WW 1/2, copy of UPC dated 04.12.96 Ex. WW 1/3, registered AD Ex. WW 1/4, complaint dt. 04.12.96 Ex. WW1/5, postal receipt no. 3153 to 3156 Ex. WW1/6 to WW1/9, acknowledgment receipts Ex. WW1/10 to Ex. WW 1/12, complaint before Labour Office Ex. WW1/13, report of Labour Inspector dt. 15.01.97 Ex. WW1/14, demand notice dt. 04.02.97 Ex. WW1/15, copy of postal receipts no.1276 dt. 03.12.97 Ex. WW1/16, UPC Ex. WW1/17, complaint before Conciliation Officer dt. 05.2.97 Ex. WW1/18, complaint dt. 22.09.97 Ex. WW1/19, complaint dt. 05.12.97 Ex. WW1/20, report of Labour Inspector (Bonus) dt. 02.12.98 Ex. WW1/21, copies of bank vouchers Ex. WW1/22 to WW1/25, statement July 1995 Ex. WW1/26 and Ex. WW1/26A, copy of pass book Ex. WW1/27 and WW1/27B, statement of claim Ex. WW1/28.
During his cross examination, WW2 Sh. Ashok Kumar Sharma deposed that he used to maintain accounts books of the management during the tenure of his services besides doing general work i.e. to maintain ledger, sale and purchase papers. He further deposed that he was not given any appointment letter when he was taken in the employment. He further deposed that his name was entered in the attendance register w.e.f. 01.04.95 and his designation was not mentioned against his name in the attendance register. 11/41
12 In his deposition, he denied his signatures on Mark X1 to X5. He suggested it wrong that he was given power of attorney of management to represent management before Income Tax & Sales Tax authority. He suggested it wrong that he used to look after Sale and Purchase of the management. He deposed that his last drawn wages were Rs. 4,976/. He further deposed that Jai Prakash Gupta remained sick but he was active in work throughout the period. He suggested it wrong that he used to order purchase raw material for management and used to make the payment of his own. He deposed that there was no shortage of stock during the hospitalization of the proprietor. He further suggested it wrong that while the shortage of stock came to the knowledge of the proprietor, he stopped coming on duty with Satya Prakash and never came back.
9. WW3 Sh. B.S. Chauhan, in his deposition, deposed that on December 1996 he was posted as Labour Inspector at Jhilmil Colony, Vishwakarma Nagar. He deposed that on 02.12.96 Asstt. Labour Commissioner gave me complaint made by the Union of the workman. On 09.12.96 he visited the factory of the management. He further deposed that Ex. WW1/15 and Ex. WW1/13 are the copies of the complaint. He deposed that he talked with Pradeep Aggarwal about the termination of the claimants.
12/41
13 In his deposition, he deposed that Sh. Pradeep Aggarwal admitted that claim Satpal Singh had worked for seven years and Ashok Kumar Sharma had worked with them for 1 ½ years but he refused to sign on the statement papers. He deposed that management refused to give any payment to the claimants. He deposed that management neither allowed him to inspect the factory nor had shown any record. He further deposed that he sent notices to the management on 09.12.96, 16.12.96, 30.12.96 and 10.01.97 but none appeared on behalf of management.
During the course of his cross examination, he deposed that he did not enquire from the management regarding the post of the employees namely Satyapal Singh and Ashok Kumar Sharma. He further deposed that he asked for the record from the management but the management did not show any record. He suggested it wrong that management told me that the employees are posted at the post of Manager. He suggested it wrong that the management told him that they are ready to take the workmen on duty.
10. WW5 in his deposition got exhibited copy of conciliation proceedings Ex. WW5/A and the copy of failure report as Ex. WW5/B. He admitted that the Conciliation Officer summoned the management for 10.02.97, 24.02.97 & 03.04.97 but the 13/41 14 management did not appear. He further admitted that the management has not filed reply to the statement of claim during the conciliation proceedings.
This witness was not cross examined on behalf of management.
