Delhi High Court
Om Carrying Corporation vs Tilak Narang & Anr. on 9 December, 2015
Author: Sunil Gaur
$~R-131
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 9th December, 2015
+ W.P.(C) 8317/2002
OM CARRYING CORPORATION ..... Petitioner
Through: Mr. Rajesh K.Gogna & Ms.
L.Gangmei, Advocates
versus
TILAK NARANG & ANR. .....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned Award of 5th July, 2002 directs reinstatement of
respondent with continuity in service. Operation of the impugned order
was stayed on 30th January, 2003 subject to deposit of 50% of the
awarded amount. The petition was dismissed in default on 17 th
December, 2013.
Notice of restoration application was sent to the contesting
respondent and as per the order of 28th October, 2015, the contesting
respondent was served but none had appeared and the writ petition was
restored for regular hearing. Even today, none appears on behalf of
contesting respondent.
Impugned Award of 5th July, 2002 directing reinstatement of first
respondent with continuity of service with back-wages is assailed in this
W.P.(C) 8317/2002 Page 1
petition. On the basis of objection raised by petitioner, trial court had
framed an issue as to whether respondent-claimant was a workman. The
finding returned on issue No.2 is assailed in this petition on the ground
that though the designation of respondent-workman was not material but
trial court had gone wrong in deciding this issue against petitioner-
management by simply observing that petitioner's witness had not
deposed regarding the nature of duties of respondent-workman. To assail
impugned award and the finding returned therein, learned counsel for
petitioner had drawn attention of this Court to petitioner's application Ex.
WW1/M1, which shows that petitioner had applied for the job of
Marketing Executive while claiming that he had experience of nearly 10
years in transport trade and was able to handle all commercial activities
independently and can also handle indoor, outdoor and other official
activities like booking, delivery etc. It was submitted by learned counsel
for petitioner that though petitioner was appointed as an Office Executive
at salary of `3,000/- p.m. in July, 1995 but even in the claim statement,
respondent had claimed that he was working as a Sales Executive at
salary of `3,000/- p.m., it has been so claimed in his evidence. It was
pointed out that respondent has nowhere claimed in the evidence that he
was doing job of a workman and in fact respondent was engaged in the
marketing work and so the finding returned on issue No.2 deserves to be
set aside.
Upon hearing and on bare perusal of impugned Award, evidence
on record, I find that burden to prove the nature of duties has been
erroneously put on petitioner because respondent himself has nowhere
claimed that he was doing job of a workman. Rather respondent has
W.P.(C) 8317/2002 Page 2
claimed that he was having long experience in the transport sector and
was conversant with all commercial and marketing activities. It is
evident from evidence on record that respondent was doing the marketing
work and so his service conditions were governed by The Sales
Promotion Employees (Conditions of Service) Act, 1976 and not by the
Industrial Disputes Act, 1947. Apex Court in T.P.Srivastava v. National
Tobacco Co. of India Ltd. (1992) 1 SCC 281 has ruled that a salesman
doing the work of publicity and advertising of company's products cannot
be termed as a workman and is not covered under Industrial Disputes Act,
1947 and infact is covered by the The Sales Promotion Employees
(Conditions of Service) Act, 1976. In view of dictum of Apex Court in
T.P.Srivasatava (supra) and the evidence on record, I find that finding
returned on Issue No.2 in the impugned Award is clearly erroneous.
Hence, this petition is allowed and impugned Award of 5th July, 2002 is
set aside.
(SUNIL GAUR)
JUDGE
DECEMBER 09, 2015
vn
W.P.(C) 8317/2002 Page 3
