Delhi District Court
Sh. Dinesh Kumar vs Ms Delhi Technological University on 26 October, 2023
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref: F. 24 (670-671) /11/ NWD/ (296) / 12 / Lab. /6646-50
Dated. 06.08.2012
POIT NEW NO.:747/2016
POIT OLD NO.: 93/2012
Workman
Sh. Dinesh Kumar
S/o Shri Kartar Singh,
R/o H. No. B-15, Pradhan Wali Gali No. 3,
Johripur, Delhi-94.
Through
Delhi Labour Union, Agarwal Bhawan,
G.T. Road, Tis Hazari,
Delhi-110 054.
Vs.
The Management of
The Delhi Technological University
(formerly Delhi College of Engineering).
Through its
Vice Chancellor, Govt. of NCT of Delhi,
Shahbad Daulatpur, Bawana Road,
Delhi..
Date of Institution : 12.09.2012
Date of presentation : 15.04.2023
before this court
Date of Arguments : 26.10.2023
Date of Award : 26.10.2023
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the parties
POIT No. 747/2016 Page 1 of 37
named above for adjudication to this Tribunal with following terms of
the reference:-
"Whether termination of services of Shri Dinesh Kumar
S/o Shri Kartar Singh by the management is illegal
and/or unjustified; and if yes, to what relief is he
entitled;
and whether he is also entitled to wages as is
admissible to this regular counterparts, during his daily
wage period, and if so, what directions are necessary in
this respect?"
"Whether Sh. Dinesh Kumar S/o Sh. Kartar Singh is
entitled to regularization on the post of peon in proper
pay scale and if so from which date and what directions
are necessary in this respect?"
2. Statement of claim has been filed on behalf of the workman,
wherein it has been stated that the workman Shri Dinesh Kumar
initially joined into the employment of the Delhi College of
Engineering (now known as Delhi Technological University) w.e.f.
01.05.1993 as a Waterman and w.e.f. 01.11.1993 he was working as
Peon. He was paid his wages as fixed and revised from time to time
under the Minimum Wages Act. He has unblemished and
uninterrupted record of service to his credit. That the services of the
workman have been terminated w.e.f. 02.04.1994 under oral orders
without assigning any valid reason thereof.
2. That the workman raised an Industrial dispute regarding said
illegal termination of services and said Industrial Dispute was
disposed of vide Award dated 19.07.2003 passed by Sh. Lal Singh,
the than Presiding Officer Industrial Tribunal No-III, Delhi in 1.D.
bearing No. 28/2002. As per said award, the workman concerned
POIT No. 747/2016 Page 2 of 37
was held entitled for reinstatement in services with continuity of
service and full back wages.
3. Thereafter, the management challenged that Award by filing a
writ petition bearing No.12490/2004 in the Hon'ble High Court of
Delhi and said writ petition has also been dismissed vide Order
dated 19.08.2004 passed by Hon'ble High Court of Delhi.
Management challenged the order dated 19.08.2004 passed by
Hon'ble High Court by filing an LPA No. 100/2005 and vide order
dated 27.09.2006 said appeal was allowed.
4. Thereafter, the workman filed an SL.P. (C) No. 551/2007 in
Supreme Court against order dated 27.09.2006, whereby Hon'ble
Supreme Court vide order dated 13.05.2008, set aside the judgment
and order of the Division Bench of the Delhi High Court in LPA No.
100/05, and modify the Award to the extent of reducing the payment
of back wages to 50% and not 100% as directed by the Tribunal and
further directed that such payment should be made within a period
three months from date. Accordingly, the workman joined duties
wef 01.08.2008 & Back wages @ 50% were also paid by the
management. That the workman is in continous employment of the
management w.e.f. 01.05.1993, but his services were not regularised
by the management and being aggrieved of the illegal and
unjustified action on the part of the management, the workman sent
a legal notice dated 15.09.2011 which was duly received in the
office of the management but no reply to the said notice was
received and it was presumed that the demand of the workman
pertaining to the regularization of his services was rejected.
Thereafter, the workman filed a Statement of Claim before the
POIT No. 747/2016 Page 3 of 37
Assistant Labour Commissioner/ Conciliation Officer, Govt. of
NCT of Delhi, Ashok Vihar, Nimri colony, Phase- IV. Delhi seeking
therein regularization of his services.
5. That the workman is being threatened by the management
that his services will be terminated. That the threat terminating the
services of the workman by the management amounts to
victimization of the workman. That the apprehended termination of
service of the workman is arbitrary, discriminatory malafide and
same is violative of Article 14, 16 and 21 of the Constitution of
India. Furthermore, it also amounts to exploitation of labour. That
no seniority list was displayed, no notice, notice pay or service
compensation was either given or offered to the workmen during
termination of his service, therefore, the same is in violation of
Section 25F, G & H of I.D. Act. It is prayed that termination of the
workman may kindly be held illegal and he be held entitled for
reinstatement in services with continuity and full back wages.
Besides this the workman be also held entitled for regularization on
the post of Peon in proper pay scale and allowances with
retrospective effect from 01.11.1993 and all arrears of payment on
the principle of "Equal Pay For Equal Work" alongwith all other
consequential benefits, monetary or otherwise along with cost of
litigation u/s 11(7) of I.D. Act.
6. Written Statement was filed on behalf of the management,
wherein it has taken objections that in the present case, the reference
has been made by the Secretary (Labour), Govt of NCT Delhi, who
is not competent to make the reference as there is no legal and valid
delegation of powers in his favour to make such a reference and
POIT No. 747/2016 Page 4 of 37
hence, proceedings are bad in law; That the term of reference has
been made mechanically and without application of mind; That the
management is not an industry u/s 2 J of the industrial Dispute Act,
1947. The Management is a Govt. Department. The Statement of
claim has been filed with ulterior motives. Hence, the present
proceedings are without any jurisdiction and as such the reference is
liable to be dismissed straightway; That in the present dispute, the
case of the claimant has not been espoused by the number of
claimants and the reference as well as the resultant proceedings are
bad in law and are liable to be rejected being without proper
espousal as required under the law; That the workman was not
working against any sanctioned post or the permanent post and as
such he is not entitled for re-instatement and his claim is liable to be
dismissed; That the term of reference is not maintainable as Shri
Dinesh Kumar Joined the Delhi Collage of Engineering (now Delhi
Technological) w.e.f 01.05.1993 as a waterman and w.e.f 01.11.1993
he was working as peon on fixed wages and revised time to time
under the minimum wages Act. The services of the workman were
terminated w.e.f. 02.04.1994. Since there was no requirement of his
services. After a gap of 7 year, i.e in the year 2001, he raised a
dispute before the Labour Commissioner. That in compliance of the
directions of Hon'ble Supreme Court vide order dated 13.05.08, the
department reinstated the worker on the same position purely on
daily wages at the rate as applicable according to Minimum wages
Act. That the workman was also paid 50% back wages i.e Rs.