11. MW 1 Sh. Pradeep Aggarwal in his examination in chief supported the averments mentioned in the WS and got exhibited copy of reply filed before Conciliation Officer Ex. MW1/1 and its postal receipts Ex. MW1/2 In cross examination of MW 1, he deposed that at present the management is continuing its business at 31/57, Bhikam Singh Colony, Vishwas Nagar, Delhi. He further deposed that he did not remember the name of the managers from 1979 till 28.11.96. He further stated that when he was working as Trainee, Mr. Satyapal singh was Manager and Mr. Ashok Kumar Sharma joined later on as Manager Sales after 5 years. He deposed that the record of the factory remains in the factory, however, under the lock and key of the Manager. He suggested it wrong that there is no written proof that Sh. Satya Pal Singh was Manager and Ashok Kumar Sharma was Manager Sales. The said documents are Ex. WW1/M1, Ex. WW1/M16 and Ex. WW1/M18. He admitted that the application Ex. WW1/M1 is addressed to Manager. He suggested it wrong that 14/41 15 workman Satyapal Singh received the application as claimant. He deposed in his deposition that whenever there is inspection by authority under the factory act, the claimant Satyapal Singh used to represent the company as Manager. He suggested it wrong that the claimant had no power to appoint any workman, give or sanction leave to any workman or to terminate any workman or to issue charge sheet against the enquiry or to accept resignation of any workman. He admitted that Ashok Kumar Sharma had worked from January 1995 to 28.11.96 continuously. He suggested it wrong that he did not look after the business of the management firm during the period February 1986 to November 1996. He deposed that when his father was on dialysis, he was looking after the business but he was not having any specific post. He suggested it wrong that Ex. WW1/M6 was not received as the post of Clerk. He deposed that document Ex. WW1/M6 does not bear that the resignation is accepted. He admitted that Ex. WW1/M6 does not bear the rubber stamp of Manager and it does not bear "Manager". He admitted that Mark B contains the designation of Ashok Kumar Sharma. He suggested it wrong that he had manipulated these documents. He deposed that the nature of work of Manager as well as Electrical Engineer were same in the management. He admitted that Ex. WW1/1 to Ex. WW1/4 bears the correct address of the management. He deposed that he cannot say whether management received Ex. 15/41
16 WW1/1 or not. He further deposed that he cannot say whether the reply was filed or not.
12. Arguments by both the parties heard.
It is stated by AR for workmen Satyapal Singh and Ashok Kumar Sharma worked with the management from February 1986 and January 1995 respectively till 28.11.96 when they were terminated from their services and thereafter not allowed to join. It is further stated that in WS, management has not given any specific reply about demand letters sent to the management. It is further stated that during cross examination of MW1 also, there is no specific reply regarding receipt of demand letters. AR for workmen states that no notice or public notice of termination was issued by the management. Management has also failed to explain either in its WS or in evidence that which document was in possession with which workman. It is stated by AR for workmen that management has filed two different salary sheet for the same month and year i.e. April 1996 which raise a question regarding authentication of the document. It is further stated that management has filed the document Ex. WW1M1, Ex. WW1/M16 and Ex. WW1/M18 but the word "Manager" was not written in any of the said documents. During cross examination, MW1 Pradeep Aggarwal admitted that he attended conciliation proceedings. AR for claimant states that he failed to show any proof of abandoning the services by workmen in the 16/41 17 conciliation proceedings. AR for claimant further states that the onus to prove that the workmen themselves abandoned their services was on the management, which the management failed to discharge.
AR for workman filed citations which are as under:
LKP Merchant Financing Ltd. vs. Govt. of NCT, Delhi & Ors.2003 LLR 367 Shankerbhai Nathalal Prajapati vs. Maize Products, 2003 LLR 192 Sharad Kumar vs. Govt. of NCT, Delhi & Ors. 2002 LLR 545 Anand Regional Coop. Oil Seedsgrowers Union Ltd. vs. Shailesh Kumar Harshadbhai Shah, 2006 LLR 1052.
