1 IN THE COURT OF SH [ENTITY]: POIT-II, KARKARDOOMA COURTS, DELHI [CASE NUMBER] Sh. [ENTITY] Workman 20/174, DDA Flats, Dakshinpuri Extension, South Niketan, New Delhi 62. Versus [ENTITY] 606-608, Manjusha Building 57, Nehru Place, New Delhi -19. AWARD 1.
Workman has raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal for adjudication in the following terms of reference:-
Whether the transfer of services of Sh. [ENTITY] from Delhi Office to [ENTITY] Branch is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?
2. Facts emerging from statement of claim are that workman [ENTITY] allegedly joined the services of management w.e.f. 17.7.81 as an Account Assistant. He was allegedly engaged in manufacturing and marketing branch of management which was subsequently taken over by Kirloskar Group about 4 years back. It is alleged that new management wanted to retrench/ terminate the senior workmen in order to bring in their own confidence from Kirloskar company. Therefore, they resorted to arm and goonda tactics to force the workman to leave the company without paying compensation. A number of workman's colleagues were allegedly locked up in room and terrorised by goondas of the management and their resignations were obtained under force and coersion. Management is alleged to have issued an order dated 29.7.2000 transferring the workman from Delhi to Dibrogarh, though that office had almost closed down. The management had allegedly terminated large number of workmen posted at Dibrogarh. It is alleged that transfer of the workman from Delhi to Dibrogarh was without any administrative exigency and was actuated with malice. It is also alleged that it was of a retialationary measure inasmuch as workman had refused to resign as per desire of the management . It is alleged that management knew well that children of the workman were studying in Delhi and that he would not be in a position to join at Dibrogarh. Workman is alleged to have shot up a letter to the management on 2.8.2000 requesting therein to withdraw his transfer order. Management instead of withdrawing transfer order, stopped making payment of wages to the workman w.e.f. 29.7.2000. Workman is alleged to be the member of Indian Steel and Metal Works Union which vide its resolution dated 18.9.2000 resolved to raise dispute on behalf of workman. It is prayed that transfer order be cancelled and workman be allowed to work at Delhi. It is also alleged that workman is entitled to full back wages with continuity of service and all other consequential benefits.
3. In the WS, case of the Management is that cause of the workman has not been duly espoused. It is alleged that workman is not covered under the definition of workman inasmuch as at the time of transfer, he was working as administrative officer in marketing division of the management. On merits it has not been disputed that workman was engaged on 17.7.81 on the post of Account Assistant. It has also not been disputed that K. G. Khosla Compressor Ltd has been taken over by Kirloskar Group in 1994-
95. But it has been denied that management wanted to retrench or terminate services of the senior workmen employed with Khosla compressors and to achieve that goal, new management resorted to arm and Goonda tactics or that workman's colleagues had ever been locked in a room or terrorised. It is alleged that due to administrative exigency and being the senior officer, the claimant was transferred to Dibrogarh vide order dated 29.7.2000 which was in accordance with clause 12 of his appointment letter. Workman is alleged to had been given 6 days casual leave in order to join there, apart from any increment of Rs.500/- as special allowance per month. However, it has been denied that management had a small office at Dibrogarh, terminated services of the employees posted there or that office at Dibrogarh had almost closed down. It has been denied that transfer of workman was in revenge or retaliation of his refusal to resign. However, it is alleged that instead of complying with the transfer order, workman dispatched a demand notice dated 2.8.2000 which tantamount to refusal to abide by the reasonable transfer order. As regards payment of wages, it is alleged that workman had been paid wages till date of his transfer and since thereafter he had not joined the duties, he was not entitled for any salary. It is alleged that workman is not entitled to any relief. Dismissal of the claim has been prayed for.
4. In the rejoinder, workman has reiterated and reaffirmed all the facts as contained in statement of claim and has denied all the facts as set out in the WS.
