Delhi District Court
Sh. Utpal Trehan vs M/S. Nhk T.V. @ Nhk Japan Broadcasting ... on 27 March, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LIR No. 3321/16 CNR No. DLCT13-003382-2015
Sh. Utpal Trehan
S/o Sh. Y.N. Trehan
R/o D-1/121, Janakpuri
New Delhi-110058 ......Workman/Claimant
Versus
M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor
Meridian Commercial Complex
8th Windsor Place, Janpath
New Delhi-110001 ......Management
Date of Institution : 01.04.2015
Date of Award reserved on : 10.03.2023
Date of Award : 27.03.2023
REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL
DISPUTE ACT, 1947 R/W GOVT. OF INDIA, MINISTRY OF
LABOUR NOTIFICATION NO. S-11011/2/75/DK (IA)
DATED 14th APRIL 1975 AND NOTIFICATION NO.
F.1/31/616/Estt./2008/7458 DATED 3rd MARCH 2009
AWAR D
LIR No. 3321/16
Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 1 of 120
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide this Award the present reference petition referred by the Deputy Labour Commissioner, District New Delhi, Govt. of the National Capital Territory of Delhi shall be disposed which was referred by appropriate Government/Office of Labour Commissioner arising between the parties.
2. The present statement of claim was filed by the Working Journalist/Correspondent submitting that he has joined the management at New Delhi Bureau in September 1999 as a Journalist/Correspondent on monthly salary of Rs.30,000/- per month. He used to cover the news of SAARC region. He could also speak Japanese language and he was assigned New Delhi Bureau Administrative duties. In the year 1999 while he was covering Srilankan election a bomb blast had occurred in which Bureau Chief, one colleague and one Srilankan co-ordinator were critically injured. One japanese cameraman who was looking the work of Bureau Chief in his absence got busy in Sri Lanka due to which the Working Journalist/Correspondent was assigned complete handling of bureau. He also covered news on Indian Airline's plane hijack in December. The new Bureau Chief Mr. Toru Ohara used to take LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 2 of 120 help of Working Journalist/Correspondent in all matters related to bureau management and company tax related matters.
2.1 On 22.05.2005 on Sunday evening around 7.00 PM a bomb blast took place in movie theatre in Karol Bagh, Delhi at Liberty cinema hall. The complainant was asked by the Bureau Chief Mr. Toru Ohara to cover the incident for which the complainant had to go to the office at Meridien Hotel for picking up camera and other equipments and thereafter he had to proceed to site of blast with the Bureau Chief. When the complainant was walking towards the car in the parking area at back side of the shopping complex then suddenly two person on a scooter came driving recklessly and ran into the right leg knee of the Working Journalist/Correspondent. The tail bone of the complainant had got chipped off who was thrown by the impact on the ground and could not get up on his own. The person on scooter had ran away and his number could not be noted. The Working Journalist/Correspondent was advised 3 week bed rest because of pain, swelling in leg and lower spine. MRI reflected horizontal and lateral tears of miniscus in his knee and displacement of bone in the spine tail. Doctor suggested knee replacement. The age of the Working Journalist/Correspondent was 33 years who was the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 3 of 120 only earning member of his family. He was married on 09.08.2006. The new Bureau Chief Mr. Takezawa took over charge after June 2006. His salary was Rs.40,000/- per month and his news travelling allowance were US $100 which was revised. The Working Journalist/Correspondent never resigned from service.
2.2 It is submitted that the E-mail dated 06.12.2006 addressed to Bureau Chief is not a voluntary resignation but it was part of business re-organisation. The contract had temporarily ended over on 31.08.2006 despite assurance from management for suitable compensation, increase in salary and for settlement of previous outstanding liabilities. PIB accreditation was done throughout the year 2007. On the assurance of fresh continuity contract/employment letter a resignation letter was asked for settlement of pending dues with affirmation to issue fresh appointment letter. He was employed with management after December 2006 and salary was not paid for January 2007 nor any other dues were paid. At that time the Bureau Chief told the Working Journalist/Correspondent that he is not willing to sign a new contract with the Working Journalist/Correspondent and this shocked the Working Journalist/Correspondent who left the organisation without further settlement of salary of January 2007.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 4 of 120Mr. Hirose previous Bureau Chief had told him not to write any complaint otherwise it would be end of relation. The Working Journalist/Correspondent started working with European Media on freelance basis to sustain his family. In place of Working Journalist/Correspondent another journalist Sh. Krishna Nand Tripathi was appointed who was also forced to leave and his contract was not renewed.
2.3 In the year 2009 the Working Journalist/Correspondent was assured that if not in Delhi Bureau then he might be absorbed in NHK Japan. The complication of accident were apprised by the Working Journalist/Correspondent from time to time. He could not run, climb stairs, kneel on knees, squat or sit lower at ground level and could not sit crossed leg. MRI after five years suggested no improvement and his condition worsened further. He has to put his weight alternately on left or right hip. He cannot run or jump. He was assured from staff at Tokyo, Japan that he would be offered to appear for NHK Radio's Hindi Service which was an eyewash because in radio services people from All India Radio are selected having Hindi and Radio background. NHK Radio Japan posting in the year 2010 is admitted by the management which shows that till the year 2010 the Working Journalist/Correspondent LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 5 of 120 was on the rolls of the company and his services were continuing since the year 2006. The Working Journalist/Correspondent continued to work beyond the dates awaiting appointment letter on the basis of assurance of the management. In November 2011 he was asked to cover one economic summit alongwith Mr. Hirose for India News. Mr. Hirose did not allow accreditation to the Working Journalist/Correspondent claiming falsely that not more than five people from an organization could be accredited.
2.4 Again in the year 2012 Working Journalist/Correspondent was asked to cover economic summit with Mr. Hirose in Delhi and he was introduced to New Bureau Chief of Delhi Mr. Wataru Fujishita and recommended name of Working Journalist/Correspondent for job at NHK New Delhi. He was told that they will use the service of the Working Journalist/Correspondent as required. Offering a job would have annoyed Mr. Takezawa. He was assured that his work was taken in positive note. Mr. Hirose and Mr. Ohara did not help the Working Journalist/Correspondent despite assurance. Mr. Ohara took copy of police complaint and officially gave statement to police which could certify the accident on the ground to compensate for the injury. When the Working Journalist/Correspondent contacted Mr. LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 6 of 120 Wataru Fujishita in July then he outrightly rejected to become intermediary in communication with the organisation. Mr. Fujishita rather than offering a job had asked that the Working Journalist/Correspondent should go to the Court of law for deciding the quantum of amount of compensation. Hence the management has ill-treated the Working Journalist/Correspondent from time to time for not filing the case. His service was finally terminated after December 2006 on the pretext of renewal/revision of his employment documents with continuity. His last drawn salary was Rs.35,000/- per month alongwith Rs.8,000/- to Rs.10,000/- a day as assignment to a Journalist worked exclusively for the management.
2.5 The Working Journalist/Correspondent is always and still ready to join duty with the management. The other employees similarly situated were continued to have the engagement letter which was circulated vide E-mail dated 10.01.2007. He was assured issuance of letter of continuity of his employment with confirmation that they are pending at various level in India as well as Japan. Official also attended the wedding of Working Journalist/Correspondent in August 2006. In the meanwhile police also confiscated the satellite phones of the management. The LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 7 of 120 Working Journalist/Correspondent was assured for consideration of his case after the settlement of issue with the police. He was allowed to keep press information Bureau card on behalf of NHK to utilise it in the line of duty as employee of the management. The junior Sh. Abhishek and Ms. Neha correspondents were engaged in the year 2005 and 2006, Sh. Krishna Nand Tripathi in the year 2008, Mr. Jehangir in the year 2010, Ms. Yashika in the year 2007 are juniors who were later appointed and still continuing appointment with the management. Even the corporate mobile no. 9810018031 given to him by the company is still continuing in his name and which is showing status as employee of the management.
2.6 Mr. Wataru Fujishita the official of the management has
refused to reinstate the service of Working
Journalist/Correspondent and refused to pay monetary dues. The Working Journalist/Correspondent is unemployed since the date of his illegal termination and could not find job despite his best efforts. It is pleaded at para no. 67 of statement of claim that he is still ready to rejoin service of the management without prejudice to his rights and contentions. Hence termination of Working Journalist/Correspondent is in violation of Section 25-F, G, H and N of Industrial Disputes Act, 1947 r/w Rule 76, 77 and 78 of LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 8 of 120 Industrial Dispute (Central) Rules, 1957. It is also in violation of Rule 13 Schedule I of Industrial Employment (Standing) Order, Central Rule 1946. He has also sought protection of Working Journalists & Other Newspaper Employees (Conditions of Service) & Miscellaneous Provisions Act, 1955 under various provisions of law. Accordingly Working Journalist/Correspondent has prayed for reinstatement of his service with all consequential benefits with full back wages with interest @ 12% p.a. alongwith costs.
3. In the reply/written statement to statement of claim it is submitted by the management that the present claim is not an industrial dispute under Sec. 2(k) and Section 2A of Industrial Disputes Act, 1947. It is submitted that Working Journalist/Correspondent has concealed the earlier claim which was filed before Deputy Labour Commissioner in May 2014 whereby the case of the Working Journalist/Correspondent is voluntarily resignation and not of discharge, dismissal, retrenchment or termination. Vide E-mail dated 06.12.2006 to Mr. Akira Takezawa, the then Bureau Chief the Working Journalist/Correspondent had voluntarily resigned requesting for final settlement of his dues and a relieving letter. The relieving letter dated 29.12.2006 and work certificate dated 11.01.2007 LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 9 of 120 was issued by the management to the Working Journalist/Correspondent with a declaration of receipt of Rs.2,80,000/- as full and final settlement was given by the Working Journalist/Correspondent to the management on 29.12.2006. The false allegations regarding inducing of Working Journalist/Correspondent for resignation on the basis of renewal of contract is outside purview of an industrial dispute.
3.1 The claimant is not a Working Journalist/Correspondent u/Sec. 2(s) of Industrial Disputes Act, 1947 as he was employed as a Correspondent/Office Manager on 31.08.2005 vide written employment contract. His salary was more than Rs.35,000/-. Management is not an industry u/Sec. 2(j) of Industrial Disputes Act, 1947. It is only a bureau office of Japanese Broadcasting Company to provide news related to India and India's ties with Japan. It is not a trade or manufacture or business and therefore it is not an industry.
3.2 The present claim is barred by time, delay and latches. Claimant last worked with management on December 2006. The present claim is filed in May 2014. There is gap of 7½ years from the date of resignation. The employment was purely contractual in LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 10 of 120 nature for one year. It was executed from time to time. The contract from September 2005 to August 2006 has since been ended and no claim arises with the claimant.
3.3 The Employment Agreement dated 01.09.1999 contains terms of appointment, salary, job description. The Bureau Chief had no intention to order the Working Journalist/Correspondent to go to the blast site to avoid any danger. No assurance was given to the Working Journalist/Correspondent by the management. It is denied that old terms of contract had to be changed/renewed by paying off pending outstanding liabilities or thereafter if any new contract had to be executed.
3.4 It is admitted that fresh engagement letters issued to the employees of the management for the purpose of company registration. As a general policy management allow its employees to continue to use corporate mobile number even after their resignation but all the charges had to be borne by the employee only. Management is not a newspaper establishment within the meaning of Section 2(d) of the Working Journalist and Other Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, 1955. The other averments of the Working LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 11 of 120 Journalist/Correspondent are generally denied by the management and it is prayed that the claim of the Working Journalist/Correspondent may be dismissed with costs.
4. Rejoinder/Replication is filed by the Working Journalist/Correspondent in which Working Journalist/Correspondent has reaffirmed the averments made in the claim and denied the averments of the management.
4.1 In rejoinder filed by the Working Journalist/Correspondent to the written statement/reply of the management it is submitted that in the employment conditions appointment was designated as a "Correspondent" from the recruitment year September 1999 till the services were continued. Point no. 11 mentions that the engagement implies the Working Journalist/Correspondent will undertake work of any kind which the company may require. The Working Journalist/Correspondent was assigned additional duties to co-ordinate with Government Authorities for example the management had applied in RBI for change in its organization status. He never had any supervisory or managerial role to play. Management has highly reputed status in Asia Broadcasting Union and it is company listed in stock market LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 12 of 120 in Japan. The claimant work for management for grant of PIB accreditation for the year 2007 and had also signed the accreditation form mentioning that the Working Journalist/Correspondent was full time employee of the management. The management has admitted as correct in not denying that it introduced the claimant to NHK Radio in the course of his job in August 2010 which proves that Working Journalist/Correspondent had never resigned. The Bureau Chief had issued letter to New India Assurance Company dated 23.05.2005 intimating accident of employee on 22.05.2005 mentioning the Working Journalist/Correspondent on official duty. Another letter to the New India Assurance Company dated 28.07.2005 certified a leave certificate issued for the Working Journalist/Correspondent mentioning that Working Journalist/Correspondent was on official duty when he met with an accident. The letter of Bureau Chief dated 11.04.2013, 16.05.2013 and 21.05.2013 through E-mail assured the Working Journalist/Correspondent for highlighting his work and effort to the management and for best solution both for the Working Journalist/Correspondent and management. Full and final settlement is denied. Other submissions of the management in the reply are generally denied.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 13 of 1205. On the pleadings of the parties and averments made following issues are framed in the case on 03.05.2016:
1. Whether the dispute raised by the workman is not covered under the provisions of Section 2(k) and 2A of the Industrial Disputes Act, 1947 (as amended upto date) as claimed by the management, if so, its effect?
OPM
2. Whether the management is not an industry as defined under Section 2(j) of the Industrial Disputes Act, 1947 (as amended upto date)? OPM
3. Whether the present proceedings are barred by time and delay and latches, if so, its effect? OPM
4. Whether the services of the workman were terminated by the management illegally and unjustifiably as claimed by the workman? OPW
5. Whether the workman is entitled to the relief claimed in the statement of claim? OPW
6. Relief.
6. Working Journalist/Correspondent/Sh. Utpal Trehan has got examined himself as WW-1 being the sole witness in the case LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 14 of 120 who relied on documents Ex.WW1/1 to Ex.WW1/33 and vide separate statement of workman, workman's evidence was closed on 09.05.2019. Management has got examined MW-1 Sh. Jun Kobayashi as sole witness in defence and vide order dated 10.01.2022 management's evidence was closed by the order of this Court.
6.1 On 20.01.2023 WW1 has tendered his additional evidence by way of affidavit Ex.WW1/B who relied on documents which are Ex.WW1/34 to Ex.WW1/36 and vide separate statement of workman additional workman's evidence stands closed on 20.01.2023. However management does not want to lead additional evidence and vide separate statement of AR for management additional management's evidence stands closed on 20.01.2023.
7. Final arguments are heard on behalf of parties present and record perused.
7.1 Working Journalist/Correspondent has relied on following citations:
(i) Burmah Shell Oil Storage v. Burmah Shell Management 1971 AIR 922, 1971 SCR (2) 758 LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 15 of 120
(ii) Michael Villavarayar and Anr. v. The Workmen
(iii) Commissioner of Income Tax v. NHK Japan Broadcasting
(iv) Bangalore Water Supply v. A. Rajappa and Ors. (1978) SCC (2) 213 at para 46
(v) Raghubir Singh v. Gen. Manager, Haryana in Civil Appeal No. 8434 of 2014
(vi) Nand Kishore v. The Management of M/s. Suneja Hosiery
(vii) Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Ors. 2013 (10) SCC 324, 2013 (9) SCR 1
(viii) Kamal Kishor v. M/s. Reuters India Pvt. Ltd.
