The document summarizes a judgment from an Industrial Court in Mumbai, India regarding a complaint of unfair labor practice. 1. The complainant, Abhishek Patil, was previously employed by the respondent company Omnitech Infosolutions Ltd. and resigned in October 2013. The respondents calculated Rs. 4,21,773 as the complainant's full and final settlement amount but failed to pay it. 2. The complainant filed a complaint arguing this constituted an unfair labor practice. The respondents argued the court lacked jurisdiction and the complaint was time-barred. 3. The court found it had jurisdiction, the complainant was an employee, and the complaint was not time-barred. It ruled

1. ....1.... Comp. (ULP) No.251/2014
BEFORE SHRI. D.S. SHINDE , MEMBER,
INDUSTRIAL COURT, MAHARASHTRA, MUMBAI
COMPLAINT (ULP) NO.251 OF 2014
Mr. Abhishek Patil,
C/o. Kamgar Aghadi Union,
Hari Ganga Niwas, Brahmeshwar Lane,
Malwani Church, Malad (W),
Mumbai – 400 095. ....Complainant
Versus
1. M/s. Omnitech Infosolutions Ltd.
2. Mr. Atul Hemani, Managing Director & CEO,
3. Ms. Mahalakshmi Chowdhary, Manager­HR,
A­13, Cross Road No.5,
Kondivita Road, Marol MIDC,
Andheri (E), Mumbai – 400 093. .....Respondents
In the matter of complaint of unfair labour
practice u/s. 28 r/w. Items 9 & 10 of Schedule IV
of the MRTU & PULP Act, 1971.
CORAM :­ Shri. D.S. Shinde, Member,
APPEARANCE :­ Shri. A.G. Nagvekar, Advocate for the complainant.
Smt. Pallavi Sharma, Advocate for the respondents.
­ : JUDGMENT ON PRELIMINARY ISSUES VIDE EXH.O­4: ­
(Delivered on 12.01.2015)
1. The complainant Shri. Abhishek Patil was employee in the
respondent establishment. The respondents agreed to pay salary Rs.
62,500/­ p.m. to the complainant. The complainant resigned the services

2. ....2.... Comp. (ULP) No.251/2014
w.e.f.19.10.2013. The respondents did made the full and final settlement
of the legal dues Rs.4,21,773/­ payable to the complainant. The
respondents failed to pay the said amount beside the promise to pay on
or before June 2014. Therefore, the complainant filed the present
complaint. The facts of the case in brief are as follows:­
2. The Respondent No.1 is the company, Respondent No.2 Shri.
Atul Hemani is the Director and Respondent No.3 Ms. Mahalakshmi
Chowdhary is the Manager. There are more than 100 employees in the
establishment. From 30.6.2014 the respondents engaged in unfair labour
practice. By the appointment letter dated 7.1.2011 the complainant was
employed in the establishment of the respondents on the salary of Rs.
62,500/­ p.m. plus other allowances. The respondents satisfied with the
performance of complainant and confirmed in the service by the letter
dated 24.8.2011. For better prospects, the complainant gave the
resignation letter dated 5.6.2013. The respondents accepted the
resignation w.e.f.19.10.2013. The complainant returned all the property
of the respondents with his resignation. The the respondents calculated
full and final settlement amount Rs.4,21,773/­ payable to the
complainant as the legal dues. The complainant made several requests
and sent e­mails; but the respondents did not pay the legal dues.
3. On 15.1.2014 the Respondent No.3 Manager­HR Ms.
Mahalakshmi Chowdhary sent letter on behalf of the respondents dated
15.1.2014 and told the complainant to wait till 2014. The respondents
failed and neglected to discharge the legal dues to the complainant.

