Delhi District Court
The Govt. Of Nct Of Delhi Has Referred ... vs Divisional Manager Lic on 17 July, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
ID No. 1004/06/04
Unique case no. 02402C0130862004
IN THE MATTER OF : -
M/s Dominos Pizza India Ltd.
Corporative Office Western Avenue,
Maharani Bagh, New Delhi.
...........Management
versus
Sh. Sunil Kumar Sharma
S/o Sh. Kailash Chand Sharma,
C/o T.S. Rajpur, Advocate,
Chamber No. Y-67, Civil side
.............Workman
DATE OF FILING : 02.07.04
ARGUMENTS CONCLUDED ON : 14.07.2010
AWARD PASSED ON : 17.07.2010
AWARD
1.The Govt. of NCT of Delhi has referred this dispute bearing reference number F.24(4532)/03-Lab./ 678-82 dated 13.04.04 in the above matter and the terms of reference is as under :
''Whether services of Sh. Sunil Kumar Sharma S/o sh. Kailash Chand Sharma have been terminated illegally and / or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?''
2. Upon receipt of the reference, notices were 4ID No. 1004/06/04 1/16 ordered to the workman. Claim statement is filed by the workman.
3. Workman contends that he was working with the management as Asst. Manager w.e.f. 05.02.98 and his salary was Rs. 6,084/- per month. The workman was performing all types of jobs. The management made false allegations of theft against the workman. The workman was going continuously on duty w.e.f.01.06.03 to 22.06.03 but the management did not mark the attendance of the workman. Workman was going till 24.07.03 but the management did not mark the attendance. Workman was also not paid the earned wages from 01.06.03 to 24.07.03. The management terminated the services of the workman w.e.f 24.07.03.
The workman also sent a demand notice but the management did not reply the same. The workman went to the management along with the Asst. Labour Commissioner but the management did not take the workman on duty. Thus the workman prays for reinstatement along with back wages.
4. Upon notice the management filed the written statement and contended that the claimant does not fall under the definition as workman under the I. D. Act but he was working in Managerial Capacity. It is contended that the claimant was an 4ID No. 1004/06/04 2/16 Assistant Manager and his salary was Rs. 6,516/- per month. The performance of the workman was not up to mark. It is further contended that the claimant was caught delivering a pizza to a customer without entering the order in the computer and thus misappropriated the money. The workman abandoned the services w.e.f. 02.06.03 when he was asked to explain his conduct. It prays for dismissal of the claim. Rejoinder is filed by the workman.
5. After completion of the pleadings, my Ld. Predecessor had framed the following issues on 06.08.07, as under :
a) Whether Sh. Sunil Kumar Sharma is not a workman as per section 2 (s) of the Industrial Disputes Act as stated in para 2 of WS, if so, its effect? OPM
b) Whether Sh. Sunil Kumar Sharma voluntarily abandoned the services of management w.e.f 02.06.03 as stated in para 3 of reply on merits of WS, if so, its effect? OPM
c) As per terms of reference.
6. Workman examined himself and closed his side. Management examined four witnesses. The arguments on both the sides were heard. Both the parties have filed the written arguments. I have perused the written arguments.
4ID No. 1004/06/04 3/16
7. Workman in his written arguments has repeated the facts of the case and claimed that he was not an officer. He points out to the evidence of MW-1 that attendance was not being maintained by the claimant. MW-2's evidence is also discussed. Workman argues that he is entitled for reinstatement and full back wages.
