M/S Kirloskar Electric Company ... vs Government Of Nct Of Delhi And ...
2009 Latest Caselaw 3513 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C.) No. 11357/2009

%                 Date of Decision: 02nd September, 2009


# M/S KIRLOSKAR ELECTRIC COMPANY LIMITED
                                                          ..... PETITIONER

!                 Through: Mr. D.P. Chaturvedi, Advocate.

                                 VERSUS

$ GOVERNMENT OF N.C.T. OF DELHI AND OTHERS
                                                       .....RESPONDENTS

^ Through: Mr. R.S. Mathur, Advocate for counsel for respondents No. 1, 2 & 4.

CORAM:

Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not?YES

3. Whether the judgment should be reported in the Digest?YES

S.N.AGGARWAL, J (ORAL) C.M. No. 10957/2009 in W.P.(C.) No. 11357/2009

Exemption as prayed for is granted subject to all just exceptions.

W.P.(C.) No. 11357/2009 and C.M. No. 10955/2009 (for condonation of delay in filing of the writ petition) and C.M. No. 10956/2009 (for stay)

The management of M/s Kirloskar Electric Company Limited

(hereinafter to be referred as the petitioner) seeks to challenge an

industrial award dated 20.03.2008 passed by the Industrial Adjudicator

directing it to pay retrenchment compensation as per provisions

contained in Section 25-F of the Industrial Disputes Act, 1947 to

respondent No. 3 for illegal termination of his services w.e.f 23.11.2001.

2. Heard on admission.

3. Mr. D.P. Chaturvedi, learned counsel appearing on behalf of the

petitioner, has argued that the impugned award in favour of respondent

No. 3 suffers from perversity because according to him, the Labour Court

has acted mechanically in holding respondent No. 3 to be a 'workman'

within the meaning of Section 2(s) of the Industrial Disputes Act, 1947

though his designation in terms of his last appointment letter (being

Annexure P-3 at page 69 of the Paper Book) was Assistant Manager. The

submission of Mr. Chaturvedi was that since the respondent No. 3 was

holding the post of Assistant Manager in the petitioner company at the

time his services were dispensed with, he does not fall within the

definition of 'workman' provided in Section 2(s) of the Industrial Disputes

Act, 1947.

4. Mr. Chaturvedi has referred to Ground (XIV) at Pages 50-51 of the

Paper Book to contend that the Hon'ble Supreme Court in Tejinder Singh

Vs. Bharat Petroleum Corporation Limited reported in (1986) 4 SCC,

237, has held that an officer does not fall within the purview of 'workman'

provided in Section 2(s). However, when the Court asked Mr. Chaturvedi

to show the judgement in Tejinder Singh's case on which he seeks to

place reliance, he submitted that he has not brought the said judgment

with him.

5. The learned counsel appearing on behalf of the petitioner company

has also argued that since the industrial award given by the Industrial

Adjudicator against the petitioner management was not published by the

appropriate Government within thirty days of the date of receipt of the

said award as provided in Section 17(i) of the Industrial Disputes Act,

1947 therefore, according to him, in view of the provisions contained in

Section 17(ii) of the Industrial Disputes Act, 1947, the said award cannot

be implemented and has to be treated as non-est.

6. I have given my thoughtful consideration to the above arguments

advanced by Mr. Chaturvedi, learned counsel appearing on behalf of the

petitioner, but I could not persuade myself to agree with any of them for

the reasons to follow hereinafter.

7. I do not find any merit in the argument of the learned counsel

appearing on behalf of the petitioner that the Court below has acted

mechanically in holding respondent No. 3 to be a 'workman' within the

meaning of Section 2(s) of the Industrial Disputes Act, 1947. A perusal of

the impugned award from Para 12 onwards up to Para 17 of the said

award would show that the Court below has not only taken into account

the evidence produced by the respondent No. 3 in regard to the nature of

duties performed by him in the course of his employment with the

petitioner company but has also taken note of number of judgments of

the Hon'ble Supreme Court which lay down the test for determining

whether an employee is a 'workman' or not. It was upon consideration of

all relevant facts and applying the test laid down by the Hon'ble Supreme

Court in the precedents referred in the impugned award, the Court below

has reached to a conclusion that the respondent No. 3 is covered by the

definition of 'workman' provided in Section 2(s) of the Industrial Disputes

Act, 1947. The judgment of the Hon'ble Supreme Court in Tejinder

Singh's case (supra), on which reliance is sought to be placed by the

petitioner company, is not applicable to the facts and circumstances of

the present case. The proposition of law laid down by the Hon'ble

Supreme Court in the said case is that an officer is not covered by the

definition of the 'workman' provided in Section 2(s) of the Industrial

Disputes Act, 1947.