3. ....3.... Comp. (ULP) No.251/2014
Therefore, the complainant filed the present complaint for the relief to
declare that the respondents engaged in an unfair labour practice under
Items 9 & 10 of Schedule IV of the MRTU & PULP Act, 1971; desist the
respondents to continue the unfair labour practice, direct the respondents
to discharge the legal dues Rs.4,21,773/­ with interest @12% and cost of
proceeding Rs.50,000/­; also filed the application for interim relief to
restrain the respondents of shifting and disposing the establishment and
machinery.
4. The respondents filed written statement at Exh.C­3 and
resisted the complaint. The respondents contended that the complaint is
false and the averments are denied in toto. The respondents contended
that the Court has no jurisdiction to entertain the complaint. The
complainant is not employee within the meaning of definition 'employee'
u/s.3(13) of the Bombay Industrial Relations Act, 1946 (Now
Maharashtra Industrial Relations Act) and u/s.2(6) of the Industrial
Disputes Act, 1947. The salary of the complainant is more than Rs.
6,500/­ p.m. as stated u/s.3(13) of the Maharashtra Industrial Relations
Act, 1946 and more than Rs.10,000/­ p.m. as stated in the definition u/s.
2(s) of the Industrial Disputes Act, 1947. The complainant was working
as a Manager and Supervisor. Therefore, the complainant is not entitled
to seek the redress from the Industrial Court.
5. The respondents further contended that full and final
settlement of legal dues made on 19.10.2013. On 15.01.2014 the
complainant sent e­mail and asked for the payment of legal dues. The

4. ....4.... Comp. (ULP) No.251/2014
Respondent No.3 sent reply to wait till 2014. The complaint is not filed
within the period of 90 days, therefore, the complaint is time barred and
not maintainable.
6. The Respondent No.1 is a global IT services company
embracing strong competencies in IT Outsourcing and Managed services
and had delivered measurable business value to the global emerging
enterprises as their Technology Transformation Partner in the past. The
respondents obtained world class quality certifications like ISO
9001:2008, ISO 20000, ISO 27001 & 27002 and BS 25999. In 2013
owing to a general turnaround in the Global IT Industry, its shares were
priced at the upward of a hefty Rs.90 per share before the recession
struck the global IT Industry.
7. The complainant was employee of the Respondent No.1
establishment. The Respondent No.2 is the Director and not concerned
with the appointment, salary, service conditions of the complainant. The
claim raised by the complainant is of recovery of money and can be
redressed by filing the money suit in the Civil Court. The respondents
never engaged in unfair labour practice. The complaint is liable to be
dismissed.
8. The respondents filed an application Exh.C­4 and requested
for framing preliminary issues. The overleaf of the application the
complainant filed reply and prayed to reject the application. After
hearing the arguments, the application Exh.C­4 allowed as per the order

5. ....5.... Comp. (ULP) No.251/2014
dated 31.10.2014. The preliminary issues framed as per the order. The
said preliminary issues and my findings noted thereon for the reasons
stated hereinafter are as follows:­
PRELIMINARY ISSUES FINDINGS
1. Whether the Industrial Court has
jurisdiction to entertain the complaint
for unfair labour practice under Items
9 & 10 of Schedule IV of the MRTU &
PULP Act, 1971?
In the affirmative
2. Does the respondent prove that the
complainant is neither employee nor
workman and the jurisdiction goes to
the Civil Court to entertain such
complaint?
In the negative
3. Whether the complaint is hit by the
period of limitation?
In the negative
4. What order? As per the order below.
­ : R E A S O N S : ­
9. In support of the preliminary issues; the respondents filed
affidavit of Director Shri. Atul Hemani, Respondent No.2 vide Exh.C­5.
When the said Director did not appear for cross examination, further filed
affidavit Exh.C­9 of the Company Secretary Shri. Gaurav Sharma. Further
relied on the agreement about the terms and service conditions entered
with the complainant Annexure 'A'.
10. With the list Exh.U­8 the complainant relied on the letter­

