The Management Of M/S P.M. Stone ... vs Mr. I.S. Toor
2009 Latest Caselaw 3669 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C.) No. 21004/2005

                             Judgment Reserved on: 01.09.2009

%                            Judgment Delivered on: 10.09.2009


# I.S. TOOR                                                       ..... Petitioner

!                            Through:       Mr. Praveen Chaturvedi, Advocate.

                                          Versus

$ M/S. P.M. STONE CLINIC LIMITED                            ....Respondent

^                            Through:       Ms. Smieetaa Inna, Advocate.


+                            W.P.(C.) Nos. 11930-31/2006

# THE MANAGEMENT OF M/S. P.M. STONE CLINIC LIMITED & ANR.

..... Petitioners

! Through: Ms. Smieetaa Inna, Advocate

Versus

$ MR. I.S. TOOR ....Respondent

^ Through: Mr. Praveen Chaturvedi, Advocate

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

Both these petitions are directed against the same industrial award

in ID No. 249/1998. The first petition being W.P.(C.) No. 21004/2005 has

been filed by Mr. I.S. Toor (hereinafter to be referred to as the 'workman')

and the second petition being W.P.(C.) Nos. 11930-31/2006 has been

filed by the management of M/s P.M. Stone Clinic Limited (hereinafter to

be referred to as the 'management').

2 Vide award impugned in these petitions, the management has been

directed to pay compensation of Rs.50,000/- to the workman in lieu of his

claim for reinstatement with back wages. The workman in his petition is

aggrieved by not granting him the relief of reinstatement whereas the

management in its petition is aggrieved by the compensation awarded to

the workman. According to the management, the workman does not

come within the purview of definition of 'workman' given in Section 2(s)

of the Industrial Disputes Act, 1947 and for that reason, according to the

management, the Labour Court was not competent to award any

compensation to the workman.

3 The workman was appointed with the management of M/s P.M.

Stone Clinic Limited w.e.f. 28.08.1996 and he was dismissed from the

service vide management's letter dated 05.01.1998. The workman had

raised an industrial dispute with regard to his termination/dismissal from

the service of the respondent which was referred by the appropriate

Government in the Government of NCT of Delhi for adjudication to the

Labour Court. The terms of reference were as under:-

"Whether the services of Sh. I.S. Toor have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect".

4 The workman in his statement of claim filed before the Labour

Court had alleged that he was appointed by the management of M/s P.M.

Stone Clinic Limited as a Clerk-cum-Cashier w.e.f. 28.08.1996 and that

his last drawn wages were Rs.5,500/- per month. He had alleged that the

management wanted to get rid of him and therefore he was called by the

management in the cabin of Dr. S.K. Pal on 24.12.1997 around 05:00 PM

and was asked to resign but as he did not oblige the management, he

was threatened with dire consequences. On 27.12.1997, the workman

reported for duty as usual and at about 10:00 AM, he was forcibly taken

by the Police to Police Station Kalkaji. The SHO of Police Station Kalkaji

had allegedly told the workman that he would get the matter settled in

case he resign from the services of the management. The workman did

not succumb to the pressure of the SHO. He was produced before the

concerned Court and was remanded to the judicial custody from where

he was released on bail on 29.12.1997. On 30.12.1997 when the

workman went for duty, he was not allowed to join duty by the

management of M/s P.M. Stone Clinic Limited. The same thing happened

again on 31.12.1997 and also on 01.01.1998. On 05.01.1998, the

workman received a dismissal/termination letter from the management.

He then sent a demand notice dated 18.02.1998 to the management to

which he did not receive any reply. The workman had alleged that he was

illegally terminated by the management without holding any inquiry

against him and his termination was in violation of mandatory provisions

of Section 25-F of the Industrial Disputes Act, 1947.

