Delhi District Court
Tools Ltd. vs . Govt. Of Andhra Pradesh 1976 Lab. 1C190 ... on 2 December, 2008
1
IN THE COURT OF SHRI SANJAY GARG : POLC : V : KARKARDOOMA:
DELHI.
ID No. 79/06
B E T W E E N
The Management of (1) M/s. The Indian Hotel Company Ltd., Through its
Managing Director, Mandlik House Mandlik Road Mumbai400001 Mahrashtra.
(2) M/s. Taj Palace Luxury Hotel, Through its General Manager,2, Sardar Patel
Marg Diplomatic Enclave, New Delhi21.
A N D
The workman Sh. Virender Singh S/o Sh. Shiv Nandan Singh Ticket No. 6476,
Security Department R/o Plot No.9/197198/822, Gali No.11B, Durga Park,
Nasirpur, Delhi45. Through Mayuri Vats, Advocate, R/o 45/CSP Flats, East of
kailash, New Delhi65.
DATE OF INSTITUTION : 11.08.2006
DATE OF CONCLUDING ARGUMENTS : 27.11.2008
DATE OF AWARD : 02.12.2008
A W A R D
The Secretary (Labour) Govt. of N.C.T. of Delhi has referred the Industrial
Dispute for adjudication to this Court vide Order No. F.24(310)/06Lab.181216
dated 27.7.06 in the following terms of reference :
'W hether the services of Sh. Virender Singh Chauhan, S/o Sh.
Shiv Nandan Singh have been terminated on attaining age of
55 years by way of superannuation in contrast to his
counterparts working in Mumbai illegally and/or unjustifiably and
if so, to what relief is he entitled and what directions are
necessary in this respect?'
2. The brief facts as alleged by workman in his statement of claim are
that he joined Taj Service Ltd. Noida as Security Guard in 1997 on temporary
basis. In August,1999 he joined Taj Palace Hotel, New Delhi as a Casual
Guard. On 20.4.90 he applied with management no.1 for the job of security
guard on the application form prescribed printed and issued by management
no.1 itself. Therefore management no.1 after conducting interview through
2
management no.2 appointed him as Security Guard vide its letter dated 1.5.99
on purely temporary basis for the period of three months at a consolidated salary
of Rs.1,000/p.m. Management no.1 through management no.2 vide its letter
dated 1.8.90 appointed him on permanent basis as Security Guard on total
salary of Rs. 2145/p.m. w.e.f. 1.4.90. In the year 2000 management no.1
awarded him Rs.5000/ and a certificate in recognition of his unblemished
satisfactory service of continuously 10 years. Management no.1 vide its letter
dated 3.11.2000 changed his designation from Security Guard to Service
Grade S3 in department of security. Vide his letter dated 2.11.03 he protested
against the retirement policy of the management no.1 and requested
management no.1 for extension of his retirement age from years to 58 years.
Management no. 2 acted and replied on behalf of management no.1 vide its
letter dated 1.4.03 dismissing his application contrary to the established
principles of law. He challenged the letter dated 11.4.03 dismissing his
application for enhancement of his superannuation age from 55 years to 58
years, by WP(C) no. 3246/03 and Hon'
ble High Court vide its letter dated 29.5.03
disposed of the said Writ Petition directing the appropriate Govt. of Delhi to
decide the reference of the industrial dispute with regard to his claim within three
months and the appropriate Govt. sent the present reference to this court for
adjudication.
3. It is stated that management no.1 is his employer in all respects
and he used to get salary from management no.1. It is stated that management
no.1 is responsible for framing of all policies and guidelines regarding service
conditions like removal and retirement of employees and fixing the age of
retirement of employees. It is stated that employees of management were
transferable within the chain of all hotels managed, controlled and owned by
management no.1. He himself was transferred to Bombay and had served there
for one month initially and earlier transferred several times in three years and
therefore there is common practice whenever need is felt employees of the
management go to Mumbai and Mumbai employee come to Delhi. It is stated
that Clause 29 of Exhibit No. 11 filed along with the claim is required to be
3
declared as unjustified, illegal and discriminatory. Even the Employees Pension
Scheme 1995 as amended in 2002 contemplates 58 years as the age of
retirement for workman. It is stated that management is liable to reinstate the
workman after enhancing the retirement age from 55 years to 58 years.
