Delhi District Court
Court No. V : Karkardooma Courts : Delhi vs Burmah-Shell Management Staff on 23 October, 2007
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IN THE COURT OF SHRI SANJAY GARG : PRESIDING OFFICER : LABOUR
COURT NO. V : KARKARDOOMA COURTS : DELHI.
ID No. 912/96
BETWEEN
The Management of M/s. Nova Steels (India) Limited, C-122, Mayapuri, Indl.
Area, Phase-II, New Delhi-64.
AND
The Workman Shri Girja Singh C/o. All India Engg. & General Mazdoor Union, E-
127, Karampura, New Delhi-15.
DATE OF REFERENCE : 6.11.96
DATE OF CONCLUDING ARGUMENTS : 22.10.07
DATE OF AWARD : 23.10.07
AWARD
The Secretary (Labour) Govt. of the N.C.T of Delhi has referred the
Industrial Dispute for adjudication to this court vide order No. F.24(4580)/96-
Lab./50114-18 dated 6.11.96 in the following terms of reference :-
"Whether the services of Sh. Girja Singh have been terminated
illegally and/or unjustifiably by the management and if so, to
what relief is he entitled and what directions are necessary in
this respect?"
2. Brief facts of the case as stated by the workman in his statement of
claim are that he was in the employment of the management for the last one
year as 'Supervisor' and was drawing salary of Rs.5365/- per month. It is
stated by the workman that when he demanded overtime wages for the extra
duty hours, the management got annoyed with him and on 18.11.1995,
management terminated his services without assigning any reason. It is stated
that he made a complaint to the Labour Department. But despite intervention
of the labour inspector nothing positive came out. Thereafter workman sent a
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demand notice dated 22.12.95 which was not replied by the management. It
is stated that at the time of his joining, the management had taken his
signatures on blank papers and vouchers. As per the workman his
termination is illegal and unjustified. The workman has requested for his
reinstatement with full back wages along with consequential benefits.
3. In its written statement management raised the preliminary objection
stating that the workman was working with the management as security
supervisor and was performing the duties of managerial and administrative
nature. It is stated that the claimant was working on probation but since the
work and conduct of the claimant was not upto the expectation of the
management, his services were terminated vide letter dated 18.11.95. On
merits the management has denied all the averments made by the
workman in his claim and prayed that the claim of the workman is false
and is liable to be dismissed.
4. The workman files his rejoinder reiterating his contention of statement of
claim and refuting the submissions made by management in its written
statement.
5. Vide order dated 15.10.98 following issues for trial were framed-:
(1) Whether the claimant is not a workman, under section 2 s of
the I.D. Act?
(2) Relief in terms of reference.
6. I have heard Mr. O.P. Upadhayay, AR for the workman and Mr.
B.K. Singh, AR for the management and perused the record.
7. On my due consideration of material on record; submissions made
by AR for parties and relevant legal provisions and case law; my findings on
issues are as follows:
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ISSUE NO.1
8. In his statement of claim workman has stated that he was appointed
as a supervisor but in fact he was employed to do field job with the
management. Workman has stated that he was required to work for eight
hours but was forced by the management to work for twelve hours daily. As
per the workman his last drawn salary was Rs. 5365/-. In its written statement
management has taken the preliminary objection that the claimant was
working as a security supervisor and was doing duties of managerial and
administrative nature. It is stated that the claimant is not a workman as
defined u/s. 2(s) of the Industrial Disputes Act, 1947. It is stated that since
work and conduct of the claimant was not upt to the mark, his period of
probation was extended for three months, but since claimant did not improve
his services were terminated in terms of contract of employment.
9. Section 2(s) of the Industrial Disputes Act, 1947 defines as
follows :-
"workman" means any person (including an apprentice)
employed in any industry to do any 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
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(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.
10. In his cross-examination workman has admitted that he was
appointed at the post of supervisor and nature of his job was to assign duties
to the guard and check that they were performing their duties as assigned to
them. Claimant while deposing as WW1 has also admitted during cross that
he used to supervise guards numbering 8 to 20. WW1 has further stated
during his cross-examination that after six months of his probation he was
made senior supervisor and as a senior supervisor his nature of duties
remained same and in addition to that he used to supervise work of the
supervisors. Claimant has further stated during his cross-examination that he
was not authorised to take any action against the guards and if any guard was
found missing and sleeping on duty his job was to inform the senior and he
was not authorised to mark his absence.
11. Ex.WW1/6 is the appointment letter filed on record by the workman.
As per this appointment letter, claimant was appointed as security supervisor
by the management on a salary of Rs.5000/- per month. Ex.MW1/1 is a letter
stated to have been written by management to the claimant filed on record by
the management intimating him regarding his appointment as security
supervisor. AR for workman has contended that though workman was given
the designation of security supervisor but it was a camouflage and in fact
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workman was used to do field job and is squarely covered in the definition of
workman under Industrial Disputes Act.
12. In Burmah-Shell Oil Co. Vs. 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.
13. In Toshniwal Bros. Pvt. Ltd. Vs. Delhi Administration (1976) ILR
2 (Del.) 548, it was held that ordinarily, a Supervisor or an Officer occupies a
position of command or is authorised to take independent decisions and is
authorised to act in certain matters within the limits of his authority without the
sanction of his supervisors.
14. The proposition of law is settled that in determining the question as
to whether a person is employed in supervisory capacity or otherwise, the
mere designation is not decisive. The question whether a person is employed
in the supervisory capacity or on clerical work depends upon whether a main
and principle duties carried by him are those of supervisory character or of a
nature carried out by a clerk.