5. On the basis of pleadings of the parties, following issues were framed :-
(1) Whether the cause of the workman has been duly espoused ? (2) Whether the transfer of the workman from Delhi Office to [ENTITY] Branch is illegal and unjustified?
(3) As per terms of reference.
Additional Issue (4) Whether Sh. [ENTITY] is not covered within the definition of workman as defined under [SECTION] of the [ACT], if so, its effect ?
6. In order to prove his case, workman has filed his affidavit as well as affidavit of [ENTITY], Secy. of his Union. They have been examined and cross examined as WW- 1 and WW- 2. On the other hand affidavit of MW- 1 [ENTITY] has been filed on behalf of management. Management has also examined MW- 2 [ENTITY].
7. I have heard arguments of AR for the management and have gone through record of the case as well as written submissions filed on behalf of workman. My issuewise findings are as under :-
8. Findings on issue No 1 Issue No 1 is whether cause of the workman has been duly espoused. Workman in his pleadings as well as in his affidavit, para no.8 has deposed that Indian Steel and Metal Workers Association vide its resolution dated 18.9.2000 has espoused his cause. WW- 2 is [ENTITY] who is Secy. of the said union. He has deposed that workman has been member of his union since 1.1.2000. A meeting of the union is deposed to have been held on 18.9.2000 in which a resolution EX WW 2/1 was passed wherein cause of the workman was resolved to be taken. On the other hand MW- 1 [ENTITY] in para 15 of his affidavit has only stated that cause of the workman has not been duly espoused. I have perused EX MW 2/1, which is extract of meeting of union held on 18.9.2000 which was attended by its president, general secretary and other office bearers wherein cause of the workman was resolved to be taken up. It is duly signed by the Gen. [ENTITY] by virtue of which cause of the workman has been espoused. There is no evidence on record from the side of the Management as to how cause of the workman has not been duly espoused.
9. It has been argued by AR for the Management that cause of the workman has not been duly espoused. On the other hand, it has been argued by AR for the workman that workman is member of the Union which has duly espoused his cuase by passing a resolution which has been proved on record as Ex WW2/1.
10. In view of resolution Ex WW2/1 and in the absence of any specific evidence to the contrary from the side of Management, I hold that cause of the workmen has been duly espoused. This issue is accordingly decided in favour of the workman and against the Management.
11. Findings on issue No 2 and 3 Issue No 2 is whether the transfer of the workman from Delhi Office to [ENTITY] Branch is illegal and unjustified and issue No 3 is as per terms of reference. Terms of reference are whether the transfer of services of Sh. [ENTITY] from Delhi Office to [ENTITY] Branch is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect. Both these issues are inter connected, therefore, they shall be decided together.
12. Workman in his affidavit has deposed that he had joined services of the Management on 17.7.81 as Accounts Assistant and that his last drawn wages were Rs 5451. nature of work assigned to the workman is deposed to be of clerical nature and that he had no supervisory or administrative powers to appoint or transfer anyone. It is deposed that when he joined the services of the Management, his salary was Rs 550 per month. It is deposed that though he was re-designated as Accountant and then as Administrative Officer. It is deposed that nature of his duties were never changed from that of Accountant Assistant. It is deposed that job assigned to him was of maintaining books of accounts of company, filing of documents, maintaining of reports of accounts departments. It is deposed that he had no financial, managerial or administrative powers. It is deposed that nobody was working under him and he had no powers to supervise work of anybody. It is deposed that Management wanted to retrench/ terminate the senior workmen on the rolls of the company and to bring in their own confidents from Kirloskar Company at Pune. Management is deposed to have resorted to Arm and Goonda Tactics to force the workmen to leave the company without paying compensation. A number of workman's colleagues are deposed to have been locked up in room and terrorised by Goondas of the management and their resignation were obtained under force and coercion. Management is deposed to have issued an order dated 29.7.2000 transferring the workman from Delhi to Dibrogarh, though that office had almost closed down. The management is deposed to have terminated services of [ENTITY], Sh. [ENTITY], [ENTITY], Sh. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] posted at Dibrogarh. It is deposed that transfer of the workman from Delhi to Dibrogarh was without any administrative exigency and was actuated with malice. It is also deposed that it was a retialationary measure inasmuch as workman had refused to resign as per management desires. It is deposed that management knew well that children of the workman were studying in Delhi and that he will not be in a position to join at [ENTITY]. He is deposed to have dispatched a letter to the management on 2.8.2000 requesting therein to withdraw his transfer order. Management, instead of withdrawing transfer order, stopped making payment of wages to the workman w.e.f. 29.7.2000.