4. It is stated that in Delhi area in the similar industries the age of
retirement is 58 years and the present trend is to raise the same to the tune of
60 years. The different age of retirement prescribed for the employees of
management no.1 on the basis of location of work alone is per se discriminatory
and thus violative of Article 14 of the constitution and other labour laws. The
workman has prayed that the retirement age be fixed at 58 years and
management no.1 be directed to reinstate him or pay him wages and other
benefits in lieu of reinstatement.
5. Both the managements contested the claim and filed common
written statement taking preliminary objection that this dispute referred to this
court does not constitute an industrial dispute as it has not been espoused as
required under law. It is stated that the reference against management no.1 is
misconceived, illegal and untenable as workman was appointed by management
no.2 and was governed and bound by the service conditions as applicable to the
employees of management no.2. The age of superannuation that may prevail in
Mumbai is not relevant as the workman was appointed/employed with
management no.2 which is an independent establishment. It is denied that
workman was appointed by management no.1. It is stated that this reference
made by appropriate government is void ab initio. The workman used to receive
his salary from management no.2. It is denied that management no.1 is
responsible for framing of policies and guidelines and service conditions etc. with
respect to employees of management no.2. It is further denied that workman
was ever transferred to Mumbai. Workman having accepted the fixation of
superannuation at the time of appointment he is bound with the same and being
lawfully retired he cannot be permitted to question the same.
4
6. Workman filed rejoinder reiterating the submissions made by him in
his statement of claim and denying the averments made by management in its
written statement.
7. On 2.4.07 from the pleading of the parties, the following issues for
trial were framed:
(1) Whether the workman was retired lawfully and validly on
attaining the age of superannuation?
(2) Relief in terms of reference.
8. Vide order dated 24.5.07 an additional issue was framed:
"Whether the case of the workman was espoused as per law? Its
effect?"
9. In evidence workman tendered his affidavit Ex. WW1/A and relied
upon documents Ex.WW1/1 to Ex.WW1/16. Ex.WW1/1 is the copy of application
from dated 20.4.90, Ex.WW1/2 is the copy of appointment letter dated 01.5.90.
Ex.WW1/3 copy of letter dated 1.8.90 & 1.2.91 of the employers. Ex.WW1/4
copy of voucher and certificate issued by management no.1. Ex.WW1/6 is the
copy of application dated 2.4.03 for extension of retirement age. Ex.WW1/7 is
the copy of reply dated 11.4.03. Ex.WW1/8 is copy of order dated 29.8.03 of the
Hon'
ble High Court of Delhi. Ex.WW1/9 is the copy of order dated 27.7.06 of the
appropriate Government. Ex.WW1/10 is the copy of salary slip of Mark,2003
issued by management no.1. Ex.WW1/11 is the copy of Annexure 'C
'
Employment Mannual' issued by management no.2. Ex.WW1/11 copy of
statements of PF for the year ended on 31st March,1996, 1997,1998 & 2002
issued by management no.1. Ex.WW1/13 is the copy of list of the Inter transfer
order. Ex.WW1/14 is the copy of W.S. filed before conciliation officer.
Ex.WW1/15 is the copy of interhotel transfers of the employee. Ex.WW1/16 is
the copy of gratuity paper.
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ADDITIONAL ISSUE:
10. "Whether the case of the workman was espoused as per law? Its
effect?"
The Ld. AR for workman submitted that under the reference this
court is required to compare the retirement age by way of superannuation of two
units of management no.1 i.e. Hotel Taj at Mumbai and management no.2. The
use of word '
termination'
& 'r
etirement'
indicates that termination of the workman
comes U/s 2 A of the Industrial Disputes Act. It is submitted that workman was
never employed with management no.2, for his appointment and even on the
application for employment submitted by him logo and addresses of Bombay of
management no.1 is found mentioned. He being employed by management
no.1 was posted to work for management no.2 and management no.2 is merely
a place of business of management no.1. It is stands admitted by management
no.1 that it is unit of management no.2. It further goes to prove case of the
workman that he was inducted into service by management no.1. Ld. Counsel
for workman has further submitted that age of superannuation prescribed by
management no.1 in Delhi in comparison to Bombay is Per se discriminatory,
illegal and unreasonable. It is argued that the Supreme Court has observed that
there is trend of upward in the age of retirement to 60 years including in Delhi
region.