2,13,196 vide office order no F.135/CC/SC/Dinesh/7430-37 dated
19.09.08. Hence the claim of the worker as such is liable to be
dismissed.
POIT No. 747/2016 Page 5 of 37
7. That the term of reference is not maintainable as after the
Sixth Central Pay Commission, all Group 'D' posts stand upgraded
and incumbents working on regular basis on Group 'D' have been
placed in Pay Band -1, i.e. Group 'C'. Such Group 'C' when fall
vacant in future will not be filled and the same will be manned
through out-sourcing agency only. There is no daily wager engaged
by the respondent as under no provision of law, the claimant can
claim his absorption with the Management. There are notified and
set recruitment rules for regular appointment to various posts in the
Management and under no circumstances, the management can
deviate from such rules. If the claimant working with the contractor
is allowed to be regularized, it would tantamount to entry into public
service through back doors and the system will be vitiated by not
following any regulations of recruitment of staff on a permanent
basis.
8. Since, the term of reference is not maintainable as taking into
consideration the fact that at present there is no requirement of any
daily wager in the University for the reason that the requirement is met
through outsourcing agency. As such following section 25 F of the ID
Act, Shri Dinesh Kumar S/o Shri Kartar Singh was thereby given
wages in view of one month notice of retrenchment, along with
retrenchment compensation as applicable in compliance under Section
25F of Industrial Disputes Act, 1947, and was retrenched from service
with immediate effect as his services were no more required by the
university w.e.f. 15 October, 2011 and was relieved from his duties
w.e.f. 15.10.11 (After noon). That a Cheque was issued on 12.10.11 for
the amount of Rs. 63,180/- while his application was filed on 13.10.11
POIT No. 747/2016 Page 6 of 37
i.e, after the issuance of cheque, thus there is no question of
apprehended termination.
Rest of the contentions of the statement of claim were also
denied.
9. After the pleadings of parties following issues were framed by
my Ld. predecessor on 16.04.2013.
(i) Whether the management is 'industry' under Section 2 (j)
of Industrial Disputes Act? OPW.
(ii) Whether the present claim of the workman has been
properly espoused by the Union?OPW
(iii) As per terms of reference. OPW
10. To prove his case the workman examined himself as WW-1 and
filed an affidavit Ex. WW1/A in lieu of examination in chief and relied
upon Ex. WW1/1 to Ex. WW1/24. The workman also examined the
General Secretary of the Union, Sh. Surender Bharadwaj as WW-2,
who also filed an affidavit Ex. WW2/A in lieu of examination-in-chief
and relied upon Ex. WW2/1. Both WW-1 and WW-2 were duly cross-
examined by ld. AR for the management.
11. Per contra, the management examined one Sh. Bimal Jain,
Project Officer, Delhi Technological University, GNCT Delhi, Bawana
Road, Delhi as MW-1 and filed an affidavit Ex. MW1/A in lieu of his
examination-in-chief. He relied upon Ex. MW1/1. Thereafter, the said
witness was also cross-examined by the A.R. for the Workman.
12. Arguments heard as addressed by both the parties. I have gone
through the pleadings, documentary as well as oral evidence on record.
13. My issue wise findings are:-
POIT No. 747/2016 Page 7 of 37
Issue No. 1:
Whether the management is 'industry' under Section
2 (j) of Industrial Disputes Act?OPW
14. Before addressing the merits of the present case, the
management contends that the university i.e. Delhi Technological
University is a government department, therefore, the same does not
fall under section 2(j) of the Industrial Disputes Act. Therefore this
tribunal does not have jurisdiction to decide the present matter and
as such the reference is liable to be dismissed straightaway.
15. The argument of the management is merely a bald argument
without any basis whatsoever. Meaning thereby, just because the
management is a government institution/department that does not
preclude the government from falling under the purview of section
2(j) of the Industrial Disputes Act.
16. The Hon'ble Supreme Court in Bangalore Water-Supply &
Severage Board v. R. Rajappa & Others, 1978 AIR 548, had held
that:
"10. 'Industry', as defined in Sec, 2 (j) and explained in
Banerji, has a wide import.
(a) Where (i) systematic activity, (ii) organized by co-
operation between employer and employee, (the direct and
substantial element is chimerical) (iii) for the production
and/or distribution of goods and services calculated to satisfy
human wants and wishes (not spiritual or religious but
inclusive of material things or services geared to, celestial
bliss e.g. making, on a large scale, prasad or food), prima
facie, there is an 'industry' in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant,
be the venture in the public, joint private or other sector.
(c) The true focus is functional and the decisive test is the
nature of the activity with special emphasis on the employer-
employee relations.
POIT No. 747/2016 Page 8 of 37
(d) If the Organisation is a trade or business, it does not
cease to, be one because of philanthropy animating the
undertaking.
11. Although sec. 2(j) uses, words of the widest amplitude in
its two limbs, their meaning cannot be magnified to
overreach itself.
(a) 'Undertaking' must suffer a contextual and associational
shrinkage as explained in Banerji and in this judgment, so
also, service, calling and the like. This yields the inference
that all organized activity possessing the triple elements in I
(supra), although not trade or business, may still be 'industry'
(provided the nature of the activity, viz. the employer-
employee basis, bears resemblance to what we find in trade
or business. This takes into the- fold of 'industry'
undertakings, callings and services adventure 'analogous to
the carrying on of trade or business'. All features, other than
the methodology of carrying on the activity viz. in organizing
the co-operation between employer and employee may be
dissimilar. It does not matter, if off the employment terms
there is analogy.
III. Application of these guidelines should not stop short of
their logical reach by invocation of creeds, cults or inner
sense of incongruity or other sense of motivation for or
resultant of the economic operations. The ideology of the Act
being industrial peace, regulation and resolution of industrial
disputes between employer and workmen, the range of this
statutory ideology must inform the reach of the statutory
definition. Nothing less, nothing more.
(a) The consequences are (i) professions, (ii) Clubs (iii)
educational institutions (iiia) co-operatives, (iv) research
institutes (v) charitable projects and (vi) other kindred
adventures, if they fulfil the triple tests listed in I (supra),
cannot be exempted from the scope of sec. 2 (j).
(b) A restricted category of professions, clubs, cooperatives
and even Gurukulas and little research labs, may qualify for
exemption if in simple ventures substantially and going by the
dominant nature criterion substantively, in single simple
ventures, no employees are entertained but in minimal
matters, marginal employees are hired without destroying the
non- employee character of the unit.
POIT No. 747/2016 Page 9 of 37
(c) If in a pious or altruistic mission many employ them-
selves, free or for small honoraria, or likely return mainly by
sharing in the purpose or cause, such as lawyers volunteering
to run a free legal services clinic or doctors serving in their
spare hours in a free medical centre or ashramites working at
the bidding of the holiness, divinity or like central personality
and the services are supplied free or at nominal cost and
those who serve are not engaged for remuneration or on the
basis of master and servant, relationship, then, the institution
is not an industry even if stray servants, manual or technical,
are hired. Such elementary or like undertakings alone are
exempt-not other generosity, compassion, developmental
passion or project.