On the other hand, AR for management stated that the claimants were working and performing the managerial and supervisory duties including appointment of employees and sanction of leave etc. as such they are not covered under the definition of section 2(s) of the I.D. Act 1947. AR for management further states that management filed its reply before Conciliation Officer wherein workmen were asked to join their services but instead of joining their duties, they filed the present case against management. It is further stated that by filing Ex. WW1/M1 and WW1/M10 management proves that workman Satyapal was working and performing the managerial 17/41 18 and supervisory duties in the management.
Citations were filed on behalf of management which are as under :
In C.Channaiah vs. Presiding Officer, Labour Coourt & Ors. 1991 LLR 626: LLR 1991(63) FLR 80, it was held that:
"A person working in a capacity of a Manager - his duties are not in the nature of clerical - he is not a workman - salary drawn by him is not the sole criterion to decide this question"
In S.K.Maini Vs. Carona Sahu Co. Ltd. Ors. 1994 LLR 321, 1994 (68) FLR 1101. it was held that:
"A shop Manager is not a "workman" as per section 2(s) of the Act"
In Vaikam & Ors. vs. Theyyam Joseph etc. 1996 LLR 483 it was held that :
"An extra departmental head will not be a 'workman' as defined by section 2(s) of the Act."
In Jhon Joseph Khokar vs. B.S.Bhadange & Ors. 1998 LLR (Bom. HC), it was held that:
"A supervisor drawing Rs. 1600 per month and overseeing work of others will not be a 'workman' In Vilas Dalmia vs. Siporex India Ltd. & Anr. 1998 Bom.(HC) it was held that :
18/41
19 "A senior Personal Assistant Officer will not be a 'workman' under the I.D. Act".
In Mahajan Borewell Company, Bangalore vs. Raaram Bhat & Anr. 1998 LLR 363 (Karn. HC) it was held that:
"A 'Geologist' not exercising supervisory powers over other workers will be a 'workman' rd G.M.Pillai In vs. A.P. Lakhanikar, Judge 3 Labour court & Ors. 1998 LLR 310 (Bom.HC), ADII 1998 249 it was held that :
"A supervisor drawing salary mokre than Rs. 1600/ per month will not be a 'workman' In Ahmed N.Makada vs. Govt. of India & Ors, 2000 LLR 482 (Guj. HC) it was held that :
"A Branch Manager employed exclusively in a management or administrative capacity and therefore, he is not a 'workman' within the meaning of section 2(s) of the Act"
AR for management also cited :
Hussan Mithu Mhasvadkar vs. Bombay Iron & Steel Labour Board 2001 LLR 1083 (SC) K.K.Singh vs. Labour Court, Ghaziabad & Another 2005 (107) FLR 12 (sum.) (Alld.) Mamraj (Shri) vs. Management of M/s Shanti Developers and Promoters (I) Ltd. & anokther 2005(106) FLR 703 (Delhi) A.K. Patel vs. Indian Hotel Co.. Ltd. 2006 (3) LLN 191 19/41 20 (Bom.) M/s Bennot Colman vs. Yadeshwar Kumar 2007 FLR Vol.112.
M/s Suja Agencies Vs. Uday singh B.Rawat 2003 LAB. I.C. 2810 (Bom. High Court)
13. On the basis of claim, reply, evidence and documents on record, my findings on the issues are as under:
Regarding issue no.1: Workman Issue Keeping in view the documentary evidence as well as arguments addressed by both the parties, my inference is that the issue no. 1 i.e the issue of workman be decided against the workman Satyapal Singh and in favour of Ashok Kumar Sharma on following grounds :
(i) Definition of workman has been provided under section 2
(s) of Industrial Dispute Act. Four categories of persons have been excluded from the definition of workman. First category of persons are member of armed forces which is not relevant here. Second category for excluded persons are members of police service which is also not relevant here. Third category of excluded persons are the persons employed mainly in a managerial or administrative capacity. Hence for the 20/41 21 purpose of decision of workman issue this clause of excluded person is also relevant. In fourth category of excluded persons are those persons (a) employed in a supervisory capacity and (b) who draws wages exceeding one thousand six hundred rupees per mensem. So far as wages of claimants are concerned their last paid wages or carry home salary were more than Rs. 1600 pm at the time of dismissal. Hence, second condition of fourth category is fulfilled. Now, only question is to be seen whether the claimants working in supervisory capacity or not.
