Delhi District Court
Whether The vs Reserve Bank Of India And Another ... on 21 January, 2009
# 1 #
IN THE COURT OF MS. RENU BHATNAGAR
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI
Ref. No. : F.24. (2843)/04/Lab./386872
Dated : 11.02.2005
I.D. No. : 503/2005
Between
The Management of
M/s Nishkam Sikh Welfare Council
Niskham Bhawan
BBlock, Tilak Vihar,
Tilak Nagar, New Delhi 18
&
Its workman Sh. Charanjeet Singh
S/o Sh. Mahender Singh,
C/o Rashtriya Mazdoor Union (Regd.),
F35, Karampura, New Delhi
Date of Institution of the case : 04.08.2005
Date on which reserved for Award : 12.09.2008
Date on which Award is passed : 21.01.2009
A W A R D
The workman Sh. Charanjeet Singh raised an
industrial dispute regarding the termination of his
# 2 #
services by the management of M/s Nishkam Sikh Welfare
Council. The appropriate Govt. on being satisfied regarding
the existence of industrial dispute between the parties,
made a reference for adjudication. The said reference is as
under :
"Whether the services of Sh.
Charanjeet Singh S/o Sh. Mahender
Singh have been terminated
illegally and /or unjustifiably by the
management, and if so, to what sum
of money as monetary relief along
with consequential benefits in terms
of existing laws/Govt. Notifications
and to what other relief is he
entitled and what directions are
necessary in this respect.?"
# 3 #
Thereafter workman did not appear in the court
and the then Presiding Officer vide order dt. 15.12.2005
passed a No Dispute Award against the workman.
Thereafter the workman moved an application dt.
18.3.2006 for setting aside the award dt. 15.12.2005. The
said application was allowed by my Learned Predecessor
vide his order dt. 05.04.2006 and he workman was given
opportunity to file statement of claim.
Thereafter, statement of claim was filed by the
workman. It is stated by the workman in his statement of
claim that he was appointed as Incharge in the
management vide appointment letter dt. 19.10.92 issued
by General Secretary of the management; that his duties
were modified vide letter No. NSWC/ADM.MISC/ 200203
dt. 31.5.02 by the President of the management; that the
management is a registered society under the Society
Registration Act and running commercial activities for
# 4 #
which they are charging from their clients which activities
include medical centre, educational institution, sewing
centre, computer training institute, type & shorthand
institute; that the medical centre of the management
council include department of medicine, surgery,
orthopedic, clinical lab, Xray, ultrasound and
homeopathic clinic; that all these medical facilities are
provided to the patients on payment of charges which are
not much less than the market rate; that number of
employees are working in these departments and as such
the management is an industry; that the workman is
working honestly, diligently for which he was paid
incentives in addition to the salary on the amount
collected by him as donation for the council; that up to
May 2002 the workman worked with old salary structure
and in June 2002 his salary was revised and increased
# 5 #
and with this revision of pay his responsibility was also
increased and he was asked not to come and attend the
official work but only to create more and more donors so as
to increase the income of the management; that under this
arrangement the workman had to come to the office only
to deposit the collection once or twice in a week and he
was informed to be provided with handsome amount as
incentive for better results; that the workman enrolled
donors for Rs. 57,320/ per month, Rs. 27,101/ per year
and collective Rs. 27,100/ as one time donation during
this period for the management; that due to his ill health
the workman could not work up to his maximum
capability in March to May 2003 and requested the
President of the management for change of his duties from
outdoors to indoors vide his letter dt. 02.5.03 but nothing
had been done and rather it was desired after one month
# 6 #
of May 2003 that the workman should resign and leave
the job as there is no work for him; that the workman also
wrote a letter dt. 27.6.03 that he would be able to work for
outdoor duties but even then, the management did not
allow him to undertake his duties; that the management
had even directed forth class employee not to attend the
call of workman and not to provide him with tea and
water and they had even stopped paying his earned wages
from June 2003 onwards despite the workman regularly
attending the office and marking his presence in
attendance sheet; that to harass him further the
management instructed the concerned official not to
provide the workman his monthly attendance report like
other employees; that the workman wrote several letters
including letters dt. 16.7.03, 26.7.03, 10.8.03, 20.9.03,
7.10.03 requesting for release of his salary; that the
# 7 #
management terminated the workman w.e.f. 19.5.04 by a
verbal order without any notice by preventing him to
attend the office and gratuity and other benefits i.e.
earned wages since June 2003 were not paid to him; that
the workman sent a demand notice dt. 20.12.03 to the
management and a false reply was given to the said notice
by the management; that the workman thereafter raised
an industrial dispute with the conciliation officer but the
management did not show any inclination to reconcile the
dispute; that the workman is unemployed since the date of
his termination, hence he has prayed for reinstatement
with back wages and other consequential benefits.
