Delhi District Court
Shri Kaushal Bist vs M/S Catmoss Apparels on 24 March, 2014
IN THE COURT OF SHRI SANJAY SHARMA :
PRESIDING OFFICER : LABOUR COURTXIX (EAST) :
KARKARDOOMA COURTS : DELHI
LIR/D No. 323/2007
UNIQUE CASE I.D NO. 02402C0 577342007
Shri Kaushal Bist
S/o Shri Dhan Singh Bist
R/o 12H Pocket A2
Mayur Vihar PhaseIII,
Delhi - 110 096 ................Workman
Vs
M/s Catmoss Apparels
329, Basement,
Patparganj Industrial Area
Delhi 110 092 ..............Management
Date of institution of case : 22.8.2007
Date of reserving judgment : 05.3.2014
Date of Award : 21.3.2014
A W A R D
The workman has filed statement of claim directly against
the management with the prayer for passing an award in his favour and
against the management with direction to the management to reinstate
him back in service with full back wages and continuity of service along
with other consequential benefits. He alleged therein that he joined the
LIR/D No. 323/2007 Page 1/8
management as Store Manager w.e.f. 13.6.2006 at Raja Garden New Delhi
on last drawn salary of Rs.8500/ and had a clean service record. He
alleged that though he was designated as a Store Manager but his work
was confined to clerical in nature. He further alleged that he was not
issued any appointment letter nor any legal facilities like ESI Card, PF,
EL, bonus, payment of overtime etc. were provided to him and on his
repeated requests for providing the same, the management got annoyed
and he was transferred to MMX Mall, Mohan Nagar. He further alleged
that he was directed to report at head office, Patparganj, Delhi and
allegations of shortage of four pieces of clothes were levelled against him
and a debit note of Rs.5588/ was issued against him. He further alleged
that he was called at the head office regularly w.e.f. 21.6.2007 to
26.6.2007 and was made to sit from 10 AM to 6 PM and on 22.6.2007
another false allegation of shortage of clothes for Rs.25000/ was levelled
against him. He further alleged that on 26.6.2007 Shri AK Chawla -
Managing Director and Shri MV Rao - General Manager called him at
about 6 PM and terminated his services verbally and that despite his
demand, his legal dues on account of termination including salary for the
month of June 2007 were also withheld. He further alleged that the
management did not respond to his legal demand notice. Hence, the
present claim.
LIR/D No. 323/2007 Page 2/8
2. The management has contested the claim by filing detailed
written statement submitting that the claimant is not workman and is not
covered within its definition under Section 2(s) of the ID Act as he was
working in managerial, administrative and supervisory capacity. It was
further submitted that the claimant himself left the job in the month of
June 2007 and when he handed over the charge, the stock worth Rs.5588/
and Rs.19,122/ were found short on 19.6.2007 and 20.6.2007 respectively.
Other allegations were specifically and categorically denied.
3. Workman did not file the rejoinder. On the basis of the
pleadings of the parties, following issues arise and are hereby framed :
1.Whether the claimant falls within the definition of "workman" U/S 2(s) of the ID Act? OPW
2. Whether services of the workman were terminated illegally and/or unjustifiably by the management? OPW
3. Whether the workman is entitled to reinstatement of service and consequential benefits? OPW
4. Relief
4. The claimant led his evidence and examined himself as WW1 and reproduced the facts as contained in the claim in his affidavit tendered in evidence. The management in its evidence tendered the affidavit of Shri Praveen Teotia - Regional Manager as MW1 but the said LIR/D No. 323/2007 Page 3/8 witness never made himself available for crossexamination and as such evidence of the management was closed vide order dt. 28.1.2014. Hence, his examination in chief cannot be read in evidence.
5. I have heard Shri Anjanee Kumar Chaudhary Ld. AR for the workman and Shri Satyender Verma - Ld. AR for the Management and have gone through the record.