7.2 AR for management has relied on following citations:
(i) Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978) 2 SCC 213 at para 140
(ii) J.K. Cotton Spinning and Weaving Mills Company Limited v. State of U.P. and Ors. (1990) 4 SCC 27 at para 6 to 8
(iii) Dharambir v. State of NCT of Delhi and Anr. 2000 SCC Online Del 430 at para 109
(iv) ITC Infotech India Ltd., Bangalore v. Venkatramana Uppada 2016 SCC Online Kar 538 at para 121 LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 16 of 120
8. The issue-wise findings are as follows:-
9. ISSUE NO. 1 & ISSUE NO. 31. Whether the dispute raised by the workman is not covered under the provisions of Section 2(k) and 2A of the Industrial Disputes Act, 1947 (as amended upto date) as claimed by the management, if so, its effect?
OPM And
3. Whether the present proceedings are barred by time and delay and latches, if so, its effect? OPM 9.1 It is submitted on behalf of management that Section 2A (2) and Section 2A(3) of Industrial Disputes Act, 1947 are applicable in the present case. It is submitted that as per Section 2A(3) the application shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified under Sub-Sec. (1) of the above provision of law. It is submitted that the Working Journalist/Correspondent has pleaded at para no. 56 that his service was finally terminated just after December 2006. The reference is dated 27.03.2015. The statement LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 17 of 120 of claim was filed on 18.05.2015. Hence the Working Journalist/Correspondent has filed this claim much after three years from the alleged date of termination and therefore the same is barred by law under Industrial Disputes Act, 1947.
9.2 The Working Journalist/Correspondent submits that his claim is maintainable and he has filed his claim within the time granted by the Industrial Disputes Act, 1947 . It is noted that the reference is dated 27.03.2015 which was sent in exercise of power u/Sec. 10(1)(C) and Section 12(5) of Industrial Disputes Act, 1947. Therefore the plea of the management cannot be sustained when reference is not made under the sections and provisions of law referred by the management. The reference was sent u/Sec. 10(1) of Industrial Disputes Act, 1947. The reference can be sent at any time and there is no fix period of sending of reference under Section 10(1) of Industrial Disputes Act, 1947. The relevant Section is reproduced hereasunder:
Section 10(1)- Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,--
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 18 of 120
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified, in the Second Schedule or the Third Schedule, to a Tribunal for adjudication: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):] Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub- section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government;] 9.3 The satisfaction of appropriate Government is complete and the reference is found properly sent by the appropriate Government and the same is found within time. Hence the plea of not filing of the claim within the period of limitation is dismissed.
9.4 Another plea raised by the management is that the claimant herein is not a Working Journalist/Correspondent u/Sec. 2(k) of Industrial Disputes Act, 1947. For this purpose the AR for LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 19 of 120 the management has referred to para no. 1 of the statement of claim where the Working Journalist/Correspondent has claimed himself that he was assigned administrative duties at New Delhi Bureau. Further the original contract between the parties dated 31.08.2005 in Ex.MW1/3 at page no. 32 is referred where at para no. 1 it is recorded in the employment contract that the appointment of the claimant is Correspondent-cum-Office Manager for NHK. Hence the management submits that Working Journalist/Correspondent is a Manager who had administrative duties and he is not a Working Journalist/Correspondent. The claimant has submitted that he is a Working Journalist/Correspondent and Majithia Wage Board Award is applicable on him. He is protected u/Sec. 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred as Act of 1955). It is submitted that his principal avocation is that of a journalist in relation to the newspaper establishment of the management. He is a correspondent. The relevant provision is reproduced hereasunder:
Section 2(f) "working journalist" means a person whose principal avocation is that of a journalist and who is employed as such, either whole-time or part- time, in, or in relation to, one or more newspaper establishments], and includes an editor, a leader- writer, news editor, sub- editor, feature- writer, copy- tester, reporter, correspondent, cartoonist, news photographer LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 20 of 120 and proof-reader, but does not include any such person who--
(i) is employed mainly in a managerial or administrative capacity, or
(ii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature;
9.5 It is submitted that the main work of the claimant was of a correspondent. The predominant nature of work is determined by whether the claimant is employed in manual or supervisory work. In cross-examination of MW-1 dated 03.12.2019 it is deposed that he is not aware what was the designation conferred on the claimant during year 1999 to 2005. He is not aware that what designation was issued to the Working Journalist/Correspondent in the relieving letter Ex.WW1/MX2. MW1 in cross-examination dated 03.12.2019 at second page was confronted with Ex.WW1/MX2 at point A where it is recorded that the claimant herein was a correspondent for 07 years from 01.09.1999. MW-1 fails to explain this contradiction and could not give explanation in this regard in his cross-examination dated 03.12.2019. It is settled law that the title which is awarded to the claimant is not important but what is his primary nature of work and duty is more important. The burden of proof of this issue is on the management when the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 21 of 120 claimant has prima facie case in his favour by sending of his reference as a Working Journalist/Correspondent and when no issue was given in the reference regarding the workmanship or managership of the claimant. Hence the burden of proof is on the management. The management must prove primary nature of duties of the Working Journalist/Correspondent. Merely mentioning the designation as Correspondent-cum-Office Manager or mentioning by the claimant himself in the statement of claim about assignment of some administrative duties is not sufficient and therefore the burden of proof is not discharged. It is settled law that merely designation assigned to the claimant will not affect his status. The relevant citation in this regard is reproduced hereasunder:
Hon'ble Bombay High Court in case titled Reserve Bank Of India vs Waman Baburao Shinde And Ors. on 28 July, 1994 Equivalent citations: 1995 (70) FLR 10, (1998) IIILLJ 275 Bom has held as under:
4. The principles as to how to determine whether a person holding the post of a supervisor is a workman or other wise are well settled by catena of decisions of the Supreme Court and it is suffice to make reference to decision reported in 1985 LIC 1008 Arkal Govind Rai Rao v. Ciba Geigy of India Ltd. Bombay. the Supreme Court observed in Paragraph 6 -
"Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 22 of 120 the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person."
It is well settled that the nomenclature or the designation of the post is not conclusive to determine whether a person is a workman or otherwise and the Court must examine the duties to be performed by the person concerned. It is, therefore, necessary to ascertain what duties are performed by respondent no. 1 while holding the post of hostel supervisor.
In the present case, respondent no. 1 has annexed list of duties to the statement of claim filed before the Tribunal. The duties are divided under five heads. The first heading is 'upkeep of the hostel and all arrangements connected therewith' while the second heading is 'supervising the work of hostel staff'. The third heading is 'looking after catering arrangements etc. in absence of catering supervisor' and the fourth and fifth headings are 'working as caretaker for college, the hostel, the single room officers' flats and guest rooms' and 'such other duties etc.' respectively. The list of duties recites that total staff under the control of hostel supervisor is 70 in number and which 'includes head cook, cleaners, waiters, gardeners, electricians, carpenters etc. The list of duties sets out that the hostel supervisor has to recommend leave and to prepare salary statements and also to engage casual labourers as and when required. The hostel supervisor is also required to make project arrangement in classrooms and to provide for pest control, fire control etc. A perusal of the list of duties leaves no manner of doubt that a large staff of about 70 persons is under the control of the hostel supervisor and the hostel supervisor is the head of the administration in the hostel. The control and the regulation required to be exercised by hostel supervisor leaves no manner of doubt that his duties and functions are supervisory in character. Mr. Ganguli submitted that the hostel supervisor LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 23 of 120 is required to maintain registers and write musters and this work is clerical in nature and, therefore, hostel supervisor should be treated as a workman. It is not possible to accede to the submission of the learned counsel. As observed by the Supreme Court, it is essential to ascertain what is the dominant nature of work performed by the hostel supervisor and merely because some incidental work is done which is clerical in nature, that cannot lead to the conclusion that the hostel supervisor is a workman. In our judgment, the learned single Judge was not right in concluding that the Tribunal had committed an error in coming to the conclusion that hostel supervisor is not a workman.
5. Mr. Ganguli relied on the Awards declared by Iyer and Dighe to urge that the post of hostel supervisor is bracketed with other posts which are held by persons who are workman. The issue as to whether the hostel supervisor is a workman did not arise for consideration in both the Awards and the post of hostel supervisor was bracketed with the other grades with reference to the wages drawn. As mentioned hereinabove, respondent no. 1 was appointed as a hostel supervisor, which is an ex-cadre post, and respondent no. a, after two years, was reverted back to the cadre of the clerk.
In our judgment, the conclusion of the Tribunal that the hostel supervisor is not a workman is correct and cannot be faulted with.
6. It must be also noted that the person holding the post of hostel supervisor is paid special allowance which initially was Rs. 50/- per month and was increased from time to time to Rs. 225/- per month. In addition, the hostel supervisor is entitled to free residential accommodation and use of electricity upto 40 units per month free of cost. Hostel supervisor is also provided with residential telephone with direct dialing facility. Mr. Ganguli submitted that these benefits are conferred because the hostel supervisor is required to work from 6.00 a.m. to 10.00 p.m. and these LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 24 of 120 perquisites are provided to enable the hostel supervisor to perform his duties satisfactorily. It is undoubtedly true that the perquisites and special allowance are provided because of the nature of the duties to be performed by the hostel supervisor. It also cannot be overlooked that respondent no. 1 had opted for the post of hostel supervisor voluntarily and after being fully aware as to what was the nature of duties of a hostel supervisor. In our judgment, on perusal of the list of duties furnished by respondent no. 1 the conclusion is inescapable that hostel supervisor is not a workman under Section 2(s) of the Act. In view of this finding, the impugned judgment cannot be sustained and is required to be set aside.
9.6 Management has failed to bring on record in evidence that what was the primary administrative duties assigned to the Working Journalist/Correspondent independent of his nature of job as Correspondent. In view thereof it cannot be said that the Working Journalist/Correspondent was doing job in administrative duty independent of a Correspondent. His part administrative duties would be dependent on his primary nature of work as Correspondent.
9.7 It is submitted by the management that the Working Journalist/Correspondent may claim benefit under Industrial Disputes Act, 1947 as Journalist only when he is working journalist u/Sec. 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 25 of 120 Act, 1955. Two exceptions are provided in the said section. The relevant Section 2(f) of the said Act is reproduced hereasunder:
Section 2(f) "working journalist" means a person whose principal avocation is that of a journalist and who is employed as such, either whole- time or part- time, in, or in relation to, one or more newspaper establishments], and includes an editor, a leader-writer, news editor, sub-editor, feature-writer, copy-tester, reporter, correspondent, cartoonist, news photographer and proof-reader, but does not include any such person who--
(i) is employed mainly in a managerial or administrative capacity, or
(ii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature;
9.8 One of the exception is that the journalist is employed mainly in managerial or administrative capacity. To show that the Working Journalist/Correspondent is employed in administrative capacity the management has referred to Ex.MW1/3 the contract dated 31.08.2005 which is first contract after expiry of last contract dated 01.09.2004 that the word Office Manager is introduced to the word Correspondent. According to the management with such designation the Working Journalist/Correspondent has now become the Manager and he does not remain a Working Journalist/Correspondent. It is pleaded in the written statement at para no. 2 that Working Journalist/Correspondent was LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 26 of 120 Correspondent cum Office Manager vide contract dated 31.08.2005 and he was drawing salary for more than Rs.35,000/- per month and therefore the claimant herein is not a Working Journalist/Correspondent. The Working Journalist/Correspondent has rebutted the above argument of the management by claiming that nature of duties had remained same and the word Office Manager was added with no addition of duties. The employment contract dated 31.08.2005 is compared with previous employment contract and it is seen that there is no material change in the nature of duties to be performed by the Correspondent. The management has not specifically pleaded that what has changed in nature of duties in employment contract dated 31.08.2005 after comparing it with previous employment contract. Management has made pleadings only for the sake of them and no substantial change in nature of duties of claimant herein are found. It is also settled law that the designation alone is not sufficient to infer that what are the nature of duties performed by the claimant. The work of claimant herein is that of Correspondent and which is not denied by the management. The change in the designation does not bring any material difference in the nature of duties performed by the Working Journalist/Correspondent and thereby the claimant remains a working journalist throughout his employment with the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 27 of 120 management. The management has failed to prove on record that Working Journalist/Correspondent had discharged any managerial or any administrative duties substantially and nor incidentally to the duties of Correspondent. The relevant citation is reproduced herein:
Hon'ble Supreme Court of India has held in case titled National Engineering Industries ... vs Shri Shri Kishan Bhageria & Others on 11 November, 1987 Equivalent citations: 1988 AIR 329, 1988 SCR (1) 985 as under:
xxxxxxxxxxxxxxxx In this case before we deal with the facts and the relevant authorities of this Court it may be appropriate to refer to a decision of P.B. Mukharji, J. Of the Calcutta High Court as the learned Chief Justice then was in Mcleod and Co. v. Sixth Industrial Tribunal, West Bengal and others, A.I.R. 1958 Calcutta 273. There the learned Judge observed that whether a person was a workman within the definition of the Industrial Disputes Act was the very foundation of the jurisdiction of the Industrial Tribunal. The Court further observed that in order to determine the categories of service indicated by the use of different words like "supervisory", "managerial", "administrative", it was necessary not to import the notions of one into the interpretation of the other. The words such as supervisory, managerial and administrative are advisedly loose expressions with no rigid frontiers and too much subtlety should not be used in trying to precisely define where supervision ends and management begins or administration starts. For that would be theoretical and not practical. It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application. The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 28 of 120 limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge functions mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him. In that case the learned Judge further held that a person in charge of a Department could not ordinarily be a clerk even though he may not have power to take disciplinary action or even though he may have another superior officer above him. It was further observed that distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision. It is reiterated that a manager or administrator's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator. Bearing in mind the aforesaid indication, it would be necessary to discuss some decisions of this Court. In All India Reserve Bank Employees Association v. Reserve Bank of India, [1966] 1 S.C.R. 25, this Court dealing with certain types of employees observed "These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical." At page 46 of the report Hidayatullah, J. as the learned Chief Justice then was observed that the work in a Bank involved layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision, (emphasis supplied). There the Court referred to a previous decision in Llyods Bank Ltd. v. Pannalal Gupta, [1961] 1 L.L.J. 18, where the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn and it was reiterated that before a clerk could claim a special allowance payable to a supervisor, he must prove that he supervises the work of some others who are in a sense below him. It was pointed out by Hidayatullah, J. that mere checking of the work of others is not enough because LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 29 of 120 this checking was a part of accounting and not of supervision and the work done in the audit department of a bank was not supervision. (emphasis supplied). In Burmah Shell Oil Storage & Distribution Co. Of India. v. Burmah Shell Management Staff Association & Ors., [1971] 2 S.C.R. 758, this Court observed that a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. Therefore, in determining which of the employees in the various categories are covered by the definition of 'workman' one has to see what is the main or substantial work which he is employed to do. In The Punjab Co-operative Bank Ltd. v. R.S. Bhatia (dead) through Lrs., [1975] 4 S.C.C. 696 it was held that the accountant was supposed to sign the salary bills of the staff even while performing the duties of a clerk. That did not make the respondent employed in a managerial or administrative capacity. The workman was, therefore, in that context rightly held as a clerk.
In P. Maheshwari v. Delhi Administration & Ors., [1983] 3 S.C.R. 949 the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. See in this connection Black's Law Dictionary, Special Deluxe, Fifth Edition. At page 1290, "Supervisor" has been described, inter alia, as follows:
"In a broad sense, one having authority over others, to superintend and direct.
The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 30 of 120 off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."
Reference may be made to the observations of this Court in Ved Prakash Gupta v. M/s. Delton Cable India (P) Ltd., [1984] 2 S.C.C. 569. There on facts a Security Inspector was held to be a workman. At page 575 of the report this Court referred to the decision in Llyods Bank Ltd. v. Panna Lal Gupta, (supra) and also the observations of this Court in Hind Construction and Engineering Company Ltd. v. Their Workmen, [1965] 1 L.L.J. 462. In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch-towers or around the factory or to accompany visitors to the factory and making entries in the visitors' register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory. There it was found that he had no power to appoint.