Notice of the statement of claim was sent to the
management, who has appeared and contested the claim
of the workman by filing Written Statement. In its
written statement the management has taken the
# 8 #
preliminary objection that the workman was appointed as
Incharge with managerial/ supervisory nature of duties
and as such he is not a workman U/s 2(s) of I.D. Act; that
no relationship of employer and employee existed at the
time of termination; that the management is a social
welfare society for human cause, having no profit motto or
a commercial activity but engaged in the sewa of mankind
and hence is not an industry. On merits it is alleged that
the workman was engaged as Sewadar as Incahrge/
sewing and weaving training centre w.e.f. 19.10.92 and
his duties involved supervision; that he did work till
31.5.02 when he insisted for working on honorary/
incentive/ commission basis w.e.f. 01.6.02 and the
management had been in the look out of a person of
confidence to take up the job work of his own and create
donors on honorarium/ incentive/ commission basis; that
# 9 #
he expressed his unwillingness to continue as such and
told for making alternate arrangements w.e.f. 1.6.03 and
as such he surrendered all his rights in respect of given
job works as well; that the management accepted his
request and released all his dues which he has already
received and as such there is no dispute between the
parties since the workman has left the given job of his
own w.e.f. June 2003; that he cannot avail the machinery
under the act to resolve any dispute much less the
industrial dispute, hence it is prayed that the claim be
dismissed.
In rejoinder to the W.S. of the management all
the averments of the statement of claim are reaffirmed
and that of W.S. are denied by the workman. It is denied
that the workman was appointed as Incharge with
managerial or supervisory nature of duties or that no
# 10 #
relationship has existed at the time of termination or that
the management is not an industry. It is also submitted
that though the management is a social welfare society for
human cause but it is carrying on commercial activities
and charging the amounts for their product and service.
It is denied that society is not working for profit. It is
denied that the workman had left the job of his own as
alleged. It is submitted that the workman took up the job
work till 31.5.03 only on the direction of the management.
It is denied that he insisted for working on honorary/
incentive/ commission basis w.e.f. June 2002. It is
submitted that after recovery from illness, the workman
offered for same outdoor sewa but declined. All other
allegations are denied by the workman.
On the pleadings of the parties, vide order dated
18.12.06 my predecessor court has framed the following
# 11 #
issues:
1.Whether the claimant is not a workman within the meaning of I.D. Act 1947?
2. Whether there is no relationship of employer and employee between the parties?
3. As per terms of reference
4. Relief.
No other issue arose or pressed and the case was adjourned for evidence on behalf of the workman.
In support of his case, the workman himself appeared as WW1 and has filed his evidence by way of affidavit Ex. WW1/A wherein he has reiterated all the averments of his statement of claim. He has tendered in evidence the documents Ex. WW1/1 appointment letter dated 19.10.92, Ex. WW1/2 letter dated 31.05.02 of the management , Ex. WW1/3 to Ex. WW1/5 receipts issued # 12 # by the management to its customer/client, Ex. WW1/6 schedule of charges for medical examination, Ex. WW1/7 and Ex. WW1/8 carbon copy of applications of the workman to the management, Ex. WW1/9, Ex. WW1/10, and Ex. WW1/11 attendance reports in respect of workman, Ex. WW1/12 to Ex. WW1/14 applications of the workman to the management, Ex. WW1/15 application of workman as reminder , Ex. WW1/16 application of the workman dated 07.10.03 , Ex. WW1/17 demand notice dated 20.12.2003 and Ex. WW1/18 reply to the demand notice by the management. During cross examination the workman has also admitted the documents Ex. WW1/M1 to Ex. WW1/M15.
After examining himself the workman has closed his evidence.