(ii) Burden of proof My impression on the basis of authorities cited by the parties is that the burden of proof is on the workman to prove that he is covered under the definition of workman. I am supported by Supreme Court judgment; In Workman Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and ors., 2004 LLR page 351 wherein Hon'ble Supreme Court has held that :
"The burden of proof being on the workman to establish the employer and employee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have 21/41 22 proved employeremployee relationship."
I am also supported by Swapan Das Gupta and ors.
Vs. The First Labour Court of West Bengal and ors., 1975 LIC pg. 202 wherein it has been held that :
"Where a person asserts that he was a workman of the company, and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person."
I am also supported by Shanker Chakravarti Vs. Britania Biscuit Company, 1979 (II) LLJ pg. 134 wherein it was held that :
"Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led."
The management in the WS as well as in the preliminary objections and reply on merits has denied the claimants to be workmen. Accordingly, the workmen have to prove that they are covered within the definition of Section 2(s) of the I.D. Act. AR for workmen states that since the workmen have stated themselves to be workmen and the management had denied the stand, the burden of proof is on the management. 22/41
23 In view of the above judgments by the Courts, it is for the claimant to prove that he is a workman as defined u/s 2(s) of the I.D. Act. Unless and until, it is proved by the workman or admitted by the management, this court has no jurisdiction to further to entertain or decide the dispute. Hence, my conclusion is that it is for the claimant to prove that he is a workman.
iii) Nature of Duties
a) Both the claimants stated that they were not appointed in managerial or in administrative or supervisory capacity whereas the management stated that both the claimants were appointed on supervisory, managerial and administrative post.
(b) Whether a person is doing supervisory work or not depends on the nature of duties and functions assigned to them. Supervisor means a person who oversees the work of others. Hence, it means overseeing. A person can be said to be supervisor if there are persons working under him over whose work he has to keep a watch. Hence, supervisor keeps a watch over the work of person and if they err in any way, corrects him/them. It is the duty of the supervisor to see that the work is done by the person under his control in accordance with the manual or in accordance with the usual proceedings. It is not 23/41 24 his function to take any managerial decision but it is the duty of the supervisor to see that the person over whom he is, suggests to supervise the work assigned to them according to rule and regulations. Hence, Supervisor need not be a Manager or an Administrator. A person may not be a Manager or Administrator still he can be outside the purview of 'workmen' as he may be doing supervisory function.
(c) In Industrial adjudication the essence of duties is the primary factor to say that a claimant is doing supervisory/managerial/Administrative function or not. Designation of person is not given undue importance nor on the name assigned to the class to which he belongs. [Lloyd Bank Ltd. Vs. P.L Gupta (1961) 1 LLJ 18 (SC)].
(d) In Mathur Aviation Vs. L.G Delhi (1977) 2 LLJ 255 (Del), it was held that when one talks of a person working as Supervisor, one understands it to mean a person who is watching the work be done by others to see that it is being done properly.
(e) To come to a conclusion that a person is working in the Supervisory capacity, it is necessary to prove that there were at least some persons working under him whose work he is required to supervise.
24/41
25
(f) Merely because apart from supervisory functions, claimant might be doing some clerical work, what is to be seen is predominant nature of work. His predominant nature of work was as Shift Incharge [Anand Bazar Patrika Pvt. Ltd. Vs. Its Workmen (1969) LLJ 670 (SC)].
