BEFORE THE HON’BLE ELEVENTH LABOUR COURT AT MUMBAI .

APPLICATION (IDA) NO 72 of 2019

Manasi Prasad Pandey …… Applicant

V/s

G.A.Corporation and ors …… Opponents

WRITTEN STATEMENT OF ‘OPPONENT NOS 1, 2 and 3

(HEREINAFTER REFERRED TO AS 'OPPONENTS’)

1. At the outset, the Opponents denies each and every statement,

allegation, averment and submission made by the Applicant in

the present Application that is contrary to and/or inconsistent

with what is stated herein. These Opponents should not be

deemed to have admitted anything unless the same is expressly

admitted by these Opponents herein.

2. At the further outset, these Opponents states and submits that

the present Application, as filed before this Hon’ble Court is an

abuse of the process of this Hon’ble Court and has been filed

merely with a view to harass the Opponents and extract monies

from these Opponents and on this ground alone the present

Application deserves to be dismissed with exemplary costs.

3. The Opponents states that there is no entity as Opponent No. 4

known to and under management of Opponent No. 2 and 3

herein.

4. At the further outset, these Opponents submits that the

Application is misconceived, not maintainable, bad in law and

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ought to be rejected on the following, amongst, other grounds,

each of which is taken in the alternative and without prejudice to

one another:

(a) At the outset, the Opponent states that this Hon’ble

Court, i.e. Labour Court has no jurisdiction to entertain, try

and dispose off the present Application. A bare perusal of

the Application, as filed and in reference to the relevant

provisions of law, it becomes amply clear that the alleged

claim of the Applicant is not covered within the ambit of

Section 33(C) of the Industrial Disputes Act, 1947 and thus

this Hon’ble Court will have no jurisdiction to entertain, try &

dispose off the present Application and on this ground alone

the present Application deserves to be dismissed in

limine..It is respectfully submitted that the Applicant is not a

‘workman’ within the meaning of Section 2 (s) of the

Industrial Disputes Act, 1947, as admittedly he was last

employed as 'Executive-Sales Administration’ in the

management cadre. The Applicant was mainly employed in

a managerial, supervisory and/or administrative capacity

and in any event not employed to do any clerical, skilled,

unskilled, technical or operational work. The same has been

admitted by the Applicant as can be seen from his

designation mentioned in the Annexures to the Application

which itself confirms that the Applicant was engaged on a

senior or an executive level and was thus acting in a

supervisory capacity and cannot treated to be a Workman

within the meaning of Section 2 (s) of the Industrial

Disputes Act, 1947. Further, the Applicant was drawing

gross salary of Rs 21,796/- per month, which is much

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beyond the wage ceiling of workman, as contemplated in

Clause IV of Section 2 (s) of the Industrial Disputes Act,

1947 (as amended from time to time till date). Hence, the

Applicant cannot, by any stretch of imagination be treated

as a workman, as defined in Section 2 (s) of the Industrial

Disputes Act, 1947.

(b) The Opponents submits that in the present case, the very

basis of the alleged claim or the entitlement of the Applicant is

itself, disputed by these Opponents. There has been no earlier

adjudication or recognition thereof by the Opponents and

therefore the claim is outside the scope of the proceedings

under Section 33 C (2) of the Act. The Applicant has raised the

present claim after a period of around 31 (thirty one ) months

from the date of his resignation. This shows that the Applicant

was doubtful about the maintainability and hence delayed in

filing the present Application as the same is nothing but an

afterthought, merely with a view to harass this Opponent. Hence

on this ground also the present Application deserves to be

dismissed with compensatory costs.

(c) The Applicant is not entitled to any reliefs as it suffers from

Rule of suppressio veri and suggestio falsi as he has

deliberately suppressed the fact that he was employed in non-

workman category and the Applicant is also guilty of abusing the

process of this Hon’ble Court. The Applicant has also

suppressed various other facts from this Hon’ble Court. Thus

the Applicant has not approached this Hon’ble Court with clean
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hands and on this ground also, the present Application deserves

to be rejected.

(d) The Opponent submits that having regard to the claim made

in said Application, the same is not maintainable under Section

33 C(2) of the Industrial Disputes Act, 1947 (hereinafter referred

to as ' the Act') and this Hon'ble Court has no jurisdiction to

entertain and try the present Application of the Applicant and,

therefore, it ought to be dismissed as not maintainable.

(e) The Application is not for enforcement of existing rights but in

fact the Applicant by filing the present Application is seeking

creation of new rights in his favour. It is well settled law that this

Hon'ble Court in its limited jurisdiction under Section 33 C (2) of

the Act and as such cannot entertain Application.

(f) The Application is bad for misjoinder of parties. The

Opponent 4, to the knowledge of the Applicant, is not a legal

entity. Further the Applicant was the employee of Opponent No.

1 and has no privity of contract whatsoever with other

opponent/s No. 2 and 3.