In support of its defence the management has # 13 # examined MW1 Sh. Narinder Singh, General Secretary of the management , who tendered his evidence by way of affidavit Ex. MW1/A and reiterated all the averments of the written statement. He has also tendered in evidence documents Ex. MW1/1 Memorandum & Article of Association of the management, Ex. MW1/2 report circulated in the public with respect to the activities and registration of management, Ex. MW1/3 a letter allegedly sent to the management by the workman asking for the dues, Ex. MW1/4 statement of account, Ex. MW1/5 a letter dt. 18.7.2003 by the management to the workman, Ex. MW1/6 reply of the management to Labour Inspector dt. 10.5.2004 along with its postal receipt, Ex. MW1/7 reply dt. 02.5.2004 sent by the management to Deputy Labour Commissioner, Karampura, Ex. MW1/8 reply dt. 15.4.2004 sent by the management to the Conciliation # 14 # Officer, Karampura, Ex. MW1/9 reply dt. 27.8.04 by the management to the Conciliation Officer, Ex. MW1/10 to Ex. MW1/12 postal and UPC receipts of this reply.
Management has also examined one Sh. Jagdeep Singh as MW2 who has tendered his evidence by way of affidavit Ex. MW2/A and supported the case of the management. MW2 has relied upon the document Ex. MW2/1 copy of the receipt for collection of donation/ contribution for the living treasure.
After examining MW2, management closed its evidence.
Arguments heard from both the ARs of the parties. I have gone through the file.
My findings on the issues are as under :
Issue No. 1 & 2:
For the sake of convenience, issue No. 1 and 2
# 15 # are decided together.
It is stated by the management that the workman was appointed as Incharge to discharge the managerial duties in respect of the unit to supervise and look after the activities thereof the unit independently i.e. above the level of supervisor, hence, the workman is not workman as not defined in 2 (s) of the Act.
Admittedly, the workman was appointed as Incharge in the Niskham Sikh Welfare Council vide appointment letter 19.10.92 Ex. WW1/A as is clear from the English translated version of this document, he was appointed as Incharge of the Centre for production and training in tailoring and his duties included collection of charity money for the help from the Council, from the residents of Rajouri Garden area and as and when required area can be changed and it is further mentioned # 16 # that as and when required by the Council he can be transferred to perform duty of the similar nature. Hence, the wordings of this appointment letter shows that it uses the word 'appointment'. Though it is not mentioned in WW1/1 to what remuneration was to be paid to the workman. However, the workman has alleged in his statement of claim in para No. 5 and 6 that in May 2002 he worked with the old salary structure and in May 2002 his salary was Rs. 3300/ + 300/ as conveyance allowance in addition to the incentive paid on collection from all donors and further in June 2002 his salary was revised and increased to Rs. 6,000/ + 300/ as conveyance allowance in addition to the incentive paid on the collection from all donors. He has further alleged that this pay structure was provisional and has to be reviewed after three months and with the revision of pay his # 17 # responsibility also increased. No reply to para No. 5 and 6 with regard to this aspect has been given by the management in their written statement specifically, either admitting or denying the pay structure as mentioned by the workman in the claim, hence it is clear that the management is not disputing the averment of the workman on this point. Further admittedly the workman was paid Rs. 6,000/ for three months as consolidated monthly amount and thereafter incentives were given to him on the new donors created by the workman as is clear from the document Ex. WW1/2. If the incentives or the consolidated monthly amount is paid to the workman on his taking up new jobs, it is conceivable that the workman must be have been paid some salary earlier also otherwise the management would not have offered any incentive to the workman if earlier he was not drawing any salary.
# 18 # Since the management has remained silent on para 5 and 6 and has not specifically controverted the same in their pleadings as well as in the statements of its witnesses, it is clear that the workman was getting the remuneration of his services.
It is also admitted case of the parties that the nature of the duties of the workman were changed wherein he was assigned the duty of raising collections and his job was to create more and more new donors on daily basis and it is mentioned in the letter Ex. WW1/2, which is admitted by both the sides that henceforth he was not required to come and attend to any official work at the management on day to day basis and he may come and deposit the collections once or twice in a week. It is clear from this document that he was allowed a consolidated monthly amount of Rs. 6,000/ for three # 19 # months w.e.f. 01.06.02 and thereafter, incentives at the present rate was agreed to be paid for all the new/regular donors created by him. It is mentioned in this letter that the workman was asked to start with the new job and to ensure better results. It is also an admitted case of the parties that the workman was paid honorarium/ commission on the amount of collection collected by the workman from different donors vide Ex. WW1/2.
It is the stand of the management that the workman was holding a supervisory or managerial post and he is not a workman.
Before deciding this issue, it is relevant to set out the basic provision of Section 2(s) of I.D. Act which is reproduced (in so far as relevant) as under :
"Workman" means any person (including an apprentice) employed in # 20 # 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 # 21 #
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Nave Act, 1957 (62 of 1957); or
(ii) Who is employed mainly in a managerial or administrative capacity; or
(iii) 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 # 22 # nature."