In the instant case the evidence have been summarised by the Division Bench. Reference may be made to pages 65, 73, 80, 84 to 94, 95, 96 and 97 of the Paper Book which indicate the nature of duties performed by the respondent No. 1 herein. His duties were mainly, reporting and checking up on behalf of the management. A reporter or a checking clerk is not a supervisor. The respondent herein does not appear to us doing any kind of supervisory work. He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company. In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 31 of 120 consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor. That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Article 136 of the Constitution. It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench. Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date 14th of May, 1976 where the respondent reported that certain materials were lying in stores deptt. in absence of any decision. It was further reiterated that on inspection of the pieces that those pieces were found cracked. Similarly, our attention was drawn to several other letters and we have perused these letters. We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent. A checker on behalf of the management or employer is not a supervisor.
In the aforesaid view of the matter the conclusion of the Division Bench that respondent No. 1 is a workman has to be sustained. We do so accordingly.
9.9 Hence it is found that the claimant herein was a Working Journalist employed as Correspondent by the management who is entitled to protection u/Sec. 2(f) of Working Journalists & Other Newspaper Employees (Conditions of Service & Miscellaneous Provisions) Act, 1955. To oust the jurisdiction the other exception to the applicability of Section 2(f) of Working Journalists & Other Newspaper Employees (Conditions of Service & Miscellaneous Provisions) Act, 1955 is that the journalist is employed in LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 32 of 120 supervisory capacity either by the nature of duties attached to his office or by reason of the powers vested in him and the functions if mainly of managerial nature. The management has to specifically plead the nature of duties attached to the office of the claimant which are supervisory in nature or by reason of powers vested in the Working Journalist/Correspondent and his functions are mainly of managerial nature. For this purpose again the management has referred to Ex.MW1/1 to Ex.MW1/3. In the entire employment contract the nature of duties are not mentioned specifically by the management. The management has not produced any evidence on record to show that such were the nature of duties of the claimant/Working Journalist/Correspondent by which it could be said that he was doing mainly supervisory work and functions attached to his office if are managerial in nature. In the written statement also the management failed to specifically plead such nature of duties attached to the office of correspondent or powers vested in him which are of managerial nature and substantially form part of his work. In absence of such pleadings no amount of evidence can be led by the management in this regard. Even otherwise management has failed to point out any such evidence on record except mentioning of change in designation of the Working Journalist/Correspondent by such addition of the word Manager.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 33 of 120The above submission of the management cannot be sustained under law as merely by change in name without any change in duties and when the Working Journalist/Correspondent has performed the work mainly of Correspondent then he comes under the protection of working journalist granted u/Sec. 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. Though the management has claimed in evidence by way of affidavit that the Working Journalist/Correspondent had done liasoning work, handle matters related to management bureau, administrative desk work and handled tax related work. However no specific evidence about work done by the claimant for the management is throughout on record. Self serving statement are not sufficient. MW1 has deposed that he is not aware what designation was conferred on the claimant during the year 1999 to 2005 inspite of written contract Ex.MW1/1 to Ex.MW1/3 filed by the management. During the course of final arguments the claimant has submitted that company Ernst and Young was also looking after the tax compliance of NHK to which the management has not denied. Hence the tax compliance were outsourced by the management.
9.10 Another plea taken by the management that Working LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 34 of 120 Journalist/Correspondent herein was employed on fixed term basis whose service had expired after expiration of such contract. The employment contract are filed on record from Ex.MW1/1 to Ex.MW1/3 which shows that when the first contract dated 01.09.1999 was executed vide Ex.MW1/1 then even before completion of such contract another contract dated 15.08.2000 was executed vide Ex.MW1/2. Then another contract dated 01.09.2001 was executed and similarly the contract were continued upto 31.08.2005. Hence on the face of it the service of Working Journalist/Correspondent was needed by the management continuously for 06 long years. The requirement of employment on contractual basis has to satisfy certain conditions under law whether for piece based work or one time work or when the service of Working Journalist/Correspondent was not regularly required. In the present case the Working Journalist/Correspondent was continuously working from 1999 to 2006 which as proved by Ex.MW1/1 to Ex.MW1/3 the written contract with the management. It also shows that the service of the Working Journalist/Correspondent was required continuously for that period. It is not denied by the management that after the alleged full and final settlement with the Working Journalist/Correspondent on 29.12.2006 the service of the Working Journalist/Correspondent LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 35 of 120 were not taken by the management. In fact the services of the Working Journalist/Correspondent was taken by the management from time to time which was continuous from 1999 to 2006. Hence when the service of Working Journalist/Correspondent is needed regularly by the management then the annual contractual employment of the Working Journalist/Correspondent for such a long period is against public policy. This must have been done by the management to avoid payment of statutory dues of the Working Journalist/Correspondent and other liabilities. The relevant citation is reproduced hereasunder:
The workman has relied on citation titled Pappu vs The Management of M/s Rajiv Auto ... on 12 March, 2010 in W.P.(C) No.3586/2003 wherein Hon'ble High Court of Delhi in para-9 to 12 has held that when from the circumstances of the case it is apparent that the device of issuing works order was to satisfy the letter of law as contained in Section 2 (oo) (bb) of Industrial Dispute Act, 1947 but in fact it was nothing but an employment on continuous basis than the provisions of Section 2 (oo) (bb) of Industrial Dispute Act, 1947 inserted w.e.f. 1984 cannot be permitted to make the beneficial provisions of the Act redundant. The relevant paras are reproduced here as under :
"9. I remain unsatisfied on the queries raised to the counsel for the respondent. The provisions of Section 2 (oo) (bb) of the Act inserted w.e.f. 1984 cannot be permitted to make the beneficial provisions of the Act redundant. My research shows that the Division Bench of this court in PWD thr. Dy. Dir. Horticulture Vs. Satya Pal MANU/DE/9189/2006 has held that what is excluded from the definition of retrenchment is the termination of the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 36 of 120 service of workman as a result of the contract of employment being terminated under a stipulation in that behalf contained therein. In that case also short time work orders for a period of three months each time were issued for a period of nearly three years. The Division Bench of this court held that from the circumstances it was apparent that the device of issuing work orders was to satisfy the letter of law as contained in Section 2 (oo) (bb) but in fact it was nothing but an employment on the continuous basis. It was further held that the purposes for which Section 2 (oo) (bb) was introduced was to avoid saddling an employer with the liability under Section 25F where a worker had been engaged for a very short period of say two or three months; it was not meant to be invoked in a situation where the worker is in continuous employment for three years as in that case. It was further held that if one were to interpret Sections 2(oo) (bb) in a manner as suggested by the employer in that case, it would permit the law to be misused to avoid a statutory liability. It was reiterated that ID Act is intended to protect a workman whose services have been continuously engaged for a considerable period of time and the provision of Section 2(oo)(bb) have to be interpreted in this background. Reliance was placed on Haryana State F.C.C.W. Store Ltd. Vs. Ram Niwas MANU/SC/0556/2002 laying down that the idea of introducing Section 2(oo)(bb) in the ID Act was to meet a situation where a worker is engaged for a very short time, in that case for two weeks, for keeping guard over stocks lying in the open area. It was held that the said judgment which turned on its facts cannot apply to the facts where the worker has been employed for 3 years continuously.
10. I find that wherever the benefit of Section 2 (oo)(bb) has been allowed to the employer, as also in the judgments relied upon by the respondent employer or returned to the award, the courts have found it established on record that the requirement was of a temporary or a seasonal character or the appointment was not against a post or not in accordance with rules of regular appointments. No such LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 37 of 120 benefit can be given where it has been used as a camouflage for a regular employment. It is not the case of respondent that there are any rules for regular appointment which have not been followed in appointment of the petitioner.
11. I find the contract in the present case to be a devise used by the respondent employer for its protection. The petitioner workman is admittedly a unskilled labour. Though the counsel for the respondent employer states that the letter of appointment on the record of the Labour Court is in Hindi language but the facts remains that it is highly unlikely that such detailed letter running into several pages would have been the result of negotiations of a contract of employment. The petitioner workman qua the respondent employer had no bargaining power and the version the petitioner that he was merely made to sign all the said documents and no copy thereof given to him is quite believable. The admission in cross examination that the petitioner worked till 24th March, 1990, while as per document he was discharged on 21st March, 1990 is also indicative of the respondent employer obtaining signatures of the petitioner on whatever document was convenient.
What will fall within the meaning of Section 2 (oo) (bb) is when the employee joins with a full understanding that he was not being employed but was on a temporary assignment. In the present case from the statement of claim, the petitioner workman does not even appear to be aware of the said documents. Had the said been in the knowledge of the petitioner workman the petitioner workman would have certainly if not referring to the same build a case to meet the same. I also do not agree with the counsel for the respondent employer that there was no occasion for the respondent employer to adduce evidence of the requirement of the employer being temporary. The petitioner workman had approached with a case of being a regular employee and the defence of the respondent employer was of Section 2(oo) (bb). It was in the circumstances incumbent on the employer to establish its case thereunder and to satisfy all LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 38 of 120 ingredients thereof. If the argument of the respondent, of there being no plea of contract being a camouflage and hence it being not required to prove otherwise, were to be accepted, there would be no difference between a civil trial under the CPC and a proceeding before the Labour Court/Industrial Tribunal.
12. Though the respondent employer has not made out a case of the petitioner workman being on probation but in view of Clause 3 (supra) of the appointment letter that if the performance of the petitioner workman is found satisfactory he will be kept on permanent basis on the same post has led me to consider said aspect also. However on further appreciation I am unable to read the letter of appointment as providing for the petitioner workman being on probation. The petitioner workman is described therein as an unskilled worker. If he was to be on probation for a period of two years it would have been so provided and there would have been no provision for extension for a period of three months from time to time. Moreover there is nothing to indicate as to why the work was found satisfactory successively for three months for over one and a half years and then suddenly the respondent discharged. As aforesaid there is no evidence of the petitioner workman having been employed for any temporary absence or for doing some temporary or exigency work. Rather it is the argument of the counsel for the respondent employer that though the establishment of the respondent employer has now closed down but at the contemporaneous time was employing 140 persons in its showroom."
9.11 The designation of the Working Journalist/Correspondent is recorded as Correspondent-cum-Office Manager after expiry of contract dated 29.08.2003. This designation has changed in contract dated 31.08.2005. However word correspondent remains there.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 39 of 120Hence the own document of the management shows and proves that there was organised activity between the parties which was run by cooperation between employer and employee. In the present case the employee is Working Journalist/Correspondent and the employer is the management. The journalist/correspondent can also raise dispute under the Industrial Dispute Act, 1947. The management has claimed that the Working Journalist/Correspondent herein is not a journalist and he does not fall within the definition of journalist. This submission of the management is contrary to Ex.MW1/2 to Ex.MW1/3 whereas the designation of the Working Journalist/Correspondent has changed only in the contract dated 31.08.2005 as Correspondent-cum-Office Manager and not prior thereto. When the contract dated 01.09.2004 in Ex.MW1/3 is compared with contract dated 31.08.2005 then no material difference is found qua the dispute raised by the management regarding nature of work performed by the Working Journalist/Correspondent herein. It is settled law that the designation which is awarded to the Working Journalist/Correspondent is less important than the work actually performed by him. It has to be seen that what is his main field of work. It is important to know that what is his substantial work and what is his incidental work to the substantial work. No material LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 40 of 120 difference is seen between contract dated 01.09.2004 and 31.08.2005 in reference to Ex.MW1/3. When the management has claimed that the work Office Manager is added to his designation to the word Correspondent then the onus lies on the management to prove that the substantial nature of duties has changed. Infact management has failed to prove or lead any evidence to show any substantial changes in duties of the Working Journalist/Correspondent herein. MW-1 has deposed in Ex.MW1/A at para no. 3 that the employment contract contains all the particulars of the terms of appointment, salary and job description etc. No further change in description in nature of duties are proved by the management on record. Hence even if incidental duties as to office administration are awarded by the management which are also unproved even then the substantial nature of duties of the Working Journalist/Correspondent remains that of correspondent and thereby the Working Journalist/Correspondent herein remains under the protection and umbrella of Section 2(f) of Working Journalists & Other Newspaper Employees (Conditions of Service & Miscellaneous Provisions) Act, 1955. The relevant citation as to difference between the substantial nature of work and incidental nature of work is reproduced hereasunder:
In case titled The Dhampur Sugar Mills Ltd. vs. State of LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 41 of 120 U.P. and Ors. in C.M.W.P. No. 8422 of 2009, decided on 09.05.2009 from Hon'ble High Court of Allahabad at para no. 7, 8, 12 and 13 which are reproduced hereasunder :
7. In Miss A. Sundarambal v. Government of Goa, Daman and Diu and other, MANU/SC/0282/1988:1998 (4) SCC 42.
The Supreme Court held that in order to be a person should be one, who satisfied the following conditions, namely,
(i) he should be a person employed in an industry for hire or reward; (ii) he should be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and (iii) he should not be a person falling under any of the four clauses, i.e., (i) to (iv) mentioned in the definition of 'workman' in section 2(s) of the Act. The definition also provides that a workman employed in n industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, an industrial dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
8. In S.K. Maini vs. M/s. Carona Sahu Company Limited and others, Manu./SC/0429/1994: 1994 (68) FLR 1101 (SC). The Supreme Court held :
whether or not an employee is a workman under section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is require to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any straitjacket formula which can decided the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 42 of 120 the complexity of industrial or commercial organisation quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it.
The Supreme Court further held ---
But if the principal function is of supervisory nature, the employee concerned will not be workman only if he draws a particular quantum of salary at the relevant time as indicated in section 2(s).
12. In the light of the aforesaid decisions, it is clear that a workman is a person who is employed in an industry for hire or reward and who is engaged as a skilled, unskilled, manual, supervisory, technical or for clerical work. In the instant case, the Court is concerned with the meaning of the work "supervisory" and, in order to find out whether the workman was doing supervisory work, it is essential that his principal nature of duties and functions should come to the fore. Such question is required to be determined with reference to the facts and circumstances that have been brought on record and it is not possible to lay down any straight jacket formula, which could decided the dispute as to the real nature of duties and functions being performed by an employee. The designation alone cannot be said to be a decisive factor. It would be a pre-dominant nature of the services, which the employee was putting that would be a true and proper test in finding out whether the respondent-
workman was doing supervisory work, which would exclude him from the category of a workman.
13. In the light of the aforesaid decisions, the only evidence which has come before the Labour Court is, that the post of Assistant Chemist is a post of Supervisor and that the said post authorizes the Assistant Chemist to recommend action LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 43 of 120 against the workers working under him even though the Assistant Chemist is not the appointing authority. There is no evidence before the Labour Court with regard to the actual duties being performed by the respondent workman. No evidence of any sort has been filed to indicate the supervisory nature of work, which the workman was doing. There is nothing to indicate that the workman had made any recommendation to his superior to take action against any worker working under him. There is nothing to indicate that the workman was giving any direction to do a particular kind of work to any particular worker. On the other hand, the workman in his deposition has categorically stated that he was only an Assistant Chemist working under the Deputy Production Manager and had no power to supervise any work or give any direction to any workman. The Court is of the opinion, that it is one thing to allege that the post carries certain duties and responsibilities, but, it is another thing to contend that the workman was doing a particular kind of work. In the instant case, the Court finds that there is no evidence which has been brought on the record by the employers to indicate that the workman was only doing supervisory work. Mere designation does not by itself indicate that the workman was only employed to do supervisory work or that he was not a workman.