6. ....6.... Comp. (ULP) No.251/2014
cum­agreement of appointment dated 7.1.2011 fixing the terms and
service conditions of the complainant. The organization chart of 2013, e­
mail dated 15.3.2013 sent by the Manager­HR Ms. Mahalakshmi
Chowdhary to the complainant promising that the legal dues shall be
paid in April 2014. Further with the list Exh.U­4, the complainant
produced his confirmation in service letter dated 24.8.2011 issued by the
Manager­HR Ms. Mahalakshmi Chowdhary; the releaving letter dated
19.10.2013 issued by the Manager­HR Ms. Mahalaxmi Chowdhary; the
data report of the legal dues Rs.4,21,773/­ payable to the complainant.
The e­mail sent by the complainant to the Respondent No.2 Shri. Atul
Hemani, Director dated 14.1.2014; the e­mail dated 15.1.2014 sent by
the Company Secretary Shri. Gaurav Sharma to the complainant; e­mail
dated 14.1.2014 sent by the complainant to Respondent No.2 Shri. Atul
Hemani and dated 15.01.2014 by the complainant to the Respondent No.
3 Ms. Mahalaxmi Chowdhary, Manager­HR.
11. As to Issue Nos.1 and 2 :­
Heard the argument of both the advocates for the respective
parties. The Preliminary Issue Nos.1 to 3 are regarding (1) Whether the
Industrial Court has jurisdiction to entertain the complaint for unfair
labour practice under Items 9 & 10 of Schedule IV of the MRTU & PULP
Act, 1971? (2) Does the respondent prove that the complainant is neither
employee nor workman and the jurisdiction goes to the Civil Court to
entertain such complaint? (3) Whether the complaint is hit by the period
of limitation?

7. ....7.... Comp. (ULP) No.251/2014
12. The respondents are relied on the oral evidence of Company
Secretary Shri. Gaurav Sharma at Exh.C­9. In the affidavit; it is
undisputed that as per the employment agreement dated 7.1.2011 the
respondents employed the complainant as a Presales Consultant in the
Grade L­V in the TS­Enterprise Application & Integration (EAI)
Department of the respondent establishment. The employee Code
No.P1262 was alloted to the complainant. The complainant is B.E.
(Electronics) from Mumbai University. The employment of the
complainant from 10.01.2011 confirmed on 24.8.2011. Since 9.7.2011
the status of confirmed employee given to the complainant. As a Presales
Consultant the role of the complainant was to understand the
requirements of customers, employ his technical expertise to ensure
compilation of the relevant documentation and supervising the personnel
to ensure the proposals are submitted to customers with all relevant
technical and commercial details in addition to facilitate the functioning
of the sales team.
13. In his cross examination vide Exh.C­9 the said sole witness of
the respondents admitted that the complainant Abhishek Patil was
working as an Engineer in the respondent establishment. He was
concerned with only legal matters being a Company Secretary. The
nature of work given to the complainant was of technical nature. In the
appointment letter or in the evidence on affidavit, he has not stated name
of the personnel of the respondent company whose work the complainant
was supervising. Also admitted that nowhere in the affidavit name of
other employees given whose work was done under the supervision of

8. ....8.... Comp. (ULP) No.251/2014
the complainant. The respondents closed the evidence by filing
application Exh.C­10. The agreement of terms and conditions of service
produced with list Exh.U­8 by the complainant indicates that the
complainant was appointed as a presales consultant in Grade L­V and
employee Code No.P1262 was given to the complainant. The terms of
employment commenced from the date of appointment and first six
months shall be probation period. The respondents may terminate the
employment by the notice of one month or in lieu of notice period by
making payment of gross salary of one month or in the end of the
probation period by written notice of 24 hours instead of 90 days.
14. The said terms and conditions regarding the termination of
one month notice or 3 months notice before retrechment of the employee
are imposed u/s.25F and Section 25N of the Industrial Disputes Act 1947
under head 'Condition Precedent to Retrenchment of Workman” it
indicates that the complainant was appointed as a skilled employee in
view of the definition of Section 3(13) of the Bombay Industrial Relations
Act, 1946 (now Maharashtra Industrial Relations Act) and u/s.2(s) of the
Industrial Disputes Act, 1947. However, it is incumbent on the
respondents to prove by the oral or documentary evidence as to how the
appointment of the complainant was in a managerial, administrative,
supervisory or technical capacity. On that count; there is no evidence at
all advanced by the respondents.
15. With the list Exh.U­4 full and final data report issued by the
respondents and admitted legal dues payable Rs.4,21,773/­ to the

