Delhi District Court
Between The vs The on 5 November, 2015
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS: DELHI Unique Case ID No. 02402C0132582011 ID No. 354/11 (old), 652/14 (new) Date of institution 25.03.2011 Date of receiving of present case by way of transfer 24.07.2014 Date of Award 05.11.2015 BETWEEN THE WORKMAN Smt. Geeta Devi W/o Sh. Roshan Rawat R/o H.N14, Mandi Gaon, Mahrauli, New Delhi30 through General Mazdoor Trade Union (Regd.), Opp. Old Labour Office, Giri Nagar, Kalkaji, New Delhi19.
AND THE MANAGEMENT OF M/s Lok Sewak Sangh, Lajpat Bhawan, Lajpat Nagar, New Delhi.
A W A R D 1 By this award, I shall dispose off the reference as sent by the Dy. Labour Commissioner, Labour Department, South District, Govt. of the National Capital Territory of Delhi, New Delhi arising out between the parties named above to this Court vide Notification No. F.24(426)/Lab/SD/2010/3209 dated 17.03.2011 with the following terms of reference: "Whether services of Smt. Geeta Devi W/o Sh. Roshan Rawat have come to an end on completion of probation period or her services have been terminated illegally and /or unjustifiably by the management; and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Laws/Govt. Notifications and to what other relief is she entitled and what directions are necessary ID. 354 (old), 652/14 (new) 1/8 in this respect?"
2 Notice was issued to the workman with directions to file statement of claim which has been filed by the workman stating therein that she had been working with the management at Mandi Branch with full dedication and hard labour since 16.11.2009 at the post of 'Grinder' and her last drawn salary was Rs.5424/per month. It is further stated that the workman had not afforded any chance of complaint during her service tenure, nor there was any charge against her but despite that, the management had not been providing any legal facilities to the workman like appointment letter, identity card, weekly and festival off, bonus and overtime etc. The management had also obtained the signatures of the workman on blank papers, revenue affixed vouchers at the time of her appointment. It is further stated that when the workman started demanding aforesaid legal facilities due to which the management got annoyed and started pressurized her to tender resignation letter and when the workman protested the same, the management terminated the services of the workman on 16.11.2010 without issuing any notice/charge sheet and without assigning any reason. The management also withheld her earned wages w.e.f. 01.11.2010 to 16.11.2010. It is further stated that in this regard the workman lodged a complaint against the management to the Labour Department, upon which the Labour Inspector visited the premises of the management to reinstate the workman in service. Although the management paid her earned wages before the Labour Inspector but the management refused to reinstate her in service. It is further stated that thereafter, the workman sent a demand notice to the management on 22.11.2010 by speed post & UPC which was duly received by the management but no response was given by the management to the said demand notice nor the workman was reinstated in service. It is further stated that thereafter, the workman filed her claim against the management before the Conciliation ID. 354 (old), 652/14 (new) 2/8 Officer but the management did not appear before the Conciliation Officer despite notice nor cooperated in the conciliation proceedings, hence conciliation failed and as such the present matter was referred by way of aforesaid reference for adjudication. It is further stated that the workman is unemployed since the date of termination of her services and therefore, she has prayed that an award be passed in her favour, thereby directing the management to reinstate her in service with full back wages including benefits of continuity of service and all other consequential benefits. 3 Management has contested the present case and filed its written statement by taking preliminary objections that a false allegation has been leveled that the management has terminated her services illegally, unlawfully, without payment retrenchment compensation, or without notice, or pay in lieu of notice is totally wrong and false hence denied and infact the workman was on probation period, which expired hence her service came to end automatically since there was non renewal of employment contract no payment of retrenchment compensation, no notice was required, nor wages in lieu of notice period was required; that the workman has not come to the court with clean hand and has concealed the true facts from the court; that a false allegation has been made against the management having obtained signature on blank papers and this is a general stock plead taken by the workman and is also an after thought story of the workman. No such plea was taken in the copy of the demand notice sent to the management, or the statement of claim filed before the LabourcumConciliation Officer; that the workman has also leveled false and baseless allegation the workman was not given the legal benefits under labour legislation and the workman was already in receipt of all the benefits as given to other employees of the establishment. On merits, it is stated that the workman was employed by the management on 16.11.2009 as Grinder in its branch at ID. 354 (old), 652/14 (new) 3/8 Mandi (Delhi) and her last drawn wages were Rs.5424/ per month. All other averments of the statement of claim are denied word by word and ultimately, it is prayed that the claim of the workman be dismissed.
4 The workman filed rejoinder in which all the contents of the written statement are denied word by word and the workman reiterated and reaffirmed the facts of the statement of claim as correct and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by her in the statement of claim. 5 After the completion of the pleadings, the following issues were framed by my Ld. Predecessor on 24.09.13:
1 As per terms of reference. 2 Relief.
6 After the framing up of the issues, the matter was fixed for workman's evidence for 21.02.2014, but the workman did not lead her evidence despite various opportunities and her evidence was closed vide order dated 27.05.2015 and thereafter, the matter was fixed for management's evidence. In support of its case, the management examined on witness i.e. Sh. Jamesh Mark, Office Superintendent, as MW1. The management did not examine any other witness and Ld. AR for management closed its evidence. Thereafter, matter was fixed for final arguments.
