Delhi District Court
Between vs The on 23 July, 2007
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IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER,
LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI .
ID NO. 10/06
BETWEEN
The Workman
Sh. Satish Chander Uniyal S/o Sh. K. N. Uniyal
C/o Delhi Labour Union
Aggarwal Bhawan, Tis Hazari,
Delhi- 110054.
AND
The Management of
M/s Taj Mahal Hotel
No. 1, Man Singh Road,
New Delhi- 110011.
Date of institution of the case : 30.09.2002
Date of reserving the award : 09.07.2007
Date of announcement of award : 23.07.2007
AWARD
1. The National Capital Territory of Delhi, through its Secretary (Labour)
vide reference no. F.24(2441)/2002-Lab./16859-63 dt. 02.09.2002 referred
the dispute for adjudication between the Management of M/s Taj Mahal Hotel
and its workman Sh. Satish Chander Uniyal in the following terms of
reference:-
"Whether the termination from service of Shri Satish
Chander Uniyal S/o Sh. K. N. Uniyal by the mgt. is
illegal and/or unjustifiable and if so, to what sum of
money as monetary relief alongwith consequential
benefits in terms of existing Laws/Government
notifications and to what other relief is he entitled and
what directions are necessary in this respect?"
2. The workman has filed statement of claim stating therein that he joined
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the employment of M/s Taj Mahal Hotel as Lines Man w.e.f. 07.10.1982 and
he was confirmed w.e.f. 04.07.1983. The workman was rendering services to
the satisfaction of the management and the workman was also getting
increment from time to time and he was also issued appreciation letters by
the management from time to time. The workman has unblemished and
uninterrupted record of service to his credit. On 21.11.2001 the workman was
called by Sh. Nigel Grocock, General Manager/Area Director for the purpose
of enquiry about some alleged complaint against the workman and the
workman informed that the alleged charges levelled against him are totally
baseless, bald and motivated. On 02.02.2002 the services of workman were
dismissed in the guise of simple termination with immediate effect vide letter
dt. 02.02.2002. The foundation of termination of services of workman was
the alleged complaint for which he was called on 21.11.2001 by the General
Manager. The termination of services of workman is illegal, unjustified and
malafide as the workman has not committed any misconduct and no memo
or charge sheet was ever issued to the workman and no domestic enquiry
was conducted against the workman. The management has not furnished
copies of alleged complaints to the workman despite requests of the
workman and no notice or notice pay in lieu of notice was offered or paid to
the workman at the time of termination of his services. The workman sent
demand notice dt. 21.03.2002 to the management and the management sent
reply dt. 16.04.2002 to the said notice of demand. By way of another letter dt.
15.04.2002 issued by the management a cheque of Rs.18,595/- towards one
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month's salary in lieu of notice was sent to the workman. The workman is
unemployed since the date of termination of his services. The workman filed
claim before the Conciliation Officer but conciliation was not arrived due to
non-cooperative attitude of the management. It is prayed that an award be
passed thereby reinstating the workman in service with full back wages and
continuity of service.
3. The notice of statement of claim was issued to the management and
the management has filed WS and has contested the same. In the WS
management has taken the objection that the reference made by appropriate
Government is not maintainable and this court has no jurisdiction to
adjudicate upon the same as Sh. Satish Chander Uniyal is not a workman
within the meaning of Section 2(s) of the Industrial Disputes Act as at the
time of termination of his services he was working as Assistant Manager -
Employees Relations and in the said capacity he was discharging
supervisory, administrative, legal and managerial functions. Prior to his
posting at Taj Mahal Hotel, Sh. Satish Chander Uniyal was working as
Manager Personnel with Taj Services Ltd. and he was posted at Press at
NOIDA where he was independently discharging all functions of Personnel
Manager. Sh. Satish Chander Uniyal was independently handling legal cases
before the Conciliation Officer as well as Payment of Wages Authority,
Minimum Wages Authority etc. and by virtue of the duties performed by him
Sh. Satish Chander Uniyal does not fall within the ambit and scope of
definition of workman. It is stated that initial appointment of Sh. Satish
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Chander Uniyal, therefore, has no relevance. The services of Sh. Satish
Chander Uniyal have been terminated in accordance with the Service Rules
applicable to him and the same is not stigmatic. Even though he was not
entitled to receive any ex-gratia amount over and above his legal dues
payment to him, the management while terminating his services also paid to
him ex-gratia payment equivalent to 15 days salary for each completed year
of service. It is also denied that the foundation of termination of the services
of the employee was the complaint for which he was allegedly called on
21.11.2001 by the General Manager. A bare reading of the letter of
termination will show that it is not punitive in nature. It is a case of simple
termination of services in accordance with the Service Rules applicable to
Sh. Satish Chander Uniyal. Sh. Satish Chander Uniyal was also issued
separately a letter dt. 02.02.2002 in which the reasons which formed the
basis of termination of services were explained. The letter dt. 02.02.2002 of
management giving reasons for loss of confidence in the employee cannot
ipso facto render his termination of service as punitive. The reasons
conveyed to the employee resulting in loss of confidence merely formed the
motive of termination of his services. It is stated that services of Sh. Satish
Chander Uniyal were terminated in accordance with law and there was no
requirement of issuing any charge sheet or conducting any enquiry as order
of termination is not punitive. It is stated that workman is not entitled to any
relief.
