Delhi District Court
Moh. Ashif vs City Hospital on 7 January, 2025
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LIR No. 9522/16
CNR No. DLCT13-012959-2016
In the matter of:
Mohd. Ashif
S/o Mr. Abdul Hamid,
R/o H.No. 1046, Gali Rajan Faraz Khana,
Delhi.
Mobile No. 9213995550
Through: All India General Mazdoor Trade Union (Regd. 3025)
Office at: 170, Bal Mukund Khand,
Giri Nagar, Kalkaji, New Delhi-110019.
.....Claimant/Workman
Details of immediate family member of claimant/workman:
Name: Smt. Saishta Begum (wife)
Mobile No. 7683055182
Details of Authorized Representative of claimant/workman:
Name: Sh. Anil Rajput
Mobile no. 9818086327
Email ID: Not Provided
VERSUS
1. M/s Sir Ganga Ram City Hospital
(a Unit of Conner Institute of Health Care
and Research Centre Pvt. Ltd.),
B-1/1, N.E.A Pusa Road, New Delhi-110060.
2. M/s Helpline Facility Management Pvt. Ltd.,
T-1404/1, 3rd Floor, Street No. 7,
Wazir Nagar, Kotla Mubarak Pur,
New Delhi-110003.
Also at : D-74, Ground Floor, Sector-2,
Noida (UP)-201301.
.....Managements
LIR No. 9522/16 Digitally
Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. signed by Page No. 1 of 25
POOJA
POOJA AGGARWAL
AGGARWAL Date:
2025.01.07
14:34:28
+0530
Details of Authorized Representative of management no.1:
Name : Ms. Deepti Singh
Mobile no. 9873393746
E mail ID of management: [email protected]
Details of Authorized Representative of management no.2:
Name : Ms Kiran Saini,
Mobile no. Not provided
E mail ID of management: [email protected]
Date of Receipt of Reference : 03.11.2016
Date of Award : 07.01.2025
AWARD
1. A consolidated reference was received from the Joint
Labour Commissioner (Central District), Labour
Department, Government of NCT of Delhi vide its order
No. F-24(108)/16/Ref./CD/Lab/591 dated 21.10.2016,
under Section 10(1)(c) and 12(5) of the Industrial Disputes
Act, 1947 regarding an industrial dispute between Sh. Ajay
Dikka and 79 Ors. including the present workman Moh.
Ashif S/o Sh. Abdul Hamid (at Sl. No. 61) (hereinafter
referred to as 'claimant/workman') and the managements
of M/s Sir Ganga Ram City Hospital (hereinafter referred
to as 'management no.1') and M/s Helpline Facility
Management Pvt. Ltd. (hereinafter referred to as
'management no.2') with the following terms of reference:
"Whether the services of workmen Sh. Ajay Dikka
and 79 ors. as shown in 'Annexure A' have been
terminated illegally and/or unjustifiably by the
management; and if so, to what reliefs are they
entitled to and what directions are necessary in this
respect?"
2. After receipt of the reference, vide order dated 03.11.2016,
LIR No. 9522/16
Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Page No. 2 of 25
Digitally
signed by
POOJA
POOJA AGGARWAL
AGGARWAL Date:
2025.01.07
14:34:38
+0530
the Ld. Predecessor directed for the original reference to
be registered in the case of Ajay Dikka while a copy of the
original reference was directed to be annexed in other 79
cases including the present case.
3. Thereafter, notice of the reference was issued to the
workman who filed his statement of claim.
Facts as per statement of claim
4. Briefly stated, it has been asserted that the claimant/ workman was working with the management hospital since 01.03.2009 as a Ward boy with his last drawn salary being Rs. 9,568/- per month without any complaints or charges against him.
5. It has been further asserted that the management was not providing any benefits to the claimant/workman as per labour laws like appointment letter, leave book, Salary Slip, Weekly and Yearly Off, Double Overtime, Bonus, Travelling Allowance, HRA, prevailing Earned Leaves etc.
6. It has been further asserted that the claimant/ workman had been initially appointed by the Principal Employer but later on, his name was shown on the rolls of the contractor M/s Glaze Services Pvt. Ltd. which was a company of the Principal Employer itself.
