Delhi District Court
M/S Siemens Limited vs 4.1989. Ex. Ww1/63 Is A Letter Of The ... on 31 March, 2011
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL
DISTRICT & SESSIONS JUDGE / PRESIDING OFFICER
LABOUR COURT KARKARDOOMA COURTS, DELHI.
ID NO.17/10 (New) 116/98(Old)
Date of Institution: 26.09.1998
Date of Arguments: 22.09.2010,
27.10.2010 & 21.03.2011
(Written Arguments)
Date of Award : 31.03.2011
IN THE MATTER BETWEEN:
M/s Siemens Limited
A-36, Mohan Coop. Industrial Estate
New Delhi-44.
The management
AND ITS WORKMAN
Ms. K.K. Gupta
D/o Late Shri J. P Gupta
R/o F-4/11, Vasant Vihar
New Delhi - 57.
The workman
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 1 of 46
AWARD
The Secretary (Labour), Government of NCT of Delhi
vide its order No.F.24(4401)/98-Lab./31517-21 dated
09.09.1998 referred an industrial dispute between the
above mentioned parties to the Labour Court with the
following terms of reference:
"Whether the Services of Ms. K.K Gupta have been
terminated illegally and/or unjustifiably, by the
management and if so, to what relief is she entitled
and what directions are necessary in this respect?"
2. The facts in brief of the workman case, are that the
Respondent is a Limited Company duly registered under
the Indian Companies Act and are running an Industry, i.e,
manufacture of electrical and electronics goods,
engineering goods, production of software programmes,
production of engineering packages, supply errection and
commissioning of equipment and repairs and after sales
service and is an Industrial Establishment and an industry
within the meaning of the Industrial Disputes Act, 1947,
here in after referred to as the Act. The claimant joined
the management in the year 1972 as Sales Engineer. She
was put on probation for a period of six months and
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 2 of 46
thereafter she was confirmed on the said post in the year
1973 under E-2 Products, Energy Division. In the year
1974 she was transferred to Public Utility Department and
she served there till 1982. Her designation was revised as
Project Engineer in the year 1977. In the year 1982-83
promotion of her was refused solely on the ground that
she was a Lady Engineer and no Male Engineer can be put
under her. She had been transferred in many
Departments of the management. She was given increase
in her salary and her last drawn salary was Rs. 21,071.52.
On 9th September, 1997 when she reported for duty Sh. R.
Sachdeva, General Manager called her in his chamber and
told that her services have been terminated w.e.f
14.08.97. During the entire period of her service no other
person/employee served under her. She never performed
any duty of supervisory nature and never worked in a
supervisory capacity. She was never vested any function
of Managerial/Administrative or Supervisory nature. As her
services were terminated illegally, unjustifiably, against
the principles of natural justice and in violation of law
including violation of Industrial Employment (Standing
Orders), therefore, she prayed for direction to the
management to reinstate her in service with full back
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 3 of 46
wages and consequential benefits.
3. The management admitted that Ms. K.K Gupta was
employed by the management since 1.12.72 and her last
drawn wages were Rs. 21,071.52 per month. The
management contested her case on the ground interalia
that she is not covered under the definition of workman as
defined under section 2 (s) of the Act. Initially, she was
appointed in Grade T-III which was non-supervisory/non-
managerial. She was promoted in December 1975 from
Grade T-III to Grade T-IV and w.e.f 1.06.77 to Grade T-V
and thereafter she was promoted to Executive Cadre and
then to Managerial cadre. The workman was neither
discriminated on the ground of sex nor was she denied
any promotion on that account. She had been working as
a Manager in Managerial capacity with the Respondent
Company till 13th August, 1997 when her services were
terminated by the management. The management
admitted her transfer to different Departments and
denied all other material allegations and prayed for
dismissal of her statement of claim.
4. The workman in her rejoinder refuted the
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 4 of 46
contentions made in the written statement and reiterated
the averments made in the statement of claim.
5. On the pleadings of the parties, following issues
were framed:
1. Whether the claimant is not a workman under
the definition of ID Act as alleged by the
management?
2. As in terms of reference.
6. In support of her case, the workman examined
herself as WW1. She filed and proved her affidavit as
Ex.WW1/A and placed reliance on documents Ex. WW1/1
to Ex. WW1/151.
In order to prove its defence, the management
examined Shri Rajiv Sachdeva as MW1. He filed and
proved his affidavit as Ex. MW1/A and placed on record
termination letter Mark A. Besides, the management
examined Sh. Munish Vasudeva as MW2. He filed and
proved his affidavit as Ex. MW2/A and placed reliance on
documents which were already exhibited as Ex. WW 1/42,
Ex. WW 1/44, Ex. WW 1/45, Ex. WW 1/46, Ex. WW 1/47
and Ex. WW 1/63.
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 5 of 46
7. I have heard the arguments addressed by not only
the workman but also her Counsel and Counsel for the
management and perused the file including written
arguments.
8. On perusal of the pleadings of the parties, analysing
evidence and material placed on record and considering
the arguments written as well as oral addressed by
Counsels/Authorised Representatives for the parties, I
have formed my opinions on the issues and that are
discussed here in below issue wise:
FINDINGS ON ISSUE NO.1
9. Counsel for the workman argued that onus to prove
that Ms. K.K.Gupta is not covered under the definition of
workman is on the management. She relied on a case,
V.L.T. Cargo Movers Pvt. Ltd. vs. Shri Ajit Kumar S.
Puri & Another, 2009-I-LLJ-709. The Hon'ble High Court
observed that:
"A specific objection has been taken by the Company in its
reply that the Respondent was not a workman within the
meaning of Section 2(s) of the Act. The onus thus was upon
the Company as the workman had already discharged his
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 6 of 46
onus. The Company has miserably failed to satisfactorily
discharge its onus in regard to its plea/objection. Nature of
duty of the Respondent No.1 was one of the basic aspects
which the Company alone could have proved before the
Court. The Appellant is the Private Limited Company and
thus is bound by all the provisions and the law applicable to
the Private Limited Company under the Companies Act as
well as other allied Laws. The best evidence was withheld by
the Company, as it did not produce the minutes book of the
Company or Register of the Board of Directors showing that
the Respondent was and/or had acted as the Director of the
Company. The Company also could not explain what
functions/duties were assigned to the Respondent. Even
regarding this aspect, the Company failed to discharge it
onus inasmuch as the document produced by it reflected a
conflicting stand, as noticed above."