4. The workman has filed rejoinder to the WS of management. In the
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rejoinder workman has reiterated the contents of statement of claim and has
controverted the allegations of management as stated in the WS. In the
rejoinder workman has stated that it is admitted that his designation was
Assistant Manager but he was discharging various clerical duties. It is denied
that services of workman have been terminated in accordance with law.
5. From the pleadings of parties following issues were framed by my ld.
Predecessor on 01.05.2003:
1. Whether Sh. Satish Chand Uniyal is not covered under the definition
of workman as he was discharging supervisory, administrative and
managerial nature of duties? OPM.
2. As per terms of reference? OPW.
3. Relief.
6. To prove his case workman examined himself as WW1 and WE was
closed on 17.11.2004.
7. In support of its case management examined Sh. Arvind Bhargav,
Manager - Legal as MW1, Sh. M. M. Bhardwaj, Managing Director of Black
Dragon Security P. Ltd. as MW2, Sh. Janardhan Prashad Singh, Proprietor of
Singh Enterprises as MW3, Sh. Ashok Singh as MW4 and Sh. Manoj Kumar,
Officer - Employee Relation as MW5 and ME was closed on 01.12.2005.
8. I have heard authorised representatives for both the parties and
carefully perused record. My findings on specific issues are as under:
ISSUE NO. 1
9. In para 1 of statement of claim workman has stated that he joined
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employment of management of M/s Taj Mahal Hotel as Lines Man w.e.f.
07.10.1982 and he was confirmed w.e.f. 04.07.1983 and thereafter he was
getting increment from time to time. In preliminary objections of WS
management has stated that Sh. Satish Chander Uniyal is not a workman
within the meaning of Section 2(s) of Industrial Disputes Act as at the time of
termination of his services he was working as Assistant Manager -
Employees Relations and in the said capacity he was discharging
supervisory, administrative, legal and managerial functions and prior to his
posting at Taj Mahal Hotel he was working as Manager - Personnel with Taj
Services Ltd. and he was posted at the Press at NOIDA where he was
independently discharging all functions of the Personnel Manager and he
was independently handling legal cases before the Conciliation Officer as
well as Payment of Wages Authority, Minimum Wages Authority etc.
10. To prove his case workman examined himself as WW1 and adduced
evidence by way of affidavit Ex. WW1/A. The workman has filed on record
legal demand notice dt. 21.03.2002 Ex. WW1/1 which was sent by him
through Delhi Labour Union to the management. The workman has also
placed on record the reply dt. 16.04.2002 Ex. WW1/3 which was sent by
management in response to the notice of workman Ex. WW1/1. The
workman has also filed on record copy of statement of claim Ex. WW1/34
which was filed by him before the Conciliation Officer and copy of the written
statement Ex. WW1/35 filed by management to the claim of the workman
before the Conciliation Officer. In Ex. WW1/3 which is reply of management
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to the notice of workman, the management has stated that Sh. Satish
Chander Uniyal was employed by the management as Assistant Manager -
Employees Relations at the time of termination of his services and in that
capacity he was discharging supervisory, administrative and managerial
functions and he was not a workman within the meaning of Section 2(s) of
Industrial Disputes Act. Hence before filing the statement of claim in this court
workman was aware that the objection of the management is that he (Satish
Chander Uniyal) is not a workman as per Section 2(s) of the Industrial
Disputes Act as at the time of termination of his services he was working as
Assistant Manager - Employees Relations and was discharging supervisory,
administrative and managerial functions. But despite knowing the objection of
management as raised by way of reply Ex. WW1/3 to the notice of workman,
the workman has not mentioned in the statement of claim that he was
promoted from time to time and at the time of termination of his services he
was working as Assistant Manager - Employees Relations. The workman
has only mentioned in the statement of claim that he joined management as
Lines Man w.e.f. 07.10.1982. In his affidavit Ex. WW1/A also workman has
only stated that he joined management as Lines Man w.e.f. 07.10.1982 but
workman has nowhere stated that he was promoted from time to time and at
the time of termination of his services he was working in the capacity of
Assistant Manager - Employees Relations.