(g) In the conclusion, designation of a person is not a deciding factor. In LKP Merchant Financing Ltd. vs. Govt. of NCT, Delhi & Ors, 2003 LLR 367, it was held that the claimant was Executive (Customer Support). Without evidence, it cannot be held that the claimant was in managerial or administrative capacity. The question is of mix law and fact and has to be decided after evidence by both the parties. Similarly, in Anand Regional Coop. Oil Seedsgrowers Union Ltd. vs. Shailesh Kumar Harshadbhai Shah, 2006 LLR 1052, it was held that though the designation of the claimant was Assistant Executive, still he was not having any supervisory or managerial duties as he was not authorized to initiate any departmental proceedings against his subordinates. Similarly, in Sharad Kumar vs. Govt. of NCT, Delhi & Ors. 2002 LLR 545, it was held by their Lordships of Supreme Court that to prove whether the designation of Area Sales Executive is supervisory or managerial function or not, evidence is required and can be decided only after evidence.
25/41
26
(h) What is to be seen whether a person is working in supervisory or managerial capacity and as to what is his primary duty. If the primary duty of a claimant is supervisory or managerial, then merely because he was doing some incidental clerical work, will not make him workman. In S.K. Maini vs. Carona Sahu Co. Ltd. Ors. 1994 LLR 321, 1994 (68) FLR 1101 1994(3) SC P510, it was held by their Lordship of Supreme Court that for determining the status of workman, his primary duty must be seen. In Shanker Bhai Nathalal Prajapati vs. Maize , it was held by their Lordship of Products 2003 LLR 192 Guj Gujarat High Court that where a person was appointed as Starch Chemist and he was also given the work of supervision of subordinate staff but his primary duty was of workman i.e. Starch Chemist and it was held that he was workman. Similarly are the findings of the court in Management of May & Baker (I) Ltd. vs. Workman, 1967 SC 678 and B.S. Oil & Distt. Co. vs. Management Staff Association, 1970 (3) SC 378. In Heavy Engineering Corporation Ltd. Vs. P.O. 11 SCC 236, it was held that if many duties of claimant is of supervisory, his incident work of manual and clerical cannot take him out for the category of supervisor. In this case, the claimant was supervising the work of sweepers and was also countersigning on casual leave register. It was held by their Lordships of Supreme Court that he was working in supervisory capacity. The above principle has to 26/41 27 be applied in case of both the claimants.
14. Regarding claimant No.1 Satyapal Singh :
a) Appointment : In view of the evidence on record, my impression is that the claimant Satyapal Singh was working in supervisory and managerial capacity on the following grounds:
i) Ex. WW1/5 is a certificate of Satyapal Singh, which shows that he was awarded the diploma in Electrical Engineering that specialized in Thermal Power Plant.
The management had employed two engineers. Sr. Engineer is the claimant Satyapal Singh. The other persons are machineman, helpers and skilled persons. If Satyapal Singh is a workman then who can supervise the other workmen. The application dated 14.02.86 by which claimant Satyapal Singh applied to the management is on the record. Perusal of this application shows that his appointment is as an Electrical Supervisor. This document is an admitted document. It is explained by claimant Satyapal Singh that he left some space blank which was later on filled by the management and hence it is forged and fabricated documents. Claimant is not an illiterate person. He is having diploma in Electrical Engineering and if he has signed a blank document, 27/41 28 which is later on alleged to be filled, then he is to be blamed. It is further a fact that during cross examination, Satyapal Singh has admitted that the word "Electrical Supervisor" is in his own handwriting.
ii) Ex. W1/M1 is an application for leaving the job of one Sushma Grover Seth. This is duly and admittedly signed by claimant Satyapal Singh. It was tried to be explained by claimant Satyapal Singh that he merely received the application and the resignation was accepted by the management. However, the careful perusal of this document shows that there is no other writing except the signature of Satyapal Singh and this shows that Satyapal Singh accepted the resignation of Sushma Grover Seth on 27.08.89. The application is dated 27.05.89.
