Delhi District Court
Delhi vs Uma Devi & Ors. And (2006) 2 Scc on 2 September, 2008
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IN THE COURT OF SHRI SANJAY GARG : POLC : V : KARKARDOOMA:
DELHI.
ID No. 325/03
B E T W E E N
The Management of M/s. Indraprastha Gas Ltd., Jeevan Bharti Building. Tower
th
II, 10 Floor, Connaught Circus, New Delhi01.
A N D
The workman Sh. Zile Ram S/o Late Ram Dass, C/o Vyapar Tatha Udyog
Karamchari Sangh, 118, Kishanganj Market, Old Rohtak Road, Kishanganj,
Delhi07.
DATE OF INSTITUTION : 09.7.2003
DATE OF CONCLUDING ARGUMENTS : 03.9.2008
DATE OF AWARD : 12.9.2008
A W A R D
The Secretary (Labour) Govt. of N.C.T. of Delhi has referred the Industrial
Dispute for adjudication to this Court vide Order No. F.24(4561)/2002Lab./1854
58 dated 17.4.2003 in the following terms of reference :
'Whether the services of Sh. Zile Ram S/o Late Ram Dass, C/o
Vyapar Tatha Udyog Karamchari Sangh, 118, Kishanganj
Market, Old Rohtak Road, Kishanganj, Delhi07 have been
terminated illegally and/or unjustifiably by the management, and
if so, to what sum of money as monetary relief along with
consequential benefit in terms of existing laws/Government
notification and to what other relief is he entitled, what directions
are necessary in this respect?'
2. The facts of the case as brought out by workman in his statement
of claim are that he was working continuously with the management since 2.2.01
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as a Driway Sales man (DMS) on the last drawn wages of Rs.3980/. He was
working sincerely and honestly. During service he was not provided statutory
benefits when orally he demanded these facilities management got annoyed with
him. His signatures were taken on blank papers and vouchers. Management
used to threaten him to terminate him. On the directions of the management he
used to work on different petrol pumps. He was never issued any show cause
notice or charge sheet. On 22.5.02 suddenly he was terminated from service.
Against the unfair labour practices of the management, through union he made a
complaint to Asstt. Labour Commissioner dated 1 9.6.02. He sent a demand
notice dated 25.6.02 to the management through Regd. AD and UPC. He filed a
statement of claim before conciliation officer dated 2.7.02 but management did
not participate there. It is stated that he has been terminated illegally by the
management contrary to principles of Section 25 F of I.D. Act. He sought relief
of reinstatement and back wages.
3. Management contested the claim and filed written statement taking
preliminary objection that there existed no employeremployee relationship
between the claimant and the management. It is stated that the claimant was
engaged by the contractor. Management is the principle employer having
registration certificate under the Contract (Regulation and Abolition) Act, 1948
and contractor had the licence. It is stated that claimants terms and conditions
of service were determined by the contractor by whom he was engaged. His PF
and ESI contributions were remitted by the contractor separately in their
accounts. It is stated that appropriate Government in the present case is Central
Government and the Govt. of NCT of Delhi has no jurisdiction to sent this
reference. On merits it is stated that the claimant was engaged by the contractor
and as per the contract agreement all the statutory benefits as applicable were
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being provided to the claimant by the contractor. It is stated that management
never asked the claimant to sign blank papers or blank vouchers. It is denied
that the claimant was working at gas pumps/stations under the supervision and
direction of the management. It is stated the claimant was working direct and
under control of the contractor.
4. Workman filed rejoinder reiterating the submissions made by him in
his statement of claim and denying the averments made by management in its
written statement.
5. On 26.7.04 from the pleading of the parties, the following issues for
trial were framed:
(1) Whether there existed a relationship of employee and employer
between the parties?
(2) As per terms of reference.
6. In evidence workman tendered his affidavit Ex. WW1/A and relied
upon documents Ex.WW1/1 to Ex.WW1/10. Ex.WW1/1 to Ex.WW1/5 are the
credit slip of the management bearing the signature of the workman. Ex.WW1/6
is the list of the employees being given salary for the month of October 2001 and
Diwali Gift by the management. Ex.WW1/7 is the copy of demand notice dated
25.6.02. Ex.WW1/8 and 9 are the postal receipts of sending the demand notice. Ex.WW1/10 is the claim filed by the workman before conciliation officer. Management examined its Chief General Manager (Marketing) Sh. Ashim Batra as MW1. He filed affidavit Ex. MW1/A and relied upon documents Ex.MW1/1 to Ex. MW1/2.