8. In the written arguments filed by the management, it is contended that the claimant had admitted his managerial position. It also argued that after pilferage of the cash, workman abstained from attending the duties fearing disciplinary action. Workman had resorted to make an allegation of non payment of wages which is incorrect. Management relied on certain decisions which are cited in the written arguments. It has furnished the following rulings:-
a) Mukesh K. Tripathi Vs. Divisional Manager LIC and others, AIR 2004 SC 4179, to urge that a workman must not only establish that he is covered under the act but must further establish that he is employed with the establishment for the purposes of any working contemplated in the definition. The workman has to establish the change if there has been any change in the status. 4ID No. 1004/06/04 4/16
b. H.R. Adyanthaya and others Vs. Sandoz ( India ) Ltd. and others. (1994) 5 SC 737, to urge that a person to be a workman under the I. D. Act must be employed to do the work of any categories viz manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions of the definition. c. Standing Conference of Public Enterprises Vs. Government of NCT of Delhi, 2007 (93) DRJ 616, To urge that the onus to prove that the workman falls under the category of the definition of workman should be on the workman and not on the management.
d) Y.N. Prasad (Sh.) Vs. The Management of M/s Sharan Society for STUP, 2008 II, AD (Delhi), 239, to urge that it is the workman who is to carry the ball in proving that he is the workman in terms of section 2 (s) of the I. D. Act.
e) S.K. Maini Vs. M/s Carona Sahu Company Ltd and others , AIR 1994 SC 1824, to urge that a Manager or an
administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. An employee discharging managerial duties and functions may not, as a 4ID No. 1004/06/04 5/16 matter of course, be invested with the power of appointment and discharge of other employees. It is not unlikely that in a big set up such power is not invested to a local manager but such power is given to some superior officers also in the management cadre at divisional or regional level. The unit in a local shop may not be large but management of such small unit may fulfill the requirements and incidences of managerial functions. On a close scrutiny of the nature of duties and functions of the shop Manager with reference to his admitted terms and conditions of service, it is evidence that he was not a workman under section 2 (s) of the I. D. Act.
f) In Vijay Dattatraya Kale Vs. Peico Electronics & Electricals Ltd. 2009, LLR, 509, the point out that the Assistant Purchase officer, engaged in supervisory capacity with a power to recommend, assess and verify the workman of the subordinate staff has been rightly held to be not a workman by the Labour Court by rejecting his dispute hence the High Court dismissed the petition as filed by the petitioner.
g) Kamla Prasad Sharma Vs. Mehra Badarpur Service Station, LPA No. 36/08 (DOD 12.02.08), to stress that Industrial Adjudicator relied upon the said admissions on the part of 4ID No. 1004/06/04 6/16 the appellant clearly showing that he was in over all charge of M/s Mehra Badarpur Service Station to hold that the appellant was doing supervisory work and was drawing a salary of Rs. 6,000/- per month and therefore he could not have been a workman.
The appellant has also admitted receiving salary of Rs. 6,000/- per month which fact leads to the one and only conclusion that the appellant was working as Manager and the provision of section 25-F of the I. D. Act are not applicable to him. h Continental Construction Ltd. Vs. Presiding Officer and another, 2004 (III) LLJ-117 to rely on the finding that In the facts and circumstances of the case, it stands proved on record that the workman had abandoned the job of the petitioner company voluntarily and the conclusion arrived at by the Labour court that the services of the workman were orally terminated by the company in violation of the provision of section 25-F of the Act is not sustainable as the workman has failed to discharge the burden of proof that his services were orally terminated the employer.
9. I have gone through the written arguments and also the case law urged on the points canvased. Keeping in mind the postion of law as held in the above rulings and with the available 4ID No. 1004/06/04 7/16 material on record, I am to answer the issues as under:- ISSUE NO. 1
10. It is the management which has taken a contention that the management is not a workman as per section 2
(s) of the I. D. Act. As held by our Hon'ble High Court in Standing Conference of Public Enterprise (supra), it is for the workman to prove that he was a workman. However my Ld. Predecessor had fixed the onus on the part of the management to prove the same. It is the workman who should prove that he is covered U/s 2 ( s) of the I. D. Act. In the written statement, the management contended that he is not covered under the definition but he was an Asst. Manager. The relationship is not denied. In the rejoinder workman stated that though he was designated as Asst. Manager, he was asked to do every job while deposing in his affidavit, he deposed so. In the cross examination by the management, it is elicited that he lastly worked with Green Park Branch, where there were 32 employees headed by a Manager by name Rajesh Gupta. It is admitted that in the absence of Store Manager, he was working as Shift Manager. The management in order to rebut the say of the workman examined MW-1 who tendered his affidavit. MW-1 is the Asst. Manager (HR). 4ID No. 1004/06/04 8/16 According to him the claimant was responsible for Managerial duties as per the guide lines. Claimant used to wield control over a number of employees like deciding the shift, checking and collecting the cash. He was totally accountable to the shift and was signing the managers log book. It is further deposed that for recruitment, termination and cheque signing, there are different managers. In the cross examination he admits that Sunil Kumar was not given the powers of appointing, issuing charge sheets and termination of employees. He was also not paying the salaries. To a suggestion, he admitted that the salary of managers is not as suggested at 40-50 thousands. He deposed that he could produce the documents.