17. The Hon'ble Allahabad High Court in Principal Amar
Shaheed Inter College v. Presiding Officer Labour Court Agra,
2005 LLR 796 (All HC) observed the following:-
"The question whether the activity of running of an
educational institution would fall within the ambit of
definition of industry was left undecided by the apex court in
the case of The Hospital Mazdoor Sabha's case (supra) as the
court was not called upon to decide that question. Hence
reliance placed by counsel for the petitioner on the
observations made in paragraph 8 of the Report, extracted
above, is of no relevance. However, in the case of
Corporation of the City of Nagpur V. Its Employees- (1960) 1
LLJ523 (540), the apex court included education department
of the corporation falling within the definition of industry.
Thereafter, the question whether the work of imparting
education by the educational institutions falls within the
definition of industry was considered in the case of University
of Delhi (supra). That case arose out of claim of two drivers
of the University of Delhi under Section 33- C(2) of the Act
whose services had been terminated. The application was
contested by the University on the ground that work of
imparting education is not industry and their application
was, therefore, not maintainable. The Labour court rejected
the preliminary objection and decided the case of the drivers
on merits. The order of Labour Court was challenged by the
University before Hon'ble the Supreme Court in appeal by
POIT No. 747/2016 Page 10 of 37
Special Leave on the ground that the work carried out by the
University is not industry. The apex court in that case, in
coming to the conclusion that imparting education is not
industry took into consideration the predominant nature of
activity of the institution i.e. teaching and held that (1)
teachers are not workmen and (2) the work of the University
could not be assimilated to the position of any trade, business
or service within the meaning of Section 2(j). The Hon'ble
Supreme Court later on reconsidered this question in the case
of Banglore Water Supply Sewerage Board V. A. Rajappa-
1978 LIC-467, by majority decision and held that test laid
down in the University of Delhi's case (supra) is not
predominant number of employees enjoying the benefit of the
Act but the true test of the predominant nature of the activity.
It was held that in the case of educational institutions, the
nature of the activity is ex hypothesis. The education being a
service to the community is an industry. It was further held
that there may be number of activities of an educational
institution such as, printing press, transport department,
clerical and ministerial staff which may be sever able from
the teaching activity and they severally and jointly by
themselves may be treated as an industry. The Supreme
Court, therefore, observed that Delhi University''s case
(supra) was wrongly decided an education in institutional
form as an industry. Though the question whether the
educational institution is an industry or not was not under
consideration of the court, as such observations on this point
by the apex court is in the nature of obiter and the court had
not specifically decided the question as to whether the
activity of teaching would fall within the ambit of definition of
industry. However, this question has been considered in a
number of cases. Again, in Ram Kishan V. Samrat Ashok
Technical School Bidisa -1995(1) LIC-465 rendered by
Madhya Pradesh High Court wherein it has been held that
educational institution will fall within the ambit of definition
of industry and a clerk employed therein would be workman.
To the same effect are decisions in T. Rajan V. State of
Kerala1994 LIC-1321 and Suresh Chand Mathe Vs. Jivaji
University, Gwalior- 1994(2) LLJ-462 (M.P.).
The apex court, again in Mrs. Sunderamba v. State of Goa,
Daman and Diu- 1988 (1) LLJ-61 held that even if
POIT No. 747/2016 Page 11 of 37
educational institution is industry on the basis of ratio
decendi in Banglore Water Supply Sewerage Board V. A.
Rajappa (supra), the teacher is not a workman. Thus, from
the aforesaid decisions, it can be safely inferred that
education is ''industry' and though teachers may not be
workmen but other class of employees like clerks, sweepers,
peons, chaukidars etc. will certainly fall within the definition
of workman as defined under the U.P. Industrial Disputes
Act, 1947.
18. Therefore, it is a settled position of law that even the
educational institutions such as schools, colleges, university etc. fall
under the purview of "industry" as defined under Section 2(j) of the
Industrial Disputes Act, 1947. Therefore, in light of the above
discussion, this tribunal holds that the management, i.e., Delhi
Technological University is an industry Section 2(j) of the I.D. Act.
Hence, this issue i.e. Issue no. 1 is decided in favour of the
workman and against the management.
Issue No. 2:
Whether the claim of the workman has been
properly espoused by the Union? OPW.
19. The management has taken the contention in its written
statement filed before this tribunal that the case of the workman has
not been properly espoused by the number of claimants and the
reference as well as the resultant proceedings are bad in law and are
liable to be rejected without proper espousal by the workman as
required under law.
20. Ld. AR for the workman, Sh. Rajiv Agarwal argued that
though the management has taken the contention that the present
dispute is not properly espoused by the union, however, it has not
provided any basis for such a contention as to why the present
POIT No. 747/2016 Page 12 of 37
dispute is not properly espoused by the union. The workman has
duly placed upon record Ex. WW2/1 is the resolution dated
16.08.2011 passed by the union for raising an industrial dispute in
favour of the workmen and against the management. Ex. WW1/5
i.e. legal demand notice dated 15.09.2011 which was issued on the
letterhead of the union and Ex. WW1/8 i.e. statement of claim filed
before the conciliation officer by the same union. He placed reliance
upon the judgment of the Hon'ble Delhi High Court in Omji
Srivastava and Ors. vs. P.W.D./C.P.W.D., 2023/DHC/002013
decided on 17.03.2023, wherein the Hon'ble Delhi High Court after
relying upon the case of Hon'ble Supreme Court in J.H. Jadhav v.
M/s Forbes Gokak Ltd., Civil Appeal No. 1089 of 2005, decided
on 11.02.2005 has held that the cause of the workman is properly
espoused by the union. The relevant portion of the judgment is
reproduced below:
"20. Based on the said legal principle, this Court examined
the evidence adduced by the Petitioners/Workmen. The
Petitioners/Workmen proved on record Exhibit WW-2/1
(Statement of Claim dated 23.12.2002 filed by the Hindustan
Engineering General Mazdoor Union on behalf of the
Petitioner before the Conciliation officer), Exhibit
WW2/2(AD card for the legal notice issued by the Union),
Exhibit WW-2/3 (Authorisation letter dated 23.12.2002 issued
by the Petitioners/Workmen to Hindustan Engineering
General Mazdoor Union), Exhibit WW2/4 to Exhibit WW2/7
(Demand letters dated 23.12.2002 & 05.02.2002 issued by
the Hindustan General Mazdoor Union to the Respondent
No. 1 Management espousing the cause of the
Petitioners/Workmen). These documents show that the
Petitioners/Workmen authorized the Hindustan General
Mazdoor Union to take up the cause. In pursuance of the said
authorisation, the said union issued demand letters and filed
the claim petition before the Conciliation Officer. Based on
the said claim Petition, the appropriate Government referred
the said dispute to the learned Labour Court for adjudication.
