IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA COURTS : SHAHDARA : DELHI I.D. NO.1079/2006 Date of Institution: 31.1.2006 Award reserved on: 13.12.2007 Date of Award : 09.01.2008 BETWEEN MANAGEMENT OF : M/S SATIN CREDIT CARE NETWORK LTD. 5TH FLOOR, KUNDAN BHAWAN, COMMERCIAL COMPLEX, AZADPUR, DELHI-33. AND ITS WORKMAN : SH. NARESH KUMAR S/O SH. RAM SINGH C/O ALL INDIA GENERAL MAZDOOR TRADE UNION (REGD.) 170, BALMUKUND KHAND, GIRI NAGAR, KALKAJI, NEW DELHI. AWARD 1. A claim was filed U/[SECTION] of the [ACT] (hereinafter called the Act) by the claimant on the pleading following facts : He was working with the management since 1.6.99 as Accounts Assistant and his last drawn wages were Rs.5800/- per 1 month. He worked honestly and diligently and there was no complaint against him. Management did not provide him statutory benefits such as weekly and annual holidays, overtime allowance increment, travelling allowance, house rent allowance and bonus. When he demanded the same management got annoyed and terminated his services on 8.7.05 without any notice or payment in lieu of notice and also withheld his wages from 1.7.05 to 7.7.05. Termination of his services is violative of [SECTION] He sent demand notice to the management on 6.1.06 by registered post claiming reinstatement. Management replied to his notice on 10.1.06. Workman replied to the management on 17.1.06. He is unemployed since the date of termination of his services. He has prayed for his reinstatement with full back wages. 2. Management contested his claim vide its written statement. It is pleaded that claimant is not a workman as he was working in supervisory capacity and was drawing wages of Rs.5800/- per month. It is stated that he used to supervise work of collection boys. He assigned duties to them for collection of deposit money and maintain 2 accounts for the same. It is alleged that the collection boys used to collect money from the clients of the management and reported to the workman every day. It is further alleged that workman used to maintain record of daily collection . 3. It is denied that workman was not given statutory benefit as alleged and on demand thereof his services were terminated. It is alleged that management had not terminated his services. Rather he was unauthorisedly absent from duty w.e.f. 8.7.05. 4. It is further stated that management received notice of the workman and replied vide its letter dated 10.1.2006 that it never terminated his services and called upon him to join duty. 5. It is alleged that on failure of the workman to join duty despite letter of the management dated 10.1.2006 management was left with no option but to issue a chargesheet dated 1.2.06 as it was not aware of filing of the present dispute by the workman. It is further stated that workman did not reply to the chargesheet and in the absence of any 3 reply charges were deemed to be accepted and services of the workman were terminated on 22.2.2006. 6. Workman in his rejoinder denied that he was working in supervisory capacity. It is denied that he was absent from duty w.e.f. 8.7.05. It is stated that he did not reply to the chargesheet dated 1.2.06 because by that time he had filed his claim before the court. 7. Following issues were framed : 1. Whether the claimant is a "workman"? OPW 2. Whether the services of the workman were terminated lawfully on 22.2.2006 on account of his unauthorised absence from duty w.e.f. 8.7.05 as pleaded in written statement? OPM 3. Whether the employment of the claimant was terminated unlawfully on 8.7.05 as pleaded in the statement of claim?OPW 4. Whether the claimant is unemployed since the date of termination of his services? OPW 5. Relief. 7. Claimant examined herself as WW-1 and thereafter closed his 4 evidence. Management examined Sh. [ENTITY] as MW-1, [ENTITY] as MW-2 and [ENTITY] as MW-3 and closed its evidence. 8. I have perused the material available on record. I have also heard Ld. AR for both sides. ISSUE NO. 1 9. Management has raised a objection that the claimant is not a 'workman' within the meaning of [SECTION] of the Act as he was working in supervisory capacity and was supervising work of collection boys. It is stated that he used to assign duties to them. It is alleged that collection boys used to report to him and workman used to maintain records of daily collection. 10. [SECTION] of the Act reads as follows : "Workman" means any person (including an apprentice) employed in any industry todo any manual, unskilled, skilled technical, operational, clerical or supervisory work for hire or reward, 5 whether the terms of employment be express or implied, and for the purposes of any proceedings underthis Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person - (i)who is subject to the [ACT], or the [ACT] or the [ACT]); or (ii)who is employed in the police service or as an officer or other employee of a prison; or (iii)who is employed mainly in a managerial or administrative capacity or (iv)who, being employed in a supervisory draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reasons of the 6 powers vested in him, functions mainly of a managerial nature." 