Delhi District Court
Sh. Viram Singh Rao vs Jaivir on 22 May, 2008
I.D. No.288/06/04
IN THE COURT OF SH. S.K. KAUSHIK,
PRESIDING OFFICER, LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
ID No.288/2006/2004
BETWEEN
Sh. Viram Singh Rao
S/o Jagdish Singh Rao
R/o Village & PO Toda,
Distt. Sikar, Rajasthan
P.S. Neem Ka Thana,
Rajashthan .......Claimant
AND
M/s Shakti Hardware and
Sanitary Store,
RZ-686/Z-21, Main Road,
Palam Colony,
New Delhi-45. ..........Management
Date of institution : 30.07.2004
Date of argument : 12.05.2008
Date of award : 22.05.2008
AWARD
1.An Industrial Dispute between the management of M/s Shakti 1 I.D. No.288/06/04 Hardware & Sanitary Store RZ 686/ Z-21 Main Road, Palam Colony, New Delhi and Sh. Vikram Singh Rao S/o Sh. Jagdish Singh Rao R/o Distt. Sikar, Village & PO Toda, PS Neem Ka Thana, Rajasthan was referred by Secretary (Labour), Government of National Capital Territory of Delhi for adjudication in exercise of powers conferred by Section 10 (1) (c) and 12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No. F.24 (211)/ 2004 - Lab./ 3259 -63 dated 26th. May 2004 and address of the workman corrected vide corrigendum No. F.24 (211)/ 2004 - Lab./ 5717 -21 dated 2. 9. 2004 with the following terms of reference :
"Whether the services of Sh. Vikram Singh Rao S/o Sh. Jagdish Singh Rao have been terminated illegally and/or unjustifiable, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws / Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. Notice was issued to the claimant who filed his statement of claim alleging that he was doing and performing the duties of a Store Keeper in the shop of the management since 1999 and was carrying out the duties to the entire satisfaction of the management but despite 2 I.D. No.288/06/04 that the management was not providing him with any legal facility. He alleged that management was dealing in paints and hardware items and was selling spurious / sub-standard material due to which police raided his shop on 7.7.2001 but management in collision with police got him falsely implicated in a criminal case and he remained in judicial custody and was released on bail subsequently. He alleged that the concerned Metropolitan Magistrate took cognizance of the offence against Dhruv Narain Proprietor of the management and he was also released on bail. He further alleged that after his release on bail he again joined his duty with the management and performed his duties to the satisfaction of the management. He alleged that on 24.9.2002 he received a call from his younger brother from Meerut and he left for Meerut with the permission of the management but on the next date i.e. on 25.9.02 management terminated his service and informed him on phone in Meerut that he need not come to the shop. Claimant has alleged that he was residing in the room provided by the management on the 2nd floor of the shop where his belongings had been kept but the management illegally removed his household material from there and he made a complaint to the police regarding 3 I.D. No.288/06/04 illegal termination of his service and against illegal removal of his belongings. He alleged that he sent a demand notice through registered post requesting the management for reinstatement with continuity of service and full back wages but despite that management did not do the needful. He stated that he was not paid any compensation and so his service was terminated illegally. He alleged that since then he is unemployed and could not get any service despite his best efforts. He stated that he filed a complaint in the labour office as well as with police of Sikar. He stated that management joined the conciliation proceedings and filed reply to his claim which be taken into consideration. The claimant claimed that he is entitled to reinstatement with continuity of service and full back wages.