7. It has been further asserted that the Principal Employers showed the name of the claimant/ workman in the records LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 3 of 25 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:34:46 +0530 of a Sham Contractor i.e. management no. 2 w.e.f. 01.09.2015 even though the said contractor did not have any license under the Contract Labour (Regulation and Abolition) Act, 1970. It has also been asserted that the management no. 1 also did not have any registration under the Contract Labour (Regulation and Abolition) Act, 1970 as it had not renewed its registration since last three years.
8. It has also been stated that the claim of the claimant/ workman for regularization was pending, despite which the management no. 1 terminated his services on 30.07.2016 without any chargesheet or notice, and they also did not pay the earned wages for the period 01.07.2016 to 30.07.2016 to the claimant/workman, violating Section 33 and Section 25F of the Industrial Disputes Act.
9. It has been further asserted that the Principal Employer through Contractor M/s Glaze Services Pvt. Ltd. had entered into a settlement before the Conciliation Officer where it had been clarified that the contractor will employ the previous workmen and provide them all the facilities. It has been further asserted that the Principal Employer had given in writing that the workmen will work with the new contractor and better services will be provided to them, despite which the services of claimant/workman was terminated by the managements.
10.It has been further asserted that a demand letter dated LIR No. 9522/16 Digitally Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. signed by POOJA Page No. 4 of 25 POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:34:55 +0530 02.08.2016 was sent to the managements by the claimant/workman through registered AD/Speed Post but the managements did not reply to the same despite service, did not reinstate him and also did not make any payment to him.
11.It has been further asserted that the managements used to obtain overtime work from the claimant/workman but did not make any payment towards overtime despite repeated requests. It has been further asserted that the management did not reinstate him despite intervention of the Labour Inspector and thereafter, an industrial dispute was raised before the Labour Department but the conciliation proceedings failed, whereafter reference was sent to the Court.
12.It has also been asserted that the claimant/workman is unemployed since the date of his termination and hence the present claim seeking reinstatement with full back wages.
Facts as per reply/written statement of management no.1
13.In their reply/written statement, the management no. 1 raised preliminary objection as to there being no employer- employee relationship between the parties and as to the claimant/ workman being not a workman as defined under section 2 (s) of the ID Act, 1947.
14.It has also been asserted that the management no. 1 was not legally precluded from entering into a contract for LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 5 of 25 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:35:02 +0530 service with an independent contractor with regard to any process, operation or other work in its establishment and that the management no. 1 had entered into bonafide a contract with various independent contractors from time to time for carrying out, inter-alia, the housekeeping services.
15.It has been further asserted that the claimant/workman had been employed by the management no. 2 contractor and that he had been deployed in the hospital for performing housekeeping service entrusted to it by the management no. 1 under a bonafide contract of service. It has been further stated that it was the management no. 2 which was responsible for employing its own employees, whose work was supervised by the contractor who also paid wages to the employees and as such the industrial dispute could only be raised against management no. 2.
16.It has been further asserted that the claimant/workman along with other labour employed by M/s Glaze Services Pvt. Ltd. had entered into a conciliation settlement through M/s All India General Mazadoor Trade Union (Regd), under Section 12 (3) read with Section 18 (3) of the Industrial Disputes Act, 1947 dated 17.09.2015 on the clear basis that they were employed by the contractor M/s Glaze Services Pvt. Ltd., after which they had received their full and final dues from their employer and subsequently the claimant/workman had been employed by the new contractor management no. 2 as its fresh employee. It has been further asserted that management LIR No. 9522/16 Digitally signed by Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. POOJA POOJA AGGARWAL Page No. 6 of 25 AGGARWAL Date:
2025.01.07 14:35:11 +0530 no. 2 M/s Helpline Facility Management Pvt. Ltd. had ceased to be a contractor of the management no. 1 w.e.f. 31.07.2016 and the housekeeping services had now been outsourced to a new contractor i.e. M/s. Evershine Housekeeping Services.
17.On merits, all the averments made in the statement of claim have been denied and it has been reiterated that the post of ward boy had always been outsourced by the management no.1 to independent contractors which employed their own employees on its own rolls and also supervised their work.
Facts as per Written Statement of management no. 2.
18.In their written statement, the management no. 2 has asserted that the management no. 1 was its client to whom they were providing cleaning and housekeeping services as per the contract agreement dated 28.08.2015 for the period from 01.09.2015 to 30.07.2016 in the premises of Sir Ganga Ram City Hospital. It has been further asserted that the application for obtaining license and an intimation of the commencement of the said contract under the CL (R & A) Act 1970, was given to the Licensing Officer, Pusa, New Delhi on 25.09.2015 vide Rule 21(1) of CL (R&A) Act 1970 in form IV and on 16.10.2015.