11. MW-2 Senior Manager by name Tara Dutt Pathak of HR deposes that Asst. Manager performs managerial and administrative functions and even works as Manager in the absence of the manager. It is further deposed that Asst. Manager has managerial control over number of employees. He enters the managers log book, leave remarks of the manager and handles all customers grievances. In the cross examination he admits that he had not brought the records. Witness produced Ex. MW 2/1, the appointment letter. It is dated 06.06.07 addressed to one 4ID No. 1004/06/04 9/16 Abhimanyu Chhikara, who was appointed as associate Manager. This only shows that associate Manager later promoted as Asst. Manager was drawing a sum of Rs. 11,860/- being the total emoluments. He admits that Asst. Manager can not appoint and terminate and had no powers of signing the cheques.
12. MW-3 Brijesh Kumar yet another Asst. Manager deposed that he is working in the same post but performs all the managerial functions. In the cross examination, he admits that he does not have any personal knowledge of the present case. Evidence of MW-4 is not helpful to decide issue no. 1.
13. I have gone through the evidence available on record. Though the management had vehementally contended that the claimant does not fall in the category of workman U/s 2 (s) of the I. D. Act has not furnished the list of duties in writing to show that the Asst. Managers are conferred with administrative and supervisory powers. In the very ruling relied by the management in the matter of Mukesh K. Tripathi (supra), the observation of the Hon'ble Supreme Court at para 41, it is held that the question as to who would answer the description of the term workman fell for consideration before this court in Dharangadhra Chemical Worka Ltd. Vs. State of Saurashtra 4ID No. 1004/06/04 10/16 and others (AIR 1957 SC 264), wherein this court held:-
''The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry that there should be in other words an employment of his by the employer and that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed there can be no question of is being a workman within the definition of the term as contained in the Act''
14. From the above test laid down, I find that the workman is employed in the industry and the relationship is not denied. Furthermore in order to bring outside the scope of workman, it should be clear from the record that the workman had the powers of supervisory administrative nature. The management which contended that the workman was performing managerial and administrative duties had only produced the appointment letters of one Abhimanyu Chhikara and has not produced the list of duties performed by the Asst. Managers in the organization. It was obligated upon the management to have produced the structure of the employees from the ground force up to the management at the 4ID No. 1004/06/04 11/16 apex and further delienating the various duties and powers connected to each of the cadre in the establishment. Mere say of the MW-3 that he performs all managerial and all administrative functions is not to be simply believed to dismiss the case of the claimant . The say of MW-3 in his affidavit is further has a rider. It is not deposed by him in his chief itself that what are the different functions, acts, deeds and things done by him and by other Asst. Managers like him which are purely administrative and Managerial in nature. The say of the workman who had deposed that he was doing other jobs also is not demolished in the cross examination. Further more it is very clear that the claimant had no administrative control over the staff in taking disciplinary action, the granting and rejection of leave, financial powers etc that makes the management bind to such acts, deeds and things done by the claimant. It is also not forthcoming from the evidence of the management that the workman had acted so in the past which did bind the management. In the absence of such an evidence, I am satisfied that the workman had proved that he is a workman falling within the definition of section 2 ( s) of the I. D. Act to treat him as a workman.