POIT No. 747/2016 Page 13 of 37
Just because there was no witness from the Union, it cannot
be said that the cause of the Petitioners/Workmen has not
been espoused by the Union.
21. As held by Hon'ble Supreme Court in J.M Jhadav Vs
Forbes Gokak Ltd reported as MANU/SC/0103/2005 : 2005
(3) SCC 202, there is no particular form prescribed to effect
the espousal. Generally, Union passes resolutions, however
sometimes proof of support by the Union may also be
available aliunde. It would depend upon the facts of each
case. In the present case, even though no resolution was
placed on record on behalf of the Union, from the documents
placed on record by the Petitioners/Workmen, i.e. Exhibit
WW2/1 to WW2/7, it is evident that the Hindustan General
Mazdoor Union has espoused the cause of the
Petitioners/Workmen."
21. The similar issue came up before the Division Bench of
Hon'ble Kerala High Court in the matter of Mangalam
Publications (India) Pvt. Ltd. v. Saju George, W.A. No. 964 of
2020, decided on 01.12.2020 and held:-
"7......There is no doubt about the fact that the workman was
a member of the concerned WA No.964/2020 union.
According to the workman, the cause of the workman was
undertaken by the union even at the initial stage. Apparently,
there was no objection from the side of the management
during the relevant time. Thereafter, the matter was
considered and ultimately the dispute had been referred for
consideration by the Tribunal. Once a reference had been
made at the instance of the union, it is not open for the
management to contend at this stage of the proceedings that
the cause of the workman had not been espoused by the
union."
22. Moreover, the Hon'ble Delhi High Court in the case of
Pratap Singh & Anr. vs. Municipal Corporation of Delhi ,
WP(C) No. 676/2013 vide order dated 04.02.2013 revered the
findings of the Ld. Labour Court on the issue of espousal by
POIT No. 747/2016 Page 14 of 37
categorizing it as hypertechnical and held that the cause of the
workman is properly espoused by the union. The relevant portion of
the judgment is reproduced below:
"Learned counsel for the respondent fairly cannot dispute the
position that the view taken by the Labour Court on the issue
of espousal of the petitioners cause is hyper technical. There
is no dispute about the fact that the union had held its
meeting on 22.10.2005 and decided to espouse the petitioners
cause, on which date, the espousal letter was also issued by
the union. Merely because Sh. B.K. Prasad may not have
been the president of the union on the said date and he
became the president in the year 2007, would make no
difference. Such a hyper technical view defeats the objective
of the Industrial Disputes Act, 1947. The mere wrong
description of the designation of Sh. B.K. Prasad in the
espousal letter would not render the fact of espousal of the
petitioners cause unreliable.
Pertinently, the MCD General Mazdoor Union is a
recognized union and the said union has not come forward to
claim that they had not espoused the cause of the petitioners
on 22.10.2005. Accordingly, the decision of the Labour Court
on issue no.2 is reversed. It is held that the petitioners cause
was duly espoused by the MCD General Mazdoor Union."
23. In view of the judgments cited above, it is amply clear that
there is no procedure prescribed for espousal but it depends upon
the facts and circumstances of the same. The workman, in the
present case, has put ample material on record i.e. Ex. WW1/1 i.e.
copy of the legal demand notice which was sent on the letterhead of
the Delhi Labour Union, Ex. WW1/8 i.e. the copy of the Statement
of Claim is also filed by the same union before the conciliation
officer of Govt. of NCT of Delhi, Ex. WW2/1 i.e. copy of the
resolution dated 16.08.2011 wherein the union decided to raise an
industrial dispute in favour of the workman. The workman also
POIT No. 747/2016 Page 15 of 37
examined the General Secretary of the Delhi Labour Union as WW-
2 Sh. Surender Bharadwaj who has further corroborated the
testimony of the workman. Therefore, in view of the legal
precedents cited above and the evidence placed on record, this
tribunal is of the opinion that the present dispute is properly
espoused by the union. Hence, this issue i.e. Issue no. 2 is decided
in favour of the workman and against the management.
Issue No. 3:
As per terms of reference.
24. The terms of reference in the present case pertains to majorly
two issues i.e. illegal termination of the services of Sh. Dinesh
Kumar and regularisation of his services on the post of Peon. This
tribunal will deal with them one by one.
On the issue of illegal termination
25. The management contends that the workman was employed
on a purely temporary basis, receiving daily wages as a waterman.
After the Sixth Central Pay Commission, all Group 'D' posts were
upgraded, and those working regularly under Group 'D' were shifted
to pay band-1, i.e., Group C. Future vacancies in these Group C
posts, which have been converted from Group 'D' to Group 'C', will
not be filled; instead, they will be outsourced. The Management
served the workman a notice on 13.10.2011, following the
provisions of Section 25 (F) of the Industrial Dispute Act 1947. In
this context, he was offered wages in lieu of a one-month's notice of
retrenchment and the applicable retrenchment compensation in
compliance with Section 25(F) of the Industrial Tribunal Disputes
Act 1947. A cheque, bearing no. 406038 and dated 12.10.2011, was
issued for a sum of Rs 6084/-, representing one month's wages.
POIT No. 747/2016 Page 16 of 37
Although the workman declined the retrenchment notice dated
13.10.2011, it is presumed by law that the notice was duly served to
the workman. It is argued that once a notice under Section 25(F) of
the ID Act is addressed to the workman, it indicates compliance
with section 25(F). This assertion is specifically made in response to
any denial concerning the notice's issuance. As a result, the
workman's termination was legal and constitutes a valid
retrenchment. The management cites a judgment from the Hon'ble
apex court titled "State of Madhya Pradesh Versus Som Dutt
Sharma 2021(11) Scale 511." This judgment asserts that a
termination is legitimate if the notice is issued following the
provisions of Section 25(F) of the Industrial Dispute Act 1947.
26. On the other hand, the workman argued that in an attempt to
take retaliatory measures and victimise the workman after he raised
a dispute for regularisation, the management terminated the services
of the workman w.e.f. 15.10.2011 during the pendency of the
industrial dispute before the conciliation officer. Such a termination
is in flagrant violation of the provisions of Section 33 of the I.D.
Act. Reliance is placed upon the case of Badshah Singh v. Delhi
Jal Board 2019 SCC OnLine Del 9844, Jaipur Zila Sahakari
Bhoomi Vikas Bank v. Ram Gopal Sharma & Ors. (2002) 2 SCC
244 and Tops Security v. Subhash Chander Jha
MANU/DE/3300/2012 established that the automatic relief for
termination in violation of Section 33 of the Act is reinstatement
with full back wages. It is also argued that even otherwise, the
management violated Section Section 25F, G and H of the I.D. Act
that no notice, notice pay and service compensation was given to the
workman. No seniority list was either exhibited/displayed on or
POIT No. 747/2016 Page 17 of 37
before 15.10.2011 (date of his illegal termination and even fresh
hands were hired whereas the workman were totally ignored in this
regard. Reliance is placed upon Harjinder Singh v. Punjab State
Warehousing Corporation AIR 2010 2C 1116, The Management
of MCD v. Presiding Officer, Industrial Tribunal W.P. (C)
6024/1999.