10. I am convinced with the arguments of Counsel for
the workman on this aspect. The burden to prove this
issue was on the management and it had to prove that
Ms. K. K. Gupta is not covered under the definition of
workman as mentioned U/s 2 (s) of the Act.
11. It would be appropriate to reproduce provisions of
the Section 2(s) of the Act which run as under:
"2.Definitions.- In this Act, unless there is anything
repugnant in the subject or context. -
(a) to (r)***
[(s) "workman" means any person (including an
apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 7 of 46
supervisory work for hire or reward, whether the terms of
employment be express or implied, and for the purposes of
any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or
as a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute, but
does not include any such person -
(i) ***
(ii)***
(iii)who is employed mainly in a managerial or
administrative capacity, or
(iv)who, being employed in a supervisory capacity, draws
wages exceeding one thousand six hundred rupees per
mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, functions mainly of a managerial nature.]"
12. It has been argued on behalf of the workman that
the workman at the time of termination of the services
was not working in Administrative or Managerial Cadre.
She was not performing Administrative, Managerial, and
Supervisory duties and therefore, she is covered under
the definition of 'workman'.
13. In support of her arguments, Counsel for the
workman relied on a case Ananda Bazar Patrika
(Private) Ltd. v. Its Workmen, (1969) 2 Lab LJ 670
(SC), wherein the Supreme Court observed that:
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 8 of 46
"The principle which should be followed in deciding the
question whether a person is employed in a supervisory
capacity or on clerical work is that if a person is mainly
doing supervisory work but incidentally or for a
fraction of the time also does some clerical work, it
would have to be held that he is employed in
supervisory capacity, and conversely, if the main work
done is of clerical nature, the mere fact that some
supervisory duties are also carried out incidentally or as a
small fraction of the work done by him will not convert his
employment as a clerk into one in supervisory capacity.***
Dealing with the facts of that case, the Court found that
Gupta, the employee concerned, was employed on clerical
work and not in supervisory capacity. The principal work
that Gupta was doing was that of maintaining and
writing the cash-book and of preparing various
returns. Being the senior-most clerk, he was put in
charge of the provident fund section and was given
a small amount of control over the other clerks
working in his section. The only powers he could
exercise over them were to allocate work between
them, to permit them to leave during office hours,
and to recommend their leave applications. These
few minor duties of a supervisory nature could not
convert his office of senior clerk in charge into that
of a supervisor.***"
[Emphasis supplied]
14. The Counsel for the workman further relied upon a
case Govind Raj Rao Vs. Arkal Ciba Geigy of India
Ltd., 1985 AIR 985. It was held by Hon'ble Supreme Court
that:
"Appellant Mr. Arkal Govind Raj Rao joined service with M/s.
Ciba Geigy of India Ltd. (employer for short) as
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 9 of 46
Stenographer-cum-Accountant with effect from Jan. 18,
1956. On Jan. 1, 1966 he was appointed as Assistant and
continued to render service in that post till his services
came to be terminated on Oct. 10, 1972. The employer
contended that the appellant was not a workman within the
meaning of the expression in the Industrial Disputes Act,
1947.***
6. 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 a 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. The Labour court
recapitulated the documentary evidence as also the oral
evidence of Sitaram, the Sub-Manager in the Finance
Department of the company examined on behalf of the
employer. In para 14 of the award the Court made a very
important observation that ,"there is no much dispute that
Shri Raj Rao (appellant) was doing all the work narrated by
Shri Sitaram. Most of this work, in my opinion, was just
clerical work". The court also referred to some of the
admissions made by Shri Sitaram in his cross examination
which led the Court to observe that all the duties performed
by the appellant were clerical duties and that the appellant
was performing these duties as a clerk. The Court then
concluded that in general, the duties of the appellant
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 10 of 46
mentioned by Shri Sitaram were more or less clerical and
at-best it can be said that they were performed by an
efficient and experienced clerk."
[Emphasis Supplied]
15. Counsel for the workman further relied on a case
Salem Sri Ramaswami Bank, Ltd. Vs. Additional
Commissioner for Workmen's Compensation and
Anr., (1956) II LLJ 40 Mad. It was held by Chennai High
Court that:
"Still for the purpose or Section 4 (1) (a) what was the work
that the employee actually did under the proper assignment
of work from the employer would appear to be the real test.
Judged by that test I would have to hold that, though the
second respondent was entitled to be paid and was paid
that emoluments of a secretary and was even described as
secretary, the actual work assigned to him and the duties
he discharged did not place him in a position of
management during the relevant period."
16. Counsel for the workman further relied on a case
Ved Prakash Gupta Vs. Delton Cable India (P) Ltd.,
AIR 1967 SC 428. It was held by Hon'ble Supreme Court
that:
"It was always a matter of determining what the primary
duties of an employee were - did he do clerical or manual
work?; if the answer was in the affirmative he was a
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 11 of 46
workman; - were his duties of a supervisory nature?; if the
answer was in the affirmative he was not a workman. In
considering the latter aspect of the problem industrial
adjudication generally took the view that the supervisor or
officer should occupy a position of command or decision
and should be authorized to act in certain matters within
the limits of his authority without the sanction of the
manager or other supervisors."
17. Counsel for the workman further relied upon
Syndicate Bank, Ltd. Vs. Its workmen, 1966 II LLJ
194. It was held by Hon'ble Supreme Court that:
"In this connection our attention is drawing upon the circular
of April 1962 where it was held that all officers including C
rank officer would have managerial and administrative
powers and functions to the extent necessary for the proper
discharge of their duties. This general statement, in our
opinion, is not enough to clothe all C rank officers with mainly
managerial or administrative duties. Before a C rank officer
can be taken out of the category of workmen, it must be
shown that he is employed in fact and in substance mainly in
a managerial or administrative capacity and for that there is
no evidence on the record."