11. In Vilas Dumale vs. Siporex India Ltd. and Another, 1998 LLR 380
the petitioner joined as a clerk and later on he was promoted and when his
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service were terminated he was working as Senior Personnel Assistant
Officer and drawing basic salary of more than Rs.500/-, it was held that he
was working in supervisory capacity and he cannot be a workman.
12. The contention of the management is that the workman was posted
lastly as Assistant Manager - Employees Relations and he was performing
supervisory, administrative, legal and managerial functions and the workman
ought to have stated in the statement of claim that he was posted as
workman and was performing functions of the workman as per Section 2(s) of
the Industrial Disputes Act but the workman has deliberately omitted to
mention in statement of claim that he was lastly posted with the management
as Assistant Manager - Employees Relations and in that capacity he was
discharging supervisory, administrative, legal and managerial functions. In
the statement of claim and in his affidavit Ex. WW1/A workman has only
stated that he joined the employment of management as Lines Man w.e.f.
07.10.1982 but the workman omitted to mention about his subsequent
promotions and his designations and functions discharged by him at the time
of termination of his services.
13. In Harish Ghularam Zode vs. Managing Director, M/s Vacuum
Plant and Instruments Manufacturing Co. (P) Ltd. and Others, 2000 LLR
742 it was held that:
3. .................... On the point of the Petitioner being a
workman he has not led any satisfactory evidence
before the Labour Court to show that he was
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continuing to do the work of machinist and that he
squarely fell within the four corners of the definition of
workman under Section 2(s) of the Industrial Disputes
Act, 1947. He ought to have produced his promotion
order and also ought to have narrated in detail the
work which he was doing to show that his duties did
not attract the exceptional part of the definition of
workman and that his predominant duties were that for
a workman only. On the contrary the employer
Company has produced documentary evidence and
had also examined one witness to prove that the
Petitioner was holding the post in a supervisory
capacity.
14. The workman has contended that although at the time of termination of
his services his designation was of Assistant Manager but he was
discharging various clerical duties and he is a workman as per Section 2(s) of
Industrial Disputes Act. On the other hand management has stated that prior
to posting with the management as Assistant Manager - Employees
Relations, the workman Sh. Satish Chander Uniyal was posted with Taj
Services Ltd. as Manager - Personnel and there he was independently
discharging all functions of Personnel Manager.
15. Section 2(s) of the Industrial Disputes Act 1947 defines "workman" as:
"workman" means any person (including an
apprentice) employed in any industry to do any
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manual, unskilled, skilled, technical, operational,
clerical or 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) who is subject to the Air Force Act, 1950 (45of
1950), or the Army Act, 1950 (46 of 1950), or the
Navy Act, 1957 (62 of 1957); or
(ii)who is employed in the police service or as an
officer or other employee of a prison; or
(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.
16. In Burmah-Shell Oil Co. v. Burmah-Shell Management Staff Assn.,
[1972] 41 FJR 361, Hon'ble Supreme Court laid down that the test of
substantial work performed by the concerned employee should be applied to
find out as to whether the employee is employed to do skilled or unskilled
manual, clerical, technical or supervisory work.
17. But, in determining the question as to whether a person is employed in
a supervisory capacity or otherwise, the mere designation is not decisive of
the nature of employment. The question whether a person is employed in a
'supervisory' capacity or on clerical work, depends upon whether the main
and principal duties carried out by him are those of a 'supervisory' character
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or of a nature carried out by a clerk. If a person is mainly doing 'supervisory'
work, but, incidentally or for a fraction of the time, also does some clerical
work, he would be deemed to be employed in a 'supervisory' capacity.
Conversely, if the main work done is of a 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 of supervisory capacity.
18. In Anand Regional Co-op. Oil Seedsgrowers Union Ltd. vs.
Shaileshkumar Harshadbhai Shah- 2006 LLR 1052 it was held that:
15.Supervision contemplates direction and control.