19.It has been further asserted that a special recruitment drive had been done by them for discharge their contractual obligations in the premises of the management no.1 and LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 7 of 25 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.07 14:35:19 +0530 the claimant/workman had applied to the management no. 2 vide his application dated 30.08.2015 and he was issued the appointment letter dated 01.09.2015 wherein the clause 2 specifically stated that he was a contractual employee of the management no.2 and his employment ends suo-moto upon expiry of the contract.
20.It has been further asserted that during course of employment, contributions of EPF and ESIC were being made in the account of the claimant/workman and his monthly wages were being transferred to his bank account.
21.It has also been asserted that the management no. 1 had informed management no. 2 vide their letter dated 20.06.2016 that their contract will expire on 30.07.2016 which was not renewed and one month advance notice was given to all concerned workmen. It has been asserted that the workers ceased to be employees of management no. 2 w.e.f. 30.07.2016 (afternoon) and an intimation of closure of contract was sent to the licensing officer on 21.06.2016.
22.It has also been asserted that the claimant/workman had sent one demand letter which was suitably replied on 03.08.2016 and it has been asserted that the services of the claimant/workman were not terminated by the management no. 2, but it was as a result of non-renewal of the contract.
23.On merits, all assertions made in the statement of claim LIR No. 9522/16 Digitally signed by Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. POOJA POOJA AGGARWAL Page No. 8 of 25 AGGARWAL Date:
2025.01.07 14:35:31 +0530 have been denied including his last drawn salary and the contents of the preliminary objections have been reiterated.
Facts as per the rejoinders to reply/Written Statement of management no. 1 and Written Statement of management no. 2.
24.In the respective rejoinders, all the averments made in the written statement/reply as filed on behalf of management no. 1 and 2 were denied by the claimant/workman and the contents of statement of claim were reiterated.
Issues
25.The following issues were framed by Ld. Predecessor vide order dated 23.07.2018 :
"(i) Whether the workman has been terminated illegally by the management? OPW
(ii) Whether there existed any employer-employee relationship between management and workman? OPM-1
(iii) Whether the workman was in contractual employment of Management no.2 as per terms and conditions of Management? OPM-2
(iv) Whether the workman has not completed 240 days, therefore, no relationship of master and servant? OPM-2
(v) Relief."
26.Vide order dated 20.04.2023 the Ld. Predecessor modified the onus in respect of the issue no. (ii) as framed on 23.07.2018 (wrongly mentioned in the order as 19.11.2018) and reframed the issue as under:
"Whether there is no employer-employee relationship between the workman and the respondent no. 1 and therefore, claimant is not a workman under Section 2(S) of ID Act? OPW LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 9 of 25 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:35:41 +0530 Workman Evidence
27.The claimant/workman examined only himself and tendered his evidence by way of affidavit i.e. Ex. WW1/A. He also relied upon the following documents : S.No Description of Documents Exhibit/Mark
1. Copy of Statement of claim Ex. WW1/1 filed before the Conciliation Officer
2. Demand Notice dated Ex.WW1/2 to 02.08.2016 with postal Ex. WW1/4 receipts
28.He was duly cross-examined on behalf of the management no.1, during which, inter-alia the documents i.e. copy of settlement i.e. Ex. WW1/M1 and receipts i.e. Ex.WW1/M2 were put to him.
29.The right of the management no.2 to cross-examine the claimant / workman was closed as none had appeared to cross-examine him and the management no.2 was also proceeded exparte vide order dated 03.02.2024.