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7. Heard the arguments of Sh. O.P. Tiwari Ld. AR for the workman and Sh. B.K. Singh Ld. AR for the management. AR for management has also filed written submissions. Perused the case file scrupulously. My issuewise findings are as follows:
ISSUE NO.1
8. The stand taken by management is that claimant was not in their employment, he was engaged by the contractor and there was a contract/agreement between M/s. Indraprastha Gas Limited and the Contractor. Ld. AR for the management submitted that the burden lay upon the workman to establish his relationship with the management. In support of his contentions he has relied upon Workmen of Nilgiri Coop. Marketing Society Ltd. State of Tamil Nadu and Ors.: 2004 LLR 351.
9. During his cross examination workman has admitted that no appointment letter was given to him by the management. ESI card was not issued to him and PF was not deducted from his salary. Claimant admitted that he has no proof to show that he used to receive salary from the management. However he denied the suggestion that he was working under a contractor and had no direct relations with the management. On the other hand management witness Sh. Ashim Batra Chief General Manager (Marketing) deposing as MW1 has stated that claimant was neither appointed nor was in the employment of the management. He has stated that management has a set procedure for appointing employees on its rolls, firstly the vacancy is advertised in the newspaper thereafter on receipt of the application, the same are scrutnized and eligible candidates are called for interview by the selection committee and a merit list is prepared subject to vacancy and requirements. If a candidate is 5 found suitable he is given an offer of appointment and then employees are taken on probation for a particular period. During cross examination MW1 stated that he has no personal knowledge about this case and he is deposing on the basis of record. MW1 has further stated that he has never seen the attendance and wages register of the employees of the management for 20012002.
10. Ld. AR for management submitted that management has a set procedure for taking employees on its rolls and claimant has nowhere stated that he followed the procedure for his appointment with the management. Ld. AR further contended that such adhoc appointments or daily wager or persons who work through contractor with the management cannot be regularised at any cost. In support of his contentions he has relied upon 2006 (4) SCALE the case titled Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. and (2006) 2 SCC 702 the case titled MP Housing Board and Anr. Vs. Manoj Shrivastava.
11. Both these judgments relied upon by AR for management, are regarding appointments made by Government or its different departments and instrumentalities. But, what status of the management is, whether its a Central Government, Undertaking or Government promoted company, it is nowhere explained by the management.
12. Ld. AR for management submitted that vide order dated 9.4.07 directions were given by this court to the management to produce certain record comprising muster rolls and wages register for 20002002 but these records were deliberately not produced by management. It is argued that non compliance of this order of the court by management requires to take adverse inference against the management. I agree with this contention raised by Ld. 6 Counsel for workman that management has deliberately not complied with this order and adverse inference is required to be taken against it. Reliance is placed upon Automobile Association of Upper India Vs. Presiding Officer Labour Court No.2 & Anr. 2006 LLR 851 The Hon. Justice Gita Mittal has held that:
" Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and anciliary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced in these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favour of the workman."
13. It is the stand of the workman that management has not provided any appointment letter to him and even ESI and PF was not deducted from his salary. Though primarily law is settled that burden lies upon workman to establish employeremployee relationship with the management but as already noted, as per law, workman has a right to establish his engagement and appointment by making the management to produce records like attendance register, salary register etc. Reliance is placed upon Automobile Association 7 of Upper India Vs. Presiding Officer Labour Court No.2 & Anr. 2006 LLR 851 (Supra). As already discussed despite the directions on the application moved by workman, management failed to produce attendance register/muster rolls and wages register for the year 20002002 during which workman has claimed to have worked with the management.