27. The workman has contended that the management has
violated section 33 of the Industrial Disputes as his services were
terminated when a dispute pertaining to his regularisation of
services was pending before the conciliation officer. At this point, it
is important to draw attention to the definition of section 33 of the
I.D. Act. states:
33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings.-
(1) During the pendency of any conciliation
proceeding before a conciliation officer or a Board
or of any proceeding before 2 an arbitrator or] a
Labour Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer shall--
(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before the
commencement of such proceeding; or
(b) for any misconduct connected with the
dispute, discharge or punish, whether by dismissal or
otherwise, any workmen concerned in such dispute,
save with the express permission in writing of the
authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in
respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a
POIT No. 747/2016 Page 18 of 37
workman concerned in such dispute 2 or, where there
are no such standing orders, in accordance with the
terms of the contract, whether express or implied,
between him and the workman],--
(a) alter, in regard to any matter not connected
with the dispute, the conditions of service
applicable to that workman immediately before
the commencement of such proceeding; or
(b) for any misconduct not connected with the
dispute, or discharge or punish, whether by dismissal
or otherwise, that workman: Provided that no such
workman shall be discharged or dismissed, unless
he has been paid wages for one month and an
application has been made by the employer to the
authority before which the proceeding is pending
for approval of the action taken by the employer.
28. The bare perusal of the section suggests that employer in any
case cannot change the service conditions of its employee when the
change of service conditions is directly connected with an industrial
dispute pending before the concerned authority unless a prior
permission is taken from the concerned authority. In cases, when the
change in service conditions is not directly connected with the
industrial dispute pending before the concerned authority, and the
management is terminating/dismissing the services of the workman
concerned, in such case it is required to take approval from the
concerned authority before doing so.
29. The workman in order to prove the pendency of the industrial
dispute placed reliance upon Ex. WW1/14 i.e. copy of the statement
of claim filed before the conciliation officer. Ex. WW1/9 and Ex.
WW1/10 is the copy of the notices dated 13.10.2011 and 14.10.2011
issued by the conciliation officer to the management along with the
POIT No. 747/2016 Page 19 of 37
copy of the claim filed on behalf of the workman concerned. The
said two notices bears the seal of the management and the signature
of the receiving officer on the very same day itself i.e. 13.10.2011
and 14.10.2011. The management witness in his cross-examination
dated 26.11.2021 admitted at Page 3 that Ex. WW1/9 is the notice
from the Labour Department regarding the dispute of his resignation
was received by the management on 13.10.2011 and the same also
bears the acknowledgement of the management at Point 'A'. He also
admitted that Ex. WW1/14 is the correct copy of the
complaint/statement of claim filed by the workman.
30. The management in its written statement at Para No. 9 stated
that the services of the workman were dispensed with immediate
effect as his services were no longer required by the university w.e.f.
15.10.2011, and he was relieved from duties in the afternoon on
15.10.2011. In the same paragraph, the management itself
acknowledged that the application i.e. statement of claim was filed
by the workman before the conciliation officer on 13.10.2011.
Meaning thereby, the management had full knowledge of the
pendency of the dispute pertaining to his regularisation of his
services before the conciliation officer. The workman has
established the factum of termination on 15.10.2011 i.e. during the
pendency of the his dispute pertaining to regularisation before the
conciliation officer. The management has not placed any document
on record to show that it has taken prior permission from the
concerned/appropriate authority before terminating his services. In
fact, the management witness also stated in the cross-examination at
Page 3 that neither any permission nor any approval was taken from
the conciliation officer who issued Ex. WW1/9 before terminating
POIT No. 747/2016 Page 20 of 37
the services of the workman concerned. Now, the tribunal has to
look into the effect of termination when no prior permission or
approval has been taken by the management.
31. The AR for the workman has placed its reliance upon the case
of the division bench of Hon'ble Delhi High Court in Badshah
Singh vs Delhi Jal Board, LPA No. 604/2014 decided on
27.08.2019, wherein the court after relying upon the constitution
bench judgement of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v.
Ram Gopal Sharma, Appeal (civil) 87-88 of 1988 decided on
17.01.2002, held the termination order passed by the management
during the pendency of the industrial dispute without seeking
permission from the appropriate authority void ab initio. The
relevant portion of the said judgement is reproduced below:
"15. The view that when no application is made or
the one made is withdrawn, there is no order of
refusal of such application on merit and as such
the order of dismissal or discharge does not
become void or inoperative unless such an order is
set aside under Section 33A, cannot be accepted. In
our view, not making an application under Section
33(2) (b) seeking approval or withdrawing an
application once made before any order is made
thereon, is a clear case of contravention of the
proviso to Section 33(2) (b). An employer who does
not make an application under Section 33(2) (b) or
withdraws the one made, cannot be rewarded by
relieving him of the statutory obligation created on
him to make such an application. If it is so done, he
will be happier or more comfortable than an
employer who obeys the command of law and makes
an application inviting scrutiny of the authority in
the matter of granting approval of the action taken
by him. Adherence to and obedience of law should
POIT No. 747/2016 Page 21 of 37
be obvious and necessary in a system governed by
rule of law. An employer by design can avoid to
make an application after dismissing or discharging
an employee or file it and withdraw before any
order is passed on it, on its merits, to take a position
that such order is not inoperative or void till it is set
aside under Section 33A notwithstanding the
contravention of Section 33(2) (b) proviso, driving
the employee to have recourse to one or more
proceeding by making a complaint under Section
33A or to raise another industrial dispute or to
make a complaint under Section 31(1). Such an
approach destroys the protection specifically and
expressly given to an employee under the said
proviso as against possible victimization, unfair
labour practice or harassment because of pendency
of industrial dispute so that an employee can be
saved from hardship of unemployment."
32. The proviso of Section 33 of the I.D. Act makes it abundantly
clear that no such workman shall be discharged or dismissed, unless
he has been paid wages for one month and an application has been
made by the employer to the authority before which the proceeding
is pending for approval of the action taken by the employer. The
same view also found force from the case of Tops Security Ltd vs
Subhash Chander Jha, LPA 1044/2011 decided on 16.07.2012.
33. Therefore, in view of the settled position of law as well as
evidence placed on record, this tribunal holds that the services of the
workman were terminated by the management in complete violation
of section 33 of the I.D. Act as neither any permission nor any
approval was sought while terminating his services. In case of a
misconduct, the management witness admitted that no memo or
chargesheet was given to the workman before terminating his
POIT No. 747/2016 Page 22 of 37
services on 15.10.2021. Even otherwise, in the present case the
management did not comply with the provisions of Section 25F, G
and H of the I.D Act.