In case titled Delta Jute & Industries Ltd. Staff Association and Ors. vs. State of West Bengal and Ors. in W.P. No. 20574 (W) of 2013, decided on 02.02.2015 from Hon'ble High Court of Calcutta at para no. 4, 12 and 17 which are reproduced hereasunder :
4. The Industrial Tribunal assumes jurisdiction on the basis of the said order of reference and invited the union as well as the management to file their pleadings. The case of the management is based upon the settlement wherein those 19 persons were appointed as the supervisors and because of such designation, it is stated that they cannot be brought LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 44 of 120 within the purview of the workmen and, therefore, the order of reference is bad. The union maintains the stand that despite having designated as supervisors, they never performed any duties and acted in such capacity and, therefore, mere nomenclature is not a determinant factor. Both sides have cited several witnesses in support of their respective stands, the relevant portion whereof would be narrated while addressing the aforesaid issue hereinafter. The tribunal answered the issue in negative holding that the 19 persons did perform the supervisory duties and, therefore, cannot be treated as a workmen. The union have challenged the said award in this writ petition, that is how, the issue indicated above originates.
12. The word 'supervisor' in its ordinary sense means a person who oversees the work of others. It necessarily follows that there are persons working under the supervisor who keeps the watch over their work. The supervisor examines and keeps the watch over the subordinates and entrust the duty to see that the work under the industrial unit is in accordance with manual if there is such or in accordance with usual procedure. If the nature of the work is such that it does not require to look after and examine the works of the persons who are subordinate to him, the person cannot be said to be a supervisor. The supervisor, therefore, is to supervise the man and not the plant and machinery. Mere incidental duties to supervise the work when the main duties is clerical in nature will not convert the employment into one in supervisory capacity as held by the Supreme Court in case of Ananda Bazar Patrika (supra) in following words:
'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 LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 45 of 120 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. This principle finds support from the decisions of this Court in South Indian Bank Ltd. -v- A.R.Chacko (1) and Management of M/s. May and Baker (India) Ltd. -v- Their Workmen (2). In the present case, we have, therefore, to examine the evidence to see whether the Labour Court is right in holding that, because of the main work of Gupta being clerical in nature, he was not employed in supervisory capacity.'
17. The impugned order would reveal that the tribunal have simply proceeded on the basis of the duties and responsibilities of the supervisors incorporated in the settlement without venturing to find out whether such duties and responsibilities were entrusted to the employees though designated as supervisor. It is a specific case of the union in the pleadings as well as the evidence that the nature of the work performed by the said 19 employees was not in supervisory capacity and was simply clerical in nature as they do not have any power to allot the duties to the workmen, take an action against the erring workmen nor were empowered to assign the specific duties to the workmen.
The evidence adduced on behalf of the union was uniform as they categorically asserted that none of those 19 employees ever supervised any subordinate staff. The evidence of OPW 1 on behalf of the management is pertinent in this regard that he categorically stated that no documents have been filed to show that the clerical staffs and other workers along with the sardars are working under their supervision. It is further said that no document is filed to show that anyone of the disputing staff allotted any job to any worker or to select the workers or allot over time job nor filed any document which would suggest that those 19 employees were empowered to initiate any disciplinary proceedings against LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 46 of 120 any worker. In the cross-examination it is stated that there are documents to show that the said 19 terminated employees were empowered to look after the performance of ordinary employees working in the company. It does not appear from the documents annexed to the writ petition as well as from the impugned award that any such documents were filed on behalf of the management which may throw light on the core issue that those 19 employees were discharging duties in a supervisory capacity. The burden to prove that the employee is not a workman and was in fact working in a supervisor capacity, lies on the employer. The support can be lend to a judgment of this Court in case of Rallis India Ltd. (supra) where a presumption was raised as to the existence of industrial dispute, the moment the reference under Section 10 of the Act is made by the appropriate Government. It would be relevant to quote the following excerpts from the said report, which runs thus:
'In Reckitt Coleman of India Ltd. -v- 5th Industrial Tribunal 1980 Lab. IC 92 (at page 95, para 7), it has been held by a Division Bench of the Court that when a reference is made under S.10 of the Industrial Disputes Act there is a presumption of existence of industrial dispute. For the purpose of rebutting the presumption evidence is required to be adduced by the employer I respectfully agree with this view and hold that the Tribunal has not erred in law in placing the burden of proof on the Company to rebut the presumption that Sri Kundu was a workman and dispute was an industrial dispute. In fact PW-1 who was cross-examined in part on the point of existence of papers to show that Sri Kundu used to get jobs done by others on 20th November, 1980 got sufficient time to produce such papers if any when he was next cross-examine on 22nd December, 1980, but no such papers were produced by the Company before the Tribunal. There is no question of shifting of onus when the initial onus of burden of proof was on the company to establish that Sri Kundu had administrative or managerial function. More over, when evidence has been adduced by the contesting parties on the question in LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 47 of 120 controversy abstract considerations of onus are out of place and the truth or otherwise of the case must always be adjudged on the evidence led by the parties (see Kalwa Devadattam -v- Union of India, AIR 1964 SC 880).' 9.12 The Working Journalist/Correspondent has referred to Ex.WW1/13 at page 557 of the case file that the resume of the Working Journalist/Correspondent is admittedly received by the management and Working Journalist/Correspondent is asked to wait. Ex.WW1/13 is receipt of Mark I by the management. It is submitted by the Working Journalist/Correspondent if he was a contractual employee then there was no need for resignation and its acceptance by the management for the reason that the contractual employment ends when the date of contract ends. The management has claimed the nature of employment as contractual in cross-examination dated 09.12.2006 at page 1 and also at page 3 in cross-examination dated 03.03.2021 where MW1 has deposed that his statement that the contract had expired on 06.12.2006 is correct. Hence the deposition of MW1 in Ex.MW1/A at para no. 4 of evidence by way of affidavit is incorrect that the contract came to an end on August 2006. It is submitted that gratuity is not payable at all when the nature of employment is contractual.
9.13 Hence it has come on record that the service of the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 48 of 120 Working Journalist/Correspondent was required continuously for quite a long period and he was in continuous employment of the management without break. Hence such vacancy was available with the management for which regular employment was required and not contractual employment. The alleged continuous employment of the Working Journalist/Correspondent on contract is against public policy and it is violation of law and therefore same cannot be sustained as limited period contract. Hence it is held that Working Journalist/Correspondent is entitled to benefits of service of regular employee and not a contractual employee. For such violation of law benefits could not be granted to the management and hence the plea of nature of employment of Working Journalist/Correspondent as contractual is dismissed. Working Journalist/Correspondent herein is held to be regular employee of the management as Correspondent/Working Journalist.
Accordingly issue no. 1 and 3 are decided against the management and in favour of Working Journalist/Correspondent.
10. ISSUE NO. 22. Whether the management is not an industry as defined under Section 2(j) of the Industrial Disputes Act, 1947 (as amended upto date)? OPM LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 49 of 120 10.1 It is submitted by the management that it is not an industry as the management is only collecting news information and sending them to the NHK company established at Japan. Management at Delhi is bureau of NHK news channel in Japan. Therefore it is not an industry. The management is not doing any business, no manufacturing is done. No trading is done. Management has relied on citation titled Bangalore Water Supply and Sewerage Board v. K. Rajappa and Ors. (1978) SCC (2) 213 at para no. 140. At para no. 140 it is laid down what is an industry as defined u/Sec. 2(j) of Industrial Disputes Act, 1947. The relevant para no. 140 is reproduced hereasunder:
'Industry', as defined in Sec, 2 (j) and explained hi Banerji, has a wide import.
(a) Where (i) systematic activity, (ii) organized by co- operation 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 e.g. making, on a large scale, prasad or food), prima facie, there is an 'industry' in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the 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 employer-employee relations.
(d) If the Organisation is a trade or business, it does not cease to, be one because of philanthropy animating the undertaking.LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 50 of 120
10.2 Both the parties have relied on case Bangalore Water Supply and Sewerage Board v. K. Rajappa and Ors. (supra). The management herein is doing a systematic activity of collection and dissemination of news information through a organised set up. Hence the first ingredient of definition of industry is satisfied. Then this systematic activity is continued by the management with cooperation of the journalist and other employees hired for such purpose. The working journalist is defined u/Sec. 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The Working Journalist/Correspondent herein has claimed that he is a correspondent and the word Correspondent has regularly appeared in employment contract between the parties vide Ex.MW1/1 to Ex.MW1/3 and other contractual documents filed between the parties in original by the management.
10.3 Hence second ingredient of the industry as laid down in citation titled Bangalore Water Supply and Sewerage Board (supra) is satisfied.
10.4 The last ingredient to be seen is that whether there is LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 51 of 120 production and/or distribution of goods and services calculated to satisfy human wants and wishes. The main arguments of the management is that they are not established in India. They are collecting the information and sending the information to their base Japan therefore they are not producing goods and services in India and the final goods if any have to be produced at Japan. The NHK news belongs to Japan. However Working Journalist/Correspondent has referred to citation titled Commissioner of Income Tax v. NHK Japan Broadcasting decided on 11.05.2011 from Hon'ble High Court of Delhi in ITA no. 164, 168 and 169 among other ITA all the year 2011. The NHK in that case is held liable for the tax liability on host country (India) shall be borne by NHK Japan Broadcasting Corporation. In that case there was issue of citizen tax. The present case is not concerned with citizen tax. However NHK Japan is a governed and owned public broadcasting company of Japan having news bureau in many countries including India. Hence it is a non-resident company. According to the management if the news collected by it are not distributed in India though collected in India then it is not producing goods and services in India for satisfaction of human wants and wishes. This argument cannot be sustained for the reason that even if there is an industry or extension of an industry in India whose headquarters are abroad LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 52 of 120 then the goods and services produced by it for the satisfaction of the want at some other place of world or in India even then the goods and services are produced. These services could not be produced without systematic activity and without co-operation of employer and employees. It is nowhere laid down in the case relied on by the management i.e. Bangalore Water Supply and Sewerage Board (supra) that the services produced must be for final consumption in India only. This distinction of intermediary or final goods is created by the management has no basis under law for the purpose of classification of industry. Hence the above submission of the management is rejected. Thus, the third ingredient as laid down in Bangalore Water Supply and Sewerage Board (supra) has stood satisfied.
10.5 In the above test it is laid down that what is irrelevant. True focus is functional and the decisive test is the nature of activity with special emphasis is on employer-employee relationship. It is laid down that when the organisation is a trade or business it does not cease to be one because it is philanthropy, animating the undertaking. To oust the jurisdiction no employees are to be entertained but in minimal matters marginal employees are hired without destroying the non employee character of the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 53 of 120 unit. Those who serve are not engaged for remuneration or on the basis of master servant relationship. In the present case it is not the case of the management that they were not in master and servant relationship with the correspondent or that the claimant was employed for minimal purpose and not for the central purpose of the work. In fact the Working Journalist/Correspondent was employed as a Correspondent which was the central purpose of the entire work of the management. The Working Journalist/Correspondent was engaged for remuneration for such central purpose. The Working Journalist/Correspondent was not a stray servant but his service was rendered for more than 240 days in a year for a period of twelve calendar months preceding the date within reference to which alleged termination of Working Journalist/Correspondent is to be made within a period of one year. The dominant task of the management is to disseminate the news information. The Working Journalist/Correspondent was also employed to collect news information which is the dominant task. The relevant para in this regard are para no. 141 to 147. The management has failed to produce any substantial matter on record by which it can be said if management is not an industry. In these circumstances of the case it is held management has failed to discharge onus of proof levied upon it. Working LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 54 of 120 Journalist/Correspondent submits that management is an industry and he was employed with the management as a newspaper Correspondent for more than 240 days in a year and therefore he is entitled to protection u/Sec. 25F of Industrial Disputes Act, 1947. It is further submitted that he is a working journalist u/Sec. 2(f) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. It is submitted that the management is an industry u/Sec. 2(d) of The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The relevant Section is reproduced hereasunder:
Section 2(d) "newspaper establishment" means an establishment under the control of any person or body of persons, whether incorporated or not, for the production or publication of one or more newspapers or for conducting any news agency or syndicate and includes newspaper establishments specified as one establishment under the schedule; and includes newspaper establishments specified as one establishment under the schedule;" Explanation.--For the purposes of this clause,--.......
(a) different departments, branches and centres of newspaper establishments shall be treated as parts thereof;
(b) a printing press shall be deemed to be a newspaper establishment if the principal business thereof is to print newspaper;
(dd) " non journalist newspaper employee" means a person employed to do any work in, or in relation to, any newspaper establishment, but does not include any such person who
(i) is a working journalist, or LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 55 of 120
(ii) is employed mainly in a managerial or administrative capacity, or
(iii) being employed in a supervisory capacity, performs, either by the nature of the duties attached to his office or by reason of the powers vested in him, functions mainly of a managerial nature;
Accordingly it is held that management is an industry and the present issue is decided against the management and in favour of Working Journalist/Correspondent.
11. ISSUE NO. 44. Whether the services of the workman were terminated by the management illegally and unjustifiably as claimed by the workman? OPW 11.1 It is submitted by the Working Journalist/Correspondent that the management has never terminated his services and the resignation letter Ex.WW1/MX1 was taken from him by the management on the pretext that he will be given employment in continuation of his previous employment. Management had given inducement for the purpose of internal organization of the management and also for better accident compensation and employment opportunity the Working Journalist/Correspondent may tender resignation for continuous employment on a new contract with the same management. Hence it was a not a LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 56 of 120 voluntary resignation but it was part of reorganization of the management and the Working Journalist/Correspondent continued to work with the management as its employee.
11.2 The Working Journalist/Correspondent has supported this fact by showing that the resignation letter Ex.WW1/MX1 was written and sent on personal E-mail of Mr. Akira Takezawa and not on official E-mail of the organization. It is noted that since it was not on official E-mail therefore resignation was never tendered to the management company until the management accept communication on personal E-mail as sufficient correspondence. It is deposed by MW-1 in the cross-examination dated 03.03.2021 at page no. 2 that he is not aware why Mr. Takezawa was taking communication on personal E-mail ID and why the resignation letter was not taken on NHK official domain. MW-1 was not aware of personal or official E-mail ID of Mr. Takezawa. However personal domain of the company was NHK.ORG.JP. The E-mail ID [email protected] is not official domain of the company. It is submitted by the Working Journalist/Correspondent that this deposition of MW-1 is in contradiction with para no. 6 of evidence by way of affidavit Ex.MW1/A where the witness of the management has claimed that the resignation letter, E-mail dated LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 57 of 120 06.12.2006 was written by the Working Journalist/Correspondent at official E-mail ID of the management. It is noted that MW1 has deposed that resignation was not taken on official E-mail ID by Mr. Akira Takezawa. However still the management relies on the said resignation letter Ex.WW1/MX1. By such claim the management has substantiated the fact that it was accepting the communication with the Working Journalist/Correspondent also on non-official E- mail ID received by the management through its employees. Hence the communication of the Working Journalist/Correspondent with the employees of the management or the management itself on non- official E-mail ID was accepted means of communication by the management and therefore on all other E-mails which are not received on company E-mail ID the onus of proof stands shifted on the management to show that if it was not accepting communication on such non official E-mail ID of the employees of the management. Management cannot use pick and choose policy. Hence in absence of any such proof by the management on record it stands proved that the communication was taken by the management from the claimant herein on non-official E-mail ID.
11.3 MW-1 during cross-examination dated 03.12.2019 at page 2 has deposed that he cannot say whether the management has LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 58 of 120 officially accepted the resignation of Working Journalist/Correspondent by virtue of any official written document/E-mail. However he has voluntarily deposed that management has issued tenure certificate Ex.WW1/MX2 to him. It is not the case of the management that it has ever issued any letter of acceptance of the alleged resignation given by the claimant. In absence of such acceptance management has relied on tenure certificate Ex.WW1/MX2 only to show its acceptance of the alleged resignation given by the Working Journalist/Correspondent. However Ex.WW1/MX2 dated 29.12.2006 nowhere mentions that any acceptance was given to the Working Journalist/Correspondent for the alleged resignation. It only states that the Working Journalist/Correspondent has diligently served the management from 01.09.1999 for a period of seven years. It also proves that the nature of employment was continuous. Ex.WW1/MX3 dated 29.12.2006 is a declaration given by the Working Journalist/Correspondent as full and final settlement and it is claimed involuntary by the Working Journalist/Correspondent.
