Delhi District Court
Sh. Vijay Singh vs M/S Delhi Flour Mills Co. Ltd on 1 October, 2009
-1-
IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 361/08/96
Sh. Vijay singh
S/o Sh. Durga Prasad
R/o Flat No. 391, Pocket IV
Sector II, Rohini
Delhi. ...... Workman
VERSUS
M/s Delhi Flour Mills Co. Ltd.
8381, Roshanara Road
Delhi - 7 ...... Management
Date of Institution of the Case : 23.02.96
Date on which the order has been reserved : 19.08.09
Date of delivery of order : 1.10.09
Order on preliminary issue no. 2
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F- 24(3447)/95/Lab./11965-70 dated referred the dispute for adjudication between the Management M/s Delhi Flour Mills Co. Ltd. and its workman Sh. Vijay Singh in the 1/41 -2- following terms of reference:
"Whether the dismissal of Sh. Vijay Singh from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. As per claim, the workman had been in the employment of the management w.e.f 22.11.76 as a Shift Incharge and the last drawn wages of the workman was Rs. 2995/- per month as salary. It is further stated that the workman was performing his duties with sincerity due diligence and no faults or complaints were found on the part of the workman during his tenure of service in the establishment of the management. It is further stated that the management with its ill motive and malafide intention illegally terminated/suspended the services of the workman w.e.f 30.09.94. It is further stated that there was a settlement/compromise executed between the parties i.e management and the workman on dated 24.02.92 under section 18 (1) of ID Act, 1947 according to which the management and the workman were bound to abide each and every clause of the said settlement. It was settled between the parties that the dispute shall be settled with mutual discussion according to said settlement some of the workmen were authorised representative of the workman and Mr. N.K Sawhney was 2/41 -3- appointed the authorised representative of the management and it was settled in the said settlement that any dispute arisen between the parties shall be decided with mutual consent by both the representative of the parties i.e workmen and Sh. N.K Sawhney, Factory Manager and the said settlement was valid up to 31.12.94 in which the service condition were clearly mentioned and from time to time by way of discussion made between the parties shall be settled accordingly. It is further stated that the management illegally stopped the telephone facilities to the workman with the pre- planned scheme w.e.f 23.08.93 which created anti-affect upon the workman along with other workers. It is further stated that Mr. Sushil Sharma, Raj Kumar Sethi, Naveen Kumar and Raj Mohan Lal were the representative of the workmen and the aforesaid management through factory manager on 6.09.93 called the authorised representative of the workmen for mutual discussion Mr. Naveen Kapoor representative of the workmen who used to sit in the office of the Factory Manager and on the call of the management, the workman along with other representative went in the office of the Factory Manager, the factory manager was not available in his office because the factory manager already informed Mr. Naveen Kapoor about his absence on that day and Mr. Naveen Kapoor conveyed the message to the factory Manager that if the other representative will come 3/41 -4- informed that about the adjournment of meeting to be held on 6.09.93 for next date after giving information to all the representative in advance because the factory manager further informed through Mr. Naveen Kapoor that he would remain absent for 7.09.93 and further Naveen Kapoor informed to the workman and other representative about the future plan of the factory manager. It is further stated that on next dated i.e 8.09.93 the General Manager with his pre-planned scheme affixed the notice on the notice board against the workman by leveling false allegations upon him because the management wants to get rid from the workman and even on talking with the management they did not act positively in the matter. It is further stated that on 12.09.93 the said management issued a charge sheet against the workman which was based on charge sheet dated 11.09.93 and the said letter was totally based on the false and frivolous grounds and thereafter the management illegally suspended the workman w.e.f 16.09.93 through the letter dated 16.09.93 thereafter the workman sent reply of it on 24.09.93 categorically denying all the false allegations. It is further stated that the management in violation of the standing orders dt. 22.03.48 initiated an enquiry proceedings against the workman. The suspension allowance was not being paid according to the Standing orders. The enquiry proceedings held by the management was only 4/41 -5- to show the fulfillment of the formalities which is against the principles of natural justice and illegal. It is further stated that the workman requested and demanded for necessary documents, papers regarding enquiry proceedings during the pendency of the enquiry but the request of the workman was not accorded. No sufficient opportunity was given to the workman to defend his case. The demands for providing legal assistance before the Enquiry Officer was rejected by the management and then dismissed the workman w.e.f 30.09.94. It is further stated that the enquiry proceedings were conducted partially without considering the valid proof and witnesses on the part of the workman. The action of the management is illegal, unjustified and bad in law. It is further stated that the workman is out of job since the date of his illegal termination. He could not get any other job despite of hectic efforts. It is further stated that the workman is fully entitled to be reinstated on his back duty with full back wages and continuity of service along with all legal perks. It is further stated that later on the conciliation proceedings taken up in the matter but nothing has been materialised due to adamant and rude attitude of the management.
