Delhi District Court
M/S New Delhi Municipal Council vs R. Rajappa And Others Reported on 17 January, 2007
1 ID No. 78/2005
IN THE COURT OF SH. DINESH DAYAL
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II ,
KARKARDOOMA COURTS, DELHI
I.D No. 78/2005 (Old ID No. 99/1998)
IN THE MATTER OF
M/s New Delhi Municipal Council
Palika Kendra , Sansad Marg,
New Delhi
..Management
Versus
Its workman
Shri Prem Shanker Saxena
As represented by New Delhi Nagar Palika Karamchari Union
B-12 Palika Karamchari Union
B-12 Palika Niwas
Lodhi Colony, New Delhi
...Workman
AWARD
The claimant/workman was awarded the punishment of
compulsory retirement vide Order No.4/PB/Vig/Imp/97/VI-I dated
10.1.1997 .
2. The workman has challenged this Order and the
Secretary (Labour), Government of National Capital Territory of
Delhi has referred the dispute arising between the parties named
2 ID No. 78/2005
above for adjudication to this Industrial Tribunal vide its order No.
F. 24 (2506)/98/Lab/20857-61 dated 01.7.1998 with the following
terms of reference:-
REFERENCE
Whether the action of the Management in compulsory
retiring of Shri Prem Shanker Saxena is illegal and/or
unjustified and if so, to what relief is he entitled and
what directions are necessary in this respect?
3. Following Issues were framed on the pleadings of the
parties on 18.5.1999 :
ISSUES :
(I) As per terms of reference.
(II) Whether the claim is barred under Section 2j and 2s of
the ID Act as alleged? OPM
(III) Whether a proper demand notice has been served? OPW
(IV) Whether the claim is not maintainable for the reasons
stated in Para 3 of the preliminary objections of the
3 ID No. 78/2005
written statement?
4. On 02.11.1999 the workman submitted that the Issue
relating to the validity of the departmental inquiry should also be
framed and following Issue was framed on 02.11.1999 :
ISSUE No. V :
(V) Whether the Management has held a legal and valid
inquiry, as per rules of natural justice? OPM
5. On the request of the parties, this Issue No. 5 relating to
the validity of inquiry was ordered to be treated as Preliminary
Issue.
6. My Ld. Predecessor by his order dated 07.6.2003 held that
the principles of natural justices have been violated & during the
pendency the inquiry can not be held to be proper, fair and valid
and decided Issue No. 5 against the Management.
7. Thereafter the workman filed an application to strike off
the defence of the Management on the point of misconduct on the
ground that there was no pleading in the written statement to prove
4 ID No. 78/2005
the misconduct during the inquiry proceedings. By an order dated
14.12.2004, my Ld. Predecessor held that the Management had not
made a prayer for proving the misconduct before the court and
hence the defence of the Management with regard to the allegations
of misconduct against the workman was struck off and the
application of the workman dated 18.10.2004 was allowed.
8. Thereafter the Management filed an application dated
25.1.2005 seeking permission to lead additional evidence to prove
the misconduct by the workman . This application was dismissed by
an order dated 29.3.2006.
9. No evidence has been led by the parties as the Issues No.
1 to 4 are purely legal issues. Parties filed written arguments in
support of their contentions. I have carefully gone through the
arguments and have also perused the file. My findings on the Issues
are as under :
ISSUE No. 2 :
10. It has been argued on behalf of the Management that the
issue of inquiry has already been decided in favour of the claimant
5 ID No. 78/2005
and against the Management. The application of the Management
to lead additional evidence to prove the misconduct of the claimant
after the inquiry had also been dismissed. The only Issue that
remains to be decided apparently is the issue of reinstatement,
back wages and other consequential benefits. The issue of back
wages in the present case does not survive in favour of the claimant
as the claimant in his own affidavit as well as claim has no where
pleaded that he made any efforts to look for a gainful employment
and in such circumstances he is not entitled to the relief of back
wages. The issue of reinstatement also remains more controversial
because the claim is on the verge of attaining the age of
superannuation and thus, any relief of such nature shall stand
infructuous.
11. The four issues, which were framed on 18.5.1999 , appear
to arise from the preliminary objections raised in the written
statement which are to the following effect :
1.That the claim is barred U/S 2(J) and 2(S) of ID Act as the claimant concerned is not a workman nor the Management is an Industry as per the said act.
2. That no demand notice has been served to the 6 ID No. 78/2005 Management, NDMC prior to the filing of the claim before this Court. Hence, the claim is liable to be dismissed on this short ground alone.