11. Ld. AR for management argued that this dispute raised by workman
is not an industrial dispute, as defined U/s 2 k of the I.D. Act, the same has not
been espoused as required under law. Thereby it is a dispute U/s 2 A of the I.D.
Act. Section 2 A applies to case of termination but in the present case workman
having been retired even this dispute is not covered under 2 A of the I.D. Act. It
is argued that cessation of service on attaining the age of superannuation fixed
under the contract of employment and service condition does not amount to
termination of service within the meaning of 2 A of the I.D. Act. The Ld. AR
further submitted that appointment letters issued to workman stipulate that he
shall be governed by service conditions and the Employment Manual providing
the service conditions of the employees of Taj Palace and the establishment
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means Taj Palace, New Delhi. It is stated that management no.1 owns various
hotels all over India and all these hotels are separate establishments and have
their own service conditions and merely because age of superannuation of
employees appointed in Taj Mahal Hotel, Bombay is 58 years it does not confer
any right on the employees appointed by management no.2 in Delhi also to retire
at the age of 58 years. It is argued that the dispute raised by workman for
increasing his retirement/superannuation age does not fall within the ambit of
Section 2 A of I. D. Act. It is not an industrial dispute rather it is a individual
dispute.
12. Ld. AR for management contended that the dispute raised by
workman is regarding his age of superannuation, which is regarding the terms
and conditions of the employment of all the workers of the management hence
falls Under Section 2 K of the I.D. Act and requires espousal. It is argued that
accordingly in the absence of any valid espousal this reference deserves
dismissal. The Ld. AR contended that this dispute even cannot be said to be
covered Under Section 2 A of the I.D. Act.
13. Industrial Dispute has been defined Under Section 2 K of the I.D.
Act. Which runs as follows:
"industrial dispute" means any dispute or difference between
employers and employers, or between employers and
workmen, or between workmen and workmen, which is
connected with the employment or nonemployment or the
terms of employment or with the conditions of labour, of any
persons;
14. Definition of industrial dispute was enlarged by inducting Section 2
A w.e.f.1.12.65. Section 2 A runs as follows:
"Dismissal, etc., of a individual workman to be deemed to be
an industrial dispute where any employer discharges,
dismisses, retrenches or otherwise terminates the services of
7
an individual workman, any dispute or difference between that
workman and his employer connected with, or arising out of,
such discharge, dismissal, retrenchment or termination shall
be deemed to be an industrial dispute notwithstanding that no
other workman nor any any union of workmen is a party to the
dispute.
15. The policy behind Industrial Disputes Act is to protect the workman
as a class against unfair labour practices. The term 'Indu
strial Dispute' conveys
the meaning that the dispute must be such as would affect all groups of
workmen and employees ranged on opposite sides. Section 2A provides that an
individual dispute connected with discharge, dismissal, retrenchment or
termination is deemed to be an industrial dispute notwithstanding neither any
other workman nor any union of workmen espousing such a dispute. In Praga
Tools Ltd. Vs. Govt. of Andhra Pradesh 1976 Lab. 1C190 it has been
observed as follows:
However, except the disputes relating to the 'discharg
e,
dismissal, retrenchment or otherwise termination of service',
all other disputes relating to the terms of employment or
conditions of labour of an individual workman, such as
transfer, wages, bonus, increments or promotion etc, will
require espousal, by a substantial number of fellow workmen,
in order to partake the character of an individual dispute.
16. The main contention raised by Ld. AR for the management is that
since the dispute raised by workman is relating to terms of employment it needs
espousal as per the requirements of Section 2 K of the I.D. Act. In support of his
contentions he has relied upon 2007 Ind Law DEL 8 the case titled management
of M/s. Hotel Samrat Vs. Govt. of N.C.T. and others. The relevant observation of
Hon. Delhi High court in para 8,9,10 are as follows:
8
8. It is apparent from the above definition that I.D. Act
envisaged a collective dispute only as an industrial dispute.
The I.D. Act was amended in 1965 and section 2A was added
making individual dispute of a workman as an industrial
dispute, if the dispute related to dismissal, discharge,
retrenchment or termination of individual workman. Thus
section 2A carved out an exception to the definition of
individual dispute as given in section 2(k) of the I.D. Act.