Management Evidence
30.The management no.1 examined Mr. Jitender Kumar Sharma as M1W1 who tendered his evidence by way of affidavit i.e. Ex. M1W1/A and relied upon the following documents:
S.No Description of Documents Exhibit/Mark
1. Original resolution dated Ex.M1W1/1 27.02.2024 in his favour.LIR No. 9522/16
Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 10 of 25 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:35:50 +0530
2. Copy of contract between Ex.M1W1/2 Management no.1 and Management no.2. dated 28.08.2015
3. Letter dated 20.06.2016 issued Ex.M1W1/3 by Management no.1 to Management no.2.
4. Office order dated 30.06.2016 Ex.M1W1/4 issued by management no.2
5. Copy of application dated Ex.M1W1/5 16.10.2015 of management no. 2 under Contract Labour Act
6. Return of contribution of Ex.M1W1/6 management no.2 under EPFO (colly)
7. Electronic challan under ESIC Ex.M1W1/7 on behalf of management (colly) no.2.
8. Registration certificate issued Ex.M1W1/8 to management no.1 under (colly) Contract Labour Act
9. Copy of award dated Ex.M1W1/9 06.01.2018
10. Copy of award dated Ex.M1W1/10 24.01.2024 in POIT No.53/23 titled Vikram & Ors. vs. Sir Ganga Ram City Hospital
11. No Dispute Award dated Ex.M1W1/11 11.10.2022 in LIR No.1653/19 titled as Ajay Dikka & 79 ors.
vs. Sir Ganga Ram City Hospital
12. Document already Ex.WW1/M1 and receipt.
He was duly cross-examined on behalf of the claimant/ workman.
LIR No. 9522/16 Digitally
Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. signed by
POOJA
Page No. 11 of 25
POOJA AGGARWAL
AGGARWAL Date:
2025.01.07
14:35:59
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31.The management no.1 also examined M1W2 Sh. Arun Singh Rawat, Assistant from ESIC Branch Office, Okhla as a summoned witness who initially produced the record pertaining to Moh. Ashif s/o Sh. Abdul Hamid. He was examined as M1W2A and he produced his letter of authorization i.e. Ex. M1W2A/A as well as the summoned record i.e. e-Pehchan card of Moh. Ashif issued by his employer M/s Glaze Services Pvt. Ltd. i.e. Ex.M1W2A/1 (colly), the ledger sheet for Moh. Ashif i.e. Ex.M1W2A/2, the monthly contribution history of Moh. Ashif i.e. Ex.M1W2A/3 (colly) reflecting contribution by M/s Glaze Services Pvt. Ltd. till August 2015 and thereafter contribution has been submitted by M/s Helpline Facility Management Pvt. Ltd. and also brought the Audit Trail of Moh. Ashif i.e. Ex.M1W2A/4 (colly) as well as the collective contribution sheet i.e. Ex.M1W2A/5. He was not cross-examined on behalf of the claimant/workman despite opportunity.
32.M1W3 Sh. Vibash Kumar, UDC from ESIC Branch Office Ashram produced the summoned record i.e. Return of Contribution (Form 5) of management no.2 from October 2014 to September 2016 i.e. Ex M1W3/1A (colly.) which was tagged in the connected file LIR no. 9519/16. He was also not cross-examined on behalf of the claimant/ workman despite opportunity.
33.M1W4 Sh. Umesh Kumar, SSSA from EPFO Regional Office, Wazirpur produced the record i.e. Electronic LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 12 of 25 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.07 14:36:07 +0530 challan cum return (ECR) for wages of March 2015 to July 2016 pertaining to the management no.2 i.e. Ex M1W4/2 which was tagged in the connected file LIR no. 9519/16. He was also not cross-examined on behalf of the claimant/ workman despite opportunity.
34.At the stage of final arguments, on request of the AR for workman, the issue no.(ii) was reframed vide order dated 21.12.2024, as under:
"Whether there was relationship of employer- employee between management no.1 and the claimant / workman? OPW"
35.No further evidence was led in view of the reframed issue no.(ii) as both the Ld. ARs gave a statement to the effect that they did not wish to lead any further evidence in view of the reframed issue and relied on the evidence already led.
Final Arguments
36.Final arguments were then advanced on behalf of the claimant/workman as well as management no. 1 by their respective Authorized Representatives.
37.The final arguments as advanced have been carefully considered along with the evidence on record and after careful consideration, the issue wise findings are as under:
Issue No. (ii) as reframed on 21.12.2024:
Whether there was relationship of employer- employee between management no.1 and the Digitally LIR No. 9522/16 signed by Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. POOJA POOJA AGGARWAL Page No. 13 of 25 AGGARWAL Date:
2025.01.07 14:36:16 +0530 claimant / workman? OPW
38.This issue is being taken up prior to other issues for the sake of convenience. The onus to prove this issue was upon the claimant/ workman as it is a settled proposition of law that the burden to prove a fact is on the one who asserts the same. Thus it was for the claimant/ workman to prove the existence of employer-employee relationship between the management no.1 and him, and not for the management no.1 to disprove the same. (Ref: Babu Ram v. Govt. (NCT of Delhi), 2018 SCC OnLine Del 7243).