While determining the nature of the work
performed by an employee, the essence of the
matter should call for consideration. An undue
importance need not be given for the designation
of an employee, or the name assigned to, the
class to which he belongs. What is needed to be
asked is as to what are the primary duties he,
performs. For the said purpose, it is necessary to
prove that there were some persons working
under him whose work is required to be
supervised. Being incharge of the section alone
and that too it being a small one and relating to
quality control would not answer the test.
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16.The precise question came up for consideration
in Anand Bazar Patrika (P) Ltd. v. Workmen,
(1970) 3 SCC 248, wherein it was held:
"The question, whether a person is employed
in a supervisory capacity or on clerical work,
in our opinion, depends upon whether the
main and principal duties carried out by him
are those of a supervisory character, or of a
nature carried out by a clerk. 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..."
19. In M/s Sagari Leather (P) Ltd. vs. Presiding Officer, Industrial
Tribunal (4), Agra and others- 2006 LLR 1170 it was held that:
9. ............A person to be workman must be employed
to the work of any of the categories, namely, manual,
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unskilled, skilled, technical, operational, clerical or
supervisory. A person, who is employed as a
workman and is doing the work of the above nature is
workman and is a person employed is not doing the
work of the abovementioned is not a workman. Clause
(iv) of section 2(s) of the Act provides that 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 does not fall within the definition of
the workman. For the purpose of clause (iv) what has
to be seen is the employment of the person in a
supervisory capacity. The main part of the definition
treat a person as a workman, who is employed as a
workman in any industry but was looking after the
supervisory work for hire or reward but if a person is
employed in a supervisory capacity by virtue of his
appointment letter he is not a workman within the
definition of section 2(s) of the Act and in my opinion
no other consideration is required to be looked into.
20. Workman examined himself as WW1 and adduced evidence by way of
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affidavit Ex. WW1/A and in affidavit Ex. WW1/A workman has stated that he
joined employment of management as Lines Man w.e.f. 07.10.1982 and he
was confirmed w.e.f. 04.07.1983 and thereafter he was getting increment
from time to time and he was rendering services to the satisfaction of
management and he was getting appreciation letters from time to time from
the concerned officers. However, the workman has not stated in is statement
of claim or in his affidavit Ex. WW1/A that he was performing functions of a
workman as per Section 2(s) of Industrial Disputes Act 1942. However,
workman has raised contention that although he was designated as Assistant
Manager but he was discharging various clerical duties. On the contrary,
management has contended that workman was discharging supervisory,
administrative, legal and managerial functions.
21. In Toshniwal Bros. (P) Ltd. vs. Delhi Administration etc., ILR
(1976) II Delhi 548 it was held that:
15. Clerical work is ordinarily understood as being
synonymous with routine, stereotype work, which does
not involve any initiative, creativity, control or dignity. A
person employed to discharge general office duties,
whether styled as an Assistant or a General Assistant,
would nevertheless, be carrying on clerical work. A
limited amount of supervision and control over other
employees would not take any employee out of the
category of a workman if he is mainly employed for
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clerical work. A person, however, could not be said to
be carrying on clerical duties if he is required to
perform substantial duties of a supervisory, directional
or controlling nature, even though at the same time
carrying on duties of a clerical nature. If, however, a
person is mainly doing supervisory work, but
incidentally or for a fraction of a time is required to do
clerical work he would be deemed to have been
employed in a supervisory capacity. If the main work
entrusted to an employee is of a clerical nature the
mere fact that there is some element of superivision,
or supervisory duties are performed incidentally it will
not convert the employee into a supervisor. Ordinarily,
a supervisor or an officer should occupy a position of
command or be authorised to take independent
decisions and should be authorised to act in certain
matters within the limits of his authority without the
sanction of a superior. The fact that work performed by
an employee is of responsibility or of a onerous nature
would not be decisive as to the nature of duties.
22. In Abdur Rahim, Chief Chemist vs. Sasamusa Sugar Works Ltd,
1956-II-LLJ 399 it was held that a clerk is generally a person who does
routine work of writing, copying or making calculations under the direction
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and supervision of an officer.
23. The workman himself has placed on record memorandum dt.
10.06.2001 Ex. WW1/24 issued by management to Sh. Satish Chander
Uniyal whereby his responsibilities as Assistant Manager - Employees
Relations have been mentioned. Ex. WW1/24 reads as under:
June 10, 2001
To: Mr. Satish Uniyal
From: Vijay Kashyap
Re: Job Responsibilities
Welcome to the Human Resource Team at Taj Mahal Hotel.