13. In his cross examination, he has admitted that at the time of his transfer, he was working as Administrative Officer and that no other person except him was working as Administrative Officer. He has admitted that he was immediately subordinate to General Manager. He has also admitted that he was one of signatories on behalf of Management to deal with back accounts. He has admitted that he was transferred by virtue of transfer order which were received by him. He has also admitted that he did not comply with transfer order or that he had not joined the duty in compliance of same.
14. MW 1 [ENTITY] in his affidavit has deposed that that workman was appointed as an Accounts Assistant on 17.7.81 and was promoted and was lastly working as an Administrative Officer in Marketing Division of the Company at Delhi. It is deposed that workman was working in managerial/ supervisory and administrative capacity. Workman is deposed to have been provided two Assistants who were working directly under his control and he had full authority to take independent decisions in respect of his department. It is deposed that last drawn salary of the workman was Rs 5451 and that he was getting LTC and other allowances. Copy of appointment letter of the workman has been proved as Ex MW1/1. It is deposed that kee;ping in view, performance, sincerity, efficiency and account of exigency of work, he was transferred from Delhi to [ENTITY] vide order dated 29.7.2000. Copy of transfer order has been proved as Ex MW1/2. It is deposed that transfer of the workman was in accordance with his appointment letter and not as an action of revenge or retaliation. In his cross examination, he has specified name of Sh. [ENTITY] and Mr [ENTITY] who were assistants to the workman. It is stated that leave used to be sanctioned by the workman to his peon and Assistant.
15. MW 2 Sh. [ENTITY] from R.S.B. Systems Pvt Ltd, Gurgaon, Haryana has stated that as per record, Mr [ENTITY] worked with his establishment w.e.f. November, 2005 to August, 2006. Copy of the attendance record has been proved as Ex MW2/1. He has also proved record of salary disbursed to workman and same has been proved as Ex MW2/2.
16. It has been argued by AR for the workman that workman had been transferred to [ENTITY] Office but there was no Administrative Officer in [ENTITY]. It is also argued that subsequently workman was transferred to Kolkatta office which in itself had been demolished and handed over to Kirloskar office after the work force had resigned, therefore, his transfer was not bonafide. He has relied upon authorities reported as [PRECEDENT]; S. Rama [ENTITY] vs Managing Director, FCI and others 2002 LAB. I.C. 1406; [PRECEDENT]; [PRECEDENT], [PRECEDENT]; [PRECEDENT] to press his contention that transfer can be challenged if it is actuated with malice.
17. On the other hand, it has been argued by AR for the Management that salary of the workman had been increased by Rs 500 keeping in view services rendered by him, he was transferred to [ENTITY] due to exigency of work. It is argued that there was no malafide in his transfer, rather transfer was after increasing his salary by Rs 500. AR for the Management has relied upon authorities reported as the [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] to press to his contention that if transfer is made due to administrative reasons and exigency of work, it is justified and can not be interfered by the court.
18. In his affidavit, workman has admitted that he was appointed as Accounts Assistant on 17.7.81 on a monthly salary of Rs 550. But during the course of time, he was promoted to the post of Administrative officers and his last drawn salary in 2000 was Rs 5451. He has even admitted that in [ENTITY] he was asked to report to Sh. [ENTITY] but has added that subsequently he came to know that he had already been made to resign and there was no employee left in [ENTITY].