18. The Counsel for workman further relied on a case T.
Prem Sagar vs. The Standard Vaccum Oil Company
Madras and Others, 1030 SCR 1964. It was observed by
the Apex Court that:
"That takes us to the question as to whether the appellant is
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 12 of 46
an employee whose case falls under the category of
exempted cases provided for by s.4(1) )a). Section 4(1) (a)
refers to persons employed in any establishment in a
position employed in any establishment in a position of
management, and so, the question is when can a person be
said to have been employed by the respondent in a position
of management. It is difficult to lay down exhaustively all the
tests which can be reasonably applied in deciding this
question. Several considerations would naturally be relevant
in dealing with this problem. It may be enquired whether the
person had a power to operate on the bank account or could
he make payments to third parties and enter into
agreements with them on behalf of the employer, was he
entitled to represent the employer to the world at large in
regard to the dealings of the employer with strangers, did he
have authority to supervise the work of the clerks employed
in the establishment, did he have control and charge of the
correspondence, could he make commitments on behalf of
the employer, could he grant leave to the members of the
staff and hold disciplinary proceedings against them, has he
power to appoint members of the staff or punish them; these
and similar other tests may be usefully applied in
determining the question about the status of an employee in
relation to the requirements of s.4(1) (a). The salary drawn
by the employee may have no significance and may not be
material though it may be treated theoretically as a relevant
factor."
19. Counsel for the workman argued that she had filed
an application for production of documents but the
management failed to file those documents, therefore, an
adverse inference may be drawn in favour of workman
and against the management as held in M/s. Sriram
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 13 of 46
Industrial Enterprises Ltd. vs. Mahak Singh & Ors.,
AIR 2007 SC 1370. It was held therein by Hon'ble
Supreme Court that:
"34.Having correctly interpreted the provisions of Section 6
N of the U.P. Act, the High Court rightly drew an adverse
presumption for non-production of the Attendance Registers
and the Muster Rolls for the years 1991 onwards. The best
evidence having been withheld, the High Court was entitled
to draw such adverse inference.***"
20. On the other hand it has been argued on behalf of
the management that the workman was performing duties
of managerial, administrative and supervisory nature and
she is not covered under the definition of 'workman'.
21. The Authorized Representative for the management,
relied on a case Mukesh K. Tripathi vs. Sr. Divisional
Manager, LIC & Others, (2004) 8, SCC 387. The Apex
Court referred a case May & Baker (Pedia) Ltd. vs.
Workmen, AIR 1967, SC 678, wherein it was observed
that:
"We find from the nature of duties, assigned to Mukherji
that his main work was that of canvasing and any clerical or
manual work that he had to do was incidental to his main
work of canvasing and could not take more than a small
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 14 of 46
friction of the time for which he had to work. In these
circumstances the Tribunal's conclusion that Mukherji was a
workman is incorrect. The Tribunal seems to have been lend
away by the fact that Mukherji has no supervisory duties
and had to work under the directions of his superior officers.
That, however, would not necessarily mean, that Mukherji's
duties were mainly manual or clerical.
22. The Authorized Representative of the management
further relied on H.R.Adyanandsaya & Ors. vs. Sandoz
(India) Ltd. and others, (1994), 5 SCC, 737. The Apex
Court observed that:
"The connotation of the word 'skilled' in section 2(s) of the
ID Act in the context in which it is used will not include the
work of a sales promotion employee such as the medical
representative in the present case. That work has to be
construed ajusdum generis and thus construed, would
mean skilled work whether manual or non manual, which is
of a genre of the other type of work mentioned in the
definition. The work of promotion of sales of the product or
services of the establishment is distinct from and
independent of the types of work covered by the said
definition. Hence, the contention that the medical
representatives were employed to do skilled work within
the meaning of the said definition has to be rejected. As
regards the 'technical' nature of the duties, it has been
expressly rejected by the Supreme Court in Burma Shell
case."
23. The counsel for the management further relied on a
case A. Sundara Rambal vs. Govt. of Goa, and
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 15 of 46
others, (1998) 4 SCC, 42. The Apex Court observed that:
"The teachers employed by the institution of educational
institution whether the said institutions are imparting
primary, secondary, graduate or post-graduate education
cannot be called as 'workmen' within the meaning of
section 2 (s) of the Act. Imparting of education which is the
main function of teachers cannot be considered as skilled or
unskilled manual work or supervisory work or technical
work or clerical work. Imparting of education is in the
nature of a mission or a noble vocation. The clerical work, if
any they may do, is only incidental to their principal work of
teaching. It is not possible to accept this suggestion that
having regard to the object of the Act, all employees in an
industry except those falling under the four exceptions (i) to
(iv) in section 2 (s) of the Act should be treated as workman
as it will render the works 'to do any skilled, unskilled,
managerial, supervisory, technical or clerical work"
meaningless".
24. Counsel for the management further relied on a case
Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh
2005 (3) SCC 232. It was held therein that merely showing
that employee concerned had not been performing any
managerial or supervisory duties does not ipso-facto
make him a workman.
25. Counsel for the management further relied on a case
Muir Mills vs. Unit of NTC (Ltd.) vs. Swoyam Prasad
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 16 of 46
Srivastava and another, (2007), SCC 491. The Apex
Court held that:
"38.Furthermore, if we draw a distinction between
occupation and profession we can see that an occupation is
a principal activity (job, work of calling) that earns money
(regular wage or salary) for a person and a profession is an
occupation that requires extensive training and the study
and mastery of specialized knowledge and usually has a
professional association, ethical code and process of
certification or licensing. Classically, there were only three
professions: ministry, medicine and law. These three
professions each hold to a specific code of ethics and
members are almost universally required to swear to some
form of oath to uphold those ethics, therefore "professing"
to a higher standard of accountability. Each of these
professions also provides and requires extensive training in
the meaning, value and importance of its particular oath in
the practice of that profession."
26. Counsel for the management further relied on a case
C. Gupta vs. Galexo-smithaline Pharmaceuticals
Ltd. (2007)7, SCC 171. The question which arose for
consideration before the Apex Court was whether a
qualified legal person whose nature of duties, work and
functions were to advise the management of the company
which required knowledge of law and the matters arising
out of the affairs of the company can be treated as a
workman? The court answered in the negative and held
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 17 of 46
that he was not covered under the definition of workman.