3. The management filed WS wherein it is stated that it is an essential ingredient for the employee to be a workman as per section 2 (s) of ID Act, 1947 to move 5/41 -6- proceedings against the management under Industrial Dispute Act, 1947. So no proceedings can be initiated by him under this Act. Accordingly, the proceedings are not tenable legally and the employee is not entitled to any relief. It is further stated that the order of reference has been made in a stereo type manner without application of mind on law and facts relating to the matter. So on this ground also no proceedings can be held legally on such order of reference and no relief can be granted to the employees. It is further stated that the employee initiated two conciliation proceedings on one cause of action i.e his dismissal w.e.f 30.09.94. On this account also, the said proceedings were also illegal. It is further stated that the statement of claim has not been filed within fifteen days along with the relevant documents and list of witnesses. The specific direction given in order of reference and same has not been complied with. So, no relief can be granted on the present statement of claim which has not been filed as per the directions given in the order of reference. It is further stated that as per provisions of Industrial Dispute (Central) Rules 1957 made under the Industrial Dispute Act, 1947, the statement of claim has to be filed along with list of documents and list of witnesses within 15 days of receipt of order of reference. Even this statutory requirement has not been complied with. So no relief can be granted on such statement of claim. It is further stated that the 6/41 -7- proceedings of the labour court are activated only on the order of reference that has been issued by the appropriated Government, which is based on facts and law and has been issued legally. It is further stated that even otherwise no condonation of delay has been prayed by the employee nor the condonation of delay has been granted by this court, so on this account also no proceedings can be held on such order of reference.
In reply on merits it is stated that at the outset that the employee is not a workman. Wheresoever the employee has stated himself as workman, the same is denied because the employee is not a workman, as per provisions of section 2 (s) of ID Act, 1947. It is stated that the employee joined the employment w.e.f 22.11.76 as Out-turn clerk and thereafter on 1.08.87 he was promoted as Delivery Incharge and was subsequently promoted as Shift Incharge (Stocks) w.e.f 1.09.91. It is also submitted that whenever employee did good job, he was appreciated and was promoted to Delivery Incharge and then as Shift Incharge (Stocks). At the time of promotions, he was given special increment of Rs. 100/- and Rs. 350/- per month respectively. It is further submitted that on 11.09.93 and 16.09.93 he committed major misconducts for which he was charge sheeted and charge sheet dated 12.09.93 and 16.09.93 were issued to him. It is denied that during his employment 7/41 -8- with the management he never gave any chances of complaint. It is also denied that the services of the employee were terminated ill motive or with malafide intention or illegally. In fact, his services were dismissed on account of mis-conduct committed by him. The dismissal of the employee is legal and unjustified. It is absolutely denied that the employee was suspended w.e.f 30.09.94. In fact, he was dismissed from the services w.e.f 30.09.94. Prior to dismissal, he was suspended for the misconduct committed by him w.e.f 28.09.93. The actions of management were justified. It is further stated that the management has not violated the terms of the settlement mentioned in para 3 of claim nor was there any clause that dispute of all types will be settled as per terms of the said settlement. The settlement was in relation to general demands of the workmen. It is further denied that no telephone facility was given to the workmen or staff or employees as a matter of right. However, if there is any emergency call for any workman or staff member or even for the Manager/Executive, the same is informed to him accordingly. Telephones of the company are meant for the purpose of business of the company and not for the personal use to any workman or employee or staff or Manager of any officials of the company. Nor any employee or Manager is expected to leave his place of work for his personal talks during working hours. This 8/41 -9- facility was never given to any one nor it can be given. It is further stated that it came to the knowledge of the management that telephones of company were misused, which created problems of communication with customers and affected business of the company. So vide notices dated 23.08.93 employees were informed not to make personal calls without permission and they were also informed that in case of emergency call or message would be conveyed to them. So this facility was stopped w.e.f 23.08.93 is absolutely denied since there was no such facility as a matter of right. It is further stated that notices dated 7.09.93 and 8.09.93 were displayed at notice board. These were signed by General Manager. These notices were related to misconduct committed by the employees. These employees were also advised vide these notices to restrain from committing illegal activities. It is further submitted that the employee committed grave misconducts for which charge sheets dated 12.09.93 and 16.09.93 were issued to him. It s denied that the employee was suspended w.e.f 16.09.93. In fact he was suspended w.e.f 28.09.93 that is the date called of strike. It is denied that suspension was illegal. It is denied that the charge sheet dated 11.09.93 was issued to him. Management had received letters dated 24.09.93 and in reply to charge sheets dated 12.09.93 and 16.09.93 from the employee but even then he was given another 9/41 -10- opportunity to defend himself of the charges levelled against him vide charge sheets dated 12.09.93 and 16.09.93 for that purpose the enquiries were constituted. It is further stated that the employee has alleged that the management has violated the terms of standing orders dated 22.03.48. The fact is that employee is not a workman, so he does not come within the purview of standing orders Act. Presuming without admitting that employee was covered under Standing orders even then he was paid suspension allowance @ 50% of the salary for first 90 days and 75% of salary as suspension allowance after 90 days till the date of dismissal. It is further stated that the enquiry officers provided the copies of the enquiry proceedings and relevant papers and copies of the documents to the employees. The issues raised by the employee were properly dealt with by the respective enquiry officer during the enquiry. It is also denied that no sufficient opportunity was given to the employee to defend himself. In fact the enquiry officers gave various opportunities to the employee to defend himself in the enquiry and contention of the employee is again false. In fact the management put its objections on the issue of legal representative. It is admitted that after receiving the enquiry report and enquiry proceedings the management concurred with the findings of th enquiry officers and thereafter dismissed the employee from the services of the company w.e.f 30.09.94 in terms of its 10/41 -11- letter dated 29.09.94. It is further submitted that the employee has committed serious misconduct and does not deserve to be reinstated with full back wages or any other benefits as claimed by him. The employee is not entitled to any relief from the management. On the contrary he should compensate the management for his legal expenses being incurred by it for contesting the proceedings initiated by him against the management.
4. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
5. After completion of pleadings, following issues were framed on 7.04.99 :
1. Whether the enquiry has not been conducted in accordance with the principles of natural justice?
2. Whether the claimant is a 'workman' within the definition of section 2 (s) of ID Act?
3. As in terms of reference.
6. Parties led their evidence.
On behalf of management, Sh. Sunil Mohan Tyagi 11/41 -12- deposed as MW 1, Sh. V.K Chandel deposed as MW 2 and Sh. R.S Yadav deposed as MW 3 On behalf of workman, Sh. Vijay Singh examined himself.
7. MW 1 Sh. Sunil Mohan Tyagi was appointed as Enquiry Officr by the management of Delhi Flour Mills to inquire into the charges against the workman containing charge sheet dated 16.09.93. Inquiry report is Ex. MW 1/1 and enquiry proceedings are Ex. MW 1/2. The workman had participated in the enquiry and the enquiry was conducted in accordance with the principles of natural justice.
In cross examination of MW 1, he deposed that Mr. N.K Sawhney appointed him as Enquiry Officer. He was not provided any guidelines for conducting enquiry. He further stated that on the basis of documents received from the management, he had no knowledge whether documents i.e charge sheet, its reply etc. have already been supplied to the workman or not before start of enquiry proceedings by him. On the basis of record received by him from the management, it was not clear whether copy of report on which charge sheet was based were already supplied to the workman. He admitted that on the first day of enquiry the documents, list of 12/41 -13- documents and list of witnesses were not supplied to workman. He further admitted that the workman sought assistance of Sh. H.K Pathak and Sh. Pyare Lal but he was not permitted. He further admitted that Sh. Naveen Kapoor never appeared during the enquiry of the workman. He further admitted that on 8.01.94 statement of Sh. J.P Garg was recorded and his statement was again recorded on 4.02.94 without moving any application. He further admitted that on 11.03.94 the workman gave an application to him for supply of some documents. He further admitted that copies of all the documents filed by the management were not supplied to the workman. He further admitted that all the documents filed by the workman were supplied to the management.
MW 2 Sh. V.K Chandel has deposed that he was appointed as enquiry officer by the management Delhi Flour Mills Pvt. Ltd. vide its letter dated 1.11.93 to enquiry into the charges levelled against Sh. Vijay Singh employee of management vide charge sheet dated 12.09.93. He had conducted the enquiry fairly and properly. His enquiry report is Ex. MW 2/2.
In his cross examination, he has stated that he did not write any letter to the workman intimating him that he was appointed enquiry officer and that he would be holding enquiry against him. He further admitted that 13/41 -14- copies of all the documents including copy of report on which charges were framed were not supplied during enquiry. There are so many documents on the basis of which charges were framed. It is admitted that on start of enquiry workman demanded assistance of an advocate and he did not permit him assistance of lawyer. He further admitted that thereafter workman demanded assistance of co-worker. It is denied that he did not allow assistance of a suspended co-worker to the workman. He admitted that on 24.03.94 workman was not afforded opportunity to cross examine management witness Sh. V.K Puri despite request of workman. He further admitted that on 7.04.94 workman gave a letter to him that he was not having no faith in him.
8. WW 1 in evidence by way of affidavit supported the averments made in the claim.
In his cross examination, he admitted that he received copies of proceedings and enquiry report. In his volunteer statement he stated that the said copies were supplied to him on his repeated demands. He further admitted that the Enquiry Officer used to supply him copy of proceedings on the date of hearing. He further admitted that copy of charge sheet was supplied to him by the management. He further stated that he received letters for conducting enquiry against him and another 14/41 -15- letter for suspension of his services. He further stated that the documents which were not supplied to him on his demand were not there on record of the enquiry officer. He further stated that he was not afforded opportunities to cross examine the witness. He further admitted that the enquiry officer afforded him opportunity for adducing his evidence. He further denied that the enquiry officer afforded him opportunities to cross examine all the witnesses of the management. He further stated that the enquiry officer did not dispose of his application vide which he demanded the documents. He further denied that enquiry office dispose of all his applications. He further admitted that all applications of his are on enquiry record.
9. After leading entire evidence on enquiry issue case was adjourned for arguments on enquiry issue. Perusal of file shows that during the course of arguments on enquiry issue, an application was moved on behalf of management for treating the issue of workman as preliminary issue. Arguments were heard on the said application and the same was allowed. Thereafter evidence was led on behalf of workman to proving the issue of workman.