11.4 Vide Ex.WW1/13 at page no. 557 of the case file which
is E-mail from NHK management to the Working
Journalist/Correspondent dated 23.06.2010 sent by Ms. Yuri LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 59 of 120 Takebayashi of Radio Japan, Hindi section. The E-mail mentions that they have received resume of the Working Journalist/Correspondent long time back through Mr. Hirose. Apology was submitted for the delay and thanks was given to the Working Journalist/Correspondent for keeping interest in the post with NHK World. Examination will be conducted till mid of August and soon the Working Journalist/Correspondent will be intimated about the date. The Working Journalist/Correspondent was asked to wait for sometime. The Working Journalist/Correspondent has pleaded in his evidence by way of affidavit Ex.WW1/A at para no. 35-37 that when Mr. Takezawa came back to Delhi during end of January 2007 then he called the Working Journalist/Correspondent for a meeting expressing that he did not wish to sign a new contract with Working Journalist/Correspondent. However he assured that management will treat him as employee and will give him assignments. The Working Journalist/Correspondent got calls from Mr. Hirose from Japan advising him not to lose his calm as Mr. Takezawa was only a management personnel. He asked Working Journalist/Correspondent to wait for Mr. Takezawa's call. MW-1 Sh. Jun Kobayashi at page no. 3 of cross-examination dated 09.12.2019 has deposed that he is not aware whether the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 60 of 120 management introduced the Working Journalist/Correspondent to NHK Radio in the year 2010 or not. However in the same cross- examination the MW-1 had admitted the domain E-mail ID at point A in Ex.WW1/13 the E-mail (colly). It is admitted that domain of E-mail belongs to management but he cannot say about its contents. The observation of the Court is also referred by the Working Journalist/Correspondent in the same cross-examination where it is recorded that document Ex.WW1/MX3 has attained the definition of admitted document. Ex.WW1/MX3 is the document containing declaration of receipt of Rs.2,80,000/- by the Working Journalist/Correspondent as full and final settlement on 29.12.2006 post deduction of income tax. However MW-1 has deposed that he was not aware about issuance of Ex.WW1/MX3 and he cannot answer any question about it. It is submitted by the Working Journalist/Correspondent that the management has paid his gratuity only till 2006 vide Ex.WW1/MX3 which is paid by the management as matter of their internal affairs and the employment of the Working Journalist/Correspondent was continuous. Working Journalist/Correspondent has referred to employment contract Ex.MW1/2 which contains a number of employment contract between the parties i.e. Ex.MW1/1 to Ex.MW1/3 (colly). Clause 3 of the employment contract is referred where it mentions about LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 61 of 120 payment of two months salary in the event the contract is terminated earlier. Management has not paid any salary in respect of the alleged termination for the notice period. The alleged payment of gratuity from 1999 till the year 2006 was only a formality for continuation of employment which was internal matter of management. The Working Journalist/Correspondent has raised the issue that his alleged resignation has no formal acceptance. It is submitted that Ex.WW1/MX3 which is declaration obtained from the Working Journalist/Correspondent dated 29.12.2006 including receipt of Rs.2,80,000/- was a self imposed full and final settlement. It is submitted that in absence of acceptance of any resignation the contract is not complete. First of all Working Journalist/Correspondent has not resigned and secondly there is no acceptance. The Working Journalist/Correspondent has submitted that his gratuity has been paid vide Ex.WW1/MX3. It is submitted by the Working Journalist/Correspondent that this paid amount was gratuity only. The Working Journalist/Correspondent has referred clause 9 of the employment contract and referred to retirement fee. It is submitted that his last drawn salary was Rs.35,000/- and for a period of 07 years it comes to Rs.2,45,000/-. The salary for the month of December 2006 comes to Rs.35,000/-. Hence the total amount paid LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 62 of 120 comes to Rs.2,80,000/-. Earned leave and overtime work was not paid. Ex.WW1/MX3 mentions long service fee and salary for the month of December 2006. The long service fees was nothing but gratuity. It is submitted by the Working Journalist/Correspondent that the above payment was only for the purpose of fresh engagement due to change of company registration for which the Working Journalist/Correspondent has referred at para no. 58 of written statement which mentions that fresh engagement letters were issued to the employees for the change of company registration. Hence the management has admitted fresh engagement letters were issued for the company registration only. It is submitted that the company has thereby falsely claimed that the Working Journalist/Correspondent has orally voluntarily resigned. It is submitted that resignation of the Working Journalist/Correspondent was not voluntarily but under the influence and direction of the management as the management was changing its registration only. There was no reason for the Working Journalist/Correspondent to resign and there was no formal acceptance of the resignation of the Working Journalist/Correspondent. The Working Journalist/Correspondent has continued in the employment of the management. The relevant law regarding requirement of acceptance of resignation by the LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 63 of 120 management is reproduced hereasunder:
In case titled T. Ravindran vs The Presiding Officer, Labour ... on 29 January, 2002 Equivalent citations: (2002) IIILLJ 160 Mad it is held as under:
2. Learned counsel for the petitioner argued that this is a contract of employment and according to the contract of employment, resignation brings the employment to an end and therefore, such a termination of employment can be done only in accordance with the rules and as per the rules applicable to him, 15 days notice is necessary for either party to bring the contract to an end. Therefore, the letter of resignation will come into effect only on the completion of 15 days. Therefore, the counsel submitted that when the letter of resignation was given on 19.5.89, it can come into effect after the completion of 1 4 days and that even before the completion of 14 days. On 29.5.89 itself the petitioner sent a letter withdrawing his letter of resignation. Therefore, there cannot be a termination of service before the expiry of 14 days. Therefore, the petitioner is deemed not to have resigned and he is deemed to be continuing in service. Therefore, the order of the Labour Court is illegal and it is liable to be set aside. In support of his argument the learned counsel relied upon the decision of the Andhra Pradesh High Court in Sudha Nagaraj, K. v. Chief Manager, Andhra Bank (1997-III-LLJ
301) and G.M., B.H.E.L. Ltd. v. Rajita Suryakanta (1999-II-
LLJ 549) where the Andhra Pradesh High Court has held that when the resignation letter was tendered in writing, it has to be accepted only in writing and the acceptance of resignation cannot be communicated orally. In the present case there was no letter of acceptance of resignation and therefore, the learned counsel submitted that the resignation of the workman has not become effective and he is deemed to be continuing the service. He further relied upon the decision of the Supreme Court in Punjab National Bank v. Shri P.K. Mittal (1989-I-L.L.J. 368) wherein the Supreme Court held that acceptance of resignation before the expiry of the notice period will not be effective and the resignation LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 64 of 120 alleged to have been accepted immediately is not valid. The judgment of the Supreme Court is based on the facts of the particular case. In that case the resignation letter itself contained a condition. In that letter of resignation the employee had added that the date of receipt of letter should be treated as the date of commencement of notice period so that inclusive of the same his resignation will be effective from 30.6.86. In that case since the resignation was accepted on 7.2.86, the Supreme Court held that it was without jurisdiction. Therefore, it is the case where acceptance was against the terms contained in the very letter of resignation. In the same case, the Supreme Court in paragraph 6 holds that the employee may choose to resign with immediate effect or with a notice of less than three months if the bank agrees to the same. Therefore, the preposition that was laid down in that case by the Supreme Court is that when the letter of resignation fixes the date from which it has to come into force, any acceptance prior to that date is not valid. At the same time the notice period can be waived by either of the parties if both of them agrees for the same. Therefore, this decision of the Supreme Court is not of any help to the petitioner.
3. Learned counsel for the petitioner relied upon another decision of the Patna High Court in Managing Committee, S.G.A.S.High School v. State where the Patna High Court held that under section 5 of the Indian Contract Act which provides that a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, and as provided under section 4, the communication of acceptance of the proposal is complete as against the proposer when it is put in course of transmission to him so as to be out of the power of the acceptor. Therefore, relying upon this decision, the learned counsel contended that the acceptance shall be in writing. The counsel also relied upon the decision in Janardan Misra v. State for the same preposition in paragraph 9 of that judgment. This only holds that resignation can be withdrawn before it was accepted. The LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 65 of 120 word "communicate" does not mean communication in writing. This judgment cannot be understood merely because a letter of acceptance is transmitted before acceptance, to mean that acceptance shall only be in writing and that acceptance should be communicated in writing. The learned counsel also relied upon the judgment of the Supreme Court in Power Finance Corpn. Ltd. v. P. K.Bhatia (1997 (2) LLN
5) wherein the Supreme Court has held that the conditional letter of resignation will not be effective unless the condition is fulfilled. In that case in the letter of resignation itself there was a condition that the relieving order should be handed over to him immediately and the ex gratia payable be informed to him and his dues be paid immediately. Since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective. Therefore, this decision also cannot apply to the facts of the present case. Learned counsel also relied upon the judgment of the Supreme Court in Central Bank of India v. J.N.Nagpal (2001(6) Scale 381). In that case the employee tendered his resignation on 2.4.88 but it was dated 1.7.88, to be effective from 1.10.88. The employee withdrew his resignation on 2.7.88, but the employer accepted the resignation on 6.9.88 itself. On the facts of the case the Supreme Court held that acceptance of resignation is not valid because the resignation was to take effect only from 1.1 0.88. Since the resignation was withdrawn on 2.7.88 itself, the acceptance of resignation on 6.9.88 was held invalid. Though the counsel for the petitioner strenuously argued relying upon these judgments, these decisions do not come to the help of the petitioner in any manner since the facts of the case are different.
4. Learned counsel for the respondent referred to the evidence adduced before the lower court both by the petitioner as well as the management. The petitioner himself has admitted that on 19.5.89 he gave the resignation letter. He has not stated LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 66 of 120 under what circumstances the resignation letter was given. That letter was given voluntarily without coercion by any person. It was given to the Secretary of the society. The Secretary of the society accepted it relieving him from the duties. He does not known when the endorsement was made in that letter. He did not come to work after the resignation letter was handed over. Further he states that once the employee was relieved it means that resignation letter has been accepted. But he says that it cannot be said that it is an official acceptance. The management witness also says that immediately on receipt of the letter of resignation he made an endorsement on the letter itself accepting the resignation and he was relieved and in his place another person was put in charge. Since that person also did not attend he performed that work. He also says that there is no rule in the bye-laws of the society prescribing the number of days required for accepting any resignation letter. From his evidence it is seen that the employee gave the letter of resignation voluntarily and it was accepted immediately and the acceptance was communicated to him orally on the same day and the employee also understood it that his resignation has been accepted and therefore, he did not turn to duty from that date onwards. Only after ten days he sent a letter withdrawing the resignation. Though the letter of accepting resignation was not communicated to him earlier, the employee was made to understand immediately that his resignation has been accepted and he was relieved. Therefore, the communication that is required is the communication to the person concerned in the manner in which the employee understands that communication. The communication need not be in writing.
5. Counsel for the petitioner strenuously contended that in the case of employer and employee relationship, the master and servant relationship exists and in such a situation acceptance can only be in writing to bring the termination of contract valid. In other words, the argument of the learned counsel for the petitioner is the contract cannot be brought into LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 67 of 120 existence or terminated except in writing. This argument is not accepted because the contract under the Indian Contract Act can be brought into existence orally. Offer can be made orally and acceptance also can be made orally. Once the offer is accepted, there is a contract. Similarly, once the offer of resignation has been accepted, then also the termination of service is complete. Therefore, the Labour Court has rightly concluded that the resignation was accepted and that was valid and therefore, dismissed the industrial dispute. The award of Labour Court is perfectly valid and I find no reason to interfere with that order. The writ petition is dismissed. No costs.
11.5 In cross-examination dated 09.12.2019 of MW1 at page 1 para 2 it is deposed that he is not aware about acceptance of resignation via any mode. MW1 in cross-examination dated 03.12.2019 at page 2 has deposed that he is not aware about acceptance of resignation by virtue of any written document or mail. It is deposed voluntarily that the management has just issued tenure certificate Ex.WW1/MX2 to the Working Journalist/Correspondent. It is submitted by the Working Journalist/Correspondent that all the above formality was conducted by the management and PIB card was issued to the Working Journalist/Correspondent through the management so that Working Journalist/Correspondent can continue to work for the management in continuity employment.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 68 of 12011.6 It is submitted by the Working Journalist/Correspondent that though the written contract came to end on August 2006 but it was an eye wash. The management had asked Working Journalist/Correspondent to formally resign and assured him to continue employment for which he was given work from time to time. The assurance was that due to restructuring by the management he had to resign and thereafter fresh employment contract would be executed with the Working Journalist/Correspondent only for the purpose of restructuring of the management. It is submitted that employment of the management is continuous in nature. Page 59 of the case file and internal page 4 of the written statement is referred where it is written that contract came to an end on August 2006. The same is deposed by the management at para no. 4 of Ex.MW1/A. It is noted that the contrary MW-1 in cross-examination dated 09.12.2019 has deposed that after August 2006 management had availed the service of the Working Journalist/Correspondent only on the request made by the Working Journalist/Correspondent. MW-1 has justified further continuous working by the Working Journalist/Correspondent after August 2006. It is deposed by MW-1 that Working Journalist/Correspondent still remained on the company roll and his resignation vide E-mail dated 06.12.2006 was LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 69 of 120 received by the management. The Working Journalist/Correspondent submits that he was on company roll only because he was continued to be employee of the management. Further, to the contrary the Working Journalist/Correspondent has referred to cross-examination of MW-1 dated 03.03.2021 at page 3 in that the contract was expired on 06.12.2006 was correct. The above statement was given by MW-1 when confronted with para no. 4 of Ex.MW1/A the evidence by way of affidavit. The MW-1 was asked that when the contract was ended on 06.12.2006 then why Press Information Bureau card (hereinafter referred as PIB card) was issued upto 31.12.2007 to which MW-1 had deposed that this card was issued by Government of India and he is not aware about it. It is deposed that PIB card is renewed annually and for international correspondent it is renewed twice a year. MW-1 does not know if regular contract letter has to be attached with the PIB card before the Government of India issued it. According to the Working Journalist/Correspondent since PIB card was issued to him by the management till 31.12.2007 and the conduct of the management shows that he was under continuous employment of the management. There are guidelines for issuance of PIB card. In reply to para no. 58 of statement of claim the management has pleaded in written statement that fresh LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 70 of 120 engagement letters were issued to the employees of management for the purpose of change of company's registration. Since Working Journalist/Correspondent has resigned he was not issued fresh engagement letter. Working Journalist/Correspondent submits that since PIB card was issued by the management which could not be issued without showing that Working Journalist/Correspondent was employee of the management. The Working Journalist/Correspondent has referred to written arguments filed by the management at page no. 8 at first para in that the claimant was a contractual employee whose contract was renewed annually. The Working Journalist/Correspondent has submitted that the contract regarding the said period after year 2007 of contractual employment is not filed by the management. The Working Journalist/Correspondent has referred to rules of issuance of PIB card.