27. Counsel for the management further relied on a case
Inthro vs. Colgate Palmolive (India) Ltd. and
Others, 2005 III LLJ 95. The Bombay High Court observed
that:
"The contention of the management that the petitioner was
an employee who was engaged in a managerial capacity
has been upheld by the Industrial Court in this case. The
Industrial Court has noted that save and except for a bare
assertion that he was doing work of a clerical nature, the
petitioner did not produce any cogent documentary
material on the record to substantiate his case. On the
other hand, the documentary material which was placed by
the first respondent on record showed that the duties which
were discharged by the petitioner were of an administrative
and managerial nature. The Industrial Court has discussed
the documentary material which was produced by the first
respondent and has had due regard to the duties that were
performed by the petitioner in arriving at its conclusion.
The Industrial Court was conscious of the position in law
that it was not enough for the complainant to show that he
did not fall within any of the exclusionary clauses in Section
2(s), but that it would be necessary to establish that the
nature of work brought the employee within the
substantive part of the provision."
28. Counsel for the management further relied on a case
Standard Chartered Bank vs. Vandana Joshi and
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 18 of 46
Another, 2010-II-LLJ-409. The Bombay High Court held
that:
"18.The fact that in an organizational structure the
employee, in the course of the decision making process, is
subject to checks and balances is not a matter which would
establish that she/he is a workman within the meaning of
Section 2(s). Modern forms of business in corporate
organizations put into place a carefully crafted process of
checks and balances. Rarely, if ever, would an employee
have authoritarian control over business decisions.
Employees are made subject to checks and balances both
at the lateral and vertical level. Managerial decisions are
subject to verification and approval. The fact that decisions
of an employee are subject to verification or subject to a
system of controls and balances does not establish that the
employee is a workman within the meaning of Section 2(s).
Mangers do not become workmen because their decisions
are structured by processes and approvals. Absolute
autonomy is not the norm in managerial decision making.
Nor does the law insist on absolute discretion or absolute
autonomy for a person to be a manager. Basically the
answer to the question must depend upon the dominant
nature of the duties and responsibilities.
29. Let us now examine the arguments of parties in the
light of principles of law laid down in above cases vis a vis
nature of duties, the workman was performing with the
management to find out whether she is covered under the
definition of the workman?
30. On scrutiny of the documents on record, I find that
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 19 of 46
vide Ex. WW1/33 the management recommended to the
Head of Language Department Maxmullar Bhawan, K. G.
Road, New Delhi for admission of Ms. K. K. Gupta and one
another for evening classes for German Language Course
w.e.f. January 16, 1978. Ex. WW1/31 is the appointment
letter dated 01.12.1972 mentioning that she was
appointed in Grade-III (315-730) and her date of joining
was December 4, 1972. Ex. WW1.43 is a letter dated
05.06.1973 informing to Ms. K. K. Gupta that she was
confirmed in the company T-3 Grade on a consolidated
salary of Rs.350/- per month w.e.f. 04.06.1973. Ex.
WW1/48 is the letter dated 30.05.1975 mentioning that
total of her salary and D.A., was Rs.13,037/-. Ex. WW1/44
is letter dated 12.12.1975 informing Ms. K. K. Gupta that
she was promoted to the Companies Grade T-4 w.e.f.
01.12.1995. Ex. WW1/74 is letter dated 09.11.1996
informing the workman that her salary was raised to Rs.
460/- per month w.e.f. 01.10.1976. Ex. WW1/45 is a letter
dated 25.07.1977 that she was placed in the company's
T-5 Grade w.e.f. 01.06.1977. Ex. WW1/46 is letter dated
24.04.1978 informing the workman that she was
promoted to the Company's Executive Cadre w.e.f.
01.04.1978. Ex. WW1/75 is letter dated 06.04.1979 that
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 20 of 46
her salary was raised to Rs.715 per month w.e.f.
01.04.1979. Ex.WW1/76 is letter dated 10.04.1980
informing that her salary was raised to Rs.790/- per month
w.e.f. 01.04.80. Ex. WW1/4 is an official note dated 17 th
March requesting the workman to visit NTPC on 18th
March. Ex. WW1/6 is an official note dated 12 th May
asking the workman to discuss the situation on inter panel
wiring for informing the same to one Sh. Krishnamurthy.
Ex. WW1/7 is a note dated 10.12.1981 asking the
workman that she had to collect some information during
her trip to Kalwa. Ex. WW1/9 is a diagram showing the
position of the workman in the office of the management
below Sh. Harjeet Singh. Ex. WW1/77 is a letter dated
22.04.1982 to the workman regarding raising of her salary
to Rs.1040 per month w.e.f. 01.04.1982. Ex. WW1/78 is a
letter dated 18.04.1983 to the workman regarding
increase of her salary to Rs.1115/- per month w.e.f.
01.04.1983. Ex. WW1/79 is a letter dated 16.04.1984
regarding raising her salary to Rs.1190/- per month w.e.f.
01.04.1984. Ex. WW1/56 is a certificate dated 22.05.1986
certifying that Ms. K. K. Gupta was working with the
Siemens as a Project Engineer since 01.06.1977 though
she joined the management on 04.12.1972. Ex. WW1/73
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 21 of 46
is a letter dated 18.11.1986 to the workman regarding his
late attendance in the office in the month of June & July
1986.
31. Ex. WW1/82 is a letter dated 11.04.1989 regarding
increasing of salary of the workman to Rs.1415/- w.e.f
01.04.1989. Ex. WW1/63 is a letter of the workman dated
06.03.1990 addressed to the General Manager Personnel
of the management in which she mentioned the details of
her qualification as B.E. (Electrical) (Hons.) in 1972. She
also acquired 3 level advance course in Computer Science
in the year 1985 and MBA from Delhi University in the
year 1989. She requested to management to promote
her as Assistant Manager since the year 1980 and as
Manager since the year 1983.
32. Ex. WW1/83 is the letter dated 30.04.1990 vide
which salary of the workman was raised to Rs.1500/- per
month w.e.f. 01.04.1990. Ex. WW1/47 is a letter dated
22.04.1981 informing her that she was promoted to
Company's Management Grade-I (MG-I) w.e.f. 01.04.1981.
Ex. WW1/84 is the letter dated 22.04.1991 raising her
salary to Rs.1,600/- per month w.e.f. 01.04.1991. Ex.