10. WW 1 was examined on the issue of workman. WW 1 in evidence by way of affidavit supported the 15/41 -16- averments made in the claim and got exhibited copy of notice and postal receipt Ex. WW 1/1.
In his cross examination he stated that he used to work as per the instructions of the Factory Manager. In his volunteer statement he stated that he used to work as per Sales Manager and Production Manager. He admitted that he and Sheetal Prasad were holding the post of Shift Incharge. He further stated that the company used to work in three shifts. Sometimes two shift incharges used to work in one shift. He further stated that production of every hour in the shift might be used to be noted by the OTC (Out Turn Clerk). He further stated that he had no knowledge if the other workers used to work on machines in the shift as he had no concern with the production. He further admitted that Ram Avtar, Hari Ram, Ram Poojan and Rajesh kumar were working in his department. He further admitted that three OTC namely N.K Gupta, Bhupinder Singh and Suresh Chand used to work in his department. He further admitted that Rajneesh, Anil Kumar and Anokhe Lal were also working in his department. Anokhe Lal was the safai karamchari while Anil Kumar and Rajneesh were working as Delivery Assistant He further admitted that he was working in delivery department. He further admitted that he was reporting to the factory Manager. He denied that all the said 16/41 -17- persons used to work under him in the shift. He further stated that being the Shift incharge, delivery was under
him but the weigh bridge was not under him. He further admitted that ESI was deducted of all the employees who came under the ESI scheme. He further stated that he did not receive bonus. He further stated that company used to pay bonus sometimes in April, sometimes in October and sometimes in August. He denied that the company can pay the bonus upto 30th November. He further admitted that benefits of all settlement were being given to all the employees except the Managers and Executives. He further admitted that he had given the statements during both the enquiries conducted against him. He further denied that he was working as shift Incharge and his work was not that of the workman but of supervisory nature.
11. Perusal of file further shows that AR for workman has filed an application for disposing the issue of workman as per directions given by the Hon'ble High Court in WP (C) No. 5260/2006. Arguments were heard on the said application and subsequently the order was passed wherein it was held that only the management has to lead evidence on the issue of workman. The necessity to record evidence on the third issue will only arise in case the issue of enquiry is decided in favour of workman, as the management will be given 17/41 -18- an opportunity to lead the evidence in the present case to prove the charges against the workman in the court. In case the enquiry issue is decided in favour of management, there will be no necessity to lead evidence on the third issue. Accordingly, the issue of workman will be decided first, as if the issue of workman is answered in favour of the management there will be no necessity to adjudicate the matter further. After the decision on the issue of workman, the issue of enquiry will be decided. Necessity to lead evidence on issue no. 3 will only arise if the issue of enquiry is decided in favour of workman. Accordingly, case was fixed for management evidence on the issue of workman.
12. MW 3 Sh. R. S Yadav was examined on the issue of workman. MW 3 Sh. R. S Yadav in evidence by way of affidavit supported the averments made in the claim.
In his cross examination, he has admitted that at the time the workman was appointed with the management, he was not there. He further stated that in March 1981 he was appointed as Trainee Engineer with the management in the department of Maintenance and Engineering. He further admitted that Vijay Singh was not working in his department. He further stated that he had no personal knowledge regarding the nature of duties of Vijay Singh in 1976 but he had made deposition on the 18/41 -19- basis of record. He further admitted that during the entire tenure of the service of Vijay Singh he had never worked with him in his department. He was further stated that he was never posted in Delivery Department. He further stated that he cannot say whether duties of Vijay Singh were given in writing or not. The duties of Vijay Singh were as Shift Incharge as supervisor of loading and unloading, coordinate between department and he also used to report to the shift manager about his work progress, he also used to report all incident to the factory manager. He further stated that he used to supervise all important work. He further admitted that the Vijay Singh has no relation with wheat and gunny department, beverage Department. He denied that the Chakresh jain and Brij Bhushan used to report to the factory manager regarding discrepancy in the account. Shift Incharge has a proper place to sit adjacent to delivery department. He further denied that there was no designated chair for the shift incharge and he was deposing falsely in this regard. Defect if any in the gunny bag used to report to Vijay Singh and through him to factory manager and sometimes damage was used to report directly. He further stated that OTC report used to be submitted to the Shift Incharge. He further denied that regarding the wrong numbering of gunny bag the OTC used to submit report to Quality Manager. Quality in gunny bag is also reported to the shift incharge by the 19/41 -20- incharge of the gunny bag. He further admitted that Vijay Singh used to work under supervision and control of Factory Manager. He further admitted that all the workers used to punch card while Manager used to sign in the register. He further admitted that the workman used to get his card punch. He further stated that Bonus used to be paid up to the supervisory level and at the managerial level bonus used to be paid by the decision of the management. He further stated that overtime used to be paid up to the supervisory level persons. Vijay Singh used to get salary after signing in the register in cash. The employee of managerial level used to get cheque. All persons up to supervisory level used to get 15 kg Aata and managerial level did not get flour (aata). He further admitted that LTC and HRA used to be given only to managerial level and not to the workmen. Vijay Singh also did not get HRA and LTC. He further stated that Vijay Singh did not have the power of disciplinary action. He used to have decision making powers. He further admitted that Vijay Singh had no degree or diploma. He further admitted that stock verification, information, counting of goods were the work of Vijay Singh. He further admitted that Vijay Singh was paid overtime at double rate.
