Delhi District Court
M/S. Karnataka Soaps& Detergents ... vs U.P. Rajya Krishi on 25 July, 2008
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I.D. No. 03/06.
IN THE COURT OF SH. GURDEEP KUMAR
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF
M/s. Karnataka Soaps& Detergents Limited,
8/33, 2nd Floor, Stabhrawan School Marg,
W.E.A. Karol Bagh,
New Delhi.
...Management
Versus
Its workmen
Sh. Atul Bhugra and 2 other workmen
As represented by
Janwadi General Kamgar Mazdoor Union
Room No. 95, Barack No. 1/10,
Jam Nagar House, Shahjahan Road
New Delhi.
...Workmen
A W A R D :-
Date of institution of case : 17.02.2006.
Date on which the judgment
has been reserved : 16.07.2008.
Contd...
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Date on which the judgment
has been delivered : 25.07.2008.
Secretary (Labour), Government of National Capital
Territory of Delhi has referred the dispute arising between the
parties named above for adjudication vide its order No. F. 24
(877) / 05 / Lab. / 10252 - 56 dated 14.10.2005 u/s 10(1)(d)
and 12(5) of the I.D. Act, 1947 with the following terms of
reference:-
"Whether the demand of workmen
shown in Annexure 'A' for
regularization on the post of sales
representative from their initial date
of appointment is legal and / or
unjustified and if so, to what relief
are they entitled and what directions
are necessary in this respect?"
Workman's case in brief is that management is a Govt. of
Karnataka Undertaking having its Branch Office at Karol Bagh,
New Delhi and it is carrying activity of manufacturing and sale
of fragrance shops since last 80 years. It is further averred that
the workmen have been employed with the management in
Contd...
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Sales Department since last so many years continuously
without any break in services, since the date of their
appointments. Their duties are to contact the distributors as
well as retailers to collect orders on behalf of the company
according to wish and directions of the management. Their
work is being controlled by their Branch Office at Karol Bagh,
New Delhi. The said workmen have no power to discharge any
supervisory duties and they have no managerial or
administrative power while discharging their duties. It is further
averred that the workmen who were appointed in the
management by virtue of agreement between the workmen and
the management for initial period of one year, on the expiry of
the original agreement, the management used to provide
another fresh and new employment by extending the contract of
appointment on beginning of every subsequent year by issuing
extension of contract appointment. It is further averred that
Contd...
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nature of the work performed by the workmen with the
management is permanent and of a perennial nature. It is
further averred that the management adopted such unfair
labour practice only with the malafide intention to treat them as
a casual or temporaries with the object to deprive them of
status and privilege of permanent workmen. The union of the
workmen has passed resolution dated 17.11.2004 in which it
was decided to espouse their cause for regularization /
permanency of their post. The workmen sent demand notice
dated 23.11.2004 demanding their regularization but the
management did not regularize them nor replied that notice.
Therefore, they filed statement of claim before the Conciliation
Officer. During the pendency of the proceedings before the
Conciliation Officer, they terminated their services. It is further
averred that during the service tenure of the workmen, they
were under control and supervision of the management. They
Contd...
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have sought their regularization since the date of their initial
appointment with all legal and consequential benefits.
2. The management has filed written statement taking
preliminary objections that the claimants have concealed the
fact that they have already challenged their alleged termination
of services before the Labour Court and as such the present
claim is not maintainable nor sustainable in law; that admittedly
the management is a company of the State of Karnataka and is
governed, controlled and managed by the officer of the State of
Karnataka and have a marketing office at Delhi amongst other
places in India and admittedly the management has offices in
more than one state and as such this Tribunal has no
jurisdiction to entertain the present petition and only the Central
Government Industrial Tribunal has the jurisdiction to entertain
the same; that admittedly the claimants had been working with
Contd...
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the management purely on contractual basis and on the expiry
of the contract they are not working with the management even
on contract basis as such question of regularization /
permanency of the post of the claimants does not arise and
lastly that to keep the employee on permanent basis is an
executive function which the management has to perform as
per the rules & regulations of State of Karnataka. On merits,
the management admitted that it is a Government of Karnataka
Undertaking and it has been carrying on marketing activities
from its Delhi office and have no manufacturing activity in Delhi
office. It is further averred that on expiry of the contract, the
claimants are no more working with the management. It is
denied that the claimants are employees of the management
without any break in service since the day of their appointment.
It is further averred that during the relevant period the claimants
were working purely on contract basis as sales representatives
Contd...
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with the management and they were not the men as per the
provisions of Industrial Disputes Act. It is denied that the cause
of the claimants has been espoused by the union. Receipt of
demand notice dated 23.11.2004 is also disputed. Rest of the
averments are denied in toto.
3. The claimants did not file rejoinder to the written
statement. On the above facts / pleadings, following issues
were settled by my ld. Predecessor on 01.09.2006 :-
1. Whether the cause of the workmen
has been duly espoused?