5 The management in its written statement filed before the Labour

Court contested the claim of the workman on the ground that he was not

a workman within the meaning of Section 2(s) as he was appointed with

the management as Office Manager. It was denied that the workman was

appointed as a Clerk-cum-Cashier as alleged by the workman in his

statement of claim. The management also alleged bias against the

Conciliation Officer and non-compliance of provisions of Section 12(2) of

the Industrial Disputes Act, 1947. On merits, the management alleged

against the workman that there were complaints against him of

misbehaviour and cheating of customers. It was stated that the workman

Mr. Toor was continuously cheating the management in the different

purchases from the market but the management had no material or

constructive proof against the workman. It is also stated in the written

statement of the management that it had received a complaint from

patient Sh. Ram Swaroop that the workman had charged Rs.1,000/- extra

from him. As per the management, a criminal case vide FIR No. 936/97

under Section 420/408/506 IPC was pending against the workman in the

Patiala House Court. For these reasons, the management had prayed for

dismissal of claim of the workman that was filed before the Labour Court.

6 Following issues were framed by the Labour Court on 01.02.2000:-

(i) Whether the claimant is not covered within the definition of 'Workman' as defined under Section 2(s) of the I.D. Act?

(ii) As per terms of reference.

7 The workman in his evidence had filed only his own affidavit

reiterating the facts stated by him in the statement of claim. The affidavit

in evidence filed by the workman remained unchallenged as he was not

cross-examined by the management despite opportunity given. The

management had not produced any evidence before the Labour Court to

prove its defence against the claim of the workman.

8 Since the workman was not cross-examined by the management

despite opportunity given to it, there was no option before the Labour

Court but to act upon his uncontroverted testimony. The court below on

the basis of material placed before it has arrived at a conclusion that the

services of the workman were illegally terminated by the management

of M/s P.M. Stone Clinic Limited and in its wisdom, has awarded

compensation of Rs.50,000/- in favour of the workman in lieu of his claim

for reinstatement and back wages.

9 Mr. Praveen Chaturvedi, learned counsel appearing on behalf of the

workman, has referred and relied upon a judgment of the Hon'ble

Supreme Court in Kanhaiyalal Aggarwal & Others Vs. Factory Manager,

Gwalior Sugar Company Ltd. reported as (2001) 9 SCC 609. On the

strength of this judgment, he had argued that the impugned award

denying him the benefit of reinstatement on the ground of loss of

confidence by the management suffers from perversity as loss of

confidence was neither pleaded nor proved by the management. The

submission of Mr. Chaturvedi was that the workman is entitled for

reinstatement with back wages because in terms of the impugned award,

his services were illegally terminated by the management.

10 Per contra, Ms. Smieetaa Inna, learned counsel appearing on behalf

of the management, had argued that Mr. I.S. Toor was appointed by the

management of M/s P.M. Stone Clinic Limited as Office Manager and

therefore, according to her, he does not answer the description of

'workman' given in Section 2(s) of the Industrial Disputes Act, 1947. The

submission of learned counsel appearing on behalf of the management

was that since Mr. I.S. Toor was not a workman within the meaning of

Section 2(s), the Labour Court had no jurisdiction to entertain the

reference and award compensation in his favour. Ms. Inna appearing on

behalf of the management had also heavily relied upon the conduct of

the workman. She had submitted that there were several complaints

from the patients against the workman and he was even involved in a

criminal case pending against him in the Patiala House Court. Relying on

the alleged conduct of the workman, she had argued that he was not

entitled to either reinstatement or any compensation because he was

rightly terminated by the management.

11 I have given my thoughtful consideration to the above rival

arguments advanced by the learned counsel for the parties but I could

not persuade myself to agree with the submissions made on behalf of the

management. I also could not persuade myself to agree with the

submissions made by counsel for the workman in support of his claim for

reinstatement.

12 I will first deal with the question as to whether Mr. I.S. Toor

employed with the management of M/s P.M. Stone Clinic Limited was a

workman or not withing the meaning of Section 2(s) of the Industrial

Disputes Act, 1947.

13 Mr. I.S. Toor is an Ex-serviceman. He was employed by the

management of M/s P.M. Stone Clinic Limited w.e.f. 28.08.1996. The

designation given to him was 'Office Manager. He had worked with the

management of M/s P.M. Stone Clinic Limited hardly for about 16 months

when he was served with the order of termination of his services by the

management vide letter dated 05.01.1998. Mr. I.S. Toor in para 8 of his

evidence affidavit filed before the Labour Court has testified as under:-

"8. That the deponent was doing the job of clerk-cum-cashier. The money received by the deponent from the patients was always handed over to Dr. S.K. Pal who used to sometimes give signatures on the receipt and sometimes not. The deponent was not working as manager. The overall incharge of the clinic was Dr. S.K. Pal. The deponent used to prepare cash vouchers for payment, used to prepare records of patients, bank deposits, cash dealing, accounts for cloth washing, Telephone Bill and Electricity Bill to be deposited."