15. In Anand Regional Co-op. Oil Seedsgrowers Union Ltd. vs.
Shailesh Kumar 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
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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.
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..."
16. In Bennett Coleman & Co. Limited (M/s) Vs. Shri Yadeshwar
Kumar, 2007 LLR 62 it was held that a supervisor, supervising the security
guards, sweepers, chowkidars including assigning work and recommending
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leave, will not be a 'workman' under Industrial Disputes Act and, as such, the
Labour Court has erred in holding him a workman because he was not
performing administrative or managerial functions.
17. 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, 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 above
mentioned 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
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looked into.
18. The management witness Sh. V.K. Kedia, who was examined as
MW1 has specifically stated in his affidavit that duties of the claimant were
administrative as well as managerial in nature. During cross-examination of
MW1, no suggestion has been put by the AR for workman, denying that
claimant was not doing duties which were administrative as well as managerial
in nature. The law is settled that whatever is not denied during cross-
examination of the witness stands admitted. Moreover, workman has admitted
that vide appointment letter Ex.WW1/6, he was appointed as security
supervisor.
19. In All India Reserve Bank Employees Association and Anr. Vs.
Reserve Bank of India and Anr., AIR 1966 SC 305, the Apex Court while
dealing with the definition of workman in section 2(s) and while construing the
word 'supervise' has observed that the word supervise and its derivatives are
not of precise import and most offenly construed in the light of the context for
unless controlled, they cover an easily simple oversight and direction as
manual work coupled with a power of inspection and superintendence of
manual work of others.
20. Similarly in Vinayak Baburao Shinde Vs. I. S. R. Shinde and
others 1985-I-CLR 318, it was held that the word 'supervise means to oversee
i.e. to look after the work done by other persons, and, the word 'supervision'
occurring in Section 2(s) of the Industrial Disputes Act means supervision in
relation to the work or in relation to the persons. According to Division bench,
the essence of supervision consists in overseeing by one person over the
work of others and this also involved power in the person overseeing to direct
and control the work done by the person over whom he was supervising.
21. In view of the aforesaid reasons, it stands established that the
workman was employed as a security supervisor and in fact he was working
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as a supervisor on a monthly salary of Rs.5365/- at the time of his alleged
termination. The workman has thereby failed to prove that he is the workman
as per section 2(s) of the Industrial Disputes Act, 1947. This issue is
accordingly decided in favour of the management and against the workman.
ISSUE NO. 2 :
22. In his statement of claim workman has stated that for one year he
has continuously worked with the management before his alleged illegal
termination. In its written statement management has stated that the claimant
joined the services with the management on 13.2.95 on a probation period of
six months. Since the work and conduct of the claimant was not upto the
expectations, the probation period was extended for a period of three months
and claimant was advised to improve his conduct. However, claimant did not
improve his conduct and accordingly his services were terminated in terms of
contract and employment.
23. Workman during his cross-examination has admitted that he was
placed on probation. Workman has stated that his probation was for a period
of six months. Thereafter his pay was increased, however, he was not given
any confirmation letter. It was conveyed to him that since he had been
performing his duties in just and proper manner, his services stands
confirmed. Workman has denied during his cross-examination the suggestion
that on 16.8.95 his probation was extended for a period of three months.
Whereas management witness MW1 has deposed similar facts as mentioned
in the written statement filed by management. Ex.WW1/6 is the letter of
appointment filed on record by the workman, as per which he was required by
the management to join duty by 13.2.95. Same is the date of joining
mentioned in the appointment letter Ex.MW1/1 filed on record by the
management. Ex.MW1/1 also comprises principle terms and conditions of
employment. This letter is stated to have been issued by the management to
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the claimant on 25.1.95. Issuance of this letter to him has nowhere been
denied by the claimant during cross-examination of MW1. The very first
condition of the appointment letter is that claimant will be on probation for a
period of six months in the first instance which can however be extended
twice for a period of three months at the time of discretion of the management.
Workman has during his cross-examination admitted that he was placed on
probation. Workman has failed to bring any proof on record to establish that
after completion of the period of probation of six months his services were
confirmed. As per the plea of the management since work and conduct of the
claimant was not up to the mark his probation period was extended for a
period of three months vide letter Ex.MW1/2 dated 16.8.95. Issuance and
receipt of this letter again has not been denied by the workman, which is
apparent from the cross-examination of MW1 who has filed this letter on
record. It thereby stands established that till his alleged date of termination
the workman was on probation period.
24. The reliance is placed upon Vidya Vardhaka Sangha & another
Vs. Y.D. Deshpande & others, 2006 LLR 1233, wherein the Apex Court has
observed that it is now well settled principle of law that the appointment made
on probation/adhoc basis for a specific period of time come to an end by efflux
of time and the person of such post can have no right to continue on the post.
When after having accepted the terms and conditions stipulated in the
appointment order and allowed the period for which they were appointed has
been elapsed by efflux of time, one cannot be permitted to challenge the
validity of his termination.
25. In view of the reasons discussed above this issue is also decided in
favour of the management and against the workman.
ORDER :
26. In the light of my above discussion the workman is not entitled for any relief claimed for. An award is passed accordingly. Reference is also 11 answered accordingly.
A copy of this award be sent to the appropriate government for its publication.
File be consigned to record room.
Dated : 23.10.07 ( SANJAY GARG ) PRESIDING OFFICER :
LABOUR COURT-V:
DELHI.