19. Management has proved that his salary was increased by Rs 500 which is about 10% of his last drawn salary apart from 6 days C.L. And Rs 5000 as travelling expenses.
20. MW-1 Sh. [ENTITY] was asked and he had stated that office at [ENTITY] was closed in the year 2002 and at that time there were 5-6 persons working there. Nothing has been brought on record by the workman that office had been closed in the year 2000 when he was transferred there. Nothing has been placed on record from which it could be inferred that his transfer to [ENTITY] was not bonafide or was not due to exigency of work. Even the Management had increased his salary by Rs.500/- and had given 6 days C.L. Apart from Rs 5000 travelling expenses, therefore, it can not be said that there was any malafide on the part of Management in transferring the workman to [ENTITY]. Management is specific that his services were required at [ENTITY] keeping in view his experience and acumen. I am, therefore, of the view that claimant has failed to prove that his transfer was actuated with malice or was a kind of revenge or by way of punishment. Therefore, I come to the conclusion that it can not be said that transfer of the workman to [ENTITY] was malafide.
21. So far as fact whether workman remained unemployed after his transfer, in para no.6 of his affidavit he has deposed that after his transfer he has remained unemployed as he could not get any alternative employment despite his best efforts. Workman had filed his affidavit which was sworn on 19.9.02. He was cross examined in the court on 27.1.03. MW 2 [ENTITY] has testified in the court that as per attendance register and record of his establishment, Mr. [ENTITY] worked with the said establishment from November 05 to August 06. Copy of the attendance record from October 2000 to February 2002 and from November 2005 to June 2007 have been collectively proved as EX MW 2/1. He was also directed to produce complete attendance record from April, 05 onwards till he was in their employment. He has proved record in the court from May, 05 till August 06 during which workman remained employed with M/s RSB System Pvt. Ltd. He had also brought with him record relating to salary transferred into bank account of the workman from the account of company with HDFC Bank. He has also added that workman had resigned from his company on 28.7.06. This witness had also brought insurance record of the workman, copy of which has been proved as EX MW 2/2. This witness has also explained that he had misinterpreted the date of joining of Mr. [ENTITY] with the company which was written in report in American format and had clarified that workman remained employed with his establishment from 11.5.05 to August 06.
22. The Management applied for issuing summons to RK Footwears Components PVT. LTD. Gurgaon, 887, Phase V, Udyog Vihar. Despite service, record was not produced by the aforesaid concern. Ultimately on 18.5.09 an affidavit was fled by management regarding service of the summons on M/s RK Footwear by post. Mr. [ENTITY], AR for the workman filed Vakalatnama on behalf of M/s RK Footwear and expressed his willingness to make statement. In his statement, he had stated that workman has been working with M/s RK Footwear Components Pvt. Ltd. At the request of AR for the Management, Mr. [ENTITY] was directed to produce certificate from employer of the workman as to from which date he was working, as to what was his designation and emoluments and also as to what was his PF number. The certificate has not been filed on behalf of the workman. When the workman has failed to file his PF Number, and certificate from his employer, he remained employed with, showing period he had been working there, his designation and emoluments, adverse inference is warranted against him. Therefore, I am of the view that no reliance can be placed on the testimony of the workman that he remained unemployed and could not find job after his transfer. This shows that statement the workman has made before this court is incredible. First of all he has failed to prove that he was working with the management as workman as defined U/[SECTION] of [ACT]. On the other hand, Management has proved that he was working with the Management in managerial capacity. Secondly he has failed to prove that his transfer from Delhi to Dabrogarh was malafide, thirdly he has failed to prove and rather played hide and seek with the court by withholding important informations on the point of his employment with other concerns which shows that claim filed by him is nothing but frivolous one and deserves to be disallowed. In the peculiar facts and circumstances of the case, I am of the view that cost should also be imposed upon him. These issues are accordingly decided.