14 The above evidence produced by the workman before the Labour

Court regarding the nature of his duties performed by him while he was

in the employment of M/s P.M. Stone Clinic Limited has remained

uncontroverted. In fact the management of M/s P.M. Stone Clinic Limited

itself has admitted in para 10 of its petition being W.P.(C) Nos.11930-

31/2006 that Mr. I.S. Toor in his capacity as Office Manager was overall

Administrative-in-Charge of attendance and salary distribution of other

staff members, collection of bills from the patients and all other activities

of the Clinic. For determining the question as to whether a person

employed in an industry is a workman or not; not only the nature of work

performed by him but also terms of the appointment in the job performed

are relevant considerations. An undue importance need not be given for

the designation of an employee. What is required to be looked into is the

primary duties performed by the employee.

15 In view of the nature of duties performed by the workman in the

course of his employment with the management of M/s P.M. Stone Clinic

Limited, his designation as 'Office Manager' loses its significance. It is

true that the workman in his leave applications submitted by him to the

management from time to time and in the other correspondence has

described himself as 'Office Manager' but that does not make any

difference to his actual status. He was performing duties of clerical

nature and the same by no means can be described as supervisory in

nature so as to exclude him from the purview of definition of 'workman'

given in Section 2(s). I do not find any perversity or illegality in the

findings of the court below holding Mr. I.S. Toor to be a 'workman' within

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

16 Coming to the second contention of the management that the

workman was rightly terminated and was not entitled to any

compensation, it may be noted that no inquiry was admittedly held

against the workman into the alleged charges against him before

termination of his services by the management. No opportunity was

given by the management to the workman to explain his alleged

misconduct. Hence the action of the management in terminating the

services of the workman by no means can by said to be legal or just. In

this backdrop, I also do not find any perversity in the findings of the court

below that the termination of the workman was illegal and unjustified.

17 I do not find any merit in the argument of Mr. Chaturvedi, learned

counsel appearing on behalf of the workman, that denial of relief of

reinstatement is contrary to the judgment of Hon'ble Supreme Court in

Kanhaiyalal Aggarwal's case (Supra). In Kanhaiyalal Aggarwal's case, it

was held by the Hon'ble Supreme Court as under:-

"9. Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the labour court has been reversed in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the Management. Objective facts which would lead to a definite inference of apprehension in the mind of the Management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost."

18 The above judgment of the Supreme Court in Kanhaiyalal Aggarwal

is not applicable to the facts and circumstances of the present case. In

the present case, the management in its written statement has made out

a case of loss of confidence against the workman. It is a different matter

that the management did not prove its accusations against the workman

either in domestic inquiry or even before the Labour Court. This

necessarily does not mean that the workman was entitled to

reinstatement. His services were terminated by the management of M/s

P.M. Stone Clinic Limited vide letter dated 05.01.1998. The award which

directs payment of compensation to him in lieu of his claim for

reinstatement is of 16.07.2004. In a recent judgment in Jagbir Singh Vs.

Haryana State Agriculture Marketing Board and Anr, Civil Appeal

No.4334/2009 (arising out of SLP(C) No. 987/2009) decided on

14.07.2009, it was held by the Hon'ble Supreme Court as under:-

"7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."

19 It is apparent from the above judgment of the Supreme Court that

there is a shift in the trend for dealing with the cases of illegal

termination in the matter of modulating the relief that can be reasonably

granted to a workman. In the facts and circumstances of the present

case, this Court is of the considered opinion that compensation of

Rs.50,000/- awarded by the Industrial Adjudicator in favour of the

workman in lieu of his claim for reinstatement and back wages is quite

adequate and meets the ends of justice.

20 For the foregoing reasons, I do not wish to interfere in the industrial

award which is subject matter of challenge by the parties in the present

petitions. These petitions therefore fail and are hereby dismissed leaving

the parties to bear their own costs.

September 10, 2009                                      S.N.AGGARWAL
a                                                           [JUDGE]