In your position as Asst. Manager- Employee Relations you would have
the following responsibilities.
You will work at the time office and be responsible for the
following routine activities during your shift.
Tutiton Fee reimbursement (as per rules)
LTA payment (as per rules)
Verification of medical bills submitted for reimbursement.
Verification of contract labor bills
Preparation of monthly reports related to manpower etc.
Organizing pick up and drop for employees as per practice
You will also ensure follow up on all domestic inquiries and
coordinate with the company legal counsel on court dates.
In addition to the above you may be assigned any other job that
may arise during the course of work. Please note that these
guidelines are given in order to provide clarity to you on your new
assignment. During the course of your work you will be under
the direct supervision of the undersigned or Ms. Abhilasha
Chowdhry. All approvals/sanctions can only be granted by
either of us.
All the best
Sd/-
Vijay Kashyap
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24. The workman has also filed on record circular dt. 01.06.2001 Ex.
WW1/33 of Taj Hotels Resorts and Palaces wherein it has been provided that
Sh. Satish Chander Uniyal- Corporate Administration, Delhi will move as
Assistant Manager- Employees Relations and he will be responsible for all
staff matters and time office related issues and he will report to Human
Resources Manager. Hence as per Ex. WW1/33 Sh. Satish Chander Uniyal
in his capacity of Assistant Manager- Employees Relations was responsible
for all staff matters and time office related issues.
25. The contention of AR for management is that in a commercial
establishment and distribution of duties and allocation of work was always not
done by orders issued in writing and in addition to duties mentioned in Ex.
WW1/24 and Ex. WW1/33 Sh. Satish Chander Uniyal was discharging
various supervisory, administrative, legal and managerial functions.
26. In Parle Products Private Limited vs. C. S. Saraswati and another,
(1981) 2 LLJ 419 it was held:
28. ...................... The order of the Tribunal shows its
unusual insistence on every piece of evidence to be
in writing. In a commercial establishment normally
distribution of duties and allocation of administrative
work is not always done by orders issued in writing
as is done in a Government office. Ultimately it is a
matter of arrangement between the top officers of a
commercial concern as to how they will distribute
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functions between themselves.
27. The contention of the management is that in his capacity as Assistant
Manager- Employees Relations, Sh. Satish Chander Uniyal was performing
various supervisory, administrative, legal and managerial duties and he was
looking after cordial industrial relations and his job also included employee
satisfaction, welfare of staff, enforcing discipline, advising on labour cases,
participating in domestic enquiries on behalf of management, looking after
contract lincense, coordinating with contractors and coordination with various
Government authorities. The management has placed on record the
performance appraisal submitted by Sh. Satish Chander Uniyal for the period
from April 2001 to March 2002 Ex. WW1/M1. Workman/WW1 admitted that
Ex. WW1/M1 is signed by him. Ex. WW1/M1 is proforma of Performance
Management submitted by the workman with the management wherein he
has mentioned his designation as Assistant Manager- Employee Relations
and Part-A of the same relates to annual work plan and it is divided into
various performance objectives and accordingly weightage has been given to
the said objectives and it also provides the performance standard and
performance plan. The Ex. WW1/M1 reads as under:
TAJ GROUP OF HOTELS
PERFORMANCE MANAGEMENT
Part A- Annual Work Plan
Name: Satish Chandra Uniyal Ticket Number: 2095 Unit: The Taj Mahal Hotel, New Delhi
Department: Human Resources Designation: Period: From: April 2001
Assistant Manager-
To: March 2002
Employee Relations
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S. No. Performance Weightage Performance Performance Assessment
Objectives Standard Plan
1 Cordial 10% Maintaining To have
Industrial Cordial regular
Relations. Industrial interaction
Relations with staff &
union to solve
staff related
problems.
2 Employee 10% By Survey : Timely
Satisfaction Delivery of
staff services
as Salary,
Leave, LTA,
Medical,
Tution fees
etc.
: Anticipating
employees
needs.
: Open
communicatio
n.
3 Staff Welfare 15% : Maintaining : Improving
staff welfare staff dropping
activities. and pickup
transport
system.
: To improve
staff facilities,
staff cafeteria,
rest room
locker room
etc.