iii) Ex. WW1/M2 is admittedly signed by claimant Satyapal Singh at point A. By this document, Sh. Jai Prakash Gupta, management authorized Satyapal Singh to sign all the documents pertaining to his department with the Supdt. Central Excise, New Delhi. Hence, this shows that management has given the authority to the claimant Satyapal Singh to deal with the Excise Department which makes that he was working in Supervisory capacity. 28/41
29
iv) Ex. WW1/M3 is again admittedly signed by claimant Satyapal Singh which is stock taking report as on 26.02.93 received by Inspector Central Excise Deptt. on 26.02.93. This further shows that the claimant Satyapal Singh worked in supervisory/managerial capacity. Ex. WW1/M11 is a report in Form 1 to the Excise Department admittedly signed by claimant Satyapal Singh.
v) Ex. WW1/M6 is a resignation letter of Nimmi Sharma showing that resignation was received by claimant Satyapal Singh. There is no other noting on this document. Ex. WW1/M12 is a letter to Supdt. Central Excise Department to claimant Satyapal Singh by which the gate pass was surrendered and this again was taken on behalf of management showing that he was given supervisory and managerial functions.
vi) Ex. WW1/M13 is a letter to Supdt. Engineer, DESU seeking copy of tender documents. This further shows that claimant Satyapal Singh was acting in supervisory capacity. Ex. WW1/M16 is again a letter by claimant Satyapal Singh seeking tender documents. 29/41
30
vii)Document has placed on record showing the designation of Satyapal Singh as Engineercummanager. It is argued by AR for workman that this word was written later on. However, the fact remains that the claimant Satyapal Singh was the senior most Engineer and he used to accept resignation of other workers, represent the management to Excise department, Sales Tax department and also to call tender form from various government departments and he was also authorized by the management to even collect statutory form as shown in Ex. WW1/M7.
In view of the above, my conclusion is that claimant Satyapal Singh was working in supervisory, managerial and administrative capacity and hence he is not a workman U/s 2(s) of the I.D. Act 1947. Since, he is not a workman, this court has no further jurisdiction to decide.
15. Regarding claimant Ashok Kumar Sharma : In view of the evidence as well as documents on record, my impression is that claimant Ashok Kumar Sharma is a workman as defined U/s 2(s) of I.D. Act 1947.
30/41
31
i) The management tried to prove that Ashok Kumar Sharma was working in a managerial and supervisory capacity by placing on record document mark X, X1, X2, X3, X4 and X5. These documents cannot be confronted during cross examination to the claimant Ashok Kumar Sharma as only the original documents can be confronted to a witness. Hence, the confrontation of these documents are apparently not regular.
ii) Claimant Ashok Kumar Sharma had denied his signatures on these documents. Mark X is an application by one Mr. Inderpal, mark X1 is a letter alleged by Ashok Kumar Sharma regarding certain statement of accounts for the year 199293, Mark X2 is again sending of statement of accounts, mark X3 is regarding road permit. This document was alleged to be signed by claimant Ashok Kumar Sharma. Mark X4 is an authority letter alleged to have been given by the management to claimant Ashok Kumar Sharma. Mark X5 is a general power of attorney alleged to have been issued in favour of Ashok Kumar Sharma. The signatures on these documents have been denied by claimant Ashok Kumar Sharma. After denial, it was the duly of the management to prove the signature of Ashok Kumar Sharma. However, the management has failed to prove that the 31/41 32 signature on these documents were of Ashok Kumar Sharma.
iii) At the time of final arguments, an application was filed by the management to prove the signature by comparing the admitted signature of Ashok Kumar Sharma through Handwriting Expert. Since, the application was filed after five years of examination/cross examination of claimant Ashok Kumar Sharma, it was rejected as the case was of 1997 also. Even otherwise, there were no admitted signature on record similar to as done in those documents and in absence of any admitted signature on record, the exercise of comparing by Handwriting Expert would be futile.
iv) For comparison and examination of the signatures on the document with the admitted signatures, the original document is required to be filed in the court. The documents placed on record are only photocopies. Legally, a Handwriting Expert cannot examine photocopy of the signatures.
v) I have seen the wages register of April 1996 where the designation of Ashok Kumar Sharma has been written as Manager Accounts. Except on this register, nowhere 32/41 33 the designation of Ashok Kumar Sharma has been written as Manager Accounts. Even in document mark X1 to mark X5 nowhere it is written that Ashok Kumar Sharma signed as Manager Accounts. There are series of judgment that even an accountant is a workman if his main duty is to maintain the accounts and ledger. Management has failed to prove that the management has given any work to the claimant Ashok Kumar Sharma of supervisory or managerial.