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 22 of 46
WW1/86 is a letter dated 27.04.1992 raising her salary to
Rs.1700/- per month w.e.f. 01.04.1992. Ex. WW1/89 is a
letter dated 01.04.1993 raising her salary to Rs.1800/- per
month. Ex. WW1/38 is the letter dated 21.06.1983
informing the workman regarding revising of designation.
Ex. WW1/37 is a letter dated 25.06.1993 informing her
that her designation would be Assistant manager
Marketing Technical Services w.e.f. 01.07.1993 in the line
of OH Circular 05th March dated 21.06.1993. Ex.WW1/19
is a letter dated 01.04.1994 informing her regarding
raising her salary to Rs.1950/- per month w.e.f.
01.04.1994.
33. Ex. WW1/12 is the letter dated 24.11.1986 regarding
the work, the workman undertook. It would be appropriate
to reproduce the same. Relevant portion is as under:
"(i) Tender for Surge Arresters for National HVDC
Project invited by BHEL due on 15.11.1986 (i.e. on
Saturday which for our Company is holiday) was
attended by me of my own, and the position was
subsequently reported personally by me to Mr. D.
K. Gupta. The Tender on behalf of Siemens AG,
West Germany was submitted on 14.11.1986.
This Tender was opened by BHEL in their Office
on 22.11.1986, which again was holiday for our
Company on account of Saturday, but yet it was
duly attended by me in the interest of the
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 23 of 46
Company.
(ii) Mr. Todit, a Senior Executive represented
Siemens in negotiations with Officers of Indian
Navy in Delhi regarding the Contract for Depot
Spares for Sub-marines - value approx. Rs.60
million in week commencing 10th Nov. 1986. Mr.
D. K. Gupta represented Siemens India Ltd. for the
same work and in that connection I have been
attending with the same Officers for
discussion."
34. Ex. WW1/63 is bio data sheet of the workman. She
mentioned her experience therein as under:
"(i) Experience of more than 16 years in Sales and
Marketing of electrical/electronic products of
Siemens Ltd. (E Division). Also, experience of
selling imported equipment from Siemens AG.,
West Germany.
(ii) EPABX with modern technology have been
introduced only recently in the Indian Market. In
pursuit of my acquiring better Management
qualifications, I have been on training with M/s
Logis Systems Pvt. Ltd. New Delhi in a Senior
position from November 1984 to May 1985 free
and without remuneration and provided consultancy
services in the area of Office Automation
Equipments as well as EPABX. On account of this, I
have experience of Sales of the products such as
EPABX as well as with Development of the product."
35. Ex. WW1/123 is a file Note written by the workman
to Sh. Harvinder Singh dated 25.10.1996. The relevant
portion is reproduced herein below:
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 24 of 46
"a) Not interested in giving to IL, Kota the technology for
manufacture or as a joint venture partner.
b) Manufacture in India by Siemens Ltd. planned within 1
year.
c) Can consider appointing IL, Kota as one of the
distributors for the Product for use in their
Projects/Sale as a product.
(Ms. K. Gupta)"
36. Ex.WW1/125 is the letter dated 04.11.1996 written
by the workman to Sh. K. N. Mishra, Dy. General Manager.
The relevant portion is reproduced herein below:
"Business Co-operation for Smart Transmitters
We received your fax message dated 09.10.1996,
evincing interest in our product range of Smart
Transmitters for pressure, absolute pressure, differential
pressure and flow applications, for possibilities of
Business Co-operation in this area.
At present, we supply Smart Transmitters as imported
item and we have plans to introduce this item in our own
manufacturing range in India.
Under these circumstances, we see a possibility of
marketing tie-up/arrangement with you for this product
range at a later date. The coverage could be the use of
the product range in your various projects/sale as a
product.
We shall approach you in future, when suitable progress
in the matter is made.
Yours faithfully,
Ms. K. Gupta"
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 25 of 46
37. Ex.WW1/67 is with regard to staff dialogue at
managerial level dated 15.09.1996 written by Ms. K. K.
Gupta describing her area of responsibilities as under:
"* Pre-Acquisition of automation business,
particularly the development of new
customers.
* Laying down or SW development procedures
as per ISO 9000-3.
* Coordination of Training of PGE-A personnel.
* Team member of TOP team.
* PGE-A manpower coordination and planning."
38. The workman explained that order was placed by
BHEL, who obtained order from Railways, on Siemens A.G.
Germany for their products and services wherein Siemens
India was to be paid Indian Agent's Commission for
satisfactory implementation of the order. This required
familiarity with technical terms for proper communications
between the Siemens A.G. Germany and BHEL. She went
to Germany to facilitate the communication of information
between the BHEL Engineers and officials of Siemens A.G.
Germany as she was familiar with the technical terms
and that could smoothen the communication. Besides, she
was not appointed as Order Processor, however, her
principal duties were to work as correspondence clerk.
She was appointed with technical terms being technically
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 26 of 46
qualified, suitable to correspondence relating to
engineering goods and services of the company.
39. It is not in dispute that last drawn salary of the
workman was Rs.21,071.52. Thus, her income was above
the limit given in the definition of workman. Therefore, it
has only to be seen whether she was engaged in
supervisory, managerial and administrative capacity? If
not, whether she is covered under the definition of
'workman'
40. It would be appropriate if her qualification and
duties, as admitted by her in her cross examination, are
summarized which are as follows:
1. She was an Electrical Engineer.
2. She was appointed as Sales Engineer in the year
1972.
3. She was given T-3 Grade during the period 1993-94.
4. She was given T-4 Grade in the year 1995.
5. She was given T-5 Grade in the year 1997.
6. She was given EG Grade (Executive Grade) in April
1978.
7. She was given EG Grade II in December 1987.
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 27 of 46
8. She was given MG-I in April 1997.
9. She was designated as Assistant Manager
(Marketing) Technical Services on 25.06.1993.
10. Her pay was revised on 30.04.1990 and it became Rs.
1500/- per month.
11. Her bio-data Ex. WW1/63 was correct.
12. She was reporting to Sh. R. Sachdeva, other engineers
Sh. R. Arvind, Sh. B. P. Soni, Sh. M. Aggarwal and Sh. R.
Ghosh were also reporting to him.
13. She admitted her signatures on Ex. WW1/126.
14. She visited Colvo Factory at Bombay for official
work.
15. She was also deputed to Pune to learn introductory
German Language in the year 1978 by the management.