8. In the present case, the Court below taking note of the nature of

duties performed by respondent No. 3 in the course of his employment

with the petitioner company, has rightly reached to a conclusion that his

designation either as Accounts Officer or as Assistant Manager, was only

a misnomer and does not suggest that he was discharging either

supervisory or managerial duties so as to exclude him from the purview

of the definition of 'workman' given in Section 2(s) of the Industrial

Disputes Act, 1947. It shall be significant to mention that though the

petitioner company had filed its written statement before the Labour

Court but despite opportunity given to it, neither it cross-examined the

witnesses of the workman nor did it produce any evidence to prove its

contention that the respondent No. 3 was discharging supervisory or

managerial functions. In the facts and circumstances of the case, I do not

find any perversity or illegality in the finding of the Court below that

respondent No. 3 is covered by the definition of 'workman' within the

meaning of Section 2(s) of the Industrial Disputes Act, 1947.

9. I also do not find any merit in the argument of Mr. Chaturvedi,

learned counsel appearing on behalf of the petitioner, that the award

impugned in the present writ petition is to be treated as non-est and

cannot be implemented as it was not published within thirty days of

receipt of copy of the award by the Government. The award impugned

by the petitioner in this writ petition was given by the Court below on

20.03.2008. According to Mr. Chaturvedi, learned counsel appearing on

behalf of the petitioner company, the copy of the award was received by

the concerned Government for publication on 10.04.2008 and, therefore,

according to him, in view of the provisions contained in Section 17(1) of

the Industrial Disputes Act, 1947, it was incumbent and mandatory upon

the Government to have published the award within thirty days of receipt

of copy of the award by it. His submission is that since the award was

published by the Government on 21.07.2008, the award cannot be

implemented as according to him, the said award has not become final in

view of the provisions contained in Section 17(2) of the Industrial

Disputes Act, 1947. This argument is wholly mis-conceived. By no

stretch of imagination it can be said that merely because there was delay

in publication of the industrial award, the said award is not binding on the

petitioner. In the opinion of this Court, the provisions of Section 17(1)

which provide for publication of award by the Government within thirty

days of receipt of the copy of the award by it, is directory in nature and

delay in publication of the award is only a procedural irregularity and

cannot affect the merit of the award.

10. Mr. Chaturvedi, learned counsel appearing on behalf of the

petitioner, has also argued that the appointment of the respondent No. 3

was a contractual appointment which permitted the management of the

petitioner company to dispense with the services of its employee in terms

of the contract of employment. According to him, the Labour Court has

exceeded its jurisdiction in directing the petitioner to pay retrenchment

compensation in terms of Section 25-F to the respondent No. 3 because

according to him, the services of respondent No. 3 were rightly dispensed

with strictly in terms of his contract of employment. I do not find any

merit even in this argument of the petitioner's learned counsel.

11. Section 2(ra) of the Industrial Disputes Act, 1947 defines with the

meaning of 'unfair labour practice'. As per definition of 'unfair labour

practice' given in Section 2(ra), 'unfair labour practice' means any of the

practices specified in the Fifth Schedule. Clause 10 of the Fifth Schedule

provides that in case an employer continues an employee on temporary

basis with an object of depriving him of the status and privileges of

permanent workman, then it amounts to an unfair labour practice.

12. In the present case, the respondent No. 3 before his services were

dispensed with by the petitioner company vide notice dated 23.11.2001,

had worked with the petitioner company for more than 11 years. His

contract of appointment was renewed by the petitioner company four

times, every time for three years. It appears that the respondent No. 3

was appointed by the petitioner company for a fixed term of three years

renewing it every time only with a purpose to deprive him of permanent

status and to deny him the benefits available to him under the Industrial

Disputes Act, 1947.

13. It shall also be significant to mention that the respondent No. 3 had

also made a monetary claim before the Labour Court under three heads,

viz., (i) Rs. 2,00,030/- on account of difference of earned wages from

26.04.2001 to 25.01.2002, (ii) unpaid amount of Rs. 1,19,130/- for the

period between 1997-98 to 2001-02, and (iii) wages for privileged leave

for six months at Rs. 19,855/- per month. All these three claims made by

respondent No. 3 have been rejected by the Labour Court as the

workman could not prove the same. The impugned award of the Court

below is a well-reasoned award and I am in complete agreement with the

same.

14. For the foregoing reasons, I do not find any merit in this writ

petition which fails and is hereby dismissed in limine.

C.M. Nos. 10956/2009 and 10955/2009 are also dismissed.

SEPTEMBER 02, 2009                              S.N.AGGARWAL, J
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