: To
implement
other welfare
measures.
4 Discipline, 35% : Timely : To attend
labour cases, smoothly domestic
Domestic handle of enquiry,
enquiry etc. discipline, labour cases.
Domestic
: As per the
enquiry &
requirement
legal cases
issuing
matters.
absenteeism
notices,
warning letter
etc.
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S. No. Performance Weightage Performance Performance Assessment
Objectives Standard Plan
5 Contract 15% Timely apply : Proper
License of contract checking of
license. bills, ESI, PF
Coordination
& other
with Checking of
records of
Contractors bills, records
payment
etc.
register, leave
etc.
6 Coordination 15% To maintain : to liaison
with good relation with local
government with Government
Authorities government office such as
Authority etc license office,
labor office,
Apprenticeshi
p, ESI, PF
offices etc.
PERFORMANCE MANAGEMENT
Part B- Performance Review
Name: Satish Chandra Uniyal
Date of Review1:
Ticket No.: 2095
OBJECTIVES SELF REVIEW BY SUGGESTION/IMP
ASSESSMENT BY EMPLOYEE'S ROVE ACTION
EMPLOYEE MANAGER PLAN
1. Cordial Industrial Maintained good Achieved
Relations relation with staff &
union
2. Employee Timely delivered staff Achieved.
Satisfaction services
3. Staff Welfare Improved transport Significant
system, Cafetria, Rest improvement in
room etc. service achieved
without increasing
costs.
4. Discipline, labor 10 nos. domestic Very well handled
cases, Domestic enquiry cases solved,
enquiry etc. attended labor cases
one case won by us.
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OBJECTIVES SELF REVIEW BY SUGGESTION/IMP
ASSESSMENT BY EMPLOYEE'S ROVE ACTION
EMPLOYEE MANAGER PLAN
5. Contract License, Applied for license,
Coordination with Improved system try to
Contractors maintained
systematically records. Excellent efforts made
and initiative taken in
6. Coordination with Maintained good
an impossible manner.
government relation with
Authorities Apprenticeship office,
ESI, PF, Labor office
etc.
Signature of Employee Signature of Employee's Manager
Date: Sd/- Date: Sd/-
28. The workman/WW1 admitted that Ex. WW1/M1 is signed by him. As
per Ex. WW1/M1 and 35% weightage has been given to performance
objective of discipline, labour cases, domestic enquiry etc. As per Ex.
WW1/M1 the workman has given his self assessment as having maintained
good relation with staff and union, timely delivering staff services, improved
transport system, cafeteria, rest room etc. In Ex. WW1/M1 workman has
himself stated that 10 number of domestic enquiries cases have been solved
and he had attended labour cases and one case won by them and as against
contract license Sh. Satish Chander Uniyal has mentioned that applied for
license, improved system tried to maintain systematically records and in
column against government Authorities he has mentioned maintained good
relations with Apprenticeship office, ESI, PF Labour office etc. The
workman/WW1 admitted that letters Ex. WW1/M2 and Ex. WW1/M6 were
issued to him by the management. As per letter dt. 01.10.1993 Ex. WW1/M6
Sh. Satish Chander Uniyal was promoted as Personnel Supervisor w.e.f
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01.10.1993. As per letter dt. 01.10.1996 Ex. WW1/M2 Sh. Satish Chander
Uniyal was promoted as Personnel Officer w.e.f. 01.10.1996. Workman/WW1
admitted in the cross-examination that he participated in various
departmental enquiries which were initiated by management against different
charge sheeted employees in the capacity of management representative.
Workman/WW1 further admitted in the cross-examination that he participated
as management representative in the enquirieis pertaining to Naresh Joshi,
Ansar Ahmed, Vinod Rana, Prashant Yadav & Devender Kumar Dhir and the
copies of the enquiries are Ex. WW1/M24 (collectively) which bear his
signature. The management has also placed on record letter dt. 21.06.2001
issued by Sh. Satish Chander Uniyal as Assistant Manager- Employee
Relations to Sh. Prashant Jadav (which is page 61 of Ex. WW1/M24
collectively) wherein Sh. Prashant Jadav has been intimated that he has
been absenting from duties without prior permission or intimation from
21.04.2001 and he was advised to report to the under signed (Sh. Satish
Chander Uniyal) within three days after receipt of the said letter failing which
company shall be free to take suitable action as deemed fit. Workman/WW1
further admitted in the cross-examination that he had worked with Taj
Services Ltd. also and workman/WW1 admitted in the cross-examination
that letters Ex. WW1/M26 to Ex. WW1/M29 were issued by him and the same
bear his signature. Ex. WW1/M26 is the letter dt. 17.03.2001 issued by Sh.