2. Whether the workmen mentioned in
Annexure 'A' to the reference are
entitled to be regularized on the post
of Sales Representative from the
initial date of appointment?
3. Whether the claim is not maintainable
in view of the fact that the service of
the workmen have already been
terminated?
Contd...
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4. In terms of reference.
4. The parties were directed to adduce their evidence. Out of
the three claimants, only one claimant i.e. WW1 - Ajay Verma
entered the witness box as WW1 who tendered his affidavit Ext.
WW1/A and relied upon the documents WW1/1 to WW1/12.
The other claimants, namely, Atul Bhugra & Bhagwan did not
enter the witness box in support of their claim. On the other
hand, the management examined MW1 - Anil Ramphal,
Assistant General Manager and authorized representative. He
also tendered his affidavit Ext. MW1/A in the evidence
reiterating the averments in the written statement. An
opportunity was given to the claimants to cross examine him
but they did not do so.
5. I have heard A.R for the management. None appeared
for the claimants to address arguments. I have considered the
Contd...
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submissions made by A.R for the management and have gone
through the evidence brought on record.
My findings on the issues are as under:-
ISSUE NO. 1
6. Admittedly, claim of the workmen is not covered by the
provisions of Section 2 - A of the Industrial Disputes Act, 1947.
In order to bring their claim within the ambit of an industrial
dispute as defined under Section 2 (k) of the Industrial Disputes
Act, 1947, workmen are required to prove that their cause has
been espoused by the union or by sufficient number of
workmen of the management. Burden of proof is on the
claimants. To my mind, they have utterly failed to discharge
the burden of proof. The only evidence is the self serving
Contd...
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affidavit Ext. WW1/A tendered by WW1 - Ajay Verma. He
claims that the espousal letter Ext. WW1/6 was issued by
Janwadi General Kamgar Mazdoor Union. He has placed on
record Ext. WW1/6 which is a photocopy. Its original has not
been produced by WW1 nor its subscriber Mr. B.K. Prasad has
been examined to prove its contents. Consequently, the
claimants are guilty of withholding primary evidence and mere
marking of exhibit only on a photocopy does not dispense with
the onus of proving the contents as per the law of evidence.
Therefore, Ext. WW1/6 cannot be taken into consideration. In
the absence of any espousal letter and any other evidence
whatsoever there is nothing on record to prove that the cause of
the claimants has been espoused as required under the law.
The claimants have failed to discharge the burden of proof
which is on them. On this score alone, the claim is liable to be
rejected. The issue is accordingly decided against the
Contd...
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I.D. No. 03/06.
claimants and in favour of the management.
ISSUES NO. 2 & 3.
7. Both the issues are taken up together for adjudication
being interconnected one.
WW1 - Ajay Verma the only claimant who entered the
witness box, in his cross examination admitted that last contract
of employment with the management came to an end on
31.12.2004. It is the case of the claimants themselves that they
all have been employed with the management on contract basis
for specified period which used to be extended for specific
period from time to time. As admitted by WW1 - Ajay Verma,
the contract has not been extended beyond 31.12.2004. As a
result their claim is not maintainable.
Contd...
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8. As stated earlier, it is the admitted case of the
claimants that they were employed with the management as
Sales Representatives on contract basis which used to be
extended each year for specific period. As admitted by WW1 -
Ajay Verma, his last contract of employment came to an end on
31.12.2004. Same is the case of the other claimants, namely,
Atul Bhugra & Bhagwan.
9. It is not in dispute that the respondent is a company of
Government of Karnataka and, therefore, it is a Government Organization. WW1 - Ajay Verma in his cross examination admitted that the management had not published any public notice of employment in any newspaper nor it sought employees through the Employment Exchange. According to him, he applied the management on his own. He also admitted that the respondent management is governed by Karnataka Contd...
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Government, Karnataka State.
MW1 - Anil Rampal in the affidavit Ext. MW1/A categorically stated that all the claimants were appointed as Sales Representatives purely on the contract basis and as per the terms of agreement it came to an end automatically. He further deposed that the claimants had worked with the management for a fixed period purely on contract basis and the management has no authority, power & jurisdiction to appoint any employee without complying with the mandatory requirement of law and the prior approval of the State of Karnataka. He has further deposed that the respondent is a Government Company of State of Karnataka having its registered office at Karnataka and and Branch Office at Delhi. The said deposition of MW1 - Mr. Anil Rampal is unrebutted and unchallenged for want of cross examination by the claimants despite opportunity given to them. Otherwise also, it Contd...