11. In determining which of the employees in the various categories are covered by the definition of "workman" the court has to see what is the main or substantial work which the employee is engaged to do. ([PRECEDENT]) 12. Management examined [ENTITY] and [ENTITY] as MW-2 and MW-3 respectively to prove that claimant was not a workman. Both the witnesses did not place on record any documentary evidence to show that the claimant worked in supervisory capacity. In his cross- examination MW-2 [ENTITY] stated that he used to apply for leave to the Manager of the management. He further stated that Ms. [ENTITY] was looking after the cash of the management. He also stated that his attendance was marked by the Manager of the management. MW-3 [ENTITY] also did not say anything which could show that claimant was not a workman. In his cross-examination this witness 7 stated that collection boys were not depositing money with the claimant. He further stated that he was depositing money with the cashier. He also stated that he did not have any document to show that claimant was assigning duty to the collection boys. He also stated that he himself used to mark his attendance in the attendance sheet. 13. In the absence of any document to show that claimant was doing supervisory work this issue is decided against the management and in favour of the workman. It is held that claimant was a workman of the respondent management.
ISSUE NO. 2 &3
14. Both the issues are interrelated and therefore are taken up together for adjudication. Workman has alleged that he was denied statutory benefits such as weekly and annual leave, overtime allowance, increment, travelling allowance, house rent allowance and bonus by the management and when he demanded the same from the management it got annoyed and terminated his services on 8.7.05. Management has denied the same and alleged that he was absent from duty w.e.f. 8.7.05. It is alleged that on receipt of the demand notice of the claimant dated 6.1.06 management vide its reply dated 10.106 denied that it ever terminated his services. It is stated that despite its reply workman did not report for duty and continued to remain absent which led to issuance of chargesheet dated 1.2.06. It is alleged that workman did not submit any explanation to the chargesheet so it was presumed that charges stood proved and workman was terminated vide letter dated 22.2.06. It is stated that by that time management was not aware about the pendency of the present dispute in the court.
15. Workman has alleged that termination of his services on 8.7.05 is violation of [SECTION] of the Act as the same was without any notice or payment in lieu of notice.
16. [SECTION] of the Act reads as follows :
"Conditions Precedent to Retrenchment of Workmen - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service ) or any part thereof in excess of six months; and ( C ) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette).
The retrenchment as envisaged under [SECTION] is defined under [SECTION] of the [ACT], which reads as under :
2. (oo) "retrenchment" means the termination by the employer of the services of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the services of the workman as a result of the employer and that the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or ( c ) termination of the service of a workman on the ground of continued ill-health."
17. A perusal of [SECTION] of the Act shows that retrenchment means termination of services of a workman by the management.
18. Onus is on the workman to prove that his services were terminated on 8.7.05. There is nothing on record to prove that management terminated employment of the claimant on 8.7.05 as alleged by him. Had it been so workman would not have kept silent for about six months. Admittedly he sent demand notice to the management on 6.1.06. He has not uttered a word as to what he was doing after alleged termination of his employment on 8.7.05 till he sent his demand notice to the management on 6.1.06. As per his statement of claim he has remained unemployed. He has not explained as to why he did not approach the management immediately for reinstatement after alleged termination his services on 8.7.05 if he remained unemployed. It is not clarified as to how he was making both ends meet after alleged termination of his services on 8.7.05 till 6.1.06 when he called upon the management to reinstate him. Why he did not ask for his reinstatement earlier. He himself stated that he did not find employment elsewhere. Why he did not go to the management for reinstatement for six months is not clarified.