9. Section10 of the Industrial Disputes Act, 1947 authorizes
the appropriate Government to refer to a Tribunal or Labour
Court only an industrial dispute. If there is no industrial
dispute, the same cannot be referred. As per Labour
Jurisprudence, the dispute between an individual and the
management cannot be an industrial dispute unless it is
covered under Section 2A of the I.D. Act. Thus in order to be
an industrial dispute, V. Forbes Gokak Ltd. 2005 AIR (SC)
998, Supreme Court observed as under:
"The definition of 'Ind
ustrial Dispute'
in Section 2(k) of the Act
shows that an Industrial Dispute means any dispute or
difference between an employer and employer or between
employers and workmen or between employer and employers
or between employers and workmen or workman workmen
and workmen, which is connected with the employment or
nonemployment or the terms of the employment or with the
condition of labour, of any person. The definition has been
the subject matter of several decisions of this Court and the
law is well settled. The locus calassicus is the decision in the
Workman of M/s. Dharampal Premchand (Saughandhi) v.
9
M/s. Dharampal Premchand (Saughandhi), 1965 Indlaw SC
115 whereit was heldhat for the prupose of Section 2 (K) it
must be shown that (1) the dispute is connected with
employment or non employment of a workman. (2) the
dispute between a single workman and his employer was
sponsored or espused by the Union of workmen or by a
number of workmen. The phrase '
the union'
merely indicates
the Union to which the employee belongs even though it may
be Union of a minority of the workmen, (3) the establishment
had no union on its own and some of the employees had
joined the Union of another establishment belonging to the
same industry. In such a case it would be open to that Union
to take up the cause of the workmen if it is sufficiently
representative of those workmen, dispute the fact that suich
Union was not exclusively of the workmen working in the
establishment concerned. An illustration of what had been
anticipated in Dharampal's case is to be found in the
Workmen of Indian Express Newspaper (Pvt.) Ltd. Vs.
Management of Indian Express Newspaper Privated Ltd.
1968 Indlaw SC173 where an 'outsid
e' union was held to be
sufficiently representative to espouse the casue."
10. Thus, in order to give jurisdiction to the appropriate
Government to refer the dispute and to the Tribunal/Labour
Court or adjudicate the dispute, it was essentail for he
workman to show that his individual dispute for regularization
was sponsored or espoused by a union of the workmen.
17. Ld. AR for management has further relied upon 2007 (1) LLJ 619
SC the case titled Bharat Heavy Electricals Limited and Anil & Others. The
relevant para 13 of this judgment is as follows:
"For the above reasons, the judgments cited on behalf of
10
respondents 1 to 14 have no application to the facts of the
present case. In those judgments, a substantial industrial dispute was raised which is not the case herein. Therefore, they have no application to the present case. There is one more reason for coming to the above conclusion. There is a difference between an individual dispute which is deemed to be an industrial dispute under Section 2A of the said 1947 Act on one hand and an industrial dispute espoused by the union in terms of Section 2(1) of the said 1947 Act. An individual dispute which is deemed to be an industrial dispute under Section 2A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute under Section 2(1) covers a wider field. It includes even the question of status. This aspect is very relevant for the purposes of deciding this case. In the case of Radhey Shyam and Another V. State of Haryana and Another 1998IILLJ 1217 (P&H) it has been held after considering various judgments of the Supreme Court that, Section 2A contemplates nothing more than to declare an individual dispute to be an industrial dispute. It does not amend the definition of industrial dispute set out in Section 2(k) of the Industrial Disputes Act, 1947 ( which is similar to Section 2(1) of the said 1947 (Act). Section 2A does not cover every type of dispute between an individual workman and his employer.
Section 2A enables the individual worker to raise an industrial dispute, notwithstanding, that no other workmen or union is a party to the dispute. Section 2A applies only to disputes relating to discharge, dismissal, retrenchment or termination of service of an individual workman. It does not cover other kinds of disputes such as bonus, ages, leave facilities etc."
1118. The points which need consideration by this court, in view of the Reference in conjunction with relief claimed in statement of claim are:
(1) Whether age of superannuation i.e. 55 years applicable to workman, as claimed by management after comparing with his counter parts working in Mumbai can be held illegal and enhanced accordingly to bring workman at par with his counter parts in Mumbai.