3. That the Management, NDMC is a Civil Body directly under the control of Govt. of India . It is directly financed, managed and controlled by Ministry of Home, Govt. of India and it has nothing to do with the Govt. of NCT of Delhi. Hence, the Govt. of NCT of Delhi is not competent to refer the present dispute to this Hon'ble Court for adjudication . Hence, the claim is liable to be dismissed.
12. It has been argued on behalf of the management that NDMC is not an industry and hence this reference is not maintainable. It has been held in the case of Bangalore Water Supply & Sewerage Board Etc Vs. R. Rajappa and Others reported as (1978) 3 S.C. R. 207. that
13. As per this judgment industry as defined in section 2 (j) has a wide import:
I (a) Where (i) systematic activity , (ii) Organized by cooperation between the employer and employee (the direct and 7 ID No. 78/2005 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 of 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.
(d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking (282A-C) II. Although Section 2 (j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to overeach itself(282D)
(a) 'Undertaking' must suffer a contextual and 8 ID No. 78/2005 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, calling and services, adventures, analogous to the carrying on of trade or business. All features , other than the methodology of carrying on the activity viz. In organizing the cooperation between employer and employee , may be dissimilar. It does not matter, if on the employment terms there is analogy (282 D-E) III. Application of these guidelines should not stop short of their logical reach by invocation of creeds , cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulations 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 .
9 ID No. 78/2005
(a) The consequences are (i) profession (ii) clubs (iii) educational institutions (iv) cooperatives (v) research institutes
(vi) charitable projects and vii) other kindred adventures, if they fulfill the triple tests listed on I (supra) cannot be exempted from the scope of section 2 (j)
(b) A restricted category of professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple venture, substantially and going by the dominant nature criterion, substantively no employees are entertained but in minimal matters, marginal employees are hired without destroying the non employee character of the unit.
(c) If, in a pious or altruistic mission, many employ themselves , free or for small honoraria or like return , mainly drawn 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 on asramites 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 10 ID No. 78/2005 master and servant relationship , then the institution is not an industry even if stray servants, manual or technical , are hired . Such eleemosynary or like undertakings alone are exempt not other generosity , compassion, development passion or project. (282 F-H, 283 A-C) IV. The dominant nature test :
(a) Where a complex of activities , some of which qualify for exemption others, not , involves employees on the total undertaking, some of whom are not 'workman' as in the University of Delhi case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments explained in the Corporation of Nagpur , will be the true test. The whole undertaking will be 'industry' although those who are not 'workman' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses , sovereign , functions, strictly , understood, (alone) ,qualify for exemption, not the welfare activities of economic adventures undertaken by Government or statutory bodies.
(c) Even in departments discharging sovereign 11 ID No. 78/2005 functions, if there are units which are industries and they are substantially severable, then they can be considered to come within sec 2 (j)
(d) Constitutionally and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby (283 C-F).
14. On the above tests the NDMC has fulfilled the criteria of an industry. I , therefore hold that the NDMC is an industry and the claim is not barred under Section 2j and 2s of the Industrial Disputes Act 1947 .
ISSUE No. 3 :
15. The workman/claimant has stated in his affidavit dated 13.9.2003 that he had submitted an application/demand notice upon the Management on 12.2.1997 and demanded his salary and medical leave, but the Management did not care for the said. The said application is Ex.WW1/18 . Besides this letter the workman has not relied on any notice raising the dispute. The Management has taken this objection alleging that no dispute was raised by the workman and hence, no industrial dispute exists. 12 ID No. 78/2005
16. It is not disputed that the Management held an inquiry and awarded the punishment of compulsory retirement. The workman has been fighting with the Management alleging that his compulsory retirement is illegal. He filed the claim before the Conciliation Officer which was contested by the Management. The workman has alleged that this itself raises an industrial dispute and the existence of industrial dispute can not be challenged by the Management.
17. An industrial dispute comes into existence when the employer and the workmen are at variance and the dispute or difference is connected with the employment or non-employment, the terms of employment or with the conditions of labour. In other words, a dispute or difference arises when a demand is made by the workmen on the employer and it is rejected by him . In the case of Sindhu Resettlement Corpn Ltd. Vs. Industrial Tribunal (1968) 1 LLJ 834, the Hon'ble Supreme Court has held that a mere demand, asking the appropriate government to refer the dispute for adjudication , without a dispute being raised by the workmen with their employer, regarding such demand, can not become an 13 ID No. 78/2005 industrial dispute. Hence, an industrial dispute can not be said to exist until and unless a demand is made by the workman or workmen on the employer and it has been rejected by him . A Division Bench of the Delhi High Court in Fedders Lloyd Corpn Pvt Ltd Vs. Lieutenant Governor 1970 Lab IC 421 and in the case of Delhi Transport Corporation Vs. Delhi Admn (1973) 2 LLJ 307 went a step further in holding that " a demand by the workmen must be raised first on the management and rejected by it, before an industrial dispute can be said to arise and exist and that the making of such a demand to the conciliation officer and its communication by him to the management, who rejected the demand, is not sufficient to constitute an industrial dispute."