16. She also visited Germany for official work.
17. Ex. WW1/126 lays down her duties.
18. She attended one seminar in her official capacity.
41. Ex. WW1/26 is dated 15.01.1997. It was admittedly
written by the workman narrating her targets as under:
1. Laying down of SW development procedures as per
ISO 9000-3
2. Av No. of NCRs in 'Training Section' during Quality
Audits
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 28 of 46
3. Suggestions and Acceptance of measures for IOP
project
4. Development of new customers i.e. generation of an
enquiry for DCS (No. of customers)
5. Setting up of a working ES 680 installation at
Panchsheel Office
6. Av. Number of NCRs during cleanliness Audits of
PGE-A
42. Having discussed the nature of duties of workman
which she had been performing at the relevant time, let
us now examine the relevant testimony of the
management witnesses.
43. MW1 in his cross examination stated that he was not
aware if in 1972 work lady was placed on the job of Order
Processor in Sales Department. He was not aware with the
job profile of Order Processor. In September, 1996,
claimant was transferred to PGE/A Department to head
the special assignment group. She was explained her
responsibilities orally and informed that her name would
appear in the next periodic edition of the Functional
Allocation Chart. The duties which were mentioned at
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 29 of 46
encircle 'A' in Ex.WW1/67 were told to the
claimant/workman. She was communicated in writing on
23.01.1997 regarding her nature of duties as per
Ex.WW1/67. Work of the workman was also defined in
Ex.WW1/126. As per her targets, she was expected to
meet customers.
44. MW2 deposed that Ms. K.K.Gupta was appointed
initially in Grade-III which was non managerial and non-
supervisory. Subsequently, she was promoted to
executive cadre and then to managerial cadre. Vide letter
dated 27.04.1978, Ex.WW1/46, she was promoted to
executive cadre and vide letter dated 01.04.1991, Ex.
WW1/47; she was promoted to managerial cadre. The
management was engaged in manufacturing as well as
sales of the electrical/electronic products. In 1978, the
claimant/workman was sent on training to Germany. As
per documents Ex.WW1/120 and Ex.WW1/121 the duty
performed by Ms. K.K.Gupta was of communication
through letters and supply of requisite information as
obtained and transmitted in a short period to the
respective parties. The workman vide Ex.WW1/39 was
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 30 of 46
transferred from DEL/PGE-T to DEL/PGE-A w.e.f.
02.09.1996. No person was immediate supervisor of Ms.
K.K.Gupta as she was working in a managerial capacity at
the relevant time. As per functional allocation chart
Ex.WW1/40, Ms.K.K.Gupta was responsible for special
assignment and reporting to Mr. R.Sachdeva.
45. On analyzing the evidence on record, I came to the
conclusion that evidence on record has established that
the claimant/workman is not covered under the definition
of the workman as given under Section 2(s) of the Act.
The reasons which support my decision are, firstly, that
Ms. K.K.Gupta was working in the managerial cadre on the
date of termination of her services in the year 1997. By
virtue of being in managerial cadre, duties attached to her
office, were of supervisory and managerial nature. My
view finds support from a case Mcleod and Co. v. Sixth
Industrial Tribunal, West Bengal, AIR 1958 Cal 273,
wherein it was observed by the High Court that:
"Having regard to the categories of service indicated by
the use of different words like "supervisory",
"managerial", "administrative", it is I think necessary not
to import the notions of one into the interpretation of the
other. The words such as supervisory, managerial and
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 31 of 46
administrative are advisedly loose expressions with no
rigid frontiers and I would discourage too much subtlety in
trying to precisely define where supervision ends,
management begins or administration starts. For, that
would be theoretical and not practical. It has to be in my
opinion broadly interpreted from a common sense point of
view were tests will be simple both in theory and in their
application. I should say interpreting this section on this
point that (1) a supervisor need not be a manager or an
administrator, (2) that a supervisor can be a workman so
long as he does not exceed the wage limit of Rupees
500/- per month, and (3) that a supervisor,
irrespective of his salary, is not a workman who
has to discharge functions mainly of managerial
nature by reason of the duties attached to his
office or of the powers vested in him."
[Emphasis supplied]
46. Secondly, my attention goes to the principles laid
down in case Burmah Shell Oil Storage and
Distributing Co. of India Ltd. v. Burmah Shell
Management Staff Association, (SC), 1971 A.I.R. (S.C.)
922, The Apex Court observed:
"Frequently, however, an employee is required to do
more than one kind of work. He may be doing manual
work as well as supervisory work, or he may be doing
clerical work as well as supervisory work. He may be
doing technical work as well as clerical work. He may be
doing technical work as well as supervisory work. In such
cases, it would be necessary to determine under which
classification he will fall for the purpose of finding out
whether he does or does not go out of the definition of
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 32 of 46
''workman" under the exceptions. The principle is now
well settled that, for this purpose, a workman must
be held to be employed to do that work which is
the main work he is required to do, even though he
may be incidentally doing other type of work.***
1. Transport Engineer.
"If one finds a man employed because he has the artistic
faculties which will enable him to produce something
wanted in the shape of a creation of his own, then
obviously, although it involves a good deal of manual
labour, he is employed in order that the employer may
get the benefit of his creative faculty"***
15. We may, to clarify this aspect, take an example of a
qualified technical Engineer who is concerned with
manufacture of machines. If he himself creates a machine
with the use of his technical knowledge, he will certainly
be held to be employed to do technical work. On the other
hand, if the machine is being made by others and all he
does is to give advice or guidance, the actual technical
work will have to be held to be done by the mechanics
carrying on the work, while his duty will only be
supervisory. A more clear illustration which may be useful
is that of a painter. If a person is employed to paint walls
of a house or paint furniture, it would clearly be
employment to do manual labour. If, on the other hand,
he is an artist who paints works of art as a result of his
own creative and imaginative faculty, he would be held to
be employed on technical work, even though, in creating
the work, he will all the time be using his own hands to
paint the picture. There can be a third case where a good
artist may have pupils working under him who paint
artistic pictures and he only guides their work. He may, on
occasions, even make some improvements by retouching
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 33 of 46
the work done by the pupils. On the face of it, such a
person cannot be held to be employed to do technical
work: he would be a technical supervisor. These examples
clearly indicate that, in the case of the Transport
Engineer, whose principal duties are to see that the work
is properly done by the skilled and unskilled workmen
working under him, he is really employed to do
supervisory work and not technical work.***
This case, thus, recognizes that a person with
technical qualifications can on that account, be
employed in a supervisor capacity and, in such a
case, he will be held to be employed to do
supervisory work, so that, in order to be a
workman, he must not be exempted under
exception (iv).