As is held by the Hon'ble Supreme Court of India in a case reported as "2005 LLR 309" as under :
"INDUSTRIAL DISPUTES ACT, 1947
- Section 2(s) - Workmen - A person would come within the purview if he was employed in any industry and performed any manual, unskilled, skilled, technical, operational, clerical or supervisory work - Merely because an employee had not been performing any managerial or supervisory duties would not ipso facto mean to be a workman."
Though the Act does not define the term supervisor or supervisory capacity but as is held in All India # 23 # Reserve Bank Employees' Association and another Vs. Reserve Bank of India and another reported as "AIR 1966 SC305" wherein it was held as under :
"The definition of workman in Sc.2(s), Industrial Disputes Act,1947, as amended in 1956 includes inter alia an employee employed as a supervisor. There are only two circumstances in which such a person ceases to be a workman. One is when he draws wages in excess of Rs. 500/ per month and the other is when he performs managerial functions by reason of a power vested in him or by the nature of duties attached to his # 24 # office".
"The word 'supervise' and its derivatives are not words of precise import and must often be 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 the manual work of others."
" The question whether a particular workman is a supervisor within or without the definition of workman is ultimately one of fact, at best one of mixed fact and law. The question is # 25 # really depend upon the nature of the industry the type of work in which he is engaged the organisational set up of the particular unit of of industry and like factor. The work in a Bank involves layer upon layer of checkers and checking is hardly supervision. Where however, there is a power of assigning duties and distribution of work there is supervision. Mere checking of the work of others is not enough because this checking is a part of accounting and not of supervision. The work done in the audit department of a bank is not # 26 # supervision. 19611 Lab LJ 18(SC) Ref. to )"
The definition of the workman in I.D. Act shows that a person employed in a supervisory capacity is also a workman but the forth exception says that a person employed in supervisory capacity and drawing wages exceeding Rs. 500/ per month ceases to be a workman. But whether a person working in supervisory capacity or not is a mix question of fact and law and mere designation of the post is not conclusive.
The question whether an employee is a workman or not has to be decided on the basis of the nature of work assigned to the workman and the same is a mixed question of law and fact. It is held by the Hon'ble Supreme Court of India in case of Lloyds Bank, New Delhi Vs. Pannalal Gupta, reported in "1960I LLJ 18" as # 27 # under:
"...even if the question raised is one of mixed fact and law, we would not readily interfere with the conclusion of Tribunal unless we are satisfied that the said conclusion is manifestly or obviously erroneous..."
In the said case it was held by the Hon'ble Supreme Court that merely because clerks were doing the work of checking the accounts in the Audit Department, they cannot be held to be supervisor. It was also observed that the name or designation given to the post is not conclusive on the issue.
The word supervise is not defined in I.D. Act but Hon'ble Supreme Court has tried to explain its meaning in its judgment. In Ford Motor Company of India Ltd. Vs. # 28 # Ford Motors Staff Union, reported as "1953II Lab. LJ 344", the Hon'ble Supreme Court has observed as under :
"The word 'supervise' and its derivatives are not words of precise import and must often be 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 the manual work of others. It is, therefore, necessary to see the full context in which the words occur and the words of our own Act are the surest guide. Viewed in this manner # 29 # we cannot overlook the import of the word "such" which expressly links the exception to the main part. Unless this was done it would have been possible to argue that Cl. (iv) indicated something, which though not included in the main part, ought not by construction to be so included. By keeping the link it is clear to see that what is excluded is something which is already a part of the main provision."
Hence, it is clear that in terms of general connotation of the word 'supervise', it covers the manual work coupled with a power of inspection and superintendence of manual work of others.
# 30 # What is meant by supervisory or managerial capacity has also been clarified by the Hon'ble High Court of Delhi in writ petition No. "WP(C) No. 3070/2002"
passed by Justice Sh. S.N. Dhingra wherein it was held as under :
"INDUSTRIAL DISPUTES ACT, 1947
- Section 2(s) - Workmen - A person would come within the purview if he was employed in any industry and performed any manual, unskilled, skilled, technical, operational, clerical or supervisory work - Merely because an employee had not been performing any managerial or supervisory duties would not ipso facto mean to be a workman."