18. In order to determine whether the workman raised a valid demand with the Management, we must look at an alleged demand notice Ex.WW1/18. This notice does not bear any date. The object of this letter is acceptance of medical leave of workman Prem Shanker Saxena , Inquiry Attendant, Malcha Marg Service Centre, New Delhi. In this letter the workman has stated that he is working as an Inquiry Attendant in the Civil Engineering 14 ID No. 78/2005 Department of NDMC at Malcha Marg , New Delhi. He was on medical leave from 16.1.1997 to 01.2.1997 . While he was on medical leave, he got the orders of the Chairman , NDMC dated 29.1.1997 by which he was compulsory retired. When he produced his medical certificate on 03.2.1997 the Junior Engineer concerned refused to take his medical certificate by referring to the aforesaid order of the Chairman of the NDMC. The workman requested the Secretary of NDMC to accept the medical certificate and release his salary. A perusal of this letter shows that it does not refer to the order of compulsory retirement nor raised any demand against the Management for reinstatement or revocation of order of compulsory retirement. The workman has not shown that he had issued any other demand notice to the Management.
19. I, therefore, hold that the workman had not issued any demand notice to the Management and has thus, not raised any industrial dispute. No industrial dispute existed and no industrial dispute could have been referred by the Government of National Capital Territory of Delhi to this Tribunal.
ISSUE No. 4 :
15 ID No. 78/2005
20. The management has not led any evidence in support of the contention that the management is under the control of the Central Government. Section 2 (a) of the Industrial Disputes Act defines the Appropriate Government as :-
(a) appropriate Government means:- (i) in relation to any industrial dispute concerning any
industry carried on by or under the authority of the Central Government, or by a railway company (or concerning any such controlled industry as may be specified in this behalf by the Central Government) or in relation to an industrial dispute concerning (a Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948), or (the industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956 (1 of 1956) or the Employees' State Insurance Corporation established under section 3 of the Employees State Insurance Act 1948 (34 of 1948), or the Board of Trustees constituted under section 3 A of the Coal mines Provident Fund and Miscellaneous Provisions Act 1948 (46 of 1948), or the Central Government of Trustees and the State Boards of Trustees constituted under section 5A and section 5 B , respectively, of the Employees Provident Fund and Miscellaneous Provisions Act, 16 ID No. 78/2005 1952 (19 of 1952), or the life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act , 1956 (31 of 1956), or [the Oil and Natural Gas Corporation Limited registered under the Companies Act , 1956 (1 of 1956)], or the Deposit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under section 3 of the warehousing Corporations Act , 1962 (58 of 1962), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established under section 3, or a Board of management established for two or more contiguous States under section 16 of the Food Corporations Act, 1964 (37 of 1964), or (the Airports Authority of India constituted under section 3 of the Airports Authority of India Act, 1994 (55 of 1994), or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India Limited) [the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987)] or [ an air transport service or a banking or an 17 ID No. 78/2005 insurance company] a mine , an oil filed][ a Cantonment Board ] or a major port, the Central Government , and]
(ii) In relation to any other industrial dispute, the State Government;
21. The industries enumerated in Section 2 (a) of the Industrial Disputes Act do not include the NDMC. The NDMC is a part of Local self government concerning New Delhi zone of the Union Territory of Delhi . I therefore, find that the appropriate government with relation to the NDMC is the Government of National Capital Territory of Delhi and the reference made by the Secretary (Labour),Government of National Capital Territory of Delhi is in accordance with the provisions of section 2 (a) of the Industrial Disputes Act. This Issue is decided accordingly. ISSUE No. 1/Reference :
22. In view of my findings on the above Issues, I find that no relief can be granted to the workman/claimant Shri Prem Shanker Saxena and the action of the Management in compulsory retiring is legal and justified. Reference is answered.
18 ID No. 78/2005
Let six copies of this award be sent to the secretary (Labour), Government of National Capital Territory of Delhi for necessary action at their end.
File be consigned to Record Room after due compliance. ANNOUNCED IN THE OPEN COURT ON 17th Day of January 2007 (DINESH DAYAL) Presiding Officer INDUSTRIAL TRIBUNAL-II KARKARDOOMA COURTS: DELHI