11.6.1 In reply to question in cross-examination dated 13.12.2018 that did the Working Journalist/Correspondent write to management regarding post January 2007. It was deposed by the Working Journalist/Correspondent that the management had signed agreement in continuity from September 2006 till August 2007 which was submitted to PIB for renewal for accreditation LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 71 of 120 alongwith his work agreement. MW1 has deposed in cross- examination dated 09.12.2019 that he is not aware as to whether the PIB card of the Working Journalist/Correspondent was renewed or not at the instance of management in the year 2007. He is not aware about PIB card Ex.WW1/6 wherein front of which it is written as Correspondent NHK Japan. The management is duly accredited with PIB and as per PIB rules the accreditation is on annual basis and has to be renewed accordingly. Hence it is proved on record that the PIB card Ex. WW1/6 of the Working Journalist/Correspondent was renewed for the year 2007. It is not the case of the management that the PIB card can be issued by or any other management for the Working Journalist/Correspondent or that the Working Journalist/Correspondent has ever worked for any other management. Therefore it is proved on record that the management herein has got issued PIB card of the Working Journalist/Correspondent Ex.WW1/6 for the year 2007 for the sole purpose that the Working Journalist/Correspondent continued to serve the management in the year 2007. The management could have conveniently brought on record the necessary application submitted by it before the competent authority that whether this application was moved for issuance of PIB card was not for its employee. Management has not proved the same and therefore it LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 72 of 120 has failed to discharge onus shifted upon it. Hence the Working Journalist/Correspondent has proved on record that the PIB card was issued to him in the year 2007 only for the purpose of his regular employment with the management and not for a piecemeal contract. MW1 has deposed in cross-examination dated 03.03.2021 that he does not know if any letter was written to the Working Journalist/Correspondent or Ministry of Home Affairs or any authority for surrendering of PIB card of the Working Journalist/Correspondent. MW1 is not aware if regular contract letter has to be attached with PIB card before its issuance. Hence the management has failed to discharge the onus.
11.6.2 Mark M is a letter dated 28.07.2005 which is leave certificate to employee issued to The Divisional Manager, New India Assurance Co. Ltd. by the then Bureau Chief Sh. Toru Ohara mentioning that Sh. Utpal Trehan met with an accident on 22.05.2005 who was on official duty. Sh. Utpal Trehan was on leave from 23.05.2005 till 06.07.2005. Hence there is clear admission by the management when the claimant has met with an accident in the night of 22.05.2005 then he was on official duty who was working as Correspondent with the management. It is so recorded at point A of Mark M. LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 73 of 120 11.6.3 It is noted that the management has pleaded in the written statement at internal page no. 4 that the contract with the Working Journalist/Correspondent came to an end on August 2006. However the alleged resignation was sent by the Working Journalist/Correspondent by way of E-mail Ex.WW1/MX1 dated 06.12.2006 which was sent on 07.27 AM. The subject matter is resignation. The first line mentions regarding conversation of employment contract starting from September 2006 to August 2007. This E-mail was sent to Sh. Akira Takezawa. Management has heavily relied on this document to show valid resignation of the Working Journalist/Correspondent. Management has claimed that Working Journalist/Correspondent has not mutually agreed to the terms and conditions for renewal of contract from September 2006 to August 2007 then he has requested to accept his resignation w.e.f 31.12.2006. However Ex.WW1/MX2 and Ex.WW1/MX3 shows that the Working Journalist/Correspondent has worked till 29.12.2006. There is no dispute to the fact that the resignation can be oral and in this case the management has claimed that it is in writing vide Ex.WW1/MX1. In the alleged resignation it is written by the Working Journalist/Correspondent that he pursued working on the last contract salary for four months. In the very first para of the resignation letter it is mentioned that the last conversation LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 74 of 120 for few months was regarding employment contract starting from September 2006 to August 2007 for a period of one year. It proves the intention of the Working Journalist/Correspondent to continue to work with the management at the time of alleged resignation. The Working Journalist/Correspondent has continued to work with the management since September 2006. One of the important fact to be noted is that it is nowhere mentioned in the resignation letter that what were the terms on which both the parties could not arrive at mutual settlement. Management has heavily relied on this resignation letter and therefore the burden of proof to prove this resignation letter is on the management. MW1 has deposed in cross-examination dated 09.12.2019 that the contractual employment of the Working Journalist/Correspondent was continued on request of the Working Journalist/Correspondent only. However no such request for continuation of employment on behalf of Working Journalist/Correspondent is shown on record. Hence management has failed to prove on record that on request of the Working Journalist/Correspondent the work was continued to be taken from Working Journalist/Correspondent after September 2006. The continuation of work by the Working Journalist/Correspondent after September 2006 without any extension of any employment contract shows that his services were LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 75 of 120 taken by the management as regular employee of the management and not as contractual employee. Another fact to be noted is that the service of the Working Journalist/Correspondent were continued for seven long years from the year 1999 which are continuous and uninterrupted without granting him status of permanent employee. The year to year contract was extended continuously. It is settled law that a contractual employee may be engaged for a short term work which company may to satisfy its short term need on short term basis. It is seen from record that the continuous employment of the Working Journalist/Correspondent for seven years long years with the management was need of the management not based on short term but it was a long term need.
Such year to year employment of the Working Journalist/Correspondent and extension thereof was only to deny the Working Journalist/Correspondent of his permanent status and to deny him consequential benefits. The action of the management is accordingly held against the public policy. The relevant citation in this regard is reproduced hereasunder:
Hon'ble Supreme Court of India in case titled Hari Nandan Prasad & Anr vs Employer I/R to Mangmt. of F.C.I. & ... on 17 February, 1947 in Civil Appeal Nos. 2417-2418/2014 (arising out of S.L.P.(Civil) Nos. 29634-29635/2008) has held as under:LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 76 of 120
23. For detailed discussion on this aspect, we proceed to discuss the ratio in the case of Maharashtra State Road Transport Corporation (supra). In that case the respondent Karamchari Union had filed two complaints before the Industrial Court, Bombay alleging that the appellant-
Corporation had indulged in unfair labour practice qua certain employees who were engaged by the appellant as casual labourers for cleaning the buses between the years 1980- 1985. It was stated in the complaints that these employees were made to work every day at least for 8 hours at the depot concerned of the Corporation; the work done by them was of permanent nature but they were being paid a paltry amount; and even when the post of sweepers/cleaners were available in the Corporation, these employees had been kept on casual and temporary basis for years together denying them the benefit of permanency. After adjudication, the Industrial Court held that the Corporation had committed unfair labour practice under items 5 and 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971 (MRTU and PULP Act). As a consequence, it directed the Corporation to pay equal wages to the employees concerned which was being paid to Swachhaks and also pay arrears of wages to them. In the second complaint, the Industrial Court returned the finding that the Corporation was indulging in unfair labour practice under Item 6 of Schedule IV, by continuing these employees on temporary/casual/daily wage basis for years together and thereby depriving them the benefits of permanency. The direction in this complaint was to cease and desist from the unfair labour practice by giving them the status, wages and all other benefits of permanency applicable to the post of cleaners, w.e.f. 3.8.1982. The Corporation challenged these two orders of the Industrial Court before the High Court of Judicature at Bombay in five separate Writ Petitions. These were disposed of by the learned Single Judge vide common judgment dated 2.8.2001 holding that complaints were maintainable and the finding of the Industrial Court that the Corporation had indulged in unfair labour practice was also LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 77 of 120 correct. The Corporation challenged the decision of the learned Single Judge by filing LPAs which were dismissed by the Division Bench on 6.5.2005. This is how the matter came before the Supreme Court. One of the contentions raised by the appellants before this Court was that there could not have been a direction by the Industrial Court to give these employees status, wages and other benefits of permanency applicable to the post of cleaners as this direction was contrary to the ratio laid down by the Constitution Bench of this Court in Umadevi (supra). The Court while considering this argument went into the scheme of the MRTU and PULP Act. It was, inter-alia, noticed that complaints relating to unfair labour practice could be filed before the Industrial Court. The Court noted that Section 28 of that Act provides for the procedure for dealing with such complaints and Section 30 enumerates the powers given to the Industrial and Labour Courts to decide the matters before it including those relating to unfair labour practice. On the reading of this section, the Court held that it gives specific power to the Industrial/Labour Courts to declare that an unfair labour practice has been engaged and to direct those persons not only to cease and desist from such unfair labour practice but also to take affirmative action. Section 30(1) conferring such powers is reproduced below:
"30. Powers of Industrial and Labour Courts.- (1)Where a court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may in its order-
(a)declare that an unfair labour practice has been engaged in or is being engaged in by that person, and specify any other person who has engaged in, or is engaging in the unfair labour practice;
(b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 78 of 120 without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act;
(c) where a recognized union has engaged in or is engaging in, any unfair labour practice, direct that its recognition shall be cancelled or that all or any of its rights under sub- section(1) of Section 20 or its right under Section 23 shall be suspended."
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25. Detailed reasons are given in support of the conclusion stating that the MRTU and PULP Act provides for and empowers the Industrial/Labour Courts to decide about the unfair labour practice committed/being committed by any person and to declare a particular practice to be unfair labour practice if it so found and also to direct such person ceased and desist from unfair labour practice. The provisions contained in Section 30 giving such a power to the Industrial and Labour Courts vis-à-vis the ratio of Uma Devi are explained by the Court in the following terms:
"The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi. Unfair labour practice on the part of the employer in LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 79 of 120 engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
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27. However, the Court found that factual position was different in the case before it. Here the post of cleaners in the establishment were in existence. Further, there was a finding of fact recorded that the Corporation had indulged in unfair labour practice by engaging these workers on temporary/causal/daily wage basis and paying them paltry amount even when they were discharging duties of eight hours a day and performing the same duties as that of regular employees.
28. In this backdrop, the Court was of the opinion that direction of the Industrial Court to accord permanency to these employees against the posts which were available, was clearly permissible and with the powers, statutorily conferred upon the Industrial/Labour Courts under Section 30 (1)(b) of the said Act which enables the Industrial adjudicator to take affirmative action against the erring employees and as those LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 80 of 120 powers are of wide amplitude abrogating within its fold a direction to accord permanency.
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31. In the language of Krishna Iyer, J: The Industrial Disputes Act is a benign measure, which seeks to pre-empt industrial tensions, provide for the mechanics of dispute- resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counter- productive battles and the assurance of industrial justice may create a climate of goodwill." (Life Insurance Corpn. Of India v. D.J.Bahadur 1980 Lab IC 1218, 1226(SC), per Krishna Iyer,J.).
In order to achieve the aforesaid objectives, the Labour Courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice. Way back in the year 1950 i.e. immediately after the enactment of Industrial Disputes Act, in one of its first and celebrated judgment in the case of Bharat Bank Ltd. V. Employees of Bharat Bank Ltd. [1950] LLJ 921,948-49 (SC) this aspect was highlighted by the Court observing as under:
"In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace."
32. At the same time, the aforesaid sweeping power conferred upon the Tribunal is not unbridled and is circumscribed by LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 81 of 120 this Court in the case of New Maneckchowk Spinning & Weaving Co. Ltd.v. Textile Labour Association [1961] 1 LLJ 521,526 (SC) in the following words:
"This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subject matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to the matter as laid down by the legislature or by this Court."
33. It is, thus, this fine balancing which is required to be achieved while adjudicating a particular dispute, keeping in mind that the industrial disputes are settled by industrial adjudication on principle of fair play and justice.
34. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Art.14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 82 of 120 of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art.14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art. 14, rather than violating this constitutional provision.
xxxx 11.6.4 In the E-mail Ex.WW1/WX1 which is resignation letter does not mention anywhere the terms which could not be mutually agreed between the parties. What were the terms offered by the management which the Working Journalist/Correspondent could not agree to and how they are different from the earlier terms of contract of employment between the parties. There is no discussion on this aspect in the entire evidence by way of affidavit of MW1. The MW1 has no personal knowledge about the case but he is deposing only on the basis of record. Therefore it was incumbent on the management to produce such written record which could not be agreed between the parties. MW1 is not aware that what was the designation in the relieving letter. MW1 is not aware and he cannot say whether the management has official accepted the resignation of the Working Journalist/Correspondent by virtue of any official document/E-mail. Therefore MW1 has nowhere deposed that the alleged resignation of the Working LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 83 of 120 Journalist/Correspondent was accepted orally and by whom. Hence in absence of such proof management has failed to prove that the resignation of the Working Journalist/Correspondent was accepted orally or in writing. MW1 has deposed in para no. 14 of his evidence by way of affidavit that management has accepted the resignation tendered by the Working Journalist/Correspondent on 06.12.2006 and did not renew the contract of the Working Journalist/Correspondent. However the document of resignation Ex.WW1/MX1 relied upon by the management mentions at para no. 2 that the alleged resignation was given w.e.f 31.12.2006 if at all it was a valid resignation. It is settled law that a resignation cannot be accepted on a date prior to the date on which it was given by the Working Journalist/Correspondent in the resignation. The resignation has to be accepted by the terms in which it was given. When a specific date as 31.12.2006 is mentioned in the resignation letter EX.WW1/MX1 then management could not have accepted it earlier thereto on the date of its receipt. To the contrary the management has issued declaration to the Working Journalist/Correspondent of full and final settlement Ex.WW1/MX3 for a sum of Rs.2,80,000/-. When there is resignation then there was no settlement between the parties. It is not the claim of the management that any correspondence was LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 84 of 120 exchanged between them regarding any financial disputes. Therefore no dispute existed between the parties for which full and final settlement could be executed vide Ex.WW1/MX3. On the face of it the above full and final settlement dated 29.12.2006 was not prepared on the basis of resignation Ex.WW1/MX1. Even otherwise the above declaration Ex.WW1/MX3 cannot be sustained under law as the same was issued on 29.12.2006 whereby the date of resignation given by the Working Journalist/Correspondent was 31.12.2006 allegedly vide Ex.WW1/MX1. Hence the declaration Ex.WW1/MX3 is held to have been issued on any basis but not on the basis of alleged resignation letter Ex.WW1/MX1. Hence Ex.WW1/MX3 does not serve any purpose in th present case except payment given to the Working Journalist/Correspondent for the amount mentioned therein. There cannot be any full and final settlement when the case of the management is based on resignation of the Working Journalist/Correspondent. Ex.WW1/MX2 is only an experience certificate issued to the Working Journalist/Correspondent on 29.12.2006 which throw little light on the alleged resignation issued by the Working Journalist/Correspondent Ex.WW1/MX1.
11.6.5 The Working Journalist/Correspondent has bought in LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 85 of 120 evidence Ex.WW1/36 which is permission to the management herein to establish office in India dated 12.07.2005. Management has not denied the correctness of Ex.WW1/36 this letter concurs with the time of restructuring claimed by the Working Journalist/Correspondent against the management. One of the condition of this letter is for the management to obtain accreditation if not already obtained. It is deposed by WW1 that he was informing management whether the news report complied with PIB guidelines issued by Ministry of Information and Broadcasting and further assisting the management in online uplinking of the news report for news purpose only.