39.In the case at hand, the claimant/workman has testified in his evidence affidavit i.e. Ex.WW1/A that he was working with the management no.1 since 01.03.2009 having been appointed by the management no.1 itself, but his name was transferred to the contractor M/s Glaze Services Private Ltd. and thereafter, his name was illegally shown in the records of a Sham Contractor i.e. the management no.2 since 01.09.2015 even though the management no.2 did not have any licence under the Contract Labour (Regulation and Abolition) Act, 1970 nor the management had renewed its registration under the said Act.
40.However, except self serving testimony in his affidavit, the claimant/workman has not filed any document to prove his appointment/ employment by/with the management no.1 including appointment letter, ID card or even any salary slip etc. LIR No. 9522/16 Digitally Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. signed by POOJA Page No. 14 of 25 POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:36:24 +0530
41.Despite having asserted in his statement of claim, that he was not provided any appointment letter, salary slip etc. by the management, for reasons best known to him, the claimant/ workman did not even testify in his evidence affidavit i.e. Ex WW1/A regarding not being provided such legal facilities.
42.This non-averment when coupled with the factum of non-
production of any document to prove his employment with the management no.1, is fatal to the claim of the claimant/ workman as to being an employee of the management no.1 even more so, since in his cross-examination, he has admitted that he had been employed by M/s Glaze Services Pvt. Ltd.
43.It is also pertinent to note here that the claimant/ workman has himself admitted in his cross-examination that it was M/s Glaze Services Pvt. Ltd. and the management no.2 which used to deduct his ESIC and EPF contributions.
44.These admissions further disprove the existence of employee-employer relationship between the claimant/ workman and the management no.1 since, the PF and ESI contributions are made/paid by an employer which, in this case, the claimant/ workman has admitted was M/s Glaze Services Pvt. Ltd. and the management no.2 and he has not led any evidence to prove that such deductions / contributions were made by the management no.1.
LIR No. 9522/16Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 15 of 25 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.07 14:36:32 +0530
45.It is also pertinent to note here that during his cross- examination, the claimant/workman has also admitted his signatures on the settlement i.e. Ex WW1/M1 which is a settlement arrived at between M/s Glaze Services Pvt. Ltd. and the Union of the workman. He has also identified his signatures on the receipts i.e. Ex. WW1/M2 and Ex. WW1/M3 also admitting the receipt of Rs. 24,456/- from M/s Glaze Services Pvt. Ltd. He has also admitted that after his settlement, he had joined the management no.2.
46.These admissions further disprove the claim of the claimant/ workman as to being an employee of the management no.1 and as to his services having been transferred to M/s Glaze Services Pvt. Ltd. or as to him having been shown on the rolls of the management no.2 illegally, since if he was infact an employee of the management no.1 and if his name had been shown on the rolls of the management no.2 illegally, there would have been no occasion for the claimant/workman to have joined the management no.2 himself, that too after any settlement with M/s Glaze Services Pvt. Ltd.
47.It is not lost sight of that in the present case, the claimant/workman has also asserted that the contract between the management no.1 and M/s Glaze Services Pvt. Ltd. as well as management no.2 were sham.
48.It is a settled proposition of law that in cases, where the contract between the principal employer and contractor is Digitally LIR No. 9522/16 signed by POOJA Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. POOJA AGGARWAL Page No. 16 of 25 AGGARWAL Date:
2025.01.07 14:36:42 +0530 alleged to be sham, nominal or merely a camouflage to deny employment benefits to the employee there are two well-recognized tests to find out whether the contract labour are the direct employees of the principal employer i.e. (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. (Ref: Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635)
49.However, in the present case, it is not even the case of the claimant/workman that his salary was being paid by the management no.1 nor is it his case that he was working under the supervision or control of the management no.1. Even in his cross-examination, he has admitted that during his employment with M/s Glaze Services Pvt. Ltd. and the management no.2, his work was supervised by supervisors of those two entities and that his wages used to be paid by the aforesaid employers.