9. ....9.... Comp. (ULP) No.251/2014
complainant. The complainant is releaved from service w.e.f.19.10.2013.
The period of 4 months passed; but the legal dues did not paid by the
respondents. In the month of January 2014 the complainant sent two e­
mails to the Respondent No.2 Director Shri. Atul Hemani on 7th
and 14th
January 2014. The Respondent No.3, Manager­HR Ms. Mahalakshmi
Chowdhary informed the complainant to wait till April 2014 for his legal
dues. Finally on 15.1.2014 the complainant sent e­mail to the
Respondent No.3 Mr. Mahalakshmi Chowdhary and informed that he has
taken loan from other persons to cater his needs, also informed that like
him the respondents did not clear dues of the people who left the
organization in September 2012 and it was strange that he was informed
to wait till June 2014 to get his salary from the month of June 2013 till
his releaving w.e.f.19.10.2013. The said documentary evidence prima­
facie shows that the complainant was skilled employee­cum­workman,
though he is holding B.E. (Electronics) degree of Mumbai University.
16. The complainant furnished with the list Exh.U­8 the
hierarchy and names of the persons in the establishment. The
Respondent No.2 Mr. Atul Hemani ­ Group CEO, Mr. Ajay Kotkar – CEO
APAC, ED Trautig – CEO Europe. Thereafter Mr. Avinash Pitale – Chief
Operating Officer, Mr. Atul Hemani – Corporate Services, Mr. Anirudha
Modak – Business Unit 1 India, Mr. Devarshi Buch – Business Unit 2
India, subordinate of Mr. Avinash Pitale are viz. Nidhish Lal – Delivery
Head (MS/ISD), Aruna Kapadia; the subordinate of Atul Hemani are Ravi
Khurana – Finance & Accounts, Farzana Adenwalla – Human Resources
(HR), Gaurav Sharma – Legal and Secretarial; the subordinate of

10. ....10.... Comp. (ULP) No.251/2014
Anirudha Modak – Business Unit 1 India are Francis D'Souza – Practice
Head (MS), Mihir Mohanty _ Pre­Sales, Rajish Rajan – Practice Head
(AS), Prakash Seemani – Practice Head (BFSI), Amit Patil – Zonal Head
(West), Hamendra Bansal – Zonal Head (North), Kosal Shraff – Zonal
Head (South), Ayan Mitra – Marketing Head; the subordinate of Devarshi
Buch – Business Unit No.2 India is the Delivery Head Mr. Anil Singh.
17. While looking to the hierarchy for the administrative and
managerial posts; it is obvious that nowhere name of the complainant is
shown to work in managerial, supervisory capacity. The complainant was
employee with Code No.P1262 working for business unit for application
service in the department of enterprises application and integration and
designation, subject matter expert grade L­III, reporting to practice leader
– ADM & EI. The appointment letter indicates that the complainant was
employee­cum­workman in the establishment of the respondents. The
complainant has not received the agreed amount of legal dues­cum­salary
total Rs.4,21,773/­. The breach of the terms of service conditions and
withholding wages amounts unfair labour practice under Item 9 of
Schedule IV of the MRTU & PULP Act, 1971. Believing that the
respondents will pay the said legal dues of salary to the complainant after
releaving the complainant on 19.10.2013 the complainant wait till June
2014.
18. The complainant was instructed to wait till June 2014. The
complaint is filed in the Court on 1.9.2014 i.e.within 90 days from the
date when the complainant realized that the respondent is not likely to