3. Notice of the claim was issued to the management. Sh. Dhruv Narain proprietor of the management contested the claim by filing written statement. It is alleged in the written statement that the claimant was not a workman as he was working as a manager and he used to look after the business and he used to carry on the business 4 I.D. No.288/06/04 and he worked in this capacity at the shop from 2000 to 25.9.2002 as a Manager. It is alleged that on 25.9.2002 one employee Keshav informed that Vikram Singh Rao had stolen some cash from the cash box and had gone outside and so he alongwith other employees went to the room of the claimant and found that stolen money amounting to Rs.3650/- was kept wrapped in a newspaper and one receipt of money order sent by the claimant to his house for Rs.1500/- was also recovered. Management alleged that the claimant returned Delhi from his native place after 1 ½ month and a complaint was made to police on the basis of which a case was registered vide FIR no.527/03 U/s 381/406/507 IPC at PS Dwarka and after 25.9.2002 claimant never came to the shop. Management denied each and every claim and allegation of the claimant and stated that the claimant was indulging in illegal activities. Management denied that the claimant left for Meerut with permission. Management denied that it terminated the service of the claimant on 25.9.2002. Management stated that the belongings of the claimant were still lying in the room which was provided to him. Management stated that the claim is false and the so the claimant is not entitled to the relief claimed. 5
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4. In replication to the WS of his claim, the claimant controverted averments as stated in the reply by the management and reaffirmed the averments as contained in the statement of claim.
5. From the pleadings of the parties following issues were framed:
1. Whether the claimant was a workman under sec.2(s) I.D.Act?
2. Whether claimant himself left his job?
3. As per terms of reference.
6. Both the parties were directed to lead evidence on the issues.
The claimant filed his affidavit Ex.WW1/A. He relied upon three documents which constitute photocopy of legal notice dated 5.10.2002 Mark A, reply of the notice Mark B and complaint to the police Mark C. Claimant was cross-examined by the AR for the management.
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7. Management filed the affidavit Ex.MW1/A of MW-1 Sh. Dhruv Narain proprietor of the management who relied upon four documents Ex.MW1/1 to MW1/4. MW-1 was cross-examined by the AR for the claimant.
8. I have heard Ld. AR for the parties and have gone through the record. Finding on the issues are as under:
ISSUE NO. 1
9. This issue was framed because the claimant has claimed himself to be a store keeper of the management whereas management has alleged that claimant was the manager of the shop as he was carrying on the business of the shop and was also looking after the shop. Settled law is that when a person claims himself to be a workman and claims his entitlement for the protection of the provisions of the Industrial Disputes Act but his claim of being a workman is denied by the management then it is for him to prove that he was a workman within the meaning of the term u/s 2 (s) of the Act. In this regard reference may be made to the judgment of the Apex 7 I.D. No.288/06/04 Court reported as Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh : 2007 LLR 1260 wherein Their Lordships held that the burden to prove the nature of appointment is upon the workman.
10. The determining factor in deciding whether a person is a workman is as to what principal or main work he was required to do during his employment. Any other work which he was required to do incidentally in connection with his principal or main work or otherwise as a small fraction of his work would not convert the nature of his employment. In this regard reference can be made to the judgments reported as All India Reserve Bank Employees' Association V Reserve Bank of India :[1965] 28 FJR 394, Anand Bazar Patrika(P) Ltd. V It's Workmen [1969] II LLJ 670, May and Baker (India) Ltd. V Their Workmen [1961] 20 FJR 147 & H.R. Adyanthaya and others V Sandoz (India) Ltd. and others : 1994(5) SCC 737.
11. Determination of this issue requires appreciation of the evidence led by the parties on this issue. First point for consideration is as to what was the designation of the claimant. Authorised representative 8 I.D. No.288/06/04 for the management referred to the document Ex.WW1/M1 and WW1/M2 and submitted that claimant has claimed himself to be an accountant and suddenly he purposely donned the mantle of a storekeeper for dragging the management in this luxury litigation whereas he was in fact the manager and not even the accountant and was managing whole of the affairs of the shop of Sh. Dhruv Narain and was supervising the other employees of the shop. In order to appreciate this contention the documents referred by the authorised representative for the management need to be considered.