13. Written arguments filed on behalf of management on issue no. 1 and 2.
20/41 -21-It is stated in the written arguments that one of the contentions/preliminary objections of the management in this case is that the claimant is not a workman under the provisions of the Industrial Dispute Act, 1947. He further stated that the issue no. 2 is a jurisdictional issue and go to the very root of the matter. AR for management has argued on the issue of workman first. In case the Hon'ble Court comes to a conclusion that the claimant is not a workman under the provisions of ID Act, there would be no requirement of proceedings further in the matter and award would be answered accordingly. It is further stated that under the Industrial Dispute Act, 1947 an employee who is in the category of 'workman' can only invoke the jurisdiction of the Industrial Tribunal or labour court. The benefits of the Industrial Dispute Act are therefore, only available to an employee, who squarely comes within the category of a 'workman'. It is further stated that the burden of proof lies on the workman. It is well settled position of law that it is for the claimant to firstly prove that he was an employee of the management and thereafter he is required to prove that he is a workman under section 2 (s) of ID Act, 1947. There is no dispute that the claimant was an employee of the management. The dispute is that whether he is a 'workman' or not. The said observation finds further force from the judgment of Hon'ble Supreme Court of India titled as Workmen Nilgirii Coop. Marketing 21/41 -22- Society Ltd. Vs. State of Tamil Nadu and ors., 2004 LLR pg. 351. It is further stated that it is the claimant, who has to prove firstly the relationship of employer and employee between them and the management and thereafter that he is a workman under the Industrial Dispute Act, 1947. The Hon'ble Supreme Court has also laid down the law on the burden of proof in the matter of Shankar Chakaravarti Vs. Britania Biscuit Company, 1979 (II) LLJ pg 134 as under :
"Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led."
In another judgment delivered by Hon'ble High Court of Delhi in a case titled as Tin Box Company Vs. Inderjit Singh and ors., 2003 LLR pg. 544. The observation of the Hon'ble court is this case is that 'Burden of proof' lies upon the workman and not on the management to lead his evidence at first instance before labour court adjudicating the dispute about the termination of his services. It is further stated that so far as the nature of duties performed by the claimant, the evidence of claimant himself, leaves no scope of doubt that the claimant is not a workman. The relevant facts shows that claimant was not a workman which are as 22/41 -23- under :
i. The wages/salary of the claimant at the time of dismissal i.e in the year 1994 was Rs. 2995/- per month.
ii. It is an admitted that that he was promoted as Shift Incharge (stocks) w.e.f 22.11.76. The claimant has filed his promotion letter dated 31.08.91 vide which he was given increment of Rs. 350/- per month on his promotion.
Iii. The claimant was cross examined on 20.02.07 on workman issue. The claimant has admitted page no. 27 to 63 of the enquiry conducted by the enquiry officer.
iv. The management witness has deposed that Sh. Vijay Singh was initially employed in the company w.e.f 22.11.76 as out-turn clerk. Thereafter, he was promoted as Delivery Incharge w.e.f 1.08.87 and he was subsequently promoted as Shift Incharge (Stocks) w.e.f 1.09.91.
It is further stated that contention of the claimant is regarding the applicability of the provisions of ESI Act on the claimant. In the cross examination of management witness Sh. R. S Yadav has admitted that workman was covered under ESIC. It is further stated that in the ESI Act, 1947 the word 'employee has been used and not the workman. As section 2 (9) of the ESI Act, 1948 the word employee has been defined. In view of applicability of ESI Act on the claimant is of no benefit to 23/41 -24- him because the claimant was admittedly an employee of the management. AR for management further argued on the point of enquiry issue. It is stated that the claimant had committed the acts of gross misconduct for which charge sheets dated 12.09.93 and 16.09.93 were issued to him. It is further stated that since the explanations submitted by the claimant were not found satisfactory, two separate enquiries were ordered to be conducted. The enquiry offices after concluding the enquiries had submitted their reports dated 23.08.94 and 30.06.94 respectively along with the entire record of enquiry to the management. The management on receipt of the proceedings of enquiries and the reports submitted by the enquiry officers considered the same. The management was satisfied that the enquiries were conducted in accordance with the principles of natural justice in which the claimant was afforded full opportunity to defend. The management was satisfied that the charges leveled against the employee had proved in the enquiry.
It is further stated that representatives of the management were not the legally trained persons. They were not law graduates. It is further stated that there is no legal embargo in appointing ad advocate as an enquiry officer.
AR for management referred the case laws which 24/41 -25- are as under :
Kalindi (N.) and ors. and Tata Locomotives & Engineering Company, Ltd. jamshedpur, 1960 II LLJ pg. 228 SC.
Bharat Petroleum Corporation Ltd. Vs. Maharashtra General Kamgar Union and ors., 1999 LLR pg. 180 SC Harinarayan Srivastava Vs. United Commercial Bank & another, 1997 LLR pg. 497 SC.