50.The aforesaid admission has proved not only the factum of the employment of the claimant/workman with M/s Glaze Services Pvt. Ltd. and the management no.2, but also the factum of non-payment of salary by the management no.1 at any point of time. Hence, the factum of payment of salary of the claimant/workman by the management no.1 and as to the job of the claimant/ workman being supervised by the management no.1, remains unproved.
LIR No. 9522/16 Digitally
Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. signed by
POOJA Page No. 17 of 25
POOJA AGGARWAL
AGGARWAL Date:
2025.01.07
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51.In view of the aforesaid discussion, in the absence of any documentary evidence having been led by the claimant/ workman to prove his employment by the management no.1, it is held that the claimant/workman has failed to prove the existence of any employer-employee relationship between the management no.1 and him.
52.Rather, from the evidence as led, it stands proved that the claimant/workman was not the employee of the management no.1 but was the employee of the management no.2, which fact is also admitted by the management no.2, in its written statement and needs no further proof.
53.This issue is accordingly decided against the claimant/ workman and in favour of the management no. 1.
Issue No. (i) Whether the services of the workman has been terminated illegally and unjustifiably by the management? OPW; Issue no. (iii) Whether the claimant was in contractual employment of respondent no. 2 and his services had come to an end as a result of non-renewal of the contract? OPM-2 and Issue no. (iv) Whether the workman has not completed his 240 days in continuation, therefore, is not a workman as per definition of Section 2(s) of I.D. Act ? OPM-2
54.These issues are being taken up together as they involve inter-connected facts. While the onus to prove issue no. (i) was on the claimant/workman, the onus to prove the issue no. (iii) and (iv) was on the management no. 2.
LIR No. 9522/16
Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 18 of 25
signed by
POOJA
POOJA AGGARWAL
AGGARWAL Date:
2025.01.07
14:37:04
+0530
55.It is duly noted that in his evidence affidavit i.e. Ex.WW1/A, the claimant/workman has categorically testified that his services had been terminated by the managements on 30.07.2016 and even in its written statement, the management no.2 has admitted that the claimant/ workman ceased to be its employee from 30.07.2016. Hence, on the basis of admission of the management no.2, the factum of cessation of employment of the claimant/ workman with the management no.2 w.e.f 30.07.2016 stands proved.
56.However, there is no admission by the management no.2 as to it having terminated the services of the claimant/ workman on 30.07.2016 as they have set up the defence that the claimant/workman was recruited under a special recruitment to perform the contract in the establishment of the management no.1 and in the appointment letter of the claimant/workman, it was specifically stated that he was a contractual employee for all purposes and his employment suo-moto ends on the expiry of the contract. Thus, it was the defence of the management no.2 that the employment of the claimant/workman ceased on the expiry of his contract.
57.That being so, it was for the management no. 2 to prove the existence of such contract as well as the effects of its cessation/ expiry. However, for reasons best known to it, the management no.2 stopped appearing in this matter and LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 19 of 25 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:37:13 +0530 did not lead any evidence to prove the same nor they proved any appointment letter of the claimant/ workman containing any stipulation as to the termination of the employment. Thus, in the absence of any evidence having been led by the management no.2, the factum of the claimant/ workman being the contractual employee of the management no.2 or as to his services having come to an end with the expiry/ non-renewal of the contract remains unproved and it is held that the management no. 2 has failed to discharge the onus cast upon them in this respect.
58.Further, the management no.2 also did not lead any evidence to prove that the claimant/workman had worked for less than 240 days from 01.09.2015 to 30.07.2016, and hence the same also remains unproved.
59.Thus, from the evidence as led, on a scale of preponderance of probabilities, it stands proved that the cessation of services of claimant / workman on 30.07.2016 was in the nature of termination of services by the management no.2 and that his services had not ended due to expiry of any contract between the management no.2 and the claimant/workman.
60.In as far as the legality of such termination is concerned, it is noted that it is not the case of the management no.2 that they had complied with the provisions of Section 25F of the Industrial Disputes Act, 1947 prior to retrenchment of the claimant/ workman in as much as it is not the case of LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 20 of 25 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:37:23 +0530 the management no.2 that they had given any notice pay to him prior to his termination.
61.Though the management no.2 has asserted in its written statement as to having sent a one month notice to all the concerned workers after receipt of notice of the management no.1 dated 20.06.2016 and as to non-renewal of contract after completion of period of contract on 30.07.2016, for the reasons best known to them, the management no.2 did not lead any evidence to prove the factum of such notice having been sent to the claimant/ workman herein.
