Delhi District Court
Between The vs The on 19 April, 2023
IN THE COURT OF CHANDER MOHAN, PRESIDING OFFICER
LABOUR COURT-06, ROUSE AVENUE DISTRICT COURT,
D.D.U. MARG, NEW DELHI.
LIR No. 329/2021
Date of Institution 16.02.2021
Date of Award 19.04.2023
BETWEEN THE WORKMAN
Ms. Mumtaz Zakir W/o Sh. Manzoor Alam, Age: 30 Years, Mob. No.
9654806288, R/o C-1/1393, Lal Kuan, Badapur, Delhi-110044.
Through Sh. Mukesh Kashyap, General Secretary Mob No. 9716387039,
Engineering & General Karamchari Lal Jhanda Union (Regn. No. 4280), L-607,
Mangolpuri, New Delhi-110083.
AND
THE MANAGEMENT OF
1. M/s Dr. Baba Saheb Ambedkar Medical College & Hospital
Through its Director Sh. Anil Aggarwal Tel. No. 27058778 & 27053391, Sector -6,
Rohini, New Delhi-110085. (PE)
2. M/s Intelligent Communication System India Ltd. (ICSIL),
Through its Managing Director Sh. Vinod Kumar Singh, Tel. No. 26830338,
Administrative Building, Okhla Indl. Area, Phase-3 New Delhi-110020.
(Contractor).
AWAR D
1. By this award I shall dispose of the reference sent by the Deputy
Labour Commissioner (North West District), Labour Department, Govt. of the
National Capital Territory of Delhi arising between the parties named above
to this court vide notification No. F.24 (1225)/220/CO-I/20/NWD/Lab/16364-
67 dated 15.09.2020 with the following terms of reference:-
"Whether the services of workman Ms. Mumtaz Zakir W/o
Sh. Manzoor Alam, have been terminated illegally and/or
unjustifiably by the management; and if so, to what relief is
she entitled and what directions are necessary in this
respect ?"
LIR No. 329/21 Page 1 of 11
2. Post the reference, workman filed her statement of claim with the
averment that workman had been working with management No. 1 since
19.12.2016 at the post of Multi Testing staff through ICSIL (management No.
2) and her last drawn salary was Rs. 14,842/- per month; that workman used
to work sincerely and honestly and she never gave any chance of complaint to
management; that when the workman demanded minimum wages declared
by Govt. Of Delhi and other legal benifts, the management got annoyed and
refused to take the workman on duty on 29.02.2020 and did not pay the
earned wages to the workman for the month of January 2019; that the
workman raised the matter before conciliation officer; that the management
No. 1 appeared before conciliation officer but refused to take workman on
duty; that management No. 2 never participated in conciliation proceeding
despite serveral notices, that management no 1. stated that workman had
worked with management No. 2/contractor and management No. 2 is
responsible for the action taken; that the workman sent a demand notice
dated 10.06.2020 to the management but the management did not reply the
same; that the workman is unemployed since the date of her termination; that
the workman did not get the job elsewhere despite best efforts; that
management had terminated the services of the workman illegally, arbitrarily
and unjustifiably, in violation of provisions of Section 25 F of the Industrial
Disputes Act 1947.
Lastly, it has been prayed that an award be passed in favour of the
workman thereby directing the management to reinstate the workman with
continuity of service, full back wages and all consequential benefits.
3. Notice of the claim was issued to the managements. i.e. Management
No. 1 and management No. 2. Both the managements appeared and filed their
separate written statement.
LIR No. 329/21 Page 2 of 11
Management No. 1 while taking the preliminary objection, stated in
WS that present claim is not maintainable qua the management No. 1; that
there was no privity of contract between the workman and management No.1
and there is no cause of action against the management No. 1; that there was
no employee and employer relationship between the workman and the
management No. 1 ; that the workman was engaged by management No. 2 as
contractual worker and compliance of all labour laws including releasing of
wages and other benefits was the responsibility of management No. 2 only;
that the management no. 1 had been established in year 2016 and therefore
there was requirement of contractual workers in the college; that due to non-
availability of permission for independent tender, the management No. 1 had
engaged the management No. 2 through Health and Family Welfare
Department of Govt. of NCT for outsourcing workers in contractual basis;
that the management No. 2 failed to provide the workers in appropriate
number on time and as such, the Health and Family Welfare Department had
informed the management no. 2 from time to time to provide sufficient
number of workers to management no. 1 through letter dated 10.08.2016; that
vide letter dated 13.09.2019, Health and Family Welfare Department had
extended the contract with management No. 2 upto 30.09.2019 or till the
finalization of new contracts/tender whichever is earlier; that vide letter
dated 22.11.2019 and 26.12.2019, contract between management No. 2 was
extended w.e.f. 01.10.2019 to 31.12.2019 and 01.01.2020 to 29.02.2020; that
management No. 2 used to raise invoices against the payments to be made to
the workers including the wages, ESIC, EPF etc and the same have been
sanctioned by the management No. 1 as and when raised by management No.