Crescent Dyes & Chemical Ltd. Vs. Ram Naresh Tripathi, 1993 LLR pg. 97 SC Pushpa Gupta Vs. Chairman and Managing Director Engineers India Ltd., 1997 LLR 372 (DHC) Triton Volves Ltd. Mysore Vs. Labour Court Mysore & another, 1998 LLR pg. 1009 (Kant. HC) K.G Mhaiskar Vs. Bank of Maharashtra, 1997 LLR 153 (Bomb. HC) It is further stated that enquiry officers have 25/41 -26- considered the entire evidence oral as well as documentary, which came on the record of the enquiry proceedings. They have given valid and bonafide reasons for arriving at their conclusion and the same cannot be disbelieved. After the receipt of the enquiry proceedings and reports of the enquiry officers, the management considered the same and no discrepancy was found in the same.
14. AR for workman has filed citations which are as under :
Sur Enamel & Stamping works Ltd. Vs. their workmen, 1964 II LLJ SC 387 Kesoram Cotton Mills, Ltd. Vs. Gangadhar and ors., 1964 II LLJ SC 371 State of UP Vs. Shatrughan Ltd., 1998 Late I.C 3489 SC Union of India Vs. Suresh and anr., 2002 I LLJ 323 State of Uttranchal and ors., Vs. Kharak Singh, 2009-I-LLJ 235 SC State of Uttar Pradesh Vs. Mohammad Sharif, 26/41 -27- (Dead), 1982 (45) FLR 289 SC Swai Singh Vs. state of Rajasthan, 1986 lab IC 855 SC Surath Chandra Chakravarty Vs. State of West Bengal, 1971 SLR 103 SC
15. Final arguments heard.
On the point of workman issue, AR for workman states that the claimant is a workman and he never worked in a supervisory capacity to be out of purview of the definition of workman. For claimant to be under the supervisory roll merely nomenclature of supervisor or incharge is not enough. He should have granted supervisory and roll to take out the claimant out of the purview of definition of workman which management failed to show. AR for workman cited Syndicate Bank Ltd. Vs. its Workmen, 1966 II LLJ 194-200 wherein it was held that :
"Designation of person not conclusive of his status as officer."
For taking a claimant out of definition of workman it should be proved by the management that the claimant was in Managerial or Administrative capacity. Since there was no proof of claimant being managerial or 27/41 -28- administrative capacity, it was held that claimant is a workman. AR for workman further cited Prem Sagar Vs. SVOC, Madras, wherein it was held that :
"the test to determine whether the claimant is a workman or working in managerial capacity are (a) power to operate bank account (b) Payments to third party (c) Enter into agreements with third parties on behalf of employer (d) Represent the employer to the world at large in regards to dealings of the employer with stranger (e) Authority to supervise the work of clerks employed in establishment (f) Control & Charge of correspondence (g) Make Commitment on behalf of employer (h) Grant leave, hold disciplinary proceedings, power to appoint or punish staff."
Merely because claimant was senior to the other fellow workers cannot make claimant supervisor.
AR for workman further cited State Bank of Bikaner & Jaipur, AIR 1971 SC 2200-2203 wherein it was held that :
"Power was given to the claimant with responsibility and is to discharge responsibility of manager with allowance."
AR for workman further cited D.P Maheshwari Vs. Delhi Administration, (1983) 4 SCC 293-297, wherein it was held that:
28/41 -29-"if a claimant is a workman however occasional entrustment of supervisory, Managerial or Administrative work will not take a person out of purview of workman."
Hence, it was held that the claimant was merely discharging clerical duties.
AR for workman further cited S.K Maini Vs. Carona Sahu Co. Ltd. and ors., AIR 1994 SC 1824- 1831, wherein it was held that :
"Shop Manager is not a workman."
In State of Rajasthan Vs. Kailash Chandra Jain, 1973 LIC 221-227, wherein it was held that :
"converting workman to non-workman cannot be made without consent."
In Promer Sales Pvt. Ltd. Vs. Manohar Sondhuar, 1993 II LLJ 997, wherein it was held that :
"Sales Representative doing clerical work and repair of radios, collection of accounts, tally of accounts, taking stock of goods, collection of amounts are held to be workman."
In Inter Globe Air Transport Vs. Mrs. Leena Despande & Anr., 1994 LIC 1095-1100, wherein it was 29/41 -30- held that :
"Regional Sales Manager prima facie held to be workman."
In German Remedies Ltd. Vs. Michael Gabriel Lopes, 1999 LIC 1208-1211,wherein it was held that :
"Promoted personal Manager with change in duty and responsibility is not held to be workman."
In Management Church of South India Vs. Smt. Edith Peter, 2000 LIC 1794-1798, wherein it was held that :
"the person who obtain permission and cannot independently act and also maintain accounts and registers is held to be workman."