Satish Chander Uniyal as authorised signatory for Taj Services Ltd. to
Regional Commissioner, Employees State Insurance Corporation whereby
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the closure of the company has been reported and a list of employees was
sent in respect of whom ESI contribution was not to be deposited w.e.f.
19.03.2001 onwards. Ex. WW1/M27 is the letter dt. 17.03.2001 issued by Sh.
Satish Chander Uniyal as authorised signatory for Taj Services Ltd. to
Regional Provident Fund Commissioner informing about the closure of the
Printing Division and Electroplating units w.e.f. 19.03.2001. Ex. WW1/M28 is
the letter issued by Sh. Satish Chander Uniyal as Personnel Officer for and
on behalf of Taj Services Ltd. to Deputy Labour Commissioner thereby
informing that legal dues i.e. notice pay, retrenchment compensation, ex-
gratia, bonus and dues of the salary have been paid to the workers of the
said management as per the details furnished alongwith the said letter. Ex.
WW1/29 is the letter dt. 03.05.2001 issued by Sh. Satish Chander Uniyal as
Personnel Officer for and on behalf of Taj Services Ltd. to Deputy Labour
Commissioner. Workman/WW1 further admitted in the cross-examination that
he had also participated as management representative in the enquiry
pertaining to Rakesh Kagra and copies of the enquiry proceedings etc.
regarding Rakesh Kagra bear his signatures at the encircled portion and
same are Ex. WW1/M30 collectively. The workman, as authorised signatory
on behalf of management, has been dealing with various local bodies on that
account workman has mentioned in his performance review Ex. WW1/M1
that he bas been coordinating with Government authorities and had
maintained good relations with apprenticeship office, ESI, PF, Labour office
etc. The workman has filed on record letter dt. 16.12.2001 Ex. WW1/14
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which was sent by him to management and in the said letter workman has
stated about the complaints made against him by the contractors and in para
8 of the said letter workman has stated that allegations made by the
contractors against him are because of his actions to implement the
provisions of law particularly the Contract Labour (Regulations and Abolition)
Act and the workman has further stated that after assuming the charge in the
month of June, 2001 he found that the provisions of the said Act were not
being complied by the contractors and also by the management being
principal employer and in the interest of the company it was his duty to take
suitable action to safeguard the company/management or adverse action on
account of non-compliance of the provisions of the Act. Hence by stating so
the workman has admitted that he was dealing with various contractors as
management's representative whose services were engaged by management
and he had been taking suitable action to safeguard the interest of the
company/management. In para 8(e) of Ex. WW1/14 workman has mentioned
about his various achievements on account of his efforts and he has
mentioned about saving of amount on account of his efforts which were paid
to the contractors and he has also stated that they are checking PF, ESI
register of the contractors and contractors have been told to submit the
details of the bonus which has been paid to the employees whose services
have been left at the disposal of the management by the contractors. Hence
from the documents which have been proved on record it is evident that Sh.
Satish Chander Uniyal was participating in legal and departmental enquiries
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as management representative and he was dealing with the contractors
whose services were engaged by management and he was also coordinating
with various Government authorities on behalf of management and his job
also included maintenance of cordial industrial relations, employee
satisfaction and staff welfare.
29. In Narsinha Anand Joshi vs. Century Shipping & Ors., 1994 LLR
440 it was held:
7. I have carefully considered the evidence of the
Technical Manager as well as the petitioner-
employee. On careful consideration of the same it is
clear that he petitioner employee was not workman or
a clerk. In fact, he was working in an administrative
capacity. His job was not to do the filling of the
papers himself but "he was responsible for ensuring
proper filing of papers and maintenance of filling
papers" as is evident from the show-cause notice
given to him (which is Exh. 'E' to the Writ Petition No.
3047 of 1988). It appears that the Labour Court has
carefully scanned the entire evidence on record and
only on a careful appraisal of the same, arrived at a
conclusion that the dominant nature of the duties of
the petitioner-employee was administrative. I do not
find any infirmity in the said finding which might justify
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interference by this Court in exercise of powers under
Article 226 of the Constitution.