Hence, my impression on the basis of evidence is that the claimant Ashok Kumar Sharma has proved that he was working as workman and the management has failed to prove that the claimant Ashok Kumar Sharma was not working as workman.
16. Regarding Issue No.2 : Abandonment issue On the basis of claim, reply, evidence and documents, my inference is that the issue be decided in favour of workman Ashok Kumar Sharma and against the management on the following grounds:
i) So far as Satyapal Singh is concerned, it is already held in issue no.1 that he is not a workman and hence not covered under Section 2(s) of Industrial Dispute Act 33/41 34 1947. So far as workman Ashok Kumar Sharma is concerned, it is already held in issue no.1 that he is a workman U/s 2(s) of the I.D. Act 1947 and hence beneficiary of the Act.
ii) It is a fact that the workman Ashok Kumar Sharma completed 240 days continuously and hence beneficiary of the labour law.
iii) I have seen the original attendance register/muster roll register under the Factory Act in in Form 26 under Rule (103). The name of the workman Ashok Kumar Sharma for the first time appeared in the month of May 1996 while the statement of management is that workman Ashok Kumar Sharma joined on 01.04.95. I have seen this register from May 1995 till April 1996. The name of the workman Ashok Kumar Sharma does not find place in this register. This contradicts the story of the management that workman Ashok Kumar Sharma joined only on 01.04.95 with the management.
iv) It is stated by the workman Ashok Kumar Sharma that he worked with the management till 28.11.96 and management states that w.e.f. 29.11.96 workman abandoned the job of the management. I have seen the 34/41 35 original register/muster roll for the month of November 1996 which shows that workman Ashok Kumar Sharma is shown present on 26.11.96 and thereafter repeatedly he has been shown to be absent. If the workman is shown present on 26.11.96 and from 27.11.96 he is shown absent, it should have been shown that workman Ashok Kumar Sharma abandoned his job w.e.f. 27.11.09 while the management states that the workman abandoned the job on 29.11.96. Hence, by its own version, management is contradicting about last date of working.
v) I have seen the attendance register/muster roll which is prepared w.e.f. April 1994. The attendance marked shows that the whole month's attendance has been marked by one person, by one pen and also in one handwriting. This shows and proves that the management is not marking the attendance of the workman on day to day basis. If a person is marked presence or absence on day to day basis, then the impression of ink has to be different but the impression of the ink on the whole register shows that the presence or absence is marked in one go i.e. by one pen and by one person.
35/41
36
vi) There is allegations against the workman Ashok Kumar Sharma that he embezzled the material of the management. This is an allegations, which to my mind appears to be an afterthought. It appears to be a calculative way of the management to terminate the workman.
vii)I have seen the leave register of the management which is filed in original for the year 1996. This register in the end i.e. P.12 shows the name of Ashok Kumar Sharma without any designation while his name is shown with designation at serial no.2 in the muster roll/attendance register. Writing from Page 1 to Page 11 is by one person and page 12 is by different persons. Anyhow, this register shows 9 E.L. with a balance of 11 E.L. The various columns in a register of leave with wages is blank. This shows that the management is not following labour laws.
viii)I have also seen the bonus register for the accounting year 199495. Despite the blank pages in the end of this register, there is a separate register for the bonus for the year 199596. It is very strange that for one year there is one register while for remaining year there is another register. For the accounting year 199596, there was no 36/41 37 bonus to Ashok Kumar Sharma while there was a bonus for similarly situated employee Satyapal Singh.