14. To rebut the averments made by workman, management has examined MW1 Sh. Ashim Batra, its Chief General Manager (Marketing). His testimony is very brief and cryptic. He has only relied upon two documents one is Ex.MW1/1 the registration certificate of the management under the Contract Labour (Regulation & Abolition) Act,1970 and Ex.MW1/2 i.e. Human Acquisition and Placement Policy of the management. It is apparent from the cross examination of this witness that he is a formal witness having no personal knowledge about the facts of this case. MW1 has stated during his cross examination that he has never seen the attendance and wages register of the employees of the management and he cannot tell the name of the contractor with whom as per the management workman was employed. The specific stand of the management is that workman was engaged by a contractor and his PF and ESI contributions were remitted by the contractor in their accounts. But the management has nowhere disclosed the name of the contractor. To substantiate its plea the management was required to summon the record of the contractor, which could have thrown light on the alleged relationship of the workman with the said contractor. Similarly the PF and ESI contribution record of the said contractor would have also thrown light on the relations of workman and said contractor.
15. From Ex.MW1/1 it only stands established that management was authorised to engage contract labour under Contract Labour (Regulations and 8 Abolitions) Act, 1970 and Contract Labour (Regulations and Abolitions) Central Rules, 1971. From Ex.MW1/2 it stands established that management has a Human Acquisition and Placement Policy dealing with recruitment at different levels. This Human Acquisition and Placement Policy has no mention of existence of any post of a Driway Salesman and its recruitment procedure. Management has nowhere denied that there existed no such post of Driveway Salesman in their establishment at my level. Ld. AR for management has contended that workman has nowhere alleged that he was recruited by the management after following the procedure laid down by it. In support of his contentions Ld. AR for management has relied upon 2006 (4) SCALE the case titled Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. (Supra). As already noted status of the management is not clear from the pleadings. Whether management is a Government Undertaking or Government Promoted Company has nowhere been explained by the management. Assuming management is a Government Undertaking and has a regular process of recruitment to fill the regular vacancies even then it has been noted that persons are employed without following the regular procedure even through the back door or on daily wages persons are taken in the employment. In Uma Devi (Supra) the Apex Court has commented upon this practice. The relevant para 3 & 43 are as follows :
"3. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per 9 the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily ages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of 10 orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 pf the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article
16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual 11 wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mold the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue is employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs 12 by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
16. As already noted non production of record despite directions, make the court to take adverse inference against the management. Adverse inference is drawn that management deliberately with held the record otherwise the relationship of workman and management could have been established. In view of the aforesaid reasons I hold that workman has been able to establish his employeeemployer relationship with the management. This issue is accordingly decided in favour of the workman and against the management.
ISSUE No.2
17. As held in issue no.1, workman having rendered more than 240 days of continuous service with the management in the preceding year was entitled to protection Section 25 F of I.D. Act. The sole plea taken by the management is of denial of any relationship with the workman. Accordingly termination of the workman is held to be illegal and unjustified.
RELIEF
18. Workman has sought the relief of reinstatement with back wages and continuity of service. In his affidavit workman has deposed that since 22.5.02 the date of his illegal termination he is unemployed and cannot find any service despite best efforts made. Workman has rendered about 15 months of service with the management. What relief will be appropriate under the facts of this case has to be considered now. In my opinion compensation in lieu of reinstatement is the appropriate relief in this case. Reliance is placed upon 13 M/s. Firestone Tyre & Rubber Co. of India (Pvt) Ltd. etc. Vs. The Management & Ors. etc. 1973 (1) SCC 813, the Apex Court has observed in paragraph 32 sub paragraph 10 as under : "10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate Vs. The workmen (1971) 1 SCC 742 within the judicial decision of a Labour Court of Tribunal."
6. In U.P. State Brassware Corporation Limited and another Vs. Uay Narain Pandey, (2006) 1 SCC 479, Hon'ble Supreme Court observed in paragraph 56 as under :
56. A Division Bench of this Court in M.L. Binjolkar Vs. State of M.P. (2005) 6 SCC 224, referring to a large number of decisions, held: (SCC p. 228, para 6) "6 [7]...The earlier view was that whenever there is interference with the order of termination or retirement full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view."
19. Keeping in view the length of service rendered by workman and the period which has passed till date after his illegal termination, in my opinion lump sum compensation of Rs.60,000/ is the appropriate relief for the workman. Reference is answered accordingly.
20. Award is passed in the above terms. Six copies of the award be 14 sent to the appropriate Government. File be consigned to record room.
Dated : 12.9.2008 ( SANJAY GARG )
PRESIDING OFFICER :
LABOUR COURTV:
DELHI.