8. I have carefully perused the decision of the
Supreme Court in S. K. Verma v. Mahesh chandra &
Anr., Air 1958 SC 130. In this case the Supreme
Court while interpreting the definition of workman in
Section 2(s) of the Act, has observed in no less clear
terms that:
"Quite obviously the broad intention is to take in
the entire "labour force" and exclude the
"managerial force". That, of course, is as it
should be"
30. In Glaxo India Ltd. vs. C. Gupta & Anr., 1999 I CLR 969 it was held:
50. In case of disciplinary proceedings, industrial
Relations Executive plays an important part in setting
out either the charges or in keeping an eye over the
progress of the enquiry. In the process he may help
collection of evidence, production of evidence as
also advising the company on which type of
evidence and what evidence should be produced.
This is being done with a view to strengthen the
position of the management and to bring about a
favourable result for the management. Otherwise, it
will result in loss of face for the management.
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51. Of necessity, therefore, the entire team with the
typical hierarchy of Managing Director or Executive
Director at the top and Personnel Manager and other
staff members down upto Industrial Relation
Executive like the employee in the instant case
would be part and parcel of the management.
52. This is not to say that this managerial team will
not have workman working with them. They will be
having an assistance of clerk, stenographer and
other employees to run their office. They would
certainly be the workman. However, on and from the
stage that the steps are initiated, proposals are
mooted or suggestions are made affecting the
managerial policy in relation to the conduct of the
company towards its employee having direct effect
on the Industrial Relations, persons who are doing
this work with expertise in law ordinarily would fall in
the category of managerial staff.
...........................
...........................
61. In my opinion the aforesaid activities would clearly indicate that he was representing the management in the very important task of :28: maintaining industrial peace and assisting the company's lawyer in conducting cases to obtain favourable result for the company. In this background, as per exception No. 3 of Section 2(s) he would certainly be falling into the administrative or managerial capacity. To run harmoniously a factory by maintaining proper industrial relation is definitely a part of administration. Because of his expertise, the employee was the first rung in the ladder of management laid down by the company. That in no way will take him out of the position of being employed in managerial or administrative capacity.
31. As per Ex. WW1/M1 different weightage have been given to various duties assigned to Sh. Satish Chander Uniyal and weightage of 35% has been given to the discipline, labour cses, domestic enquiry etc. and Sh. Satsh Chander Uniyal has made his self assessment by stating that from the period April 2001 to March 2002, 10 number of domestic enquiry cases have been solved on account of his efforts and he has attended labour cases and even one case has also been won on account of his efforts. In Ex. WW1/M1 the maintenance of cordial industrial relations and employee satisfaction have been given weightage of 10% each and the workman has made self assessment of these two parameters by stating that he has maintained good relations with staff and union and has timely delivered staff services. In Ex. :29: WW1/M1 the parameters of contract license, coordination with contractors and coordination with Government authorities have been given weightage of 15% each and Sh. Satish Chander Uniyal has made self assessment of these parameters by stating that he has applied for contract linceces, improved system, tried to maintain systematically records and he has maintained good relations with Government authorities. Sh. Satish Chander Uniyal was not doing the routine work of writing, copying or making calculations under the direction and supervision of an officer. The act of participation in the departmental enquiries, dealing with contractors on behalf of management, dealing with various government authorities and maintaining cordial relations with them and making compliance of various legal provisions require taking independent decisions and to act within the limits of his authority and the said acts are the acts of responsibility and are not routine or stereotype work and that involve initiative, creativity and control. Hence on account of nature of duties performed by Sh. Satish Chander Uniyal, he is not a workman as per section 2(s) of the Industrial Disputes Act, 1947. This issue stands answered accordingly.
ISSUE NO. 2 & 3.
32. Since both these issues involve common discussion of facts and law hence for the sake of brevity both these issues are being taken up together. In findings on issue no.1 above it has been held that Sh. Satish Chander Uniyal is not a workman under Section 2(s) of Industrial Disputes Act, 1947. As Sh. Satish Chander Uniyal is not a workman as per Section 2(s) of I. D. :30: Act 1947 hence his claim is not maintainable under Industrial Disputes Act, 1947 and his is not entitled to any relief. Reference stands answered accordingly. Copies of award be sent to appropriate Govt. for publication as per law.
ANNOUNCED IN THE OPEN COURT
TODAY i.e. ON 23.07.2007
` (HARISH DUDANI)
PRESIDING OFFICER
LABOUR COURT NO. XVII
KARKARDOOMA COURTS,
DELHI
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