# 31 # So far as this argument goes, the management has not placed on record any document to show that the workman was working in a supervisory or managerial capacity. It is not proved that the workman was having any authority to take any disciplinary action against any workmen working under him. As admitted by workman in his cross examination that around 35 persons were working in the unit of Sewing and Weaving Centre and he used to look after the work of the workmen force of the said Centre. He has admittedly got powers to recommend the issue of family cards but that act does not make him a Supervisor or a Manager since a Supervisor or a Manager must have more vide powers than only recommending the family cards. The management has not placed on record any document to show that the workman was sanctioning leaves of the other workmen or could take disciplinary # 32 # action against any workmen to call him a Supervisor or Manager. As per the appointment letter Ex. WW1/1, he was appointed as Incharge of Centre for Production and Training in Tailoring but the nature of the job as enumerated in this letter nowhere shows that the workman was given any managerial or supervisory powers over the other workmen working in the unit. Hence, it is not proved that the workman was not covered under the definition of section 2 (s) of the I.D. Act.
The management has pleaded that on the insistence of the workman for working on honorary/ incentive/ commission basis with effect from 01.06.02 and as the management was in a look out of a person of confidence to take up the job work of creating donors on honorarium/ incentive/ commission basis, the said job was assigned to the workman, which he did till 31.05.03.
# 33 # Perusal of the initial appointment letter Ex. WW1/1 reveals that the nature of duties of the workman earlier also included the collection of charity money from the donors of Rajouri Garden area and in the cross examination the workman has also stated that he had collected the money from the donors of Rajouri Garden area. Hence, it is clear that this job of collection of charity money for the management was already a part of his duties in the earlier letter of appointment Ex. WW1/1. Now the only change in his duties is that he was asked to collect the donation exclusively and was not required to look after the work of Incharge of Sewing Centre and hence, it is proved that his duties of collection of money from the donors cannot be termed as supervisory or managerial in nature. Hence, there is no substance in the submissions of the management that the claimant was not # 34 # a workman and was only a Sewadar. Similarly, it is not proved on record that he was discharging the supervisory or managerial functions. It is held that the claimant is covered under the definition of workman under section 2
(s) of the I.D. Act and there is relationship of employer and employee between the parties.
Hence, both these issues are decided against the management and in favour of the workman. Issue No. 3 :
During the course of arguments Learned AR for the management has stated that in the written statement the management has taken plea that it is not an industry. Though no issue is framed on this point. However, since this is a legal and material issue, hence I proceed to decide the same as both the parties have already advanced their arguments on this point as well.
# 35 # It is argued by Learned AR for the workman that the management was not not engaged in any commercial activities but it was constituted with the aims and objectives for the welfare of poor and needy persons, students, orphans, widows, destitute etc. irrespective of their caste, creed and religion without any motto of earning profit and all the earnings of the Council were solely utilized for the promotions of its aims and objectives. It is stated that different persons from the public at large used to render an honorary Sewa and used to be called Sewadars and some of them were used to be paid honorarium to meet their expenses. Hence, it is stated that the management is not an industry.
Before deciding this objection, it is necessary to set out the definition of Industry as mentioned in Section 2 (j) of I.D. Act: # 36 # ""industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen"
The latest authority on the meaning of 'industry' is Bangalore Water Supply and Sewerage Board 1978 Lab I.C. 467, 479 (SC) wherein the Hon'ble Supreme Court has tried to give the criteria for deciding whether an establishment is an industry or not and has laid down triple test. It is necessary to set out the decision of the Hon'ble Supreme Court before deciding this objection. The Hon'ble Supreme Court has held as under :
I. 'Industry', as defined in s 2(j) and explained in Banerji case, has a # 37 # wide import.
(a) Where (i) systematic activity,
(ii) organized by cooperation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss, i.e., making, on a large scale, prasad or food) prima facie, there is an 'industry' in that enterprise.
(b) Absence of profit motive or # 38 # gainful objective is irrelevant, be the venture in public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity, with special emphasis on the employeremployee relations.
(d) If the organization is a trade or business, it does not cease to be one because of philanthropy animating the undertaking.
II. Although Section 2 (j) uses words of the widest amplitude in its two limbs, the remeaning cannot be magnified to overreach itself.
(a) 'Undertaking' must suffer a # 39 # contextual and associational shrinkage, as explained in Banerji and in this judgment; so also, calling and the like. This yields the inference that all organized activity, possessing the triple elements in I (Supra), although not a trade or business, may still be an 'industry' provided the nature of the activity, viz, the employer employee basis, bears resemblance to what we find in trade or business. This takes into the fold, 'industry' undertakings, callings and services, adventures 'analogous to the carrying on of # 40 # trade or business'. All features, other than the methodology of carrying on the activity, viz, in organizing the cooperation between employer and employee, may be dissimilar. It does not matter if on the employment terms, there is analogy.