62.Thus, the mere self serving averment of the management no.2 in its written statement is not sufficient compliance of the provisions of Section 25 F of the Industrial Disputes Act as per which it was necessary for the management no.2 to have given not only the one month's notice or notice pay in lieu thereof but also to have paid the retrenchment compensation, which the management no.2 has miserably failed to prove.
63.Hence, as in the present case, the conditions prescribed in Section 25 F of The Industrial Disputes Act, 1947 have not been complied with, the termination of the claimant/ workman by the management no.2 is held to be illegal.
64. Thus issue no. (i) is decided in favour of the claimant/ workman and against the management no.2, whereas issue LIR No. 9522/16 Digitally Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. signed by POOJA Page No. 21 of 25 POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:37:31 +0530 no. (iii) and (iv) are decided against the management no.2 and in favour of the claimant/workman.
Issue no. (v) Relief
65.It is pertinent to note here that the claimant/ workman seeks reinstatement with full back wages and consequential benefits.
66.In Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443. also referred to by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 as well as Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, the Hon'ble Supreme Court laid down as under:
"....Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not. comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."LIR No. 9522/16
Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Page No. 22 of 25 POOJA AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.07 14:37:41 +0530 (Emphasis supplied)
67.In Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, it has also been held by the Hon'ble Supreme Court that:
"4. It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz. (i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and / or (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation"
(Emphasis supplied)
68.In the present case, as per the testimony of the claimant/workman in Ex. WW1/A, he is unemployed since the termination of his services by the management. Nothing material could be brought out in his cross- examination to discredit this testimony of the claimant/ workman.
69.Even so, in the present case, the testimony of the claimant/workman as to the management having refused to reinstate him even after intervention of the Labour Inspector, indicates the loss of confidence between the parties, and it would not be conducive in the interest of industrial peace to reinstate the claimant/workman with the management no.2.
70.That being so, in view of the legal proposition as laid in LIR No. 9522/16 Digitally Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. signed by POOJA Page No. 23 of 25 POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:37:52 +0530 Surendra Kumar Verma v. Central Govt. Industrial Tribunal- cum- Labour Court, (1980) 4 SCC 443 and referred in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 as well as Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, considering that in its written statement, the management no.2 has admitted the claimant/workman to have been its employee only w.e.f. 01.09.2015 and the claimant / workman has not led any evidence to prove his employment with the management no.2 prior to 01.09.2015, and further considering that the services of the claimant/workman were terminated on 30.07.2016 i.e. when he had been working with the management no.2 for less than a year prior to his illegal termination, and further considering that it cannot be presumed that the claimant/workman would have remained idle since termination of his services, it would be inequitable to award reinstatement, and interests of justice shall be served if the claimant/workman is awarded lump sum compensation of Rs 25,000/- (Rs. Twenty Five Thousand Only) payable by the management no.2. Hence, the claimant/workman is awarded lump sum compensation of Rs 25,000/- (Rs. Twenty Five Thousand Only) in lieu of reinstatement to be paid by the management no.2.
71. The reference qua the claimant/workman Mohd. Ashif S/o Mr. Abdul Hamid is accordingly answered as under:
"The services of the workman Mohd. Ashif S/o Mr. Abdul Hamid had been terminated illegally by the management no.2 and he is awarded LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 24 of 25 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.07 14:38:00 +0530 lumpsum compensation of Rs.25,000/- to be paid by the management no.2 to him in lieu of reinstatement."
72.The awarded amount of Rs. 25,000/- (Rs. Twenty Five Thousand Only) be paid to the claimant/workman by the management no.2 within 30 days from the date of publication of the award failing which the management no.2 will be liable to pay interest @ 8% per annum on the awarded amount till realization.
73.Copy of Award be uploaded on the website of RADC and be also sent to the concerned department through proper channels as per rules.
74.File be consigned to the record room after necessary compliance.
Announced in the Open Court POOJA Digitally signed by POOJA AGGARWAL today i.e. on 07th January 2025 AGGARWAL Date: 2025.01.07 14:38:08 +0530 (POOJA AGGARWAL)
Presiding Officer Labour Court -01 Rouse Avenue District Court New Delhi (sy) LIR No. 9522/16 Moh. Ashif vs Sir Ganga Ram City Hospital & Anr. Page No. 25 of 25