2; that the contract between the management No. 1 and 2 has already been
discontinued w.e.f. 29.02.2020; that management No. 1 vide its letter dated
26.02.2020 and 27.02.2020, informed the management No. 2 and the
LIR No. 329/21 Page 3 of 11
workman about the discontinuation of the contract and directed the workman
to report management No. 2 for further necessary action; that the management
No. 1 , vide its officer order dated 27.02.2020 informed all the concerned
departments that consequent upon its letter dated 26.02.2020 to management
No. 2, all the group D staff (MTS) working in various department and
branches of the medical college are hereby relieved w.e.f. 29.02.2020 with the
direction to report back to management No. 2.
In parawise reply it has been stated that being engaged by management
No. 2, the workman was supervised by the management No. 2 as well as all
his service terms were followed by the management No. 2; that management
No. 2 was categorically directed by the management no. 1 to comply with all
relevant labour laws in terms of the workman provided by management No. 2;
that the management No.2 used to raise invoices against releasing of salaries
to the workers and the same have been approved and released by the
management No.1 after due verification. Rest of the contents of the statement
of claim were denied as wrong and incorrect. Lastly it has been prayed that
claim of the workman be dismissed.
Management No. 2 while taking the preliminary objection, stated in
WS that the workman was employed by management No. 2 under the
agreed terms entered between management No. 1 and management No. 2
purely on contractual basis and also for fixed period and as such the
workman has no locus-standi to file the present claim; that the period of
extension of engagement of workman was subject to prior sanction from
management no. 1; that management No. 2 paid the salary/remuneration and
other statuary benefits to the workman under the terms of agreement entered
between the management No. 1 and management no. 2 and as received from
management No.1 on back to back basis; that termination of workman had
been intimated by the concerned coordinator of management No. 2; that the
LIR No. 329/21 Page 4 of 11
workman had been intimated about his termination vide letter dated
20.10.2021 of management No. 2; that the workman was appointed purely on
contractual basis for fixed period; that there is no dispute between the
workman and the management No. 2 therefore the present court lacks
jurisdiction to entertain and decide the present statement of claim against the
management No. 2; that the workman had concealed the factual matrix for the
purpose of misleading. It is further stated that the statement of claim filed by
workman is false, frivolous, erroneous, misconceived and is not tenable in
the eyes of law. Rest of the contents of the claim were categorically denied
and it has been prayed that claim of the workman be dismissed.
4. The workman filed rejoinder in which she denied all the contents of the
written statement and reiterated and reaffirmed the facts of the statement of
claim as correct and prayed that an award may kindly be passed in her favour
in terms of the prayer made by her in the statement of claim.
5. After completion of pleadings, the following issues were framed vide
order dated 15.12.2021:
1. Whether there was any employee employer relationship
between the workman and the management no.1? OPW
2. Whether the workman was employed by the management
no. 2 under the agreed terms entered between management no.1
and management no.2 purely on contractual basis and also for
fixed period? OPM2
3. Whether the contract between the management no.1 and
management no.2 has already been discontinued w.e.f.
29.02.2020 and fresh contract has been given to a third party
namely M/s Akashdeep Security Service and Investigators
through the Gem Portal? OPM1
4. As per terms of reference. OPW
5. Relief.
Thereafter, matter was listed for WE.
LIR No. 329/21 Page 5 of 11
6. In workmen evidence, the claimant examined herself as WW1. She
tendered her evidence by way of affidavit as Ex WW1/A, which reiterates
the averments mentioned in the statement of claim. Further the workman
tendered in evidence some documents i.e. copy of Aadhar card as Ex
WW1/1, copy of ID card as Mark WW1/2, copy of demand notice as Mark
WW1/3 and copy of advisory and copy of newspaper in respect of Central
Administrative Tribunal, Principal Bench, Delhi as Mark WW1/4 (colly).
Workman was duly cross-examined by Ld. AR for both the managements.
Workman closed her evidence on 01.11.2022.
7. Thereafter, opportunity was given to both the managements to lead
evidence. In ME, management No.2 examined Ms. Deepti Gupta, its Manager
(Legal) as MW1. She tendered her evidence by way of affidavit Ex M2W1/A
and relied upon documents Ex M2W1/1 to Ex M2W1/5 and Mark A.