(2) Whether workman was validly terminated from service on attaining the age of 55 years by way of superannuation as per the rules and regulations applicable.
19. The second point will be considered while deciding issue No.1. On the first point Ld. AR for workman submitted that this court is required to adjudicate and give findings regarding the fairness of the age of superannuation of management no.2 and other units of the management specifically the unit being run at Mumbai. Ld. AR urged that the present trend as observed by Apex Court is that age of retirement should be fixed at a higher level i.e. 60 years. It is further submitted that the Apex Court had observed that there should be uniformity in the age of retirement in case of All India concerns. In support of his contentions Ld. AR has relied upon (1966) 2 SCR 523 the case titled M/s. British Paints (India) Ltd. Vs. Its workmen wherein the Apex Court has observed as follows:
"But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper."
20. Ld. AR for workman has further relied upon 1970 LLJ 363 the case titled Burmah Shell Oil Company Vs. Workmen. The relevant observation of the Apex Court is as follows:
"the efficiency of the workmen is not impaired till about 60 years. The needs of a workman are likely to be greater 12 between the age of 50 to 60 years as during that period he has to educate his children, marry his daughters. If one looks at the world trend it is obvious that the age of superannuation is gradually pushed up. In this country Delhi area is no exception.
21. In (1983) 4 SCC 470, the case titled workman Workmen of Bharat Petroleum Corporation Ltd. (Refining Division) Bombay vs. M/s. Bharat Petroleum Corporation Ltd. & Another the Hon. Supreme Court has observed that:
"There was an upward trend to raise the age of retirement to sixty years in the early sixtiesmuch progress in the last two decades in the matter of better living conditions and availability of medical and health facilities and therefore a further raise of the age of retirement may be considered necessary and justified".
22. The Ld. AR for workman has further relied upon AIR 1960 SC 207 the case titled Dunlop Rubber Vs. Workmen. The relevant observation of the Apex Court is as follows:
" There is no doubt that in the case of an all India concern it would be advisable to have uniform conditions of service throughout India and in case of all India concern the tribunal cannot abstain from seeing that fair conditions of service prevails in the Industry with which it concerned it would be duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing conditions" Raj Soni Vs. Air Officer AIR 1990 SC 1305 in para 12 that "the age of superannuation cannot be left to whims of employer to enable him to retire different employee at different ages."13
23. In my opinion the various judgments relied upon by Ld. AR for workman, discussed above are not applicable to the facts of this case. The present dispute is only a dispute simpliciter regarding termination, which is covered U/s 2A of the I.D. Act. For considering whether there should be uniformity in the age of retirement in the management being an all India concern and whether age of superannuation i.e. 55 years fixed by management no.2 should be 60 years, in comparison with other unit of management no.1 being run in Mumbai, is a dispute concerning all the workers of management no.2, which requires espousal, being squarely covered under section 2 (k) of the I.D. Act.
24. In view of the aforesaid discussion, for want of espousal the contention raised by workman for enhancement of his age of superannuation in comparison with other counterparts working in Mumbai cannot be considered. Accordingly this issue is decided in favour of the management and against the workman.
ISSUE No.1
25. Ld. AR for workman contended that workman was inducted into service by management no.1 and he was given posting at the hotel being run by management no.1 at Delhi i.e. Taj Palace, New Delhi (management no.2). The Ld. AR has urged that workman on transfer has also worked at Mumbai hotel of management no.1, which shows that he was employee of management no.1 and was posted with management no.2 at the time when he was compulsory retired on attaining age of 55 years. On the other hand Ld. AR for management has contended that workman was the employee of management no.2 and all the hotels run by management no.1 in different states are separate and independent entities. It is further argued that at no point of time during his service career workman was ever transferred out of Delhi or specifically posted at Mumbai.