34. The management witness has admitted in his cross-
examination dated 26.11.2021 that "it is correct that the amount of
retrenchment compensation of Rs. 63180/- has never been debited
from the account of the management. Vol. the management offered
the cheque of Rs. 63180/- on account of retrenchment compensation
but the workman neither received the cheque nor encashed likewise
02 cheques amounting to Rs. 3150 and Rs. 6084 on account of his
earned wage and notice pay was offered to the workman but neither
the workman received the cheque nor encashed the same)". Further,
the workman also in his cross-examined dated 03.03.2015 denied
the suggestions of the AR for the management that he was served
with the notice of retrenchment vide notice dated 12.12.2011 or that
he refused to accept the same or that the management has also
served the retrenchment notice dated 13.12.2011 along with three
cheques towards his wages as payable under the retrenchment
procedure. It is a well settled position of law that the provisions
contained in Section 25F(a) and (b) are mandatory and termination
of service of workman, without giving one month's notice or pay in
lieu thereof and retrenchment compensation is null and
void/illegal/inoperative as held by the Hon'ble Supreme Court in
Devinder Singh vs. Municipal Council, Sanaur, AIR 2011 SC
2532.
"19. Section 25 couched in negative form. It
imposes a restriction on the employer's right to
retrench a workman and lays down that no workman
employed in any industry who has been in
POIT No. 747/2016 Page 23 of 37
continuous service for not less then one year under
an employer shall be retrenched until he has been
given one month's notice in writing indicating the
reasons for retrenchment and the period of notice
has expired or he has been paid wages for the
period of notice and he has also been paid, at the
time of retrenchment, compensation equivalent to
fifteen days' average pay for every completed year
of continuous service or any part thereof in excess
of six months and notice in the prescribed manner
has been served upon the appropriate Government
or the authority as may be specified by the
appropriate Government by notification in the
Official Gazette. 20. This Court has repeatedly held
that the provisions contained in Section 25F(a) and
(b) are mandatory and termination of the service of
a workman, which amounts to retrenchment within
the meaning of Section 2(oo) without giving one
month's notice or pay in lieu thereof and
retrenchment compensation is null and
void/illegal/inoperative."
35. Moreover, onto the factual aspect of the case for the purpose
of Section 25G and H of the I.D. Act, the management witness
admitted that the management has started taking the work of Peon
through outsource workforce since 6th Pay Commission and that no
letter was sent to the workman calling upon him to join his duties
before giving employment to the workman to the outsource agency.
He also admitted that the management has not exhibited/displayed
on or before any seniority list of Peon before terminating the
services of the workman on 15.10.2011.
36. The division of Patna High Court in Gaffar and Ors. vs.
Union of India (UOI) and Ors., 1983(31)BLJR282 have
highlighted the importance of Rule 77 of I.D Rules and failing to
POIT No. 747/2016 Page 24 of 37
implement the same renders the termination/retrenchment illegal.
The relevant portion of the judgement is reproduced below:
"4. The Rule 77 of the Industrial Disputes (Central)
Rules, 1957 which is mentioned below requires
preparation and publication of a list of all workmen
in the concerned category at least 7 days in
advance: Maintenance of seniority list of workmen--
The employer shall prepare a list of all workmen in
the particular category from which retrenchment is
contemplated arranged according to the seniority of
their service in that category and cause a copy
thereof to be pasted on a Notice Board in a
conspicuous place in the premises of the Industrial
Establishment at least seven days before the actual
date of retrenchment. This provision has been
included in the Rules so that the object of Section
25G of the Industrial Disputes Act may be
effectively achieved. The Industrial rule relating to
retrenchment of 'last come, first go' where other
things are equal has been recognised for long and
affords a healthy safeguard against discrimination.
The principle was given statutory recognition by
amendment of the Act in 1953. The Rule 77 was
framed with a view to facilitate a retrenched
workman to verify that he is not being discriminated
against otherwise it may be impracticable for him to
collect relevant information and' enforce his right.
The minimum time of seven days allowed for this
purpose is not unnecessarily long, for the workman
should get an adequate opportunity to scrutinize the
correctness of the seniority list before he is thrown
out Viewed from this angle, it should be held that the
requirement mentioned in Rule 77 is mandatory and
its violation renders an order of retrenchment
illegal."
POIT No. 747/2016 Page 25 of 37
37. The similar view was also taken by the Hon'ble Supreme
Court of India in Harjinder Singh vs. Punjab State Warehousing
Corporation, AIR 2010 SC 1116. In view of the admitted position
and the mandate of the law, this tribunal holds that the management
has clearly committed unfair labour practice as mentioned in Fifth
Schedule at Item No. 5(a) and (b) of the I.D. Act by terminating the
services of the workman concerned by way of victimization and in
colourable exercise of employer's rights solely for raising an
industrial dispute pertaining to his regularization of services. Even
in case of termination simpliciter, the management contravened
Section 25 F, G and H of the I.D. Act.
38. The AR for the workman have argued that once the
termination is held to be illegal the normal relief is to award
reinstatement with continuity in service and full backwages. He
placed reliance upon the judgment of Hon'ble High Court in Delhi
Transport Corporation v. Ram Kumar And Another, 1982 (44)
FLR 356 wherein it was held that once the termination is held to be
illegal and unjustified, the normal rule is to award reinstatement
with full backwages and continuity in service except when the
workman is gainfully employed coupled with receiving wages
equivalent to his last drawn salary at the time of his illegal
termination. The Para 14 of the aforementioned judgement is as
follows:
"......The principle is that when an employee after
protracted litigation with the employer succeeds in
showing that the termination of his service was
unjustified he would normally be entitled to
reinstatement with full back wages expecting of
course if it could be shown that he had been
gainfully employed in the meanwhile. Thus full back
POIT No. 747/2016 Page 26 of 37
wages would be the normal rule and the party
objecting to it must establish the circumstances
necessitating departure, See Gujarat Steel Tubes
Ltd. v. Its Mazdoor Sabha MANU/SC/0369/1979 :
(1980)ILLJ137SC . Thus if the employer wishes to
show that workman gainfully employed he must
establish and prove that fact; no presumption of
being gainfully employed can be raised. It is not
dispute that no evidence has been led or even shown
on the record by the appellant which shows that
workman was at any time in between employed
elsewhere. In that view there would be no
justification for denying him full back wages. The
mere fact of long time having elapsed is certainly
not a reason to deny him his normal relief of
reinstatement because as said in Panitole Tea Estate
case. "If his dismissal was wrongful then merely
because proceedings for adjudication of the
industrial disputes have taken a long time is by itself
no reason for not directing his reinstatement if it is
otherwise justified being in accordance with normal
rule."