19. Demand notice of the workman dated 6.1.2006 is on record and proved as Ex.WW1/1. Reply of the management is dated 6.10.06 and proved as Ex.WW1/D. In his demand notice dated 6.1.2006 workman alleged that he was denied certain statutory benefits such as weekly and annual leave, overtime allowance, increment, travelling allowance and house rent allowance and on demand of the same by him management got annoyed and terminated his services on 8.7.05. He called upon the management to reinstate him and give him the said statutory benefits. Management filed its reply dated 10.1.06 and denied that it ever terminated his services. It alleged that he had not been attending office since 8.7.05. He was called upon to join duty with immediate effect. Workman sent reply to the management vide Ex.MW1/G on 17.1.2006 in which he reiterated his claim of unlawful termination of his employment on 8.7.05.
20. Perusal of the aforesaid three material documents show that had management terminated services of the workman on 8.7.05 he would not have kept silent for about 6 months and raised his demand for reinstatement in January 2006. Further had the management terminated his services on 8.7.05 it would not have accepted the request of the workman to reinstate him immediately on receipt of his notice asking for reinstatement.
21. It is not the case of the workman that when management called upon him to join duty vide its reply dated 10.1.2006 Ex.MW1/D he ever approached the management for duty. In his reply dated 17.1.06 Ex.MW1/G he simply stated that after termination of his employment on 8.7.05 he approached the management for duty several times and the management refused to take him on duty. He has not alleged that after receipt of reply of the management dated 10.1.06 he ever went to the management for duty.
22. His statement of claim is also silent whether he ever went to the management for duty on receipt of its reply dated 10.1.06. He has not placed anything on record to show that he ever approached the management for duty and same was refused to him.
23. Facts of the present case are similar to the facts in [PRECEDENT] in which workman alleged termination of his services and out Hon'ble Court observed as follows :
"Where management does not terminate services of the workman and writes a letter to the workman to come and join duties, no inference can be drawn that services of the workman were terminated. It was not the case of the workman before the Labour Court that after receiving letter of the management asking him to join duties, he had gone to join duties and was not allowed to join duties. The contention of the workman that employer was supposed to initiate an inquiry into his absence before terminating his services, is baseless because in this case employer had not terminated services. An employer who writes a letter to the workman to join duties since he was absent, cannot be said to have terminated the services of the petitioner. Only if the petitioner had not been allowed to join duties on his reporting, it could have been said that his services were terminated.
The petitioner had served a demand notice dated
24.9.99 on the employer asking to reinstate him alleging that his services had been terminated. The employer asked to join duties vide letter dated 8.10.99 as his services were not terminated. It is obvious that this letter was written to him after receipt of his demand notice. Even if it is considered that he was allegedly terminated from services since his demand of reinstatement was accepted to by the management no industrial dispute regarding termination could be said to have arisen. The dispute could be said to have arisen only if the employee had gone to join services and was not allowed to join duties. Employee did not go to join despite offer of the management asking him to join services, therefore, he could not have raised any dispute against the management about termination of his services."
24. Workman has failed to prove that his services were terminated on 8.7.05. Workman filed his claim on 31.1.06. His services have not been terminated by that time. Subsequent event are not subject matter of dispute in this case.
15. Workman has vaguely stated in para 7 of his statement of claim that he is making both ends meet while being unemployed. How he has been maintaining himself in absence of any employment is not clear. Onus is on him to prove that he is not employed as is evident from the following judgment :
In Kendriya Vidyalaya Sanghathan and Anr. v. S.C. Sharma 2005 LLR 275 Hon'ble Supreme Court observed that :
" the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim."
16. He has not adduced any evidence to prove that he remained unemployed after 8.7.05. As such this issue is decided in favour of the management and against the workman.
17. Accordingly claimant is not entitled to any relief. File be consigned to record room.
Announced in open court on 9.1.2008 PRESIDING OFFICER LABOUR COURT NO. XIII KARKARDOOMA COURTS DELHI