1426. Workman during his cross examination admitted that he joined the service with M/s. Taj Palace, New Delhi and at the time of retirement he was posted at the same hotel. Workman has denied the suggestion that all the hotels have their own service conditions. Management witness MW1 Sh. Ramesh Shokeen Asstt. Manager (industrial relations and welfare) with hotel Taj Palace has denied in his affidavit Ex.MW1/A that management no.1 was responsible for framing all policies and guidelines and service conditions with respect to employees of management no.2. The management no.2 is fully competent & authorised to frame service conditions of its own employees. MW1 denied that workman was ever transferred to Mumbai. The workman was appointed at Hotel Taj Palace, Delhi and he all along remained employed at Delhi. MW1 has deposed that workman having accepted the age of superannuation at the time of his appointment is bound by the same. During his cross examination MW1 admitted that Indian Hotel Company is the owner of all the Taj Group of Hotels. MW1 admitted that the retirement age at Bombay Taj Hotel is 58 years. He denied the suggestion that workman had worked for three months at Bombay Taj Mahal Hotel. He stated that Hotel Taj Palace is independent from India Hotels Company Ltd. MW1 during his cross admitted that Sh. Rajeev Nanda, Security Manager, Taj Palce Hotel, New Delhi was transferred to Taj Residency Aurangabad, Mahrashtra. He further stated that Sh. Rajeev Nanda was sent on deputation. Similarly MW1 admitted that Sh. Mahavir Singh Rathor, Security Manager was transferred from Tej West End, Bangalore to Taj Mahal Hotel, Mumbai on deputation. He also admitted that Sh. Ashok Jiyal, Security Supervisor, Taj Hotel Delhi was not transferred but was sent on deputation to Taj Ganges, Varanasi.
27. Ld. AR for workman submitted that various documents which are Ex.WW1/1 to 16 filed by workman shows that he was employee of management no.1 and not of management no.2. Ex.WW1/1 is the application of employment submitted by workman dated 20.4.90 on the printed proforma which bears name of management i.e. Indian Hotel Company Ltd. The Taj Mahal Hotel Apollo 15 Bunder, Bombay400039 India. The Ld. AR for workman has also drawn my attention to Ex.WW1/4 a Long Service Award given to the workman, ex.WW1/10 the pay slip for the month of July,03 & Ex.WW1/12 the EPF statement for the year 31.3.98. All these documents bears on the top the name of management no.1 i.e. The India Hotels Company Ltd. The Ld. AR for management has also drawn my attention to these documents submitting that Ex.WW1/A is the application for appointment submitted by workman to management no.1. He has also drawn my attention to Ex.WW1/2 which is an appointment letter dated 1.5.90 issued by Taj Palace InterContinental, 2, Sardar Patel Marg, Diplomatic Enclave, New Delhi i.e. Management no.2 to workman on temporary basis. Ex.WW1/3 is the appointment letter issued by management no.2 dated 1.8.90 to the workman for the job of Security Guard. Clause (15) of this appointment letter provides that contract of employment between the workman and management will be governed by service conditions in force in the company as amended from time to time and will carry out the instructions, House Rules and Office Orders issued as and when necessary. Ex.WW1/3 also comprises confirmation letter dated 1.2.91 issued to workman by TAJ PALACE INTERCOTINENTAL, NEW DELHI. On the bottom of this letter it is found specifically mentioned that all other terms and conditions of service will remain unchanged in accordance with his Letter of Appointment and Employment Manual.
28. Ex.WW1/4 is the LONG SERVICE AWARD dated 16.2.03 given to workman by THE INDIAN HOTEL COMPANY LIMITED, TAJ PALACE HOTEL. Ex.WW1/5 is the letter dated 3.11.2000 issued by TAJ PALACE HOTEL, NEW DELHI to the workman intimating him about his change of designation to Guest Service Attendant w.e.f. 1.9.2000. Ex.WW1/11 is the EMPLOYMENT MANUAL of TAJ PALACE INTERCONTINENTAL, NEW DELHI. The opening words of page 3 provides "We are happy to welcome you as an employee of Taj Palace Inter Continental Hotel, New Delhi." Further page 15 of the Employment Manual defines establishment as "Taj Palace InterContinental, New Delhi". Ld. AR for management has also drawn my attention to clause 19 (iii) page 21 of the 16 Employment Manual which deals with promotions and transfers & provides that employees are liable to be transferred from one place to another, from one department to another and from one hotel to another belonging to or managed / operated by Indian Hotels Company Limited. The Ld. AR contended that as per the service conditions applicable to the workman he could have been transferred to other hotels of management no.1 outside Delhi being the permanent employee of management no.2. Ld. AR submitted that in the case of workman he was never at any point of time transferred outside Delhi.