39. Further, reliance upon case of Deepali Gundu Surwase vs
Kranti Junior Adhyapak & Ors., Civil Appeal No. 6767/2013
decided on 12.08.2013 wherein the Hon'ble Supreme Court has
held that onus to prove that the gainful employment shifts to the
management once the workman has pleaded that he/she is not
gainfully employed elsewhere. The Para 33 of the aforementioned
judgement is as follows:
"33 (iii) Ordinarily, an employee or workman whose
services are terminated and who is desirous of
getting back wages is required to either plead or at
least make a statement before the adjudicating
authority or the Court of first instance that he/she
was not gainfully employed or was employed on
POIT No. 747/2016 Page 27 of 37
lesser wages. If the employer wants to avoid
payment of full back wages, then it has to plead and
also lead cogent evidence to prove that the
employee/workman was gainfully employed and was
getting wages equal to the wages he/she was
drawing prior to the termination of service. This is
so because it is settled law that the burden of proof
of the existence of a particular fact lies on the person
who makes a positive averments about its existence.
It is always easier to prove a positive fact than to
prove a negative fact. Therefore, once the employee
shows that he was not employed, the onus lies on the
employer to specifically plead and prove that the
employee was gainfully employed and was getting
the same or substantially similar emoluments.
40. The Hon'ble Delhi High Court in the case of Municipal
Corporation of Delhi vs. POIT & Anr., W. P. (C) 6024/1999
awarded reinstatement once the services of the workman were found
to be terminated in contravention to Section 25G of the I.D. Act.
The relevant para is reproduced below:
"In the present case, the MCD has not been able to
produce evidence to show that while terminating
services of the Respondent workman it complied
with the requirements of Section 25G ID Act. Mr.
Rajiv Aggarwal, learned counsel for the workman
submitted that the workman is in dire need of
employment and in such circumstances the award of
compensation would not be an adequate remedy.
Given the difficulty in obtaining employment, the
submission on behalf of the workman appears to be
justified. In a case like this, lumpsum compensation
in lieu of reinstatement cannot be an adequate or
satisfactory remedy for Respondent No. 2 workman.
POIT No. 747/2016 Page 28 of 37
41. The workman has stated in his statement of claim and
Affidavit that he remained unemployed since the date his services
were illegally terminated by the management. The management
witness in his cross-examination dated 26.11.2021 at Page 5 has
stated that "the management does not have any material or
evidence to show the concerned workman has gainfully employed
elsewhere after 15.10.2011." In the absence of any evidence that the
workman is gainfully employed elsewhere, this tribunal cannot
assume the same. Moreover, no exceptional circumstances or
situations were advanced by the A.R. for the management as to why
this tribunal should deviate from the normal rule of reinstatement
and continuity in service along with full back wages once the
termination is held to be illegal. In view of the aforementioned
reasons, this tribunal holds that the workman Sh. Dinesh Kumar
S/o Sh. Kartar Singh is entitled for reinstatement along with
continuity in service and full backwages with all consequential
benefits.
On the aspect of regularisation & wages at par with regular
counterparts
42. Now dealing with the regularization aspect of the case, the
AR for the Management has argued that the workman joined into
the employment of management as Waterman and at no point his
services were converted to Peon. Further, the management does not
have any permanent post of waterman and in the absence of any
posts for waterman, he cannot be regularised in services with the
management. He also argued that it is a settled position of law that
contractual employees can not be regularised in service, when there
are no vacant and sanctioned posts available. Reliance is also placed
POIT No. 747/2016 Page 29 of 37
upon the case of Secretary, State of Karnataka and others vs.
Umadevi and others, appeal (civil) 3595-3612 of 1999, decided on
10.04.2006 wherein it is observed that public appointments has to be
in terms of constitutional scheme on regular bass and also following
the recruitment rules. Further reliance is also placed upon Madhya
Pradesh Housing Board vs. Manoj Srivastava, 2006 AIR (SC)
wherein it is held that a daily wager does not hold a post unless he is
appointed in terms of the Act and rules framed thereunder. He does
not derive any legal right in relation thereto It is well settled that
only because a person had been working for more than 240 days, he
does not derive any legal right to be regularised in service.
43. On the other hand, the workman representative has argued
that the management has committed unfair labour practice as
enumerated in Section 2 (ra) read with item 10 of Fifth Schedule of
the Industrial Disputes Act and further submitted that employing the
workman on regular and permanent post of Peon and treating him as
mere temporary workman and to continue them for several years
with the object of depriving the status of permanent workman
amounts of unfair labour practice as regularizing their services
would mandate the management to pay the salary in regular
payscale to the workman. He placed his reliance upon the judgment
of Hon'ble Supreme Court titled as Chief Conservator of Forest
and Anr., (1996) 2 SCC 293 and the judgment of Hon'ble Delhi
High Court titled as Project Dir. Dep. Of Rural Development v.
Its Workmen, 2019 SCC OnLine Del 7796.
44. This tribunal has considered all the material on record as well
as legal submissions of the parties and is of the opinion that this
tribunal has power to regularize the services of the workman in the
POIT No. 747/2016 Page 30 of 37
light of the judgment of Hon'ble Supreme Court titled as Chief
Conservator of Forest and Anr. (supra), the judgment of Hon'ble
Delhi High Court titled as Project Dir. Dep. Of Rural
Development v. Its Workmen, (supra). The relevant portion of the
aforesaid judgement is reproduced below:
"28. The decisions relied upon by the learned
counsel for the respondents in Ajaypal Singh
(supra), ONGC (supra) and Umrala Gram
Panchayat (supra), also leave no manner of doubt
that the Supreme Court has specifically observed
that the prohibition laid down for regularization in
Uma Devi (supra) does not apply to industrial
adjudication and that the Industrial Tribunal has the
power to direct regularization of services in cases
where pursuant to unfair labour practices,
employees have been made to render services for
long periods of time on causal basis for work that
should ordinarily be done by regular employees."
........
"61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
45. The Constitution Bench of the Hon'ble Supreme Court in the case of Bidi, Bidi Leaves' and Tobacco Merchants Association vs. The State of Bombay, Civil Appeals Nos. 415 to 418 of 1960 POIT No. 747/2016 Page 31 of 37 decided on 15.11.1961 has held that the tribunal has the power to create new rights and liabilities upon the employer. The relevant portion of the judgment is reproduced below:
"15. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay it has been repeatedly held that the jurisdiction of Industrial Tribunals is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna Electric Supply Workers' Union )."
46. In view of the above, the argument of the management that this tribunal does not have the power to regularize the services of POIT No. 747/2016 Page 32 of 37 the workman concerned in view of Uma Devi (supra) and Manoj Srivastava (Supra) are misplaced in law.