III. Application of these guidelines should not stop short of their logical reach by the invocation of creeds, cults or inner sense of incongruity or outer sense of motivation, for or resultant of the economic operations. The ideology of the Act being industrial peace, # 41 # regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more.
(a) The consequences are (i) professions, (ii) clubs, (iii) education institutions, (iv) co operatives, (v) research institutes,
(vi) charitable projects and (vii) other kindred adventures, if they fulfill the triple tests listed in I (supra), cannot be exempted from the scope of Section 2(j).
# 42 #
(b) A restricted category of professions, clubs, cooperatives and even gurukulas and little research, labs, may qualify for exemption if they are simple ventures; substantially, and going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, and marginal employees are hired without destroying the nonemployee character of the unit.
(c) If, in a pious or altruistic mission, many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in # 43 # the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours, in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like # 44 # undertakings alone are exempt not any other generosity, compassion, developmental passion or project. IV. The dominant nature test:
(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen', as in the University of Delhi case (AIR 1963 SC1873) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the # 45 # departments, as explained in the Corpn of Nagpur (AIR 1960 SC675) will be the true test. The whole undertaking will be an 'industry', although those who are not 'workmen' by definition, may not benefit by the status.
(b)Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies.
(c) Even in departments discharging sovereign functions, if # 46 # there are unit which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.
V. We overrule the Safdarjung ( AIR 1970 SC 1407) the Solicitors case (AIR 1962 SC 1080) the Gymkhana case (AIR 1968 SC554) the Delhi University case (AIR 1963 SC1873) the Dhanrajgirji Hospital case (AIR # 47 # 1975 SC 2032) and other rulings whose ratio runs counter to the principles enunciated above, and the Hospital Mazdoor Sabha (AIR 1960 SC 610), is hereby rehabilitated."
In the light of the above judgment I now proceed to decide the objection of the Ld. AR for the management. MW1 Sh. Narender Singh has filed on record Ex. MW1/1 memo of article of association of the management. In the activities of the Council it is clear that the management was running sewing and knitting Centre, Charitable typing and shorthand institute , Charitable Dispensary, Charitable Poly Clinic cum Diagnostic Centre as well as was providing for children education, adult education programme etc. During the cross examination MW1 # 48 # deposed that the source of income of council from the donation and from some bank interest, though no document has been filed on record to this effect. He has admitted that the management is providing services against payment and they are also selling their products. MW1 has admitted that the management has got a medical unit, computer training centre, and sewing training centre. He has mentioned that the management engaged honorary paid employees to run medical unit and though no employees were appointed on regular basis and oral terms and conditions are told to the employees. It is also admitted that the management was having a medical lab which facility was outsourced by the management. Admittedly the garments stitched in the sewing centre are sold in open market. Hence it is clear from the statement of the MW1 as well as from the memorandum and article # 49 # that the management was running plethora of activities and was also charging for the same. There is a large constitution of managing committee, medical committee and project committee of the institution and a huge amount is raised as the income of the management. From the statement of MW1 it is clear that for the medical facilities and in the training centre the management have engaged the employees, some are honorary and some are paid. The activities undertaken in the sewing department, stitching department, medical department is certainly for the satisfaction of human wants. Making profit or no profit is not a decisive factor in deciding whether an organization is an industry or not as is clear from the judgment of the Hon'ble Supreme Court in Bangalore Water Supply (Supra).
Hence from the statement of MW1 and from the # 50 # records it is clear that the management satisfies all the three tests laid by the Hon'ble Supreme Court in the case of Bangalore Water Supply i.e. there is (i) systematic activities going on in the management, (ii) activities going on with the help or cooperation of the employees working there and (iii) the services are meant to satisfy human wants. Accordingly the management satisfies all the three tests laid down by the Hon'ble Supreme Court in the above mentioned case. Even the workman was admittedly appointed as Incharge of the Sewing Training Centre where there were 35 persons. Hence it is clear that the management is an industry.