17. The First Labour Court, West Bengal, in Indamer
Company (Private) Ltd. v. Barin De, (1958) 2 Lab LJ
556 (Cal), applied the same test in determining whether
an Aircraft Maintenance Engineer (A. M. E.) is a
workman or not. ***On these facts, the Labour
Court held that the A. M. Es. were employed to do
supervisory work and, since they were drawing a
salary in excess of Rs. 500/- per mensem, they were
not workmen.*** Thus, in the case of a Transport
Engineer, there is a combination of supervisory
duties of two types. The Transport Engineer
actually supervises the work of repairs,
maintenance, servicing and fabrication which is
carried on in the Central Garage by the skilled
mechanics, fitters, and other workmen, and, at the
same time, he has the supervision over those men
in the matter of giving directions, recommending
leave, initiating disciplinary proceedings, etc. In
this view, the decision of the Tribunal holding that
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 34 of 46
the Transport Engineer is a workman has to be set
aside, because admittedly, the Transport Engineer
is drawing salary in excess of Rs. 500/- per mensem
and ceases to be a workman under exception (iv) of
the definition.
2. District Engineers:
The Tribunal took notice of the admission made by
Sirdesai that he was employed principally to
supervise, control and co-ordinate the activities of
the contractors and the company's men in the
district for all construction and maintenance work,
but added that the nature of supervision and
control was essentially technical, and, so far as
fitters and draughtsman were concerned, the
guidance and instructions given by the District
Engineer to them were also of technical character.
Holding that there was no supervision in the sense
of any administrative control or powers exercised
over them, the Tribunal concluded that the District
Engineer was employed to do technical work and
not supervisory work. On the face of it, the decision
is incorrect. The principles that we have explained
above, in dealing with the case of Transport
Engineer, manifestly show that a District Engineer
is also principally employed to do work which is of
a supervisory character and, even though he has to
use his technical knowledge for the purpose of
properly carrying on supervision, it cannot be held
that he is employed to do technical work. A District
Engineer also draws a salary in excess of Rs. 500
per mensem and, consequently, he cannot be held
to be a workman. The decision of the Tribunal is,
therefore, set aside in respect of the District
Engineers also." [Emphasis supplied]
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 35 of 46
47. The principles of law laid down in Burmah Shell Oil
Storage and Distributing Co. of India Ltd. v.
Burmah Shell Management Staff Association (supra),
are applicable on the facts of the present case for the
reasons, firstly, the workman in the present case is
admittedly an Engineer, having degrees of B.E. (Electrical)
(Hons.), Computer Science and MBA, and in the above
case, the workmen were also engineers, i.e., Transport
Engineers and District Engineers. Thus there are
similarities of facts. Secondly, the Hon'ble Apex Court
examined the status of engineers and opined that
Transport Engineers and District Engineers do not come
under the category of 'workman'. Therefore, the claimant
in the present is not covered under the definition of a
workman. Thirdly, the nature of duties which the workman
was performing was of such a kind which required
discretion and technical expertise. In Ex.WW1/63, the
workman herself wrote that she was having experience of
more than 16 years in sales and marketing of
electrical/electronic products of Siemens Ltd., and she
was also having experience of selling imported
equipments from Siemens AG, West Germany. Besides,
she was also having experience of sales of products such
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 36 of 46
as EPABX as well as development of the product. In
addition to, she was submitting her expert opinions to the
management and Ex.WW1/123 and Ex.WW1/125, written
by her, are the said examples. Moreover, the workman in
Ex.WW1/167 described her area of responsibilities which
have been reproduced herein above in this award; those
exclude her from the definition of 'workman'.
48. Thirdly, in case of May & Baker (Pedia) Ltd. vs.
Workmen, (supra), relied in case Mukesh K. Tripathi
vs. Sr. Divisional Manager, LIC & Others, (supra),
where the claimant was performing duties of canvassing
with incidental duties of clerical in nature. It was held that
because he was not having any supervisory duties, and he
had to work under the directions of his superiors, he could
not be included in the definition of 'workman'. In the
present case also, the main grievance of the workman
through out her long and repeated arguments, remained
that though she was appointed in managerial cadre but
she was never assigned any duties of supervising the
work of other employees. The principles of law laid down
in these cases answer her arguments and accordingly, it
is held that because she was not assigned any
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 37 of 46
supervisory duties, she can not be included in the
definition of 'workman'.
49. Fourthly, in case H.R.Adyanandsaya & Ors. vs.
Sandoz (India) Ltd. and others, (supra), the status of
sales promotion employees was considered and the claim
of the medical representatives for their inclusion in the
definition of 'workman' was rejected. If duties of medical
sales representatives and duties of the present workman
for selling the electrical and electronic goods of very
technical kind and high cost are compared then, I am of
the view that principles of law laid down in that case are
applicable on the facts of present case, as the workman
herself admitted her duties regarding development of new
customers and generation of an enquiry for DCS.
Therefore, the principles of law laid down in this case also
guide me to hold that the present claimant/workman is
not covered under the definition of 'workman'.
50. Fifthly, in case A. Sundara Rambal vs. Govt. of
Goa, and others, (supra) status of teachers was
examined and Hon'ble Apex Court held that teachers are
not covered under the definition of 'workman'. In the
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 38 of 46
present case, the claimant/workman who is B.E.(Electrical)
(Hons.), Computer Science and MBA who had been
serving the management for about 25 years because she
was an engineer and at the relevant time, she was in the
managerial cadre having visited not only other places
such as Bombay and Pune for official work but also visited
Germany and acted as an Interpreter to facilitate the
communication of information between the BHEL
Engineers and officials of Siemens India Ltd., in Germany
having familiarity with technical terms and technical know
how, can be compared with the teachers and therefore,
she is not entitled for her inclusion in the definition of
'workman'.
