*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th March, 2011
+ WP(C) NO.18211/2006
M/S BATLIWALA AND KARANI ..... Petitioner
Through: Ms. Meenakshi Sood, Advocate
Versus
LALIT MOHAN JAIN & ANR. ..... Respondents
Through: Mr. Asit Kumar Roy, Advocate.
AND
+ WP(C) NO.18288/2006
M/S BATLIWALA AND KARANI ..... Petitioner
Through: Ms. Meenakshi Sood, Advocate
Versus
SHITLA PRASAD SHUKLA & ORS. ..... Respondents
Through: Mr. Asit Kumar Roy, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No.
be allowed to see the judgment?
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported No.
in the Digest?
W.P.(C) Nos.18211/2006 & 18288/2006 Page 1 of 11
RAJIV SAHAI ENDLAW, J.
1. The petitions impugn the awards, both dated 30th January, 2006 of
the Labour Court holding the services of the respondent workman in each
case to have been terminated by the petitioner employer illegally and
unjustifiably and granting the relief of lumpsum compensation of
`2,00,000/- to the respondent workman in W.P.(C) No.18211/2006 and of
`3,00,000/- to the respondent workman in W.P.(C) No.18288/2006 apart
from the legal dues to which the said respondent workmen were entitled to
as per law and their service rules. Notice of the petitions was issued and
the operation of the awards stayed subject to the petitioner employer
depositing 50% of the award amount in this Court. Accordingly, a sum of
`1,00,000/- was deposited in W.P.(C) No.18211/2006 and a sum of
`1,50,000/- was deposited in W.P.(C) No.18288/2006. Pleadings have
been completed and the counsels have been heard.
2. The award in each case though separate but are otherwise identical
save for the fact that while the respondent workman in W.P.(C)
No.18211/2006 joined the employment initially on 14 th October, 1992, the
respondent workman in W.P.(C) No.18288/2006 had joined the
employment of the petitioner employer initially on 1st January, 1983.
W.P.(C) Nos.18211/2006 & 18288/2006 Page 2 of 11
Both the respondent workmen were terminated vide letters dated 5 th
October, 1999. The petitioner employer had contested the dispute raised
by the respondent workmen pleading that the respondent workmen were
not “workman” but were working at managerial level and their
appointment was contractual and as such on termination, as per contract,
they were entitled only to two months notice or salary in lieu thereof.
3. It is undisputed that the respondent workmen were initially
employed with M/s Das & Company, a sister concern of the petitioner
employer and that the initial employment of the respondent workman in
W.P.(C) No.18288/2006 was as a peon. It is also undisputed that on 1 st
October, 1996, the services of the respondent workmen were transferred
from M/s Das & Company to the petitioner employer and the respondent
workmen were in the said letter dated 1st October, 1996 described as
working as FOREX Dealer and were continuing to enjoy the said
designation till their termination on 5th October, 1999. Vide letter dated
5th October, 1999 they were informed that the management had decided to
close down the Foreign Exchange operations from Delhi with immediate
effect due to extremely difficult market conditions and accordingly their
services were being terminated in accordance with the Contract i.e. the
W.P.(C) Nos.18211/2006 & 18288/2006 Page 3 of 11
Clause in the letter dated 1st October, 1996 permitting termination by two
months notice or salary in lieu thereof. It is also not in dispute that the
respondent workman in W.P.(C) No.18211/2006 was at the time of
termination drawing salary of `13,000/- per month and the respondent
workman in W.P.(C) No.18288/2006 at the time of termination was
drawing salary of `10,000/- per month.
4. The Labour Court held that to exclude one from being a “workman”
it has to be shown that the employment is in a supervisory capacity and
which is to be decided on consideration of the essential nature of work
and the entire context of employment and not designation alone. It was
held that the petitioner employer had not placed any material on the file to
show that the respondent workmen in the present case were exercising any
administrative, executive, financial or disciplinary powers; that simply
high-sounding designation of FOREX Dealer and wages of `13,000/- and
`10,000/- respectively would not lead to the presumption that they were
working in supervisory capacity; that merely because they had signed
some letters addressed to outsiders also did not show that they were free
to act independently in their discretion. It was further held that the mere
fact that the respondent workman in W.P.(C) No.18288/2006 though
W.P.(C) Nos.18211/2006 & 18288/2006 Page 4 of 11
employed as a peon was also designated as a FOREX Dealer showed that
the said post could not be supervisory.
5. Else, the Labour Court held that the termination was in violation of
Section 25F of the Industrial Disputes Act, 1947 and did not fall within
the definition of “retrenchment” under Section 2(oo) of the I.D. Act.
However, in view of the statement of the petitioner employer‟s witness
that the FOREX operations had been closed down at Delhi, the respondent
workmen were not granted the relief of reinstatement and were granted
the relief of compensation as aforesaid.
6. The counsel for the petitioner employer has at the outset contended
that there is an inherent contradiction in the awards – while the Labour
Court has denied reinstatement for the reason of the petitioner employer
having closed down the business, has not granted compensation in
accordance with the rules of closure of business. It is contended that the
Labour Court has not given due weightage to the letters written by the
respondent workmen to others in connection with the business of the
petitioner employer and which show that the respondent workmen were
performing managerial functions.