The case of the workman is that the management had terminated his services w.e.f. 19.05.04 by a verbal order without any notice by preventing him to attend the office. It is also the case of the workman that # 51 # vide his letter dated 02.05.05, he gave about one month time to the management to change his duties from outside to inside on account of his ill health but when the management did nothing, the workman after the month of May, 2003 came to join the duties but he was made to sit idle and given no work and despite several letters he was not allowed to work even for outdoor duties thereafter and that the management had even stopped paying earned wages to him, though he was regularly attending the office and marking his attendance. On the other hand, it is the case of the management that the workman of his own had left the outdoor sewa and settled his dues in respect of honorarium/commission in full and final vide his letter dated 02.05.03 and he was paid all the dues vide cheque considering his claims vide Ex. MW1/3 and as such he surrendered his rights and lien whatsoever # 52 # against the offer dated 31.05.02.
So far as the argument of the management that the workman has surrendered all his rights and lien goes, it depends upon the intention of the workman and surrendering the rights or lien on a particular job must be reflected from some overt act of the workman whereby management could have gathered that the workman has surrendered the job. This overt act has to proved from the facts and circumstances of the each case.
How the management could gather such an intention is questionable. For proving surrender, the management has placed reliance on the letter dt. 02.05.2003 (Ex. WW1/7). Since the letter dated 02.05.03 Ex. WW1/7 which was sent by the workman to the management nowhere reflects that the workman intended to surrender his lien or his job as claimed by the # 53 # management. It is clear from this letter Ex. WW1/7 that the workman has asked the management to make some alternative arrangement for outdoor duties since his health does not permit him to do outdoor duties any more. In this letter the workman has mentioned that he shall be ready to do any indoor duties according to his ability and sincerity. After writing of this letter he surrendered the amount of collection of the donors, receipt book etc. i.e. he surrendered the charge of his outdoor duties. From this letter, it is clear that he had requested for providing indoor duties to as he was doing earlier as such the argument of the management that the workman has himself surrendered his job by virtue of his letter is fallacious and has no legs to stand. As is already observed by me in this case, collection of donation was already a part of duties of the workman and if he was asked to do # 54 # exclusive work of collecting donation, it does not mean that he was given a fresh offer on 31.05.2002 or this change of duties are a new job altogether. The earlier appointment letter of the workman clearly indicates that his duties can always be changed. It does not mean that the workman was given fresh appointment on 31.5.02. Earlier he was doing indoor duties of Incharge/ Sewing Centre as well outdoor duties of collection of donation from Rajouri Garden area, now after 31.5.02 he is given only outdoor activities of collection. By virtue of the letter Ex. WW1/7 the workman has only asked the management to again change his duties from outdoor to indoor on health grounds. How this request was taken by management as surrendering the lien on the job is storage to conceive. Hence from the letter Ex. WW1/7, it is not proved that workman surrendered his lien on the job, at # 55 # the most he can be said to leave surrendered outdoor duties but it cannot be said that he surrendered his entire job itself. This intention is not reflected by the letter Ex. WW1/7.
The management in its reply to the Conciliation Officer Ex. MW1/9 had also taken a plea that the workman had left the job of his own and there was no compulsion from their side and as such there was no reason for reinstating him. From this averment it seems that the management is also taking the plea of abandonment. In this context the law is very clear that the abandonment depends upon the intention of the workman to sever his relationship with the management permanently. It is based on his intention to leave the job of the management permanently and not to resume the same. It is held in case reported as "GT Lad Vs. # 56 # Chemicals and Fibres of India 1979 Lab IC 290, (SC)", wherein the Hon'ble Supreme Court has held as under :
"However the intention may be inferred from the acts and conduct of the party. The question as to whether the job, in fact has been abandoned or not, is a question of fact which is to be determined in the light of the surrounding circumstances of each case.
The Hon'ble Supreme Court in a case reported as "Buckingham & Garnatic Co. Ltd. Vs. Venkatayya (1963) 2 LLJ 638, 642 (SC)" has held as under :
# 57 # "Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
In the present case from the conduct of the workman as reflected from document Ex. WW1/7 and his sending demand notice and sending other notices to the management for joining the duties and for his salary, no such intention of abandonment can be inferred and the arguments of the management is without substance on this count.
So far as the argument of the management that they had paid and settled the accounts of the workman are concerned, the same are disputed by the workman.
# 58 # The management has not produced the relevant record to show that they had made the payment of this amount to the workman as full and final settlement. So far as the document Ex. MW1/3 is concerned, the said document is not put to the workman in his cross examination nor he has admitted the same. The management has filed the copy of a passbook Ex. MW1/4 wherein some amount is shown to be given but from this document, it is not proved that this amount was paid to the workman or that the said amount was towards the full and final dues of the workman.