It was further stated by AR for workman that claimant is a workman since he was working admittedly under the Factory Manager. The claimant was doing admittedly manual work i.e workman used to do stock verification, information and counting of goods, which is a prima facie manual and clerical work and MW 3 has admitted this fact. It is further stated that MW 3 has admitted that claimant used to get his card punch at the time of office while Managerial and Administrative 30/41 -31- persons were not required to punch their cards, they used to sign in the register. This fact shows that the claimant is a workman. The claimant also used to be paid wages in cash like any other workmen and admittedly the managerial persons were given their salary by way of cheque. It is further an admitted by MW 3 that the claimant had no disciplinary power over any persons which is a sine qua non of having managerial and supervisory functions. The claimant was not having an It is incorrect to suggest that degree or diploma. He was also paid overtime double to the rate which is usually given to the workman. The claimant was also given bonus which is not admissible to the managerial level persons. AR for workman shows that the above are the admitted facts and these facts are given in the cross examination of MW 3 and hence the claimant is a workman.
17. I have seen the file, written arguments filed by the management and further citations on record and my findings with respect to the issues no. 2 are as under :
REGARDING ISSUE NO. 2 - Workman issue Keeping in view the documentary evidence as well as written arguments, my inference is that the issue no. 2 i.e the issue of workman be decided against the workman 31/41 -32- on following grounds :
(i) Definition of workman has been provided under section 2 (s) of Industrial Dispute Act. Four categories of persons have been excluded from the definition of workman. First category of persons are member of armed forces which is not relevant here.
Second category for excluded persons are members of police service which is also not relevant here. Third category of excluded persons are the persons employed mainly in a managerial or administrative capacity. Hence for the purpose of decision of workman issue this clause of excluded person is also not relevant. In fourth category of excluded persons are those persons (a) employed in a supervisory capacity and
(b) who draws wages exceeding one thousand six hundred rupees per mensem. So far as wages of claimants are concerned his last paid wages or carry home salary was Rs. 2995/- at the time of dismissal. Hence, second condition of fourth category is fulfilled. Now, only question is to be seen whether the claimant was working in supervisory capacity or not.
(ii) Burden of proof It is stated by AR for claimant that it is for the management to prove that the claimant is not a workman 32/41 -33- and since the management has failed to prove the claimant to be not a workman, it be decided that the claimant is a workman. On the other hand, AR for manage had stated that burden of proof is on the person to assert the status. AR for management further cited Workman Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and ors., 2004 LLR page 351 wherein Hon'ble Supreme Court has held that :
"The burden of proof being on the workman to establish the employer and employee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship."
AR for management also cited Swapan Das Gupta and ors. Vs. The First Labour Court of West Bengal and ors., 1975 LIC pg. 202 wherein it has been held that :
"Where a person asserts that he was a workman of the company, and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person."
AR for management further cited Shanker Chakravarti Vs. Britania Biscuit Company, 1979 (II) 33/41 -34- LLJ pg. 134 wherein it was held that :
"Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led."
AR for management further cited Tin Box Company Vs. Inderjit Singh and ors., 2003 LLR pg.
544.
The management in the WS as well as in preliminary objections and reply on merits had denied the claimant to be workman. Hence, the workman has to prove that he is covered within the definition of section 2
(s) of ID Act. On the other hand, AR for claimant states and cited the judgments to show that the person who denies the status should prove. In my view it is for the claimant to prove that he is a workman as defined under section 2 (s) of ID Act. Unless and until, it is proved by the workman or admitted by the management this court has no jurisdiction to further entertain or decide the dispute. Hence, burden of proof is on claimant.
(iii) Appointment Initially the claimant was appointed by the 34/41 -35- management w.e.f 22.11.76 as Out Turn Clerk (OTC). This fact is not disputed. The claimant was promoted from Out Turn Clerk (OTC) to Delivery Incharge w.e.f 1.08.87. He was granted a special increment of Rs. 100/- and revised his basic salary from 994.75 to Rs. 1094.75 and hence claimant's designation from Out Turn Clerk to Delivery Incharge was shown in Ex. MW 3/2. It is further an admitted fact that w.e.f 1.09.91 as per Ex. MW 1/1 claimant was promoted from Delivery Incharge to Shift Incharge (Stocks). So far as OTC work is concerned, the OTC is covered within the definition of workman. The moment when the claimant was appointed from Out Turn Clerk to Delivery Incharge he moved from workman towards supervisory capacity. However, this court has not to give any finding whether as Delivery Incharge he was working as supervisor or not. Once he is promoted from Delivery Incharge to Shift Incharge, on the face of it he moved from the category of workman and assigned the functions of supervisory capacity. AR for claimant states that the service conditions were changed by the management without the consent of the claimant which cannot be done. But once he accepted his promotion as Shift Incharge takes over the work and draws the salary then the consent is inherent in his work.
35/41 -36- (iv) Nature of Duties
(a) It is a fact admitted by both the parties that
the claimant was neither appointed in managerial post nor in administrative post.