47. Now moving on to the factual matrix of this case, the following admitted position in view of the evidence as well as cross- examination of the parties. It is admitted that the workman Sh. Dinesh Kumar S/o Sh. Kartar Singh initially joined the employment of the management Delhi College of Engineering which is now known as Delhi Technological University w.e.f. 01.05.1993 as a Waterman and w.e.f. 1.11.1993 he was working as a Peon. He was paid the salary as per minimum wages fixed and revised from time to time under the Minimum Wages Act. The workman was paid Sunday rest when the college for 06 days a week and paid Saturday and Sunday, when the college became 05 days a week. Thereafter, the services of the workman were terminated earlier by the management on 02.04.1994. Pursuant to which, the workman raised the industrial dispute challenging his termination from services. The Ld. Tribunal vide award dated 19.07.2003 (Ex. WW1/1) passed an award in I.D. No. 28/2002 holding that the services of Sh. Dinesh Kumar S/o Sh. Kartar Singh were terminated illegally and he was held entitled to the relief of reinstatement in service with continuity in service and full back wages and continuity of service. The management challenged the aforesaid award dated 19.07.2003 by filing a Writ Petition W.P.(C) No. 12490/2004 however, the same was dismissed vide order dated 19.08.2005 (Ex. WW1/2). The management preferred a LPA No. 100/2005 (Ex. WW1/3) before the Division Bench of Hon'ble High Court against the order dated 19.08.2005 of the Ld. Singal Bench of the Hon'ble High Court, wherein the division bench of the Hon'ble Delhi High Court set POIT No. 747/2016 Page 33 of 37 aside the award dated 19.07.2003 passed by the Ld. Tribunal in I.D. No. 28/2002 and the impugned order dated 19.08.2004 passed by the Ld. Single Judge in W.P.(C) No. 12490/2004. Aggrieved with which, the workman filed an S.L.P. before the Hon'ble Supreme Court of India vide S.L.P. No. 551/2007 (Civil Appeal No. 3539/2008). The Hon'ble Supreme Court vide order dated 13.05.2008 (Ex. WW1/4) set aside the orders of Division Bench of Hon'ble High Court of Delhi and restored the Award dated 19.07.2003 of the Industrial Tribunal in I.D. No. 28/2002 and the judgment of the Ld. Single Judge Bench of the Hon'ble Delhi High Court in W.P. (C) No. 12490/2004 with a modification that instead of granting 100% back wages, the Hon'ble Supreme Court granted 50% back wages. Pursuant to which, the workman was reinstated in service on 01.08.2008 and since then he has been working continuously and uninterruptedly with the management till the date 15.10.2011 when his services were illegally terminated by the management.
48. The management witness has admitted in his cross- examination that the nature of work of Peon is of perennial in nature and it is there since the very beginning of the management coming into existence to till date and likely to continue. He also admitted that the nature of work and working hours of Sh. Dinesh Kumar was the same and identical to his counterparts who were treated as regular Peon and paid their salary in the regular pay scale. There is no dispute pertaining to the educational qualification of the workman for the post of Peon, meaning thereby, the workman concerned fulfills the educational qualifications required for the post POIT No. 747/2016 Page 34 of 37 of Peon. The work and conduct of the workman were satisfactory by the management and there were no complaints.
49. The management has not made any contention that there were/are no vacant posts of Peon or that the workman does not fulfills the requisite qualifications to be regularized in service. Neither has the management produced any evidence to support such a contention. The management in fact argued that the workman was performing the work of waterman and that there is no posts of waterman available, however, this contention of the management goes against their admission made in their written statement and cross-examination, wherein it was admitted that the workman was made to perform the duties of peon w.e.f. 01.11.1993. The management has placed on record the number of sanctioned, filled and vacant posts of Peon w.e.f. 2009 to 2017, meaning thereby, the management has number of posts of Peon lying vacant. This tribunal fails to understand that despite having requisite qualifications, having posts of peon lying vacant, finding their work and conduct satisfactory, the services of the workmen were not regularised by the management till date or that why the concerned workmen were appointed on the contract basis in the first place.
50. In view of the admitted position and the material on record, this tribunal holds that the management has clearly committed an unfair labour practice by employing the workmen as daily wagers for performing the permanent nature of work of a Peon and continued them for years with the intent of depriving them of the status and privileges of a regular and permanent employee. This view is supported by the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra), wherein the Hon'ble POIT No. 747/2016 Page 35 of 37 Supreme Court of India held that employing workers as temporary workers for long periods and denying them the status and salary of a regular employee amounts to an unfair labour practice. This is because giving them the status and privileges of a permanent employee would require the management to pay the workman a salary higher than the one fixed under the Minimum Wages Act.
51. The workman has placed upon record Ex. WW1/24 i.e. the RTI filed pertaining to the tentative seniority list of the Peon as on 05.09.2008, wherein Sh. Rajender Singh, Sh Khushal Singh, Sh. Jitender Singh and Sh. Omvir Singh (juniors to the workman concerned) were directly appointed to the post Peon by the management w.e.f. 15.09.1995, 30.10.1995, 23.05.1997 and 05.05.2000, whereas, the workman concerned was illegally terminated by the management.
51. In these circumstances, this tribunal further holds that Sh. Dinesh Kumar S/o Sh. Kartar Singh is entitled to regularized in service on the post of Peon w.e.f. 01.11.1993 i.e. the date when he had been performing the work of Peon in the regular pay scale with all consequential benefits, either monetary or otherwise. It is further clarified that the workman is entitled to 50% of wages in regular pay scale for the period of his illegal termination i.e. 02.04.2994 to 19.07.2003 till the date of the award dated 19.07.2003 in I.D. No. 28/2002 as per the directions of this Hon'ble Supreme Court in S.L.P. No. 551/2007. Hence, the issue i.e. issue no. 3 and 4 are decided in favour of the workmen and against the management. The award is passed accordingly.
Relief:
POIT No. 747/2016 Page 36 of 37In view of the findings on the aforementioned issues as well as on the terms of reference of the statement of claim, this tribunal holds that the workman Sh. Dinesh Kumar S/o Sh. Kartar Singh is entitled for reinstatement along with continuity in service and full backwages with all consequential benefits. This tribunal further holds that Sh. Dinesh Kumar S/o Sh. Kartar Singh is also entitled to be regularized in service on the post of Peon w.e.f. 01.11.1993 i.e. the date when he had been performing the work of Peon in the regular pay scale with all consequential benefits, either monetary or otherwise. It is further clarified that the workman is entitled to 50% of wages in regular pay scale for the period of his illegal termination i.e. 02.04.2994 to 19.07.2003 till the date of the award dated 19.07.2003 in I.D. No. 28/2002 as per the directions of this Hon'ble Supreme Court in S.L.P. No. 551/2007. The management is directed to implement the award within 60 days of its publication, failing which, the management will be liable to pay an interest of 8% per annum from the date of reference order i.e. 06.08.2012, to till the date of its realization.
34. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in the open Tribunal on this 26.10.2023 (Ajay Goel) POIT-I/RADC.
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