The workman has alleged that though he was regularly visiting the management, the management had not assigned any work to him despite his writing various letters to the management in this regard and he was made to sit idle after May, 2003. He has placed on record # 59 # all the letters Ex. WW1/8 to Ex. WW1/16 wherein he has requested for releasing of his wages for the respective months after May, 2003. From these letters, it is proved that the workman had gone to join his duties and has no intention to abandon or surrender his lien on the job. The workman has specifically deposed that the management had instructed its official not to provide the workman its monthly attendance report since September, 2003 and in respect of earlier months of June, July and August, 2003 are filed on record as Ex. WW1/9 to Ex. WW1/11. Though these reports are computer generated and there is no seals or signature of any official of the management on these documents but to rebut this statement of the workman, the management has not produced the attendance register to show that the workman had been absent from his duties. Since to rebut this statement no # 60 # evidence is produced by the management, it is proved from the letters Ex. WW1/8 , Ex. WW1/12, Ex. WW1/13, Ex, WW1/14, Ex. WW1/15, and Ex. WW1/16 that the workman was continuously asking for the release of his salary/wages for the respective months. Hence, the statement of the workman on this count appears to be truthful. From his statement, it is proved that the management had terminated his services illegally without giving any notice or notice pay or retrenchment compensation in violation of the provisions of Section 25 F of the I.D. Act .
MW1 has admitted in his cross examination that the cheque given to the workman and shown as Ex. MW1/4 was towards the honorarium for the month of May, 2003. So far as the statement of workman that "he has not taken up any job with the management after # 61 # 31.05.03" is concerned, these words of the workman has to be read in the context/ stand of the workman that after 31.5.2003, though he was attending his duties, he was made to sit idle, which inference is corroborated from the letters of the workman asking the management to assign duties and to release his salary.
In view of above discussion, it proved that the management had terminated the services of the workman illegally, hence, the workman is entitled to be reinstated. On gainful employment of workman, the management has produced a witness MW2 who has deposed in his affidavit that on 14.03.2007, he had seen the workman collecting the donation contribution on behalf of Living Treasures (Regd.) and on further enquiries it could be known that the workman is engaged with the said institution after leaving the management and further more on 05.04.07 he # 62 # approached the brother in law of MW2 Sardar Krishan Singh Ji for collection of donation contribution for the above named Living Treasures, copy of which is produced by MW2 and exhibited as Ex. MW2/1 on which MW2 has identified the signatures of Sardar Krishan Singh Ji. During the cross examination, it is stated by MW2 that he has not contacted M/s Living Treasures with regard to the receipt Ex. MW2/1. Further he has deposed that he cannot say whether the claimant is an employee of Living Treasures or not. Accordingly, from his own testimony, it is clear that MW2 is himself not clear if the workman was working with Living Treasures or not. If the brother in law of MW2 was approached by the workman, he could have produced him in the witness box or any official from the Living Treasures could have been called to prove the employment of the workman with Living Treasures by # 63 # production of service records. However, the same is not done in this case. Hence, it is held that MW2 has failed to prove that the workman was gainfully employed after his termination from the management.
In view of above discussion, this issues is decided against the management and in favour of the workman.
ISSUE No. 4:
In view of my findings on the above issues, wherein it is held that the services of the workman have been terminated illegally by the management, the workman is entitled to be reinstated.
Qua the relief of back wages, it is held in UPS RTC Ltd. Vs. Sarda Prasad Mishra & Anr 2006 LAB IC 2621 as under :
(i)" No precise formula can be
# 64 #
adopted nor 'cast iron rules' can be laid down as to when payment of full back wages should be allowed by the court or tribunal.
It depends upon the facts and circumstances of each case. The approach of the court/Tribunal
should not be rigid or mechanical but flexible and realistic. The Court of Tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has # 65 # been taken otherwise than in accordance with law . In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service'' In view of the above discussion and seeing the record of this case and the fact of the tenure of service of the workman with the management, the fact that the jobs must be available for the other workman after 2003, I am of the view that the ends of the justice would be met if the workman is granted reinstatement with 40% back wages.
Accordingly, the workman is granted # 66 # reinstatement with 40% back wages.
Reference is answered accordingly and the Award is passed. The Ahlmad is directed to send the Six copies of this Award to the appropriate Government.
The file be consigned to record room. Announced in open Court on 21st January, 2009 (Renu Bhatnagar) Presiding Officer Labour CourtX Karkardooma Courts, Delhi