(g) The present Application is barred by limitation. The Applicant

has filed the present application only in July 2019 after a period

of 31 ( thirty one ) months and no sufficient cause is given for

delay.
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The aforesaid objections go to very root of the jurisdiction of this

Hon'ble Court to try and entertain the present dispute and therefore it is

prayed that the same is tried as preliminary issue.

The facts of the case are as follows:

5.The Opponent No 1 is one of India's leading property development

company, with over vast experience in developing, building, managing

and leasing property and other allied real-estate related services

catering to both individual and corporate customers.

6.The Applicant was appointed as Executive-Sales Administration. The

Applicant was drawing a salary of Rs 25,000/- per month. The

Applicant was required to look after Sales and Administration. The

Applicant was responsible for supervising and managing the Staff and

subordinate staff directly working under her and if work was not done

properly, used to correct and guide them. She had powers to

superintend and give directions to others. The Opponent craves leave

to refer to her records in Sales/ Administration department maintained

in normal course of business. Thus the Applicant was employed as

Executive- Sales & Administration in a supervisory capacity and was

drawing a salary of more than a sum of Rs. 10,000/-. Further, the

Applicant was mainly employed in a managerial, supervisory and/or

administrative capacity and in any event not employed to do any

clerical, skilled, unskilled, technical or operational work. On this ground

alone, the Application ought to be dismissed.

6. The Applicant was appointed by the Opponent No. 1 as Executive-

Sales & Administration vide an appointment letter dated 2n January

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2015. As per the said appointment letter, the Applicant was initially on

probation on monthly salary of Rs 23,000/- p.m for a period of six (6)

months from the date of joining. During the probation, besides the

salary the Applicant was not entitled to any other benefits till the time

the Applicant was on probation. The appointment letter clause 8 also

dealt with the cessation of services whereby it was agreed that the

services of the Applicant shall be liable to be terminated by this

Opponent No. 1 at any time with prior notice of one month or Salary in

lieu thereof and without assigning any reasons. In case of disciplinary

action, no notice period shall be applicable. Further, it was agreed that

if the Applicant desires to leave the services of Opponent No. 1, the

Applicant shall be required to give one month prior notice (upto AGM

level) & Two months DGM & Above level) or pay in lieu of notice. It is

the case of the Applicant that she was in service till 10 th November

2011 and that she was relieved from his services with effect from the

said date. The Applicant states that the Applicant had addressed an

email dated 21st October 2016 stating that she be relieved from 21 st

October 2016. This Opponent No. 1 states that in accordance with the

terms as stated in the appointment letter more specifically clause 8, the

Applicant was required to serve a notice period or pay in lieu of the

notice for a period of one month. It therefore cannot be said that the

Applicant has served notice period of one month or given proper

resignation letter as per the terms and conditions of his appointment

letter Thus the Applicant has abruptly left the services of the Opponent

No. 1 company without properly resigning or giving the requisite notice

as per the mutually agreed terms and conditions of appointment letter.

The full and final settlement could not be processed. The Applicant

states that even the individual appointment letter states that in case of

no proper handover, Applicant shall not be entitled to receive any dues

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or arrears from the Opponent No. 1 company. It is pertinent to note that

there is no any claim or grievances made in the resignation letter

regarding any pending salary. The Opponents states that the claim

made by the Applicant is disputed.

7. The Applicant has filed the present application only in July 2019

after a period of 31 months and no justifiable sufficient cause /reasons

is given for delay. The Application is barred by limitation or principles

analgous to limitation and suffers from various delays and latches on

the part of the Applicant.

Without prejudice to the aforesaid, the Opponent would deal with the

Application seriatim as follows:

8. With reference to paragraph 1 of the Application, it is denied that

the Applicant was employed as a “workman’ of the Opponent No 1 as

alleged and the Opponents puts the Applicant to the strict proof

thereof. It is denied that the Applicant is entitled to receive from the

Opponents any money or benefits as alleged.

9. With reference to paragraph 2 to 11 of the Application, the

Opponents denies each and every statement, submission and

allegation made in the said Application and annexure and reservres its

right to give their submissions at the appropriate forum since the

Application is prima facie not maintainable before this Hon’ble Court.

Mumbai dated this day of October 2019

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V E R I F I CATI O N

We, Shri ____________________________an Authorised signatory

of Opponent No. 1, (ii) Mr. Anubhav Aggarwal (Opponent No. 2) and

(iii) Mr. Gokul Aggarwal (Opponent No. 3), the Opponents do hereby

verify that whatever stated above is true to our knowledge and belief .

(i) Shri ___________________________

Authorised signatory of Opponent No. 1,

(ii) Mr. Anubhav Aggarwal (Opponent No. 2) and

(iii) Mr. Gokul Aggarwal (Opponent No. 3),

Mumbai dated this day of October 2019