Clause 29 (a) of Employment provides as follows:
(a) The employees shall be liable for retirement on attaining the age of 55 years. However, on account of physical or mental infirmity, fall in efficiency, or incapacity to work, a employee can be retired earlier. The management may in its discretion give any extension of service beyond the retiring age for such period as it thinks fit.
29. Ex.WW1/10 is the pay slip for the months of July,03. It bears both the name of Taj Palace Hotel, New Delhi and the Indian Hotel Company Limited, Delhi on it. Same is the position regarding Ex.WW1/12 the workman' s Provident Fund statements for different months.
30. Ex.WW1/1 is the application for employment dated 20.4.90 submitted by workman with Indian Hotels Company Limited i.e. Management no.1. Ex.WW1/2 and Ex.WW1/3 (Collectively) shows that he was given appointment both temporary and permanent subsequently by TAJ PALACE INTERCONTINENTAL i.e. Management no.2. On documents Ex.WW1/4, Ex.WW1/10 and Ex.WW1/12 (Collectively) name of both the managements i.e. Management no.1 & 2 is found mentioned. On the bottom name of management no.1 is found mentioned and beneath it name of management no.2 is mentioned.
17The question arises if the workman was exclusively in the employment of management no.2 having no concern with management no.1 then why on Ex.WW1/4 to Ex.WW1/12 (Collectively) name of management no.1 is also found mentioned. These documents suggests that management no.2 is running and doing business under management no.1. Moreover it stands admitted by management that Taj Palace Hotel i.e. Management no.2 is owned by management no.1. It is contended by Ld. AR for workman that workman was employee of management no.1 and he was posted with management no.2 and accordingly he was employee of management no.1 and not of management no.2 and he is subject to the rules and regulations of management no.1 only. But as already discussed documents Ex.WW1/2 and 3 (Collectively) which are appointment letter and confirmation letter of the workman issued by management no.2 having no mention of the name of management no.1, suggests that workman was taken on its employment by management no.2.
31. Another point to be seen here is whether employees from one hotel like management no.2, were transferred interse with other hotels run by management no.1 in different cities. During his cross examination MW1 has admitted transfer of some employees from management no.2 to different places but as per him it was not transfer and these employees were sent on deputation. Workman has claimed that he was transferred outside Delhi to Mumbai Hotel for three months but it is denied by management and he has failed to establish his transfer to Mumbai Hotel.
32. Ex.WW1/11 is the EMPLOYMENT MANUAL of TAJ PALACE INTERCONTINENTAL of management no.2 which is filed by the workman being applicable to him. As already noted at Page 3 of it, it is found specifically mentioned that workman was taken as an employee of TAJ PALACE INTER CONTINENTAL i.e. Management no.2. Having accepted the appointment letter Ex.WW1/2 and 3 and admitting the applicability of Employment Manual 18 Ex.WW1/11 to him, after putting in thirteen years of service workman can' t be allowed to claim that service conditions prescribed in the Employment Manual regarding retirement are not applicable to him. It is not the case of the workman that during his entire service career if he has ever opposed or protested to the prescribed retirement age of 55 years mentioned in Employment Manual Ex.WW1/11 of management no.2; in comparison to retirement age of the workers in other hotels being run by management no.1 at different places and different cities. Having accepted and enjoyed the terms and conditions continuously for thirteen years workman is estopped from disputing his retirement age i.e. 55 years, in comparison to retirement age applicable in other hotels run by management no.1.
33. As already discussed Clause 29 in the Employment Manual Ex.WW1/11, specifically provides that employees shall be liable for retirement on attaining the age of 55 years. Thereby retiring the workman on attaining age of 55 years no illegality was committed by the management. Accordingly workman is held to be retired by the management no.2 lawfully on attaining age of 55 years. This issue is accordingly decided in favour of the management and against the workman.
ISSUE NO.2
34. In view of the findings on the issues discussed above the present reference is not maintainable for want of espousal. Workman being bound with the service conditions provided in Employment Manual ex.WW1/11 was retired lawfully and validly by the management on attaining age of 55 years i.e. Age of superannuation. The workman is thereby not entitled to any relief. Reference is answered accordingly.
1935. Award is passed in the above terms. Six copies of the award be sent to the appropriate Government. File be consigned to record room.
Dated :02.12.2008 ( SANJAY GARG )
PRESIDING OFFICER :
LABOUR COURTV:
DELHI.