11.6.6 WW1 has produced in evidence the PIB guidelines Ex.WW1/MX5 effective from 19.03.2007, Ex.WW1/MX6 effective from 12.09.2006. In Ex.WW1/MX7 under Schedule I Rule 6.1 at serial number 1 the eligibility condition for issuance of PIB card is minimum 5 years as full time working journalist/cameraman in news organisation. Hence the PIB card is issued only to full time working journalist and not to any other person. The conditions for issuance of PIB card has remained unchanged in Ex.WW1/MX5 and Ex.WW1/MX6 as far as issuance of PIB card is concerned. However there was edited condition for LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 86 of 120 issuance of PIB card in Ex.WW1/MX6 and Ex.WW1/MX4 in that the journalist should be working full time for the organisation and the person working on honorarium or retainership/part time basis will not be treated as working journalist for the purpose of accreditation. Hence it has been proved on record that the PIB card was issued to the Working Journalist/Correspondent as a permanent employee only and not as a part-time employee. In cross- examination dated 20.01.2023 WW1 has deposed that with the application of PIB card the contract between the parties alongwith the recommendation of the employer must be attached and the issuance of PIB card is always from 1st January till 31st December for the year. The application has to be filed only by the management which is usually filed in the month of December. It is admitted as correct that PIB application window opens for a limited period. WW1 has received PIB card in the month of January 2007. Hence for the issuance of PIB card for the year 2007 to the Working Journalist/Correspondent the application must have been moved by the management in terms of Ex.WW1/MX6. Hence the PIB card was not issued to the Working Journalist/Correspondent as freelance correspondent/camera person but the PIB card was issued to him in the category other than freelance. Vide Ex.WW1/MX4 letter issued by Assistant Director (PRS) from PIB LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 87 of 120 Government of India records that the claimant herein was accredited as Correspondent on behalf of NHK for the year 2005, 2006 and 2007. It also mentions that the PIB card is renewed every year on the basis of recommendation letter given by the organization. Hence in the present case the recommendation for the claimant herein must have been given by the management only and which must have been given by the management in the year 2006. It is admitted case of both the parties that the PIB window opens for a limited period and there is no suggestion to the Working Journalist/Correspondent in cross-examination dated 20.01.2023 when it is deposed by WW1 that it is usually filed in the month of December. The management could have conveniently produced on record the contract signed by it with the claimant for the issuance of PIB card in the month of December and on which date it had applied for the PIB card. The management has not done so whereas as per the case of the management the resignation was already received by it pertaining to the claimant on 06.12.2006 then there exist no reason with the management for issuance of PIB card to the Working Journalist/Correspondent as a permanent employee. Other than this the Working Journalist/Correspondent continued to be in the employment of the management even after August 2006 when the alleged contract came to an end. Hence the Working LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 88 of 120 Journalist/Correspondent was continued as a regular employee in the management and not as a freelance correspondent. Hence the theory of freelance correspondent for a piecemeal work pleaded by the management is found contrary to the guidelines laid down by Government of India for issuance of PIB card. Hence the above plea and deposition of the management is rejected. Hence it is held that the PIB card was issued to the Working Journalist/Correspondent by the management which was so applied by the management in the month of December 2006 in favour of the claimant as a regular employee and there was no dispute between them regarding continuation of employment of Working Journalist/Correspondent with the management and for such continuation of contract of service of the claimant herein.
11.6.7 The MW1 had deposed in cross-examination dated 09.12.2019 that even after August 2006 the Working Journalist/Correspondent had remained on company rolls. It is pleaded by the management at para no. 4 on preliminary objections that the contract of the Working Journalist/Correspondent came to an end in August 2006. When the contract has ended in August 2006 then there was no reason with the management to continue the service of the Working Journalist/Correspondent after that date LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 89 of 120 for a single day in absence of execution of fresh contract. Management has failed to show that it has executed any fresh contract with the Working Journalist/Correspondent after August 2006. Had the contract ended and if the service was contractual the service could not have continued by the management any further after August 2006 but it is not the case of the management in the present matter and service of the Working Journalist/Correspondent were continued to be taken till further. The Working Journalist/Correspondent has admitted receipt of Rs.2,80,000/- vide Ex. WW1/MX2 and Ex.WW1/MX3. However it is the case of the Working Journalist/Correspondent that the company was restructuring and the resignation letter Ex.WW1/MX1 dated 06.12.2006 was sent by the Working Journalist/Correspondent to Sh. Akira Takezawa. Working Journalist/Correspondent was asked to write it by him as the organization was getting reorganized. Working Journalist/Correspondent has deposed in cross- examination dated 18.10.2018 at the last page that from February 2007 till 2011-12 he was unemployed. In the same cross- examination it is deposed by the Working Journalist/Correspondent that he was visiting management and Ernst and Young. Ernst and Young had suggested restructuring of the management. He has assisted the management till February 2007. The management has LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 90 of 120 not confronted deposition of the Working Journalist/Correspondent in cross-examination dated 13.12.2018 at first page when the Working Journalist/Correspondent had deposed that the management had signed his agreement in continuity from September 2006 till end of August 2007 which was submitted to PIB for renewal of accreditation of Working Journalist/Correspondent with his work. The management has put question to the Working Journalist/Correspondent in cross- examination dated 13.12.2018 at page 2 that the work done in the year 2009 and 2010 were short term assignment on fixed payment basis which is denied by the Working Journalist/Correspondent with the deposition that no payment was made for the said work by the management to him. Hence the management has admitted that the Working Journalist/Correspondent had intermittently worked with the management till the year 2010. Management has suggested that it was short term assignment but no such short term written assignment is proved nor any such payment of short term assignment is proved on record by the management which shows that Working Journalist/Correspondent continued to work with the management with the faith that sooner or later his employment would be continued after the restructuring of the management. It is admitted by MW1 in cross-examination dated 09.12.2019 at page 2 LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 91 of 120 that in reply Ex.WW1/1 to the legal notice of the Working Journalist/Correspondent the management was willing to renew employment contract of the Working Journalist/Correspondent from 01.02.2007 but for the refusal of the Working Journalist/Correspondent for such employment. However the reason for refusal are not stated anywhere by the management. In absence of any reason for refusal of work by the Working Journalist/Correspondent with the management it cannot be said that there existed any reason for such refusal moreso when the Working Journalist/Correspondent continued to work with the management intermittently till the year 2010. The deposition of MW1 that he is not aware regarding engagement of services of Ernst and Young for redrawing employment contract of employees cannot be believed in view of E-mail Ex.WW1/7 and Ex.WW1/26(restructuring).
11.6.8 The Working Journalist/Correspondent has produced in evidence his Form-16 Ex.WW1/35 and he has claimed that at point A for the entry dated 01.03.2007 and 04.07.2007 his tax was deducted by the management for the period 01.04.2006 to 31.03.2007 for AY 2007-2008. The management has submitted that the above entries pertains to deduction of TDS for the amount LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 92 of 120 given to the Working Journalist/Correspondent as salary in the year 2006 and further amount given as full and final settlement from sum of Rs.2,80,000/-. It is noted that had this total amount which was deposited on 01.03.2007 and 04.07.2007 was for the payment of sum of Rs.2,80,000/- than it should have been minimum more than 20% of the amount paid to the Working Journalist/Correspondent. The monthly salary of the Working Journalist/Correspondent was more that Rs.40,000/- with allowance and in any case 20% tax bracket amount on a sum of Rs.2,80,000/- would come to rupees Rs.56,000/-. Therefore it may or may not be deposition of tax on payment of settlement amount for a sum of Rs.2,80,000/- to the Working Journalist/Correspondent. Since the tax was deposited by the management therefore management is in knowledge that what form it had actually filled while depositing such tax. Management could have conveniently produced on record what entries it had filled while depositing tax on 01.03.2007 and 04.07.2007 which management has not done. Mere oral averments are made which are rebutted by the oral averments of the Working Journalist/Correspondent. Had the tax was deducted of the Working Journalist/Correspondent on payment of Rs.2,80,000/- then it must have been deposited within the quarter upto December 2006. It is not the case of the management that in the payment of a sum of LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 93 of 120 Rs.2,80,000/- gratuity was paid to the Working Journalist/Correspondent to claim any amount for exemption of tax if it was a gratuity. In such circumstance it may or may not be said that this deposit of tax by the management was for the payment of full and final settlement. As soon as the Working Journalist/Correspondent has shown that this payment was so deposited by the management during continuance of his employment then the onus has shifted on the management to prove that for what purpose it was paid. Management has failed to discharge onus in this regard.
11.6.9 Ex.WW1/26 is E-mail communication from Ms. Anju Thukral vide URL of Ernst & Young, India whereby communication is made to one Sh. Shalender. The letter is written by the Executive of Ernst and Young by Ms. Anju Thukral. Two communications are there. One is dated 19.12.2006 written to Mr. Shalender and another is dated 21.12.2006 which is regarding holding of competition dated 19.12.2006 written to Mr. Shalender. The communication dated 21.12.2006 mentions sending of employment contract for the Working Journalist/Correspondent herein in scanned attached format. Mr. Shalender Kanodia is one of the employee of Ernst and Young. Ex. WW1/27 dated 26.12.2006 is sending of tax communication by Ms. Anju Thukral to Sh. Gaurav LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 94 of 120 Gupta. Copy of which was sent to the Working Journalist/Correspondent herein. This substantiate that there was talk for extension of contract of the Working Journalist/Correspondent. Ernst and Young was working for the management for tax compliance and also doing execution of employment agreement. The Ernst and Young was therefore so dealing with NHK files of the management. The MW1 has during cross-examination dated 09.12.2019 cannot answer the question that whether the Working Journalist/Correspondent had made oral or written request to continue to allow his service after the alleged resignation dated 06.12.2006. Hence the management has failed to prove on record that any request was made by the Working Journalist/Correspondent to engage his service after his alleged resignation. The Working Journalist/Correspondent has pleaded at para no. 29 of his statement of claim that Mr. Takezawa agreed with him to sign a new contract as the company registration status has to be changed at RBI for the purpose of taxation from January 2007 with new terms of work and condition. In reply to this para the management has pleaded in written statement that it is denied for want of knowledge. Such pleading by the management is a vague pleading. They cannot simply deny the matter for want of knowledge they must state that what actually transpired between LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 95 of 120 Mr. Takezawa and Working Journalist/Correspondent regarding registration status of the management. On the registration it is similarly pleaded by the management at para no. 32 of evidence by way of affidavit Ex.WW1/A. It is not controverted to the Working Journalist/Correspondent in cross-examination dated 07.08.2018 that after his alleged resignation dated 06.12.2006 he has covered hijacking of air craft at Kandhar, earthquake in Gujarat and Tsunami in SAARC region. It is deposed by Working Journalist/Correspondent that he was so working with the management even after his alleged resignation. He has covered World Economic Forum Summit in the year 2011 and 2012 for which payment was made to him on daily basis. He had also covered WEF summit on payment based on daily basis. In the year 2009 and 2010 he gathered information relating to CEPA which is Cooperation for Economic Partnership Agreement between India and Japan. It was asked to Working Journalist/Correspondent in cross-examination on 18.10.2018 about the first time when the Working Journalist/Correspondent was informed about restructuring to which the Working Journalist/Correspondent had replied that it was in the year 2005. Further question was asked regarding period of completion of restructuring to which Working Journalist/Correspondent has replied in the year 2007. There is no LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 96 of 120 denial in the entire cross-examination of the Working Journalist/Correspondent that in such and such period restructuring of the management was not done. In cross-examination dated 13.12.2018 the Working Journalist/Correspondent has replied that he does not know when the work of restructuring was completed post January 2007 as he was assisting the management. Hence restructuring of the management during the said period is proved on record between the year 2005 to 2007 and further. With such proof the Working Journalist/Correspondent herein has proved that the management was so restructuring its company and an employment contract were issued afresh to many employees.
11.7 To further prove his status of employment the Working Journalist/Correspondent has referred to page 67 of the case file and internal page 8 of the written statement at para no. 42 where management has specifically pleaded that it has introduced the claimant to NHK Radio in the course of his job. The Working Journalist/Correspondent has referred to Mark I at page 537 of case file which at internal page 8 of Mark-I mentions signature of applicant with date 30.03.2010. This is application for Radio Japan Posts with the management and it was sent for the Working Journalist/Correspondent. According to the Working LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 97 of 120 Journalist/Correspondent this application was given by NHK to fill it and send it back to the management so that the assurance of the management persist for continuous employment of the Working Journalist/Correspondent after the alleged date of resignation in August 2006. It was an eye-wash. The Working Journalist/Correspondent has referred to para no. 42 and 43 of the statement of claim and to read them with para no. 42 and 43 of written statement. In para no. 42 of statement of claim it is mentioned that the Working Journalist/Correspondent was offered to appear for examination for NHK Radio Hindi Services which was an eyewash. The Working Journalist/Correspondent would never be selected because for such Radio Hindi Service people were always selected from AIR Radio with Hindi background. The complainant was informed at the time of interview that he was called for examination because it was request made by Hirose to the Radio Services Head. In response to this para in written statement the management has not denied the fact that the management introduced the Working Journalist/Correspondent to NHK Radio in the course of his job. At para no. 43 of statement of claim the Working Journalist/Correspondent has claimed that when the management has admitted introduction of Working Journalist/Correspondent to NHK Radio Japan posting in the year LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 98 of 120 2010 then it means that the management admit the fact of employment of the Working Journalist/Correspondent with the management till the year 2010 on company rolls which shows that the service of the Working Journalist/Correspondent was continuing even after the year December 2006. Fresh appointment letter was awaited due to liaison compliance with Government authority and therefore Working Journalist/Correspondent continue to work with the management beyond December 2006 on repeated assurance by the management regarding his continuity of service which was under consideration at Japan headquarters. To compensate him for his accident on duty was also on consideration at Japan headquarters. In written statement in reply to para no. 43 the management has admitted that it introduced the Working Journalist/Correspondent to NHK Radio in the course of his job. Hence the Working Journalist/Correspondent submits that he was introduced to NHK Radio in the year 2010 and with the admission by the management that he was so introduced which implies he is continuously with the employment with the management. The Working Journalist/Correspondent for this purpose referred the document Mark I(colly) which is application for Radio Japan post.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 99 of 12011.8 Another E-mail attached with Ex.WW1/7(colly) written by Sh. Shalender Kanodia to the Working Journalist/Correspondent and the management. It was written by Perfect Accounting & Shared Services Pvt. Ltd. This letter dated 26.12.2006 has asked for information regarding allotment letter of PAN and TAN, details of tax paid on behalf of expat employees. The subject mentions that "NHK Audit." According to Working Journalist/Correspondent this letter was issued on behalf of management by the auditor of the management to the Working Journalist/Correspondent asking for documents from the management so that service of the Working Journalist/Correspondent could be continued. Restructuring was being done by the management. The resignation submitted by the Working Journalist/Correspondent was only in lieu of said restructuring.
11.9 Ex.WW1/10 is revised appointment letter issued by Sh. Rajeev vide E-mail dated 16.01.2007 for effective dates for gratuity computation and date of joining in liaison office. The Working Journalist/Correspondent has referred to para no. 31 of written statement where management has pleaded contrary to the above written E-mails. Management has denied regarding renewal of all contracts on payment of outstanding liabilities. It is admitted by LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 100 of 120 MW-1 in cross-examination dated 09.12.2019 that other employees of the management are still continuing without any contract in this respect. MW-1 is not aware if the resignation tendered by the Working Journalist/Correspondent herein was formally accepted by the management. The Working Journalist/Correspondent submits that the above E-mail and in absence of any formal acceptance of the resignation shows that both the parties are in agreement regarding continuity of service even after 06.12.2006 without tendering any resignation. The resignation was only an eye wash put by the management before the Working Journalist/Correspondent for its internal restructuring which has nothing to do with continuity of employment of the Working Journalist/Correspondent. It is submitted that the management continue to take work from the Working Journalist/Correspondent after 06.12.2006 as it used to take prior to alleged resignation vide E-mail dated 06.12.2006.