23. Findings on issue No 4 ( Additional issue) Issue No 4 is additional issue whether Sh. [ENTITY] is not covered within the definition of workman as as defined under [SECTION] of the [ACT], if so, its effect ?
24. WW-1 [ENTITY] in his affidavit has deposed that he was appointed as Account Assistant on 17.7.81 and that he had no supervisory or administrative powers. It is deposed that nature of his duties was clerical and it never changed from that of Account Assistant. It is deposed that his job was of maintaining books of account, filing of documents, maintaining of reports of account departments. It is deposed that he had no powers to sanction the expenses or leaves of any employee.
25. MW 1 Sh. [ENTITY] in para No 5 of his affidavit has deposed that workman was appointed as an Accounts Assistant and was promoted and was lastly working as an Administrative Officer in Marketing Division of the Company at Delhi. It is deposed that since workman was not working in managerial/ supervisory and administrative capacity, he is covered within the definition of workman.
26. It has been argued on behalf of the workman that he was engaged for maintenance of books of accounts and had no other powers. According to him three officers were authorized by Management to sign cheques and workman was asked to sign only after first signatory of level of General Manager put his signature. The decision whom to pay and how much to pay was taken by top most Management. On the other hand, it has been argued on behalf of the Management that initially workman was appointed as Accountant Assistant but later on he was promoted as Administrative Officer. It is also argued that the duty of the workman included signing of cheques as an Officer, therefore, he was not a workman but was in the supervisory and officer capacity.
27. In his written submissions, workman himself has admitted that he used to sign the cheques along with the top Management . It is admitted case that initially he was appointed as Account Assistant but subsequently he was promoted as Administrative officer. His initial pay was Rs 550 but after promotion, his last drawn salary rose to Rs 5451. Appointment letter in respect of his appointment as Administrative Officer had been issued to him. He has not produced the same in court so that court could have privilege of knowing as to what were terms and conditions of his employment or nature of duties assigned to him and what was his status. On the other hand, workman himself has admitted that he was working as Administrative Officer and no other officer was working as Administrative Officer at that time. He has also admitted that he was immediately subordinate to General Manager. On the other hand, MW-1 in his cross examination has specifically stated that 8-10 persons were working in marketing department. He has stated that workman used to sanction leave of his peon and Assistant and used to send sanctioned application to personal department. Though, he has stated that workman had no powers to take action against his subordinate. It is, therefore, clear that workman had been appointed in the capacity of an officer. According to status of officer, he was directly subordinate to General Manager. He had been issuing cheques for payment on behalf of company along with General Manager. These facts, in my opinion, are sufficient to infer that his job was not of clerical nature but he had been working in supervisory and Managerial capacity.
28. Ld AR for the workman has relied upon authorities reported as [PRECEDENT]; [PRECEDENT] to press his contentions that job of the workman was of clerical nature and not of managerial nature.
29. On the other hand, AR for the Management has relied upon an authority reported as [PRECEDENT]. In this authority, it has been held that job of Accounts Officer is supervisory in nature. This authority is squarely applicable to the facts of the present. None of the authorities cited by claimant is applicable to facts inasmuch as in none of the authorities, workman had been signing cheques. This issue is accordingly decided in favour of management and against the workman.
30. Relief:- In view of reasons given above, I come to the conclusion that workman has failed to prove that he is workman as defined u/[SECTION] of [ACT]. Therefore, this tribunal is not competent to adjudicate upon the reference. On merits also, he has failed to prove that his transfer from Delhi to Dibrogarh office of the Management was illegal or unjustified. Therefore, he is not entitled to any relief. Rather he has filed a frivolous claim and has played hide and seek with the court by deliberately making incorrect statement regarding his unemployment and subsequently withholding material informations form the court regarding his employment. Therefore, a cost of Rs.5000/- is imposed upon him with the management shall be entitled to recover from him.
31. Award is passed accordingly. Award be sent to appropriate government for publication. File be consigned to record room.
Announced in the open court on 17.07.09 ([ENTITY]) Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.