51. Sixthly, in case C. Gupta vs. Galexo-smithaline
Pharmaceuticals Ltd. (supra), the status of qualified
legal person whose nature of duties, work and functions
were to advise the management which required
knowledge of law, was considered by the Apex Court and
it was held that such legal person are not covered under
the definition of workman. The principles of law laid down
in case are attracted and applicable on the facts of the
present case because the claimant/workman was
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 39 of 46
submitting her reports advising the management to do or
not to do the particular work. Ex.WW1/123 and
Ex.WW1/125, reproduced here in above in this award
brings the claimant/workman in that category and
therefore, I am duty bound to hold that the present
claimant/workman is not covered under the definition of
'workman'.
52. Seventhly, I have also considered whether the
principles of law laid down in cases Ananda Bazar
Patrika (Private) Ltd. v. Its Workmen, (supra) and
Govind Raj Rao Vs. Arkal Ciba Geigy of India Ltd.,
(supra) will provide any benefit to the workman. I find that
those cases relate to the status of clerks. The facts of
those cases and present case are quite different.
Therefore, these rulings will not provide any benefit to the
workman. However, I have analyzed the present case
keeping in view the principles laid down for determining
the status of an employee and I came to the conclusion
that even applying all those principles, the
claimant/workman is not covered under the definition of
'workman'.
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 40 of 46
53. Eighthly, the other cases relied on by the counsel for
the workman, i.e. Salem Sri Ramaswami Bank, Ltd.
Vs. Additional Commissioner for Workmen's
Compensation and Anr.,(supra), Ved Prakash Gupta
Vs. Delton Cable India (P) Ltd.,(supra), Syndicate
Bank, Ltd. Vs. Its workmen,(supra) and T. Prem
Sagar vs. The Standard Vaccum Oil Company
Madras and Others,(supra) will not provide any benefit
to the workman as after applying principles of law laid
down in those cases, I came to the conclusion that the
claimant/workman is not covered under the definition of
'workman'.
54. Ninethly, while relying the case M/s. Sriram
Industrial Enterprises Ltd. vs. Mahak Singh & Ors.,
(supra), it was argued by the Counsel for workman that
adverse inference may be drawn against the management
and in favour of the workman as the management failed
to produce the relevant documents. On perusal of order
dated 09.01.2008, I find that application of the workman
for production of documents was dismissed, by observing
that the documents pertaining to the period 1972-1973
were not relevant for the disposal of the reference before
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 41 of 46
this court as the services of claimant/workman were
terminated in September, 1997. On perusal of order dated
26.09.2006, of my Ld. Predecessor on applications of
workman dated 13.07.2006 and 17.07.2006 for
production of documents by the management, I find that
the management produced documents mentioned at Sl.
No. 1 to 17 except the documents mentioned at Sl. No. 10
& 14 as those were not available with the management.
This has established that no adverse inference can be
drawn against the management for non production of
documents as the management produced almost
documents which were required to be produced before
this court.
55. Tenthly, it has been vehemently argued and also
repeatedly mentioned in the written arguments consisting
of 38 pages that the claimant/workman was never
empowered to assign any work to other employees, to
take any independent decision or to supervise the work of
other employees or to accept the documents or to take
disciplinary action against any other employee and
therefore, she is covered under the definition of
'workman'. On perusal of cross examination of MW2, I find
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 42 of 46
that in his cross examination, he stated that he could not
say whether the workman was not having decision making
powers. He did not file any document to show that
workman was authorized to conduct managerial duty and
there is no document on record that she was competent
to represent the management before third party, and he
could not tell if the workman either signed any agreement
with third party on behalf of the management. However,
he explained that he could only say that she was acting as
manager of the management.
In view of the above reasons, discussion and the
principles of law laid down in cases referred to here in
above, I am not convinced with the arguments of Ld.
Counsel for the workman on this aspect. In my view, it is
not always necessary that an employee should have all
these powers for his exclusion from the definition of
'workman'. The claimant/workman was having different
types of duties and she was functioning in managerial
cadre and therefore, she cannot be included in the
definition of 'workman'.
56. Eleventhly, the lengthy written arguments consisting
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 43 of 46
of 38 pages and the rulings filed and referred to here in
above, could not convince me that the claimant/workman
is covered under the definition of 'workman'. I have
discussed relevant points in this award and ignored those
written arguments which I though were irrelevant for the
purpose of deciding the status of the claimant/workman
and on perusal thereof, I hold the view that
claimant/workman Ms. K.K.Gupta is not covered under the
definition of 'workman'.
57. Lastly, the main duties of the workman and
admission thereof by her in the present case and mainly
reproduced in this award have proved that at the time of
termination of her services, she was serving the
management in the managerial cadre. She was drawing
the pay of managerial cadre and by virtue of the duties of
managerial cadre, she was performing duties of that
cadre. Therefore, she is not covered under the definition
of 'workman'.
58. Consequent upon the reasons, discussion, and
evidence on record and particularly discussed here in
above, issue no.1 is decided in favour of the management
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 44 of 46
and against the workman and it is held that
claimant/workman Ms. K.K. Gupta is not covered under
the definition of workman as provided U/s 2 (s) of the Act.
FINDINGS ON ISSUE NO. 2:
59. As it has been held here in above that the
claimant/workman does not fall in the category of the
workman as mentioned in Section 2(s) of the Act,
therefore, provisions of Section 25 F or 25 N or any other
provisions under Labour Law are not attracted.
Resultantly, it could not be established on record that the
management terminated the services of the
claimant/workman either illegally or unjustifiably. Issue
No. 2, therefore, stands decided in favour of the
management and against the claimant/workman.
ORDER
60. Consequent upon the decision of both the issues in favour of the management and against the workman, terms of reference are answered in favour of the management and against the claimant/workman and it is held that claimant/workman could not establish that the management terminated her services either illegally or ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 45 of 46 unjustifiably and therefore, she is not entitled to get any relief.
61. Keeping in view the facts and circumstances of the present case, both the parties are left to bear their own costs.
Award is accordingly passed.
62. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to Record Room.
Announced in the open court this the 31st day of March, 2011.
(DR. T. R. NAVAL) Additional District & Sessions Judge Presiding Officer: Labour Court Karkardooma Courts,Delhi.
ID No.17/10 K.K.Gupta vs. Siemens Ltd. Page 46 of 46