11.10 Vide Ex.WW1/7 to Ex.WW1/10 the company Ernst & Young was looking after tax, audit and legal restructuring of the management. At all the time the said company was preparing written contract on behalf of NHK.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 101 of 12011.11 The said company was acting only on behalf of NHK which had sent letter of Working Journalist/Correspondent to the management vide E-mail Ex.WW1/26=Ex.WW1/7 (first page). It is submitted that the said company Ernst & Young were recruiting employees on behalf of management and getting signed the contract. This E-mail is dated 21.12.2006. Vide Ex.WW1/7 dated 21.12.2006 the E-mail was written by Mr. Takezawa from his personal E-mail ID. In cross-examination dated 18.10.2010 page 1 the management had asked WW1 that why Ex.WW1/26 was issued to the Working Journalist/Correspondent to which Working Journalist/Correspondent has replied that Mr. Takezawa the Bureau Chief had asked Ernst and Young to do so. Management has no further questions on the above exhibit nor there is denial that Ernst and Young company was looking after recruitment/employment matters of the management. The alleged resignation was allegedly accepted by the management on 29.12.2006 vide Ex.WW1/MX2 and Ex.WW1/MX3. However in cross-examination dated 13.12.2018 at page 1 the WW1 has replied to the question that the management had signed agreement with the Working Journalist/Correspondent in continuity from September 2006 till August 2007 and submitted to PIB for renewal of accreditation alongwith work agreement of the claimant. Management had asked LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 102 of 120 further questions that whether the Working Journalist/Correspondent wrote letter to management regarding signing of his contract post August 2007 to which Working Journalist/Correspondent had replied that management had verbally mentioned that his case is under consideration at Japan. Hence there is no denial by the management to the answer of the Working Journalist/Correspondent regarding such execution of agreement in continuity with the Working Journalist/Correspondent from September 2006 till August 2007. The MW1 has failed to rebut the same by deposing in cross-examination dated 09.12.2019 at page no. 2 that MW1 is not aware whether for the purpose of renewal of PIB card Ex.WW1/6 in the name of the claimant for the year 2007 any documentation was done from the side of management or not. It is further deposed that without checking his record he cannot answer whether in response to legal notice from the claimant the management has agreed to renew the contract of the Working Journalist/Correspondent w.e.f 01.02.2007. MW1 had admitted in reply Ex.WW1/1 sent on behalf of management to the legal notice issued by the claimant which is Mark A that the management was willing to renew the employment contract of the Working Journalist/Correspondent from 01.02.2007. MW1 has further deposed that the Working Journalist/Correspondent has refused to LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 103 of 120 enter into such renewal of contract. From the above discussion of the evidence it has come on record that the contract was renewed with the Working Journalist/Correspondent by the management till August 2007. Now the management is trying to execute another contact with the Working Journalist/Correspondent which Working Journalist/Correspondent has refused to execute further. The reason for non-execution of such further contract is claimed by the Working Journalist/Correspondent that he was not taken in continuity with his previous service. This new contract was going to be executed during continuance of contract between the parties till August 2007. However such new agreement alleged to be specially executed with the Working Journalist/Correspondent has not been proved on record.
11.12 The question arises is that when the resignation of the Working Journalist/Correspondent was taken in December then why the management was ready to prepare to come into fresh contractual agreement with the Working Journalist/Correspondent from 01.02.2007. It is just immediately one month after the alleged resignation on 29.12.2006. Hence it proves that management was still in need of service of Working Journalist/Correspondent. There was no reason for Working Journalist/Correspondent to submit LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 104 of 120 resignation to the management and still continue to work with the same management at degraded level of employment position of piece based work. The facts discussed above probalises the involuntariness of the resignation allegedly tendered by the Working Journalist/Correspondent on the 29.12.2006.
11.13 Vide Ex.WW1/9 dated 10.01.2007 written by Mr. Shalender to the management at the unofficial E-mail ID [email protected]. This letter mentions that the auditor had advised to issue letter of continuity to all employees working with NHK prior to 01.12.2005. The name of the Working Journalist/Correspondent herein is also mentioned. The letter requests to execute the contract on the letter head of NHK and get the copy signed from all the employees.
11.14 It is submitted in Ex.WW1/10 at page no. 531 of the file the E-mail was sent by Sh. Rajeev Sawhney who is employee of Ernst & Young Company. This was sent at personal mail of the Working Journalist/Correspondent at [email protected]. It was also sent to Sh. N. Singhania which is subsidiary of company Ernst & Young and Sh. Shailender who was also acting on behalf of Ernst & Young Company Ltd. It is written in the E-mail under LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 105 of 120 action points "NHK to provide revised appointment letter with effective dates for gratuity computation and date of joining in liaison office". Further, mentions as third point in action that "receipt of signed engagement letter forwarded by Preeti to be received from NHK". It is submitted that the company Ernst & Young were also looking after the tax compliance of NHK. It is mentioned in Ex.WW1/10 that "we are holding the issuance of draft accounts pending clearance of above items. Let us know the date line for clearance of above items so that we can agree on date for issue of draft accounts for NHK's signature". The Working Journalist/Correspondent has submitted that this communication was sent on personal mail of the Working Journalist/Correspondent because Sh. Takezawa allowed communication with the Working Journalist/Correspondent on 17.01.2007 when the mail was sent. It is already held before that communication was being done by the management by formal, informal, oral, on personal and non- personal accounts.
11.15 In the reply Ex.WW1/2 to statement of claim which is filed by the management at para no. 41 at page 361 of the case file the management has admitted that it introduced the Working Journalist/Correspondent to NHK Radio in the course of his job.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 106 of 120The Working Journalist/Correspondent has referred to Mark I at page no. 551 of paper book which is application for Radio Japan posts. This application was sent by the management and bears date of 30.03.2010 at point of signature of the applicant. This application was sent to the claimant by the management. The Working Journalist/Correspondent has referred to cross- examination of MW-1 dated 09.12.2019 at page 3 that MW-1 is not aware whether management had introduced the Working Journalist/Correspondent to NHK Radio in the year 2010. However in Mark I(colly) MW-1 has admitted the domain with respect to E- mail ID at point A that it belongs to management.
11.16 The Working Journalist/Correspondent has referred to Mark E which is letter dated 23.05.2005 to the Divisional Manager, New India Assurance Company Ltd., Green Park. The letter is written by Mr. Toru Ohara/Bureau Chief NHK. In this letter at Mark A it is referred to the Working Journalist/Correspondent herein that "he was on official duty while he met with an accident". According to the Working Journalist/Correspondent it is admitted case of the management that he was on official duty when he met with an accident on 22.05.2005. MW-1 in cross-examination dated 03.03.2021 when confronted with Mark E and para no. 11 of LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 107 of 120 evidence by way of affidavit Ex.MW1/A at para no. 11 it is deposed that the management did not order the Working Journalist/Correspondent to go to blast site on 22.05.2005 to avoid any danger. It is deposed by MW-1 that his statement at para no. 11 is correct. It is deposed that he cannot say anything about the statement in Mark E. It is further deposed by MW-1 that Mark E was written by Bureau Chief Mr. Ohara and MW-1 has no knowledge about it. To support the fact that Working Journalist/Correspondent was sent by the management to blast site on 22.05.2005 the Working Journalist/Correspondent has referred to Ex.WW1/3 dated 29.03.2013. The letter was written from E- mail of Mr. Toru Ohara to the Working Journalist/Correspondent herein. In this E-mail letter it is written that:
"I am worrying about your leg condition as well, because I acknowledge your dedication very well. Regarding the scooter accident, I may need more information in order to consider whether I can take any actions or not".
11.17 It is submitted that the management has communicated with the Working Journalist/Correspondent regarding the accident so that the Working Journalist/Correspondent could be adequately compensated for the accident occurred during the duty. The E-mail was sent from the official E-mail ID i.e. [email protected]. It is submitted by the Working Journalist/Correspondent that MW-1 in LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 108 of 120 cross-examination dated 03.12.2019 deposed contrary to admission made in written statement at para no. 41. In the written statement the management at para no. 41 has admitted that the Working Journalist/Correspondent was introduced to NHK in the course of his employment. It is submitted that he was introduced to the NHK in the year 2010. This admission also shows that the employment of Working Journalist/Correspondent was continuous with the management. Whereas MW1 in cross-examination dated 09.12.2019 at page 3 has deposed to the contrary that he is not aware whether the management has introduced the claimant in the year 2010 or not. The Working Journalist/Correspondent again referred to employment contract MW1/1 (colly) at clause 9 page 3 titled Retirement Fee which contains that the Working Journalist/Correspondent will be eligible for retirement fee in respect of all years of his service. It is submitted that the retirement fee as such is not paid to a contractual employee but to an employee who is in regular employment and management has executed the contract with the said knowledge and also for renewal of PIB card till the year 2010 and onwards. Hence merit is found in the above submission of Working Journalist/Correspondent.
LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 109 of 120 11.18 Vide WW1/14 the letter from Yuri Takebayashi from NHK World dated 30.07.2010 to the Working Journalist/Correspondent has intimated the Working
Journalist/Correspondent that detailed information regarding examination of the Working Journalist/Correspondent was sent alongwith original file. Speed post was also sent. It was intimated that they will meet at Delhi.
11.19 The Working Journalist/Correspondent has referred to Ex.WW1/8 the E-mail dated 05.01.2007 which is written by Ernst & Young the Auditor of the management to Mr. Rajeev confirming the requested meeting of the NHK office at Le Meridien Hotel, New Delhi on 06.01.2007. This E-mail mentions that the Working Journalist/Correspondent herein will be present in the said meeting. Another communication by the management vide Ex.WW1/9 the E-mail dated 10.01.2007 written by Sh. Shalender to the management and the Working Journalist/Correspondent both in the capacity of auditor of the management. It is written that as per advise of the auditor they need to issue letter of continuity to all the employees who are working with NHK prior to 01.12.2005. The draft was also enclosed for Sh. Raje Singh Negi. Name of Working Journalist/Correspondent Sh. Utpal is also mentioned with LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 110 of 120 understanding of date 01.09.1999. It was requested to the management NHK to execute the said document and get the copy signed from all the employees.
11.19.1 There is no cross-examination of Working Journalist/Correspondent on Ex.WW1/8 requesting meeting of NHK office at Le Meridian Hotel, Delhi on 06.01.2007. Similarly no cross-examination is there in E-mail Ex.WW1/9 mentioning about need to issue letter of continuity to all its employees. There is no cross-examination on Ex.WW1/7 which is E-mail written by Sh. Shalender Kanodia officer of Ernst and Young and the company Ernst and Young was looking after taxation and recruitment contract of the management. Hence the renewal of service contract of the Working Journalist/Correspondent was under process and had the Working Journalist/Correspondent resigned then there is no need for him to continue to pursue since beginning for fresh appointment letter with Ernst and Young. There is no cross- examination of the Working Journalist/Correspondent on Ex.WW1/13 which is E-mail dated 23.06.2010 from Sh. Yuri Takebayashi of Radio Japan addressed to the Working Journalist/Correspondent. This E-mail was sent from the official domain of NHK. It admits the receipt of resume of the Working LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 111 of 120 Journalist/Correspondent and asking apology for delayed intimation to the Working Journalist/Correspondent for the reason that some people are on leave and the work pressure is large. It also mentions to wait for few more days. Hence it has proved on record that even in the year 2010 the Working Journalist/Correspondent was continued to be kept in waiting and in the hope that he would be allowed employment by the management on one ground or another. This process was continuing since August 2006 and even further than the year 2010. Had there would have been dispute on terms and conditions of employment than such dispute would have been specifically come on record. There was no such dispute as to any terms and conditions. Management has failed to prove on record that there was any dispute as to any terms and conditions with the Working Journalist/Correspondent for him to continue to work even after August 2006. The Working Journalist/Correspondent had continued to work till December 2006 and further. It cannot be said that the Working Journalist/Correspondent is communicating with NHK employees without consent and knowledge of the management. In fact the management is part and parcel and one and same i.e. NHK Japan Broadcasting Corporation. There is no denial that Ernst and Young is not acting on behalf of management for such recruitment LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 112 of 120 of employees. Hence it is held that it is the management who has introduced the Working Journalist/Correspondent to the NHK and to make direct communication with Ernst and Young and NHK as an allurement to seek continuity of his employment after August 2006 and after the alleged resignation dated December 2006. It is proved on record that management was under the process of fresh company registration. Not only the Working Journalist/Correspondent but similarly other workmen namely Raje Singh Negi, Abhishek, Harinder Singh and Kamal Sharma who had resigned with the Working Journalist/Correspondent and thereafter Sh. Abhishek Gulia and Neha Gupta has joined in the year 2006. the above fact is proved by the Working Journalist/Correspondent in his deposition dated 18.10.2018 and which is not denied by the management. Hence there was such resignation of many workmen done at the place of management and they were re-employed. Such conduct of the management also shows that by so resigning and by such re-employment management was doing its recruitment process in normal course of nature in which Working Journalist/Correspondent had believed. This belief created by the management was under the guise of fresh registration by the management thereby the Working Journalist/Correspondent was induced to resign from his service by the management. First of all LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 113 of 120 when there was no contract subsisting than there was no need to the Working Journalist/Correspondent to resign at all. In fact this was not the case that the service of the Working Journalist/Correspondent was continuous therefore he continued to serve till December 2006. In fact there is no legal acceptance of resignation dated 06.12.2006 either orally or in writing. Nor the resignation was accepted on the terms it was submitted as it had to be accepted on 31.12.2006 and not before that. In fact it was not an acceptance of resignation at all. It was an allurement to the Working Journalist/Correspondent to continue to serve the management to which the Working Journalist/Correspondent has submitted his resignation and to his detriment. Resignation of the Working Journalist/Correspondent is found involuntary.
11.19.2 In view of above discussion it is held that the management has exerted undue influence of the Working Journalist/Correspondent to submit resignation dated 06.12.2006 on the pretext of restructuring of the management and that the employment of the Working Journalist/Correspondent would be continued after such restructuring. The Working Journalist/Correspondent continued to serve the management awaiting regularization of his employment after restructuring which LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 114 of 120 was not done by the management despite the fact that Working Journalist/Correspondent continued to work with the management till year 2012 and further with the management. The Catlaina is hence held entitled to protection u/Sec. 25F of industrial Disputes Act, 1947 r/w Section 3 of Working Journalists & Other Newspaper Employees (Conditions of Service & Miscellaneous Provisions) Act, 1955. Hence it is held that claimant is illegally and/or unjustifiably the services of the Working Journalist/Correspondent and present issue is accordingly decided in favour of the Working Journalist/Correspondent and against the management.
12. ISSUE NO. 5 & 65. Whether the workman is entitled to the relief claimed in the statement of claim? OPW AND
6. RELIEF 12.1 The Working Journalist/Correspondent has pleaded in the statement of claim at para no. 67 and para no. 109 of the evidence by way of affidavit Ex.WW1/A that he is unemployed till date since the date of his illegal termination is discharged by the Working Journalist/Correspondent by so stating in his evidence by LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 115 of 120 way of affidavit which is hence shifted on management for which management failed to substantiate this fact in evidence. Hence it is held that Working Journalist/Correspondent was unemployed during the period of his illegal termination. The relevant citation is reproduced hereasunder:
In the case titled Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 wherein the concept of reinstatement was also discussed.
"38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 116 of 120 once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then, it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award or full back wages.
38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior courts have LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 117 of 120 interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees".
Accordingly, present issue is decided in favour of Working Journalist/Correspondent and against the management.
RELIEF
13. In view of findings under issues above it is held that the management has illegally terminated the Working Journalist/Correspondent in violation of principle of Sec. 25F and Sec. 25H of Industrial Disputes Act, 1947. Accordingly, Working Journalist/Correspondent is held entitled and granted the following LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 118 of 120 reliefs:
(i) Immediate reinstatement from the date of publication of this Award with;
(ii) Full back wages @ Rs.35,000/- per month since date of filing of statement of claim dated 18.05.2015 upto the date of publication of Award with;
(iii) All consequential benefits from the date of his termination till the date of his reinstatement.
(iv) All the due amount be paid within one month of the date of publication of present Award with interest @ 6% per annum from the date of publication till its realization.
(v) The Working Journalist/Correspondent is also awarded the cost of litigation for a total sum of Rs.30,000/- u/Sec. 11(7) of Industrial Disputes Act, 1947. Reference stands answered in the aforesaid terms.
13.1 A copy of Award be sent to the Competent Authority/appropriate Government i.e., Deputy/Joint Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication which thereafter become enforceable LIR No. 3321/16 Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 119 of 120 u/Sec. 17A of Industrial Dispute Act, 1947.
Award is passed accordingly and claim stands disposed in above terms.
File be consigned to record room after due compliance.
Announced in the open Court
on 27.03.2023. JOGINDER Digitally signed by
JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2023.03.27 16:05:14
NAHAR +0530
(JOGINDER PRAKASH NAHAR)
PRESIDING OFFICER LABOUR COURT-IX
ROUSE AVENUE COURT COMPLEX/NEW DELHI
LIR No. 3321/16
Utpal Trehan v. M/s. NHK T.V. @ NHK Japan Broadcasting Corp. Floor Page 120 of 120