AEROFLOT RUSSIAN AIRLINES Vs. MOHAN KUMAR SHARMA

JUDGEMENT

(1.) THE challenge in this writ petition is to the award dated May 31, 2010 passed by the Central Government Industrial Tribunal cum Labour Court -II, Karkardooma Courts ('Tribunal' in short) in I.D. No. 31/2007 whereby the Tribunal answered the reference in favour of the respondent No. 1 namely Mohan Kumar Sharma by holding the action of the petitioner terminating/dismissing the services of respondent No. 1 with effect from December 30, 2006 as unjustified and illegal and with a further direction of reinstatement with full back wages and continuity of service within one month from the date of publication of the award. The industrial dispute was referred by the appropriate government for the adjudication on the following terms:

(2.) IT was the case of respondent No. 1 herein before the Tribunal that he being well qualified and suiting the terms of the petitioner airlines besides passing the requisite test and formalities has been appointed as Traffic Assistant on probation for a period of six months with effect from May 01, 1988. The petitioner executed the service contract with him incorporating therein the terms and conditions with which both the parties have been bound. One such condition incorporated in the service contract between the parties was that the respondent No. 1 was to retire after attaining the age of 60 years. According to him he successfully completed the probation period and was confirmed by the petitioner. His last drawn salary was Rs. 24,000/ - per month. His last tenure of service with the petitioner was Dispatcher/Traffic Assistant as has been mentioned in the salary sheet. According to him the employment was exclusively of clerical nature and he is the workman within the definition of 'workman' as defined in Section 2(s) of the Industrial Disputes Act, 1947 ('Act' in short). It was the case of the respondent No. 1 that there was a discontentment amongst the employees due to unfair practices of the petitioner in the payment of increments, bonus, allowances and other facilities. He was deprived of medical facilities, insurance benefits, shift allowance, night allowances and authorized leaves etc. The union has been raising demands against the petitioner. The petitioner resorted to illegal and malicious means of pressurizing and coercing the employees to furnish fresh bio -data along with photographs in order to make the regular employees as contract employees. The employees were threatened, to sign the contract for fixed term appointment. It was the case of respondent No. 1 that the petitioner was resorting to anti -labour practices and they used to subject the employees to sign blank papers, vouchers and agreements under duress with the threat of termination in case anyone refused to do so. The petitioner with mala fide intention of terminating the services of the respondent No. 1 forced him to sign a fresh service contract of fixed term appointment of one year in the year 2002 after more than 18 years of dedicated service. It was also his case that his services were extended on year to year basis in 2002 -03, 2003 - 04, 2004 -05, 2005 -06. Unfortunately after December 30, 2006, without assigning any reason whatsoever the petitioner wrongfully and illegally terminated his services by not extending the illegally fixed term of the service contract.

(3.) THE Tribunal answered the reference by holding that the respondent No. 1 was a workman, the basis being, the respondent No. 1 was performing clerical duties and there was no employee under him whose work he was required to supervise and report. Further the Tribunal also held that it is a well settled position of law that for determining the question whether a person employed in a industry is a workman or not, not only the nature of work performed by him but also the terms of appointment in the job performed are also relevant consideration and undue importance need not be given to the designation of employee.