12. Document Ex.WW1/M2 is the notice dated 5.10.2002 sent by the claimant to the proprietor of the management through his advocate. Claimant has not disputed this document. Rather he himself relied upon this document which was placed on record by him as Mark A. Document Ex.WW1/M2 reads that the claimant was an accountant of the management firm and through this legal notice he called upon Sh. Dhruv Narain Aggarwal, the proprietor of the management to pay him his unpaid salary amounting to Rs.36000/- for the period from October 2001 to September 2002 @ Rs.3000/- per month and for 9 I.D. No.288/06/04 payment of Rs.1000/- as the notice charges. Thus according to this document claimant claimed himself to be an accountant. Document Ex.WW1/M1 is a legal notice sent by claimant through his advocate to Sh. Dhruv Narain Aggarwal proprietor of the management on 16.1.2001. This document has been admitted by the claimant during his cross-examination so it is also an admitted document. In this notice claimant stated that he was appointed as an accountant in Dimapur (Assam) and then was transferred to Delhi in August 2000. In this notice a reference has also been made to the earlier notice sent on 5.10.2002. Thus claimant has also confirmed his earlier notice sent to the management on 5.10.2002. From this notice also it is clear that the claimant was claiming himself to be an accountant. Accordingly I hold that the designation of the claimant as claimed by him was an accountant and not a store keeper as alleged by him in the statement of claim. In fact what was his actual designation and what were his main duties shall be considered while discussing the testimony of the parties. However, these documents do show that the claimant has tried to deliberately mislead the court by alleging that he was working as a store keeper.
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13. When it stands established that the designation of the claimant was not a storekeeper but he had been claiming to be the accountant of the management and management has alleged that claimant was the manager then point for consideration is as to what were the main duties of the claimant and whether he was performing such duties as could show that he was a workman within the meaning of the term U/s 2 (s) I.D. Act. Here it is useful to refer to an authority of Hon'ble High Court of Delhi reported as Young Women's Christian Association of India Vs. Smt. Jyotsna Paul: 2004 VIII AD (DELHI) 548 = 2005 LLR 68 wherein in Para 11 of the judgment Their Lordships held as under:
"............I am of the view that the presumption is that an employee does the job that he or she is employed to do. This is, of course, a rebuttable presumption, the onus being on the employee to show that he or she was actually doing some other work than what he or she was employed to do......"
14. However merely from the designation a person cannot be termed as a workman or a person falling beyond the purview of Section 2(s) of Industrial Dispute Act because the deciding factor is the actual 11 I.D. No.288/06/04 nature of duties and not the designation but in view of the judgment referred as above and on considering the fact that the claimant has claimed himself to be an accountant of the management through his letters Ex.MW1/1 and MW1/2, a rebuttable presumption is raised that atleast claimant was performing such duties as were not commensurate with his claimed designation as a storekeeper. Other point for consideration is whether management has proved that claimant was the manager and whether claimant has been able to rebut the same.
15. While interpreting Section 2(s) of the Act, the Hon'ble Supreme Court in H.R. Adyanthaya and Others Vs. Sandoz (India) Ltd. and other, 1994 (5) SCC 737 held that an employee is a workman under the Act if he is employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisor. In the other words, if the work of a person did not fall within any of the categories of manual, clerical, supervisory or technical, he would not qualify to be workman under the Act. The point for consideration is whether the claimant was performing such 12 I.D. No.288/06/04 duties as could be termed as manual, unskilled, skilled, technical, operational, clerical or supervisor. In the other words, if the work of a person did not fall within any of the categories of manual, clerical, supervisory or technical in nature then he cannot be held to be a workman. Claimant has deposed in para 1 of his affidavit that he was working as a Store Keeper since 1999. Claimant has not deposed as to what manual, unskilled, skilled, technical, operational, clerical or supervisor duties he was performing during his employment with the management, may be as a Store Keeper or as an Accountant. There can be no dispute that an employee may be performing some clerical, manual, skilled, unskilled, technical or supervisory duties but still he may not be called a workman within the meaning of Section 2
(s) ID Act if such work done by him is incidental to his main duties which may be other than these duties as specified in Section 2(s) ID Act. It was within his specific knowledge as to what duty he was performing during his employment but claimant has failed to prove as to what clerical, manual, skilled, unskilled, technical or supervisory duties he was performing and whether these were his main duties. Thus claimant has failed to prove that he was doing such duties as 13 I.D. No.288/06/04 could be called as clerical, manual, skilled, unskilled, technical or supervisory duties. Now coming to the appreciation of the management evidence on this point.