W.P.(C) Nos.18211/2006 & 18288/2006 Page 5 of 11
7. It is not as if the said letters have not been considered by the Labour
Court. The Labour Court on appreciation of the said letters has reached a
conclusion that the same did not show the respondent workmen
performing managerial or supervisory functions. The Legislature has not
provided for any appeal against the award of the Labour Court. This
Court is only exercising the power of judicial review and the scope
whereof is different from that of an appeal. The appreciation of evidence
is within the sole domain of the Labour Court and this Court in exercise of
power of judicial review would not interfere merely for the reason that
this Court on appreciation of the same evidence would have arrived at a
different inference / conclusion. Nevertheless, to satisfy myself that there
is no perversity in the inference drawn by the Labour Court, I have
examined the same letters. While one of the said letters has been signed
on behalf of the Manager Mr. Pradeep Bhargava, the other letters are
merely of forwarding cheques or explaining the delay in payment and thus
of a routine nature and not such wherefrom it could be said that the
conclusion reached by the Labour Court could never have been reached.
W.P.(C) Nos.18211/2006 & 18288/2006 Page 6 of 11
8. I have also perused the affidavit by way of evidence of the sole
witness viz. Mr. Pradeep Bhargava examined by the petitioner employer
as well as his cross examination. There is nothing therein also from which
it could be said that the conclusion arrived at by the Labour Court is
erroneous. Similarly, the petitioner employer could not elicit anything in
the cross examination of the respondent workmen from which the
conclusion drawn by the Labour Court can be found fault with.
9. The counsel for the respondent workmen while supporting the
awards has contended that a few letters in the long span of service of the
respondent workmen with the petitioner employer in any case cannot lead
to a conclusion that the respondent workmen in the course of their duties
used to correspond on behalf of the petitioner employer. He has also
drawn attention to the cross examination of the sole witness of the
petitioner employer where he admitted that both the respondent workmen
were doing the same job. It is argued that a person initially appointed as
a peon, without any evidence of having acquired any further skills can
never be deemed to be performing supervisory or managerial functions.
W.P.(C) Nos.18211/2006 & 18288/2006 Page 7 of 11
10. With respect to the argument of the counsel for the petitioner
employer of the entitlement of the respondent workmen being maximum
of compensation as fore closure, I find that neither was any such case
pleaded by the petitioner employer before the Labour Court nor proved
nor any issue got framed thereon nor any finding has been returned in this
respect. Merely because the Labour Court for the purpose of moulding
the relief has stated that the relief of reinstatement was not deemed proper
for the reason of the petitioner employer having claimed to have closed
down the business would not mean that the case of closure under Section
25FFF of the Act had been made out.
11. During the course of hearing, it has also transpired that after the
filing of the present petitions, disputes arose between the parties also as to
the other emoluments besides the compensation to which the respondent
workmen were entitled to. The respondent workmen filed applications
before the Labour Court for computation of the amounts due to them and
the said applications were contested by the petitioner employer and order
thereon made by the Labour Court finding the amounts besides the
payment made by the petitioner employer to be due to the respondent
workmen. The respondent workmen thereafter attempted to recover the
W.P.(C) Nos.18211/2006 & 18288/2006 Page 8 of 11
amounts so found due. The petitioner employer filed applications in these
proceedings to restrain the respondent workmen from doing so. On the
said applications, on 26 th April, 2010, the counsel for the respondent
workmen made a statement that no action till the next date of hearing shall
be taken for realization of the said excess amount. The said statement has
continued till now. The counsel for the petitioner employer has sought
adjudication in these petitions on that aspect also.
12. The counsel for the petitioner employer however admits that the
said disputes are not subject matter of the present writ petitions. It has
been enquired from the counsel for the petitioner employer whether the
petitioner employer has challenged the said computation. The answer is in
the negative. Without substantive challenge being made, merely because
application for interim relief has been filed would not entitle the petitioner
employer to make the said challenge in the present writ petitions. Now
that the writ petitions are being disposed of, the question of considering
any application for interim relief does not arise.
13. I also do not find any error capable of interference in the quantum
of compensation awarded. In any case no arguments have been addressed
W.P.(C) Nos.18211/2006 & 18288/2006 Page 9 of 11
in that respect except for contending that nothing more than two months
salary in accordance with contract could have been awarded.
14. The counsel for the respondent workmen has sought interest on the
awarded amount for the delay in payment. The counsel for the petitioner
employer has opposed the same by contending that no interest has been
awarded by the Labour Court. Merely because the Labour Court has not
awarded any interest would not come in the way of this Court awarding
interest. The petitioner has enjoyed the interim order from this Court and
this Court at the time of final decision can always balance the equities
flowing from the interim order. (See Abhimanyoo Ram Vs. State of U.P.
JT 2009 (1) Supreme Court 528 and Ramesh Chandra Sankla Vs.
Vikram Cement AIR 2009 Supreme Court 713). The petitioner employer
has admittedly enjoyed the benefit at least qua 50% of the award amount
in each case. However, unfortunately the 50% of the award amount
deposited pursuant to interim orders was not ordered to be kept in a fixed
deposit and as such has not accrued any interest. However, since the
petitioner employer was rendered out of pocket with respect to the said
amount, it cannot be directed to pay any interest thereon.
W.P.(C) Nos.18211/2006 & 18288/2006 Page 10 of 11
15. Thus while dismissing the petitions, the Registry is directed to
forthwith release the amounts deposited in each of the petitions in favour
of the respondent workmen and the petitioner employer is directed to pay
the balance award amount in each case to the respondent workmen
together with interest at 8% per annum on the balance award amount from
8th December, 2006 i.e. the date of the interim order till the date of
payment, within four weeks from today. If the same is not paid, besides
other remedies of the respondent workmen, the same shall after four
weeks incur interest at the rate of 12% per annum. Litigation expenses of
`10,000/- in each case having already been paid to the respondent
workmen, no order as to further costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MARCH 11, 2011
„gsr‟
W.P.(C) Nos.18211/2006 & 18288/2006 Page 11 of 11