11. ....11.... Comp. (ULP) No.251/2014
discharge the legal dues in compliance of the terms of service conditions.
There is no one month notice or even 24 hours notice issued and no
compensation. Therefore, prima­facie it seems that the respondents
engaged in unfair labour practice under Item 9 of Schedule IV of the
MRTU & PULP Act, 1971. Therefore, the Industrial Court has jurisdiction
to entertain the complaint of unfair labour practice. The respondents
failed to establish that the complainant was working in administrative
and managerial capacity in the respondent establishment. The
complainant being a B.E. (Electronics) Engineer was working as a
Technical Assistant and the respondents did not pay the agreed legal dues
Rs.4,21,773/­. Therefore, the complainant invoked the provisions of
Section 28 r/w. Items 9 & 10 of Schedule IV of the MRTU & PULP Act,
1971 against the respondents. The complainant wait because the word
was given by the Respondent No.3 Ms. Mahalakshmi Chaowdhary,
Manager – HR of the respondent establishment till April 2014 and was
informed to wait till June 2014. Therefore, filing of the complaint within
the period of 90 days not barred by the period of limitation.
19. The advocate Shri. A.G. Nagvekar for the complainant placed
reliance on the observation of the Hon'ble Supreme Court in the case of
Ananda Bazar Patrika (P.) Ltd. V/s. The Workmen, reported in 1969­
FLR­186. In the said case, it is laid down “whether a person is employed
in a supervisory capacity or for clerical work, depends upon whether the
main and principal duties carried out by him are those of a supervisory
character, or of a nature carried out by a clerk. If a person is mainly
doing supervisory work, but, incidentally or for a fraction of the time,

12. ....12.... Comp. (ULP) No.251/2014
also does some clerical work, it would have to be held that he is
employed in supervisory capacity; and, conversely, if the main work done
is of clerical nature, the mere fact that some supervisory duties are also
carried out incidentally or as a small fraction of the work done by him
will not convert his employment as a clerk into one in supervisory
capacity. It is held that few minor duties of a supervisory nature cannot
convert his office of senior clerk­in­charge into that of a supervisor.
20. Further reliance is placed on the observation of the Hon'ble
Supreme Court in the case of S.K. Maini V/s. Carona Sahu Company
Ltd. & Ors., reported in 1994­II­LLN­450. In the said case, it is
observed that test to determine whether employee is “workman” ­ To be
determined with reference to principal nature of duties and functions and
not designation – Shop Manager In­charge of a local shop of a big
company. Held, is not a workman, though incidentally he is required to
do some clerical work or is not vested with power to appoint or discharge
employees under him. It is held that whether or not an employee is a
workman under S.2(s) of the Industrial Disputes Act is required to be
determined with reference to his principal nature of duties and functions.
The designation of an employee is not of much importance and what is
important is the nature of duties being performed by the employee. The
determinative factor is the main duties of the concerned employee and
not some works incidentally. Conversely, if the main work is of manual,
clerical or of technical nature, the mere fact that some supervisory or
other work is also done by the employee incidentally or only a small
fraction of working time is devoted to some supervisory works, the

13. ....13.... Comp. (ULP) No.251/2014
employee will come within the puriew of workman as defined in S.2(s) of
the Industrial Disputes Act, 1971.
21. Therefore, I answer Preliminary Issue No.1 in the
affirmative, No.2 in the negative, No.3 in the negative and proceed to
pass the following order.
~: O R D E R :~
1. The complaint shall proceed for hearing on test of the
issues framed today vide Exh.O­6.
2. The respondents are directed to deposit the legal dues
Rs.4,21,773/­ in the Court under protest.
3. No order as to costs.
Sd/­
Date : 12.01.2015 (D.S. SHINDE)
Member,
Place : Mumbai Industrial Court, Mumbai
Sd/­
(A.S. JAGDALE)
Registrar,
Industrial Court, Mumbai
(DATE : ­ / /2015)
Agp/13.01.2015
file/home/sm1/Palkar/D.S. Shinde/Judgment/2015/January/Comp.(ULP) 251­14 (PP)