16. The case of the management as per its written statement is that the claimant was working as Manager and he used to look after the business of the shop and used to carry on its business. MW1 Sh. Dhruv Narain in para 2 of his affidavit deposed that the claimant worked as Manager from 2000 to 25.9.2002 and he used to look after the establishment as Manager and his duty was to supervise the other staff of the shop. It is also stated by MW1 in this Para that claimant used to place order for purchasing and entire work of the firm was being controlled by him and he was empowered to give leave to the staff and engage labour for the shop. It is also stated in the para of the affidavit that all the accounts books were in his charge and he was doing all the affairs relating to cash and he used to give his report to the deponent (i.e. MW1). MW1 was cross examined at length by the authorized representative for the claimant. During cross examination MW1 deposed that claimant used to make payment after 14 I.D. No.288/06/04 sale/purchase to him on each and every day and sometimes on the next day or thereafter. He also deposed that claimant used to submit report regarding expenses / income and thereafter made payment to him. MW1 admitted the suggestion of the claimant that he used to supervise the staff and the goods as to how much goods were in the store and what goods had to be purchased. This suggestion in fact means that the claimant was exercising complete supervision and control upon the business of the management and he was taking independent decisions which obviously cannot be called as clerical, manual, skilled, unskilled, technical or supervisory duties. If while discharging such duties as suggested by the claimant through this suggestion to MW1, claimant was making account entries also then he was doing so as his incidental duties.
17. A careful perusal of the testimony of MW1 shows that nothing could be elicited in his cross examination which could create any doubt on his deposition as stated in Para 2 of his affidavit. Further the claimant did not dispute the deposition of MW1 during cross examination that he used to submit report regarding expenses / 15 I.D. No.288/06/04 income to him. Claimant has also not disputed deposition of MW1 that he used to make payment after sale/purchase to him on each and every day and sometimes on next day or thereafter. From the testimony of MW1 it is thus clear that the claimant was placing orders for purchase of goods, he was doing expenditure, he was receiving payment on behalf of the management and was supervising the staff. MW1 during cross examination deposed that he was paying Rs.3000/- as salary to the claimant which has not been disputed by the claimant which means that he was drawing salary more than Rs.1600/- per month. Thus the facts that stand established from the testimony of MW1 are that the claimant was an overall incharge of every affair pertaining to the business of the management and he was taking independent decisions. The fact that it was for the claimant to decide as to what goods were to be purchased, in my considered view, while taking such a decision he was using his imaginative skills for evaluating the expected demand of the customers and availability of such goods from the manufacturer which cannot be termed as a clerical duty or a duty of routine nature. Rather the matter of taking decision regarding purchase of goods for 16 I.D. No.288/06/04 the business of the shop was a very important function of the claimant for ensuring that the business of the shop did not run into loss and the claimant could not discharge such a function without using his mental faculties. The claimant could not discharge such duties without being a Manager of the shop of the management. I therefore hold that the management has established that the claimant was performing managerial functions. I further hold that the management has also proved that the main duties of the claimant were that of a manager. The claimant has not led any rebuttal evidence. Accordingly I hold that it does not stand proved that claimant was a workman within the meaning of the term under Section 2(s) ID Act. This issue is accordingly decided against the claimant and in favour of the management.
ISSUE NO. 2 & 3
18. In view of the foregoing finding on issue No. 1, I hold that in pith and substance the reference does not pertain to any industrial dispute and so this court has no jurisdiction to proceed further in this matter and for this reason no finding is required to be given on issue no.2 17 I.D. No.288/06/04 and 3.
RELIEF
19. In view of the foregoing finding on issue No. 1 I hold that this court does not have jurisdiction to consider whether claimant is entitled for any relief or not. This issue stands disposed of accordingly.
20. Award stands passed as above and reference stands answered accordingly. Copy of the award be sent to learned Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). Announced in Open Court on this 22th day of May, 2008.
S.K. Kaushik Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.
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