My issue wise findings are as under: ISSUE NO. 1 :
6. At the outset, it may be stated that the workman has not approached the Court with clean hands and is guilty of suppressing material facts. In the claim as well as in the affidavit, he alleged that he was transferred to MMX Mall, Mohan Nagar but was directed to report for duty at the head office at Patparganj from where his services were terminated. However, in the crossexamination he admitted that he was transferred to Mohan Nagar, Ghaziabad, and had even taken charge there from the franchisee. He further admitted that he had handed over the charge of Mohan Nagar Store to Shri Pradeep on 19.6.2007 and further admitted that he had lastly worked in the store of the management on 19.6.2007. This shows that his last situs of work was at Mohan Nagar, Ghaziabad and therefore, the cause of action also arose at Ghaziabad, UP and the claim filed in Delhi is beyond jurisdiction . The claim is liable to LIR/D No. 323/2007 Page 4/8 be dismissed on this very ground itself.
7. The onus to prove this issue was upon the management. Though there is no evidence on part of the management on record, however, from the evidence led by the workman himself it is clear that he is not covered within the definition of "workman" as defined in Section 2(s) of the ID Act. According to the workman his last drawn salary was Rs.8500/. He deposed that the monthly salary of salesmen used to be from Rs.5500/ to Rs.7500/, depending upon experience. This means that Rs.7500/ was the last ceiling of salary of a workman and if he was also working in the same capacity, what was the ground or justification for him to get a salary of Rs.8500/. This shows that he was not working in the capacity of a Salesman but certainly enjoying supervisory nature of work . According to Section 2(s) of the ID Act, before it was amended by Act 24 of 2010, whoever being employed in a supervisory capacity draws wages exceeding Rs.1600/ per mensem shall not be a workman . He was admittedly drawing salary of more than Rs.1600/ at the time of his alleged termination i.e. 19.6.2007.
8. As far as his supervisory control is concerned, which though he has denied, but is apparent from his crossexamination . In his claim as well as affidavit, he himself has stated that he joined the services of the LIR/D No. 323/2007 Page 5/8 management as Store Manager. He deposed that he had taken the 'charge' at Mohan Nagar, Ghaziabad. A person who is the Incharge of a particular unit only is capable of taking the charge of that unit and no person subordinate to him or a Salesman could have taken the charge of said unit. He also deposed that there were three Salesmen and one Salesgirl at the Mohan Nagar store. Though he denied that they used to work under his control and supervision but also deposed that there was no senior employee of the management above him in the Store meaning thereby that he was the Incharge of the Store. He also admitted that he had handed over the charge of Mohan Nagar Store to Shri Pradeep on 19.6.2007 which again leads to an inference that he was the Incharge of the said Store and the other sales persons were working under him. He also admitted that the Salesman use to get incentives on the sales and added that he was also entitled for the same but was not paid and that he never lodged any protest against it. It is again unbelievable that if he was entitled to any incentive and was not paid, no protest would have been lodged by him. This only means that being the Store Manager, he was not entitled to any incentive.
9. The above facts which have come in the crossexamination of the workman clearly show that he was enjoying supervisory capacity in the Mohan Nagar Store over the four Sales persons working under him LIR/D No. 323/2007 Page 6/8 and was the overall Incharge of the said Store.
10. It was alleged by the workman that allegation was made against him by the management for shortage of stock . However, he himself had signed the handing over of charge documents vide Ex.WW1/M3 and M4 which are inventory of the stock sale and cash and charge transfer declaration . Ex.WW1/M3 depicts the shortage of stock worth Rs.5588/. Though the workman alleged that his signatures were obtained before calculations but further admitted that he never lodged any complaint against the management for obtaining his signatures on blank papers. This only shows his malafide. He has also admitted that had the management not deducted the short amount from his salary, he would not have filed the present case.
11. It is, thus, clear from the crossexamination of the workman that on one hand, he is not covered within the definition of "workman" under Section 2(s) of the ID Act and on the other hand, has filed the present claim on false basis. This issue is accordingly decided in favour of the management and against the workman .
ISSUE No. 2 and 3 :
12. Once it has been held that the claimant is not covered within LIR/D No. 323/2007 Page 7/8 the definition of a "workman" , these issues have become redundant. ISSUE No. 4/Relief :
13. In view of the findings on Issue No. 1 above, the workman is not entitled to any relief.
Claim is accordingly answered. Let a copy of this Award be sent for publication and case file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 21st day of March 2014 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR/D No. 323/2007 Page 8/8