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is a case of the claimants themselves that the respondent is a company of the State of the Karnataka i.e. Government Organization. On the basis of the aforesaid admissions made by WW1 - Ajay Verma in his cross examination and the unrebutted and unchallenged testimony of MW1 - Anil Rampal, A.R for the management has argued that the claimants having not been appointed after following the procedure laid down under Articles 14, 16 and 309 of Constitution of India, the claimants cannot be permitted to be regularized in service. In support of that contention he has relied upon the case law reported as Surender Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad And Others (2006) 7 Supreme Court Cases 684, Mahadeo Bhau Khilare (Mane) Vs. State of Maharashtra And Others With Sopan Vishnu Kapse Vs. State of Maharashtra And Another (2007) 5 Supreme Court Cases 524, State of U.P. And Others Vs. Desh Raj (2007) 1 Contd...
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Supreme Court Cases 257 and Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others (2006) 4 Supreme Court Cases 1.
In the case of State of U.P. And Others Vs. Desh Raj (supra), the Hon'ble Apex Court has held as under :-
"Whether may be the import and purport of the regularization rules in question, in view of Umadevi (3), (2006) 4 SCC 1, it is now well settled that the appointments, if made in violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus, void ab initio. No regularization rules, therefore, could have been made by the State of Uttar Pradesh in derogation of the statutory or constitutional scheme.
It is not the case of the respondent (a daily wager) that he was recruited in terms of the provisions of the Recruitment Rules framed under the proviso to Article 309. In that view of the matter, ex facie his appointment was illegal. In any event, the question of regularization of the employees by reason of any policy decision adopted Contd...-:16:-
I.D. No. 03/06.
by the State is impermissible in law."
In the case of Surender Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad And Others (supra), the appellant was appointed by Rajya Krishi Utpadan Mandi Parishad, U.P. on contract basis for a fixed term for carrying out the work of a specified project. The said appointment was made without following the procedure as laid down under Articles 14 and 16 of the Constitution. The appellant was engaged from time to time to work on different projects. The last contract in relation thereto was dated 14.10.1991 and thereafter, the appellant was not appointed. Aggrieved by the oral termination and / or non-continuation in service, the appellant preferred a writ petition before the High Court, which was dismissed. That order was challenged in the Hon'ble Apex Court. Dismissing the appeal Hon'ble Apex Court held as under :-
Contd...-:17:-
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"Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment.
Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.
In view of the clear and unambiguous constitutional scheme, the courts cannot counternance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily- wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional Contd...-:18:-
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scheme, there is no room for back door entry in the matter of public employment.
In view of clear enunciation of law laid down in the recent judgment of the Constitution Bench in Secy., State of Karnataka Vs. Umadevi (3) (2006) 4 SCC 1 and other judgments, there is no infirmity in the impugned judgment of the High Court."
In the case of Mahadeo Bhau Khilare (Mane) Vs. State of Maharashtra And Others With Sopan Vishnu Kapse Vs. State of Maharashtra And Another (supra), the Hon'ble Apex Court has held as under :-
"The appellants were appointed by the employees themselves to help them and not by any authority having the requisite jurisdiction therefor. Appointments made without following the statutory rules by the State and that too without any remuneration whatsoever was itself unconstitutional. Before a person furthermore can claim regularization in the services of the State, he must be in the service of the State. If the appellants were not in the services of the State, question of their being regularized therein, would be wholly impermissible.
Contd...-:19:-
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The appellants might have worked for a long time but the same by itself is not decisive inasmuch as they had not been occupying any post having not been appointed by the State. Any action on the part of a servant of a State on his own, having no authority in that behalf, would be wholly illegal and without jurisdiction."
Same is the proposition of law laid down by the Hon'ble Apex Court in the Secretary, State of Karnataka and Others Vs. Umadevi (3) And Others. The aforesaid proposition of law laid down by the Hon'ble Apex Court is squarely applicable to the facts of this case. As admitted by WW1 - Ajay Verma, they were not employed by the company, a unit of State of Karnataka in accordance with recruitment rules. Their appointments having been made in violation of the constitutional scheme of equality as defined under Articles 14 and 16 under the Constitution is illegal and, thus, void ab initio. Question of their regularization / permanency does not arise. Following the aforesaid proposition of law laid down by the Contd...
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Hon'ble Apex Court, the workmen cannot be said to be entitled to be regularized on the post of Sales Representative either from the initial date of appointment or from any other date whatsoever. The issues are accordingly decided against the workmen and in favour of the management. ISSUE NO. 4.
10. In view of the findings on issues No. 1, 2 & 3 and for the reasons given therein, I am of the considered view that none of the claimants are entitled to any relief or any directions from this Tribunal.
The reference is answered accordingly. File be consigned to record room after due compliance by the Ahlmad.
(GURDEEP KUMAR) ANNOUNCED IN THE OPEN COURT PRESIDING OFFICER th ON 25 Day of July, 2008. INDUSTRIAL TRIBUNAL II, K.K.D COURTS, DELHI Contd...