ix) I have also seen the wages payment register. In the November 1996, there is a balance of Rs. 2586/ in favour of Sh. Ashok Kumar Sharma which remains unpaid. Except Satyapal singh and Ashok Kumar Sharma, the designation of other employees has not been written. Why not written, it is for the management to explain and it appears that only the column of designation of Satyapal Singh and Ashok Kumar Sharma were filled. Others were left blank, which appears the practice of the management.
x) There is a allegation by workman Ashok Kumar Sharma that he continuously visited the management but he was not given work nor allowed to mark his attendance and then only in December, he moved to the Labour Authority.
In view of the above, I feel that the management has failed to prove that the workman Ashok Kumar Sharma abandoned the management on 29.11.96 and thereafter 37/41 38
17. Regarding issue no.3 : Terms of reference In view of my findings on issue no.1 and 2, terms of reference is answered in favour of workman Ashok Kumar Sharma on the following grounds:
i) By issue no.1 it has already been proved that Ashok Kumar Sharma is a workman and covered under the Industrial Dispute Act 1947. It is also proved that he completed 240 days for the purpose of applicability of labour laws. It is also proved by issue no.2 that the management has failed to prove that workman Ashok Kumar Sharma has abandoned his services by not resuming his duties of his own sweet will w.e.f. 29.11.96.
ii) Law demands that for terminating a workman, an enquiry should be conducted or if enquiry has not been conducted, the allegations against the workman should be proved so as to make out the ground for termination.
It is a fact that no enquiry was conducted by the management. The allegations against the workman has also not been proved so as to dismiss the employee by the management.
iii) After 28.11.96, there was outstanding wages in favour of Ashok Kumar Sharma, which remains unpaid. 38/41
39 Management could have called the workman or paid wages by any means. As the management was found appeared before Conciliation Officer or other legal authorities, then why the wages or other legal dues were not paid, has not been explained.
Hence, it is proved that Ashok Kumar Sharma has been terminated illegally and unjustifiably by the management. GAINFUL EMPLOYMENT In the cross examination, workman Ashok Kumar has stated that at that time he was unemployed. He is residing in his own house. He is married and having two kids and wife. He is dependent upon his father. He tried to search the job. Due to over age he could not get his name registered in Employment Exchange. He tried to get the job at Balodia Oil Mill, House No. 202 Karawal Nagar but he did not apply in writing. He could not get the job because of present litigation. It is stated by AR for workman that the workman Ashok Kumar is entitled to full back wages as he not not been employed during these years. On the other hand, AR for management has stated that workman was given an offer to join the management and since he has not joined he is not entitled to back wages.
39/41
40 I have seen the WS. There is no unconditional offer to the workman Ashok Kumar to join the management. Hence, the ground of the management is not tenable. Management has also not shown that the workman was gainfully employed anywhere.
RELIEF:
1) It has been proved that workman Ashok Kumar Sharma worked with the management for about 1 ½ years. Hence, in lieu of his illegal termination, he is entitled to a compensation of Rs. 1,00,000/. This compensation shall be paid within 30 days otherwise shall be paid with interest @ 12% till the amount is paid.
2) (a) Register of the management shows that he was not paid salary for number of days he worked in the month of November 1996. He is entitled to that salary which is shown in the register to be Rs. 2,586/.
(b) He has also not been paid bonus for the year 199596 and 199697. He is also entitled for the same.
40/41
41
(c) The register of leave also shows that there is outstanding leave of 11 days. Workman Ashok Kumar Sharma is also entitled to the payment of 11 days.
(d) Workman is entitled to amount as mentioned in (a), (b) and (c) with interest @ 12% from 1997 till amount is paid.
18. Award is passed. File be consigned to Record Room After necessary compliance by Ahlmad. Copies of award be sent to the appropriate Government for publication as per law. Announced in the Open Court (DAYA PRAKASH) rd on 3 October,2009 Additional District & Session Judge Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
41/41