ISSUE NO. 2 4ID No. 1004/06/04 12/16
15. The onus to prove this issue is on the management. MW-1 testified that on 31.05.03 the claimant was delivering a pizza to a customer, collecting the money but not raising a bill in the computer. The workman was caught red handed misappropriating. MW-1 further testified that w.e.f. 02.06.03, he abandoned the service when asked to explain his conduct. MW-1 was only cross examined with regard to the duty timings of Sunil Kumar on 31.05.03. MW-2 Senior Manager in the HR department of the management do not speak of any of the incidents pertaining to 31.05.03 wherein the workman was found misappropriating.
16. MW-3 Brijesh Kumar's evidence is also silent regarding the incidents of 31.05.03. It is for the management to have corroborated the say of MW-1 with independent witness to show that the workman misappropriated the amount and thereafter on 02.06.03 workman abandoned the services. None of the management witnesses had produce the attendance register, if not the register atleast the memos or interoffice correspondence warning the workman of his abandoning the duties w.e.f. 02.06.03. The management has taken the similar stand before the conciliation also, as could be seen from the documentary evidence at Ex. MW 4/A. 4ID No. 1004/06/04 13/16 The management had filed a reply before the conciliation authority. The same is dated 10.09.03. The management has not produced any documents calling upon the workman to explain the absence, the same is not forthcoming from the conciliation file also. It was obligated upon the management to have brought some documentary evidence before this court to make it believe their stand that the workman abstained from duties w.e.f. 02.06.03. There is no such evidence like the marking in the attendance, notices issued to the workman or the warning letter or such other communication imputing the misappropriation and unauthorized absence. The only say of MW-1 can not be believed for the simple reason that his affidavit is silent with regard to MW-1's personal knowledge of event. He did not say that he was working in the same Branch of Green Park outlet between May and June 2003. Thus issue no. 2 is answered in the negative.
ISSUE NO. 3
17. Having answered issue no 2 in the negative, I have no other alternative than to hold that the workman was deprived of his duties though he was approaching the management after 01.06.03. In the result, the denial of duties to the workman is treated 4ID No. 1004/06/04 14/16 as retrenchment sans the following of procedure established under law.
18. There has been a gap of nearly seven years after the cessation of service. The same can not be ignored. The ruling of our Hon' High Court in Parmod Kumar and another Vs. Presiding Officer and another, 123, DLT 509, DB, has held at para 11 as under:-
'Para 11. In a number of matters, this court has also examined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of reinstatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma Vs. Nehru Yuva Kendra Sangathan, 96 (2002) DLT 412 (DB) and K. H. Pandhi Vs. The Presiding Officer, Addl. Labour court and another, 110 (2004) DLT 101 and Pal Singh Vs. NTPC Ltd. 96 (2002) DLT 877.
19. In view of the above ruling, I find that the amount of compensation in lieu of reinstatement and back wages would be 4ID No. 1004/06/04 15/16 the proper remedy in the peculiarity of this case. Workman had worked for five years and the salary of the Asst. Manager as pleaded by him is Rs. 6,084/- per month. Considering the length of service, I find that the workman is entitled for the compensation calculated under the provision of section 25-F of the I. D. Act being Rs. 21,244 plus gratuity of Rs. 15,160/- and another sum of Rs. 50,000/- as compensation for illegal retrenchment and litigation expenses. Thus the workman is entitled for a total compensation of Rs. 86,404/- (Rs. Eighty six thousands four hundred four only). The management is directed to pay the same to the workman within 30 days after publication of this award, failing which the management shall also pay interest @ 18% per annum from the date of award till realization.
Reference is answered accordingly.
Let the requisite number of copies be sent to the appropriate government for publication and the file be consigned to RR.
17th July, 2010 (A.S. JAYACHANDRA) POLC/KKD/DELHI/XVII 4ID No. 1004/06/04 16/16