7 The workman did not advance his arguments despite granting various opportunities. On the other hand, Ld.AR for management filed written arguments. 8 I have perused the written arguments filed by the management. In support of his contentions, Ld.AR for management relied upon following judgments: 1 West Fort Hospital Vs State of Kerala 2004 III LLJ 1017 (Kerala HC) 2 State of Rajasthan and Ors. Vs Rameshwar Lal Ghahlot 1996 LLR 482 (SC) ID. 354 (old), 652/14 (new) 4/8 3 Steel Authority of India Ltd. Vs Workmen of Steel Authority of India Ltd., Bokaro Steel Plant, Steel City 2007 I LLJ 185 4 Hyedrabad Industries Ltd., Deoghar Vs State of Jharkhand and Anr. 2009 IV LLJ 561 (Jhar. HC).
5 District Animal Husbandry Officer, Bundi & Anr. Vs Judge, Labour Court, Kota and Anr., 2003 LLR 99 (Raj. HC) 6 Krishan Chandra Samal Vs The Divisional Manager, Orissa State Cashew Development Corpn. Ltd., Dhenkanal 2006 LLR 65 (SC) 7 Vidya Vardhaka Sangha and Anr. Vs YD Deshpande and Ors. 2006 LLR 1233 (SC).
9 Record perused. On perusal of record, my issuewise findings are as under:
ISSUE NO.1
10 The issue no. 1 has been framed in terms of reference as mentioned hereinabove and there are two terms of reference i.e. as to whether the services of the workman have come to an end on completion of probation period or her services have been terminated illegally and /or unjustifiably by the management.
11 Both terms of reference are being taken up together. The onus to prove first terms of reference was upon the management and the management was required to prove that the services of the workman have come to an end on completion of probation period, whereas the onus to prove second terms of reference was upon the workman and the workman was required to prove that her services have been terminated illegally and /or unjustifiably by the management.
12 In order to prove its contention the management examined Sh. James Mark as MW1 and relied upon the documents i.e. authority letter which is Ex.MW1/1, photocopy ID. 354 (old), 652/14 (new) 5/8 of application for appointment given by the workman dt. 03.11.09 which is Ex.MW1/2 (colly.), photocopy of appointment letter dt. 12/14.11.09 which bears signatures of the workman at point A which is Ex.MW1/3, copy of letter for extension of probation period dt. 19.05.10 & 16.08.10 which bears the signatures of workman at points A which is Ex.MW1/4 (colly.), photocopy of identity card issued to the workman which is Ex.MW1/5, certified copy of relieving letter dt. 15.11.10 which is Ex.MW1/6 and copy of wage register for the month of November 2010 bearing signatures of workman at point A which is Ex.MW1/7. The workman did not cross examine the MW1 and as such the testimony of MW1 could not be impeached.
13 The management contended in its written statement that the workman was on probation period, which expired and hence, her services came to end automatically since there was non renewal of employment contract. I have perused the aforesaid documents relied by the management. Ex.MW1/3 is appointment letter and in clause no.1 it is mentioned that "You will be on probation period of six months, which can be extended further by the management of SOPS (DB) at its discretion. On successful completion of the aforesaid probationary period to the satisfaction of your HoD, you will be placed on the regular rolls of the Society. During the probation period, either party may terminate this appointment without any notice and thereafter by giving 30 days notice or salary in lieu thereof".
14 I have perused section 2 (oo) (bb) of the Industrial Disputes Act which is reproduced as under: "(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include ID. 354 (old), 652/14 (new) 6/8 a xxxxxxxxxxxxxxxxxxxxxxxxxxxxx b xxxxxxxxxxxxxxxxxxxxxxxxxxxxx bb termination of the services of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or c xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 15 A perusal of the letters of the management Ex.MW1/4 (colly.) reveal that the probation period of the workman was extended for three months on two occasions i.e. firstly from 15.05.2010 and secondly from 15.08.2010 and thereafter, her probation period was not extended and she was relieved from the service vide letter dt. 15.11.2010 Ex.MW1/6.
16 Judgments relied by Ld.AR for management perused. In West Fort Hospital Vs State of Kerala (supra), it was held that "Section 2 (oo) (bb) of the ID Act introduced by the Parliament in the ID Act it excluded from the ambit of the definitions, certain terminations by the following terms: (bb) termination of the services of a workman as a result of non renewal of the contract of employment between the employer and the workman concerned being terminated under stipulation in that behalf contained therein".
17 In State of Rajasthan and Ors. Vs Rameshwar Lal Ghahlot (supra), it was held that "When the appointment is of an employee is made for a fixed period, the termination will not amount to retrenchment as excluded by section 2 (oo) clause (bb). No compensation a stipulated by section 25 F of the Act will be payable".
18 In Steel Authority of India Ltd. Vs Workmen of Steel Authority of India Ltd., ID. 354 (old), 652/14 (new) 7/8
Bokaro Steel Plant (supra), it was held that "Appointment of a workman made for fixed term and extended from time to timeservice automatically ended on completion of terms of engagement".
19 This court is very much convinced with the judgments relied by Ld.AR for management and therefore, this court is of the opinion that since the workman was bound by the terms and conditions of the appointment letter Ex.WW1/3 and since her services can be terminated at any time as per clause no.1 of appointment letter Ex.WW1/3, it is held that the services of the workman have come to an end on completion of probation period. Since the services of the workman have come to an end on completion of probation period, it is held that the services of the workman were not terminated by the management illegally and unjustifiably. Issue no.1 is decided against the workman. ISSUE NO.2 (RELIEF) 20 In view of the findings of the court on issue no.1, it is held that the workman is not entitled to any relief against the management and an award to that effect is passed. Reference is disposed of accordingly.
21 A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
PRONOUNCED IN OPEN COURT (RAMESH KUMARII)
ON 05.11.2015 PRESIDING OFFICER:
LABOUR COURTIX/
EAST/KARKARDOOMA COURTS:
DELHI
ID. 354 (old), 652/14 (new) 8/8