(b) Whether a person is doing supervisory work or not is the nature of duties and functions assigned to whom. Supervisor means a person who oversees the work of others. Hence, it means overseeing a person can be said to be supervisor if there are persons working under him over whose work he has to keep a watch. Hence, supervisor keeps a watch over the work of person and if they err in any way, corrects him. It is the duty of the supervisor to see that the work is done by the person under his control in accordance with the manual or in accordance with the usual proceedings. It is not his function to take any managerial decision but it is the duty of the supervisor to see that the person over whom he is, suggests to supervise the work assigned to them according to rule and regulations. Hence, Supervisor need not be a Manager or an Administrator. A person may not be a Manager or Administrator still he can be outside the purview of 'workmen' as he may be doing supervisory function.
(c) In Industrial adjudication the essence of 36/41 -37- duties is the primary factor to say that a claimant is doing supervisory function or not. Designation of person is not given undue importance nor on the name assigned to the class to which he belongs. [Lloyd Bank Ltd. Vs. P.L Gupta (1961) 1 LLJ 18 (SC)].
(d) In Mathur Aviation Vs. L.G Delhi (1977) 2 LLJ 255 (Del), it was held that when one talks of a person working as Supervisor, one understands it to mean a person who is watching the work be done by others to see that it is being done properly.
(e) The basic concept of supervisor is there are some persons working under him. Claimant as WW 1 admitted in his cross examination that Ram Avtar, Hari Ram, Ram Poojan and Rajesh Kumar were working in his department as Shift Incharge. Claimant further admitted in his cross examination that three OTCs namely N.K Gupta, Bhupinder Singh and Suresh Chand used to work in his department. He further admitted in his cross examination that Rajneesh, Anil Kumar and Anokhe Lal were also working in his department. He further explained that Anokhe Lal was Safai Karamchari while Anil Kumar and Rajneesh were working as Delivery Assistants. The claimant further admitted in cross examination that being a Shift Incharge delivery was under him.
37/41 -38-(f) MW 3 in his cross examination states that the duty of Vijay Singh was as Shift Incharge, as supervisor of loading and unloading, coordinate between department or he also used to report to the Shift Manager about his work progress. He also used to report all incident to the Factory Manager. He further stated that he used to supervise all important work. MW 3 further states that OTC report used to be submitted to the Shift Incharge. Quality in the gunny bag was also reported to the Shift Incharge by the Incharge of Gunny bag. Hence, the claimant was also overseer of the Gunny bag as well as Delivery Department.
(g) To come to a conclusion that a person is working in the Supervisory capacity, it is necessary to prove that there were at least some persons working under him whose work he is required to supervise. The above point clearly shows that he used to supervise other persons as admitted by him in his cross examination.
(h) Merely because apart from supervisory functions, claimant might be doing some clerical work or is to be seen is predominant nature of work. His predominant nature of work was as Shift Incharge [Anand Bazar Patrika Pvt. Ltd. Vs. Its Workmen (1969) 38/41 -39- LLJ 670 (SC)].
(i) It is stated that since the claimant was beneficiary of ESIC, getting of bonus, used to get his card punch and also used to get 50 kg of Aata and also get double the overtime which can also be given and received by the workman. Hence, the claimant is a workman. So far as the membership of ESIC is concerned, it is mentioned that the employers not a workman. Admittedly claimant is an employee of management. So far as getting bonus, punching of card, double the overtime and 50 kg of aata is concerned, it is stated by MW 3 as well as by the management that these facilities were granted up to supervisory level and since the claimant was supervisor, he was getting these facilities. There is no case cited by the claimant that any other supervisor was not getting these facilities.
(v) Head of the Department
OTC is a separate department. Three persons
were working in the OTC department namely N.K Gupta, Bhupinder Singh and Suresh Chand. Previously claimant was working as one of the OTC. Similarly Delivery is a separate department. Under the Delivery Department also some persons were working in the Delivery Department. Similarly gunny bag is also a separate 39/41 -40- department and some persons were also working in this department. Claimant has admitted that as a Shift Incharge, Delivery was under him and all the persons working in the OTC and Gunny bag were working under him. All the departments were under him.
(vi) In the statement of claim, claimant states that he was working as Shift Incharge. In the affidavit also he states that he was working as Shift Incharge. However, in the cross examination on 25.07.07 he states that "It is incorrect to suggest that I was working as Shift Incharge". Despite admitting at every place that he was Shift Incharge it is very surprise that he denied that he was working as Shift Incharge. In Anand Bazar Patrika Pvt. Ltd. Vs. Its Workmen (1969) LLJ 670, it was held by their lordship of Supreme Court that :
"A person is employed in a supervisory capacity, which excludes him from the definition of the workman."
In view of above, my inferences are that the claimant as Shift Incharge was working in supervisory capacity and since his last carry home salary was Rs. 2995/- at the time of dismissal. He is excluded by sub section (iv) of section 2 (s) of ID Act. He is not a workman.
40/41 -41-18. In view of my findings on issue no. 2, wherein it is held that the claimant is not a workman, this court has no jurisdiction to give findings on other issues.
19. Hence, issue of workman is decided accordingly. Reference is answered accordingly. File be consigned to Record Room After necessary compliance by Ahlmad. Copies of award be sent to the appropriate Government for publication as per law.
Announced in the (DAYA PRAKASH) Open Court on Add. District & Session Judge
1st October, 2009 Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
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