Management No. 1 examined Dr. S.N. Bhattacharya, its Director
Principal as MW2. He tendered his evidence by way of affidavit Ex MW2/A
and relied upon documents Ex M/1 to Ex M1/7. Management No. 1 also
examined Dr. Madhu Sethi, its Assistant Professor as MW3. She tendered
her evidence by way of affidavit Ex MW3/A and relied upon the documents
Ex M1 to Ex M7. All the MWs were duly cross-examined by Ld. AR for the
workman.
8. I have heard arguments on behalf of the parties and perused the record.
9. All the issues are taken up together being inter-related and inter-
connected and also finding of one issue has a direct bearing on the other
issues.
LIR No. 329/21 Page 6 of 11
10. Management No. 1 is a Government run hospital and college working
under the Health and family Welfare department of Government of NCT of
Delhi where the workman admittedly was posted. As per claim of the
workman she was posted in the said hospital through management No. 2 i.e.
M/s ICSIL, which is an outsourcing agency. As per management No. 1, after
its establishment in year 2016, due to non-availability of permission for
independent tender, it engaged management No. 2 through Health and Family
Welfare Department of NCT for outsourcing workers on contractual basis.
Perusal of the record further shows that the choice of hiring contractual labour
from management no. 2 i.e. ICSIL was not of Management No. 1 but it was
empaneled contractor for hiring of contractual manpower in different
department of NCT of Delhi. A circular of Government of NCT of Delhi
dated 29.03.2016 (Mark A) would show that the Government took the
decision for hiring all type of contractual manpower for various departments
from M/s ICSIL i.e. management No. 2. Hence, it can be seen that
management No. 1 i.e. Baba Saheb Ambedkar Medical College & Hospital
had no choice to choose a contractor of its own. The said contract was
subsequently extended. However, the circular dated 26.02.2020 was issued
by the Government, in which it was mentioned that all the tender formalities
for Group D staff were completed and work order of contract was given to
M/s Akashdeep Security Services through Gem Portal and the management
No. 1 was informed to discontinue the services of the MTS staff (which
includes the present workman) w.e.f. 29.02.2020. It was in compliance of this
circular of Government that the service of the present worker was dispensed
with and she was asked to report back to M/s ICSIL i.e. Management No. 2.
The above facts have been highlighted to throw light on the fact that the
recruitment of the workman was purely contractual through an outsourcing
agency, as per the directions/circular of Government of NCT of Delhi and
LIR No. 329/21 Page 7 of 11
more importantly all the workmen were appointed for a limited period and
were not given any assurance of regularization. Needless to mention they
were hired without any regular recruitment process. It is well settled that for
sanctioned posts having vacancies, regular recruitment process has to be
followed otherwise it will be violative of article 14, 16 etc. of the constitution.
The following observation of Hon'ble Delhi High Court in Dharmender
Prasad Singh Vs. State Bank of India (WPC No. 4061/2013 in Para 2) are
relevant :
"...Before I turn to the merits of the matter and the defence raised by the
respondent no.1, certain earlier orders passed by this Court are required
to be referred to and reproduced, inasmuch as, when the writ petition came up for hearing and the respondent no.1 appeared on receiving the advance copy of the writ petition, it was found that petitioners are seeking equality with the contractual employees who are regularized in terms of the policy of respondent no.1 dated 20.7.2010, and which policy, in the opinion of this Court was clearly against the ratio of the Constitution Bench judgment of the Supreme Court in the case of Secretary, State of Karnataka Vs. Umadevi & Ors. (2006) 4 SCC 1.."
Hence, the claim of the workman seeking direction from this court to management No. 1 to reinstate the workman in service with benefits like continuity of service etc. is not at all maintainable. The courts have consistently deprecated the practice of such back door entry. The following observation of Hon'ble High Court of Madhya Pradesh in Abhishek Raghuvanshi & Ors. Vs. State of M.P. & Ors. (W.P. No. 2350/2022 in Para
16) are relevant:
"..One more aspect deserves consideration is the legal position that in absence of any employer-employee relationship, service related complications in future may come and if the analogy of petitioners is accepted then it may go contrary to the direction of Apex Court in future because Apex Court in the case of State of Karnataka and Ors. Vs. Uma Devi, (2006) 4 SCC 1 deprecated the practice wherein illegal/irregular appointments are being undertaken by the State Govt. because if the analogy of petitioners is accepted then employees may claim entitlement for absorption, regularization, classification etc. over the posts in future, which are neither raised by the State Govt. in its establishment nor LIR No. 329/21 Page 8 of 11 employees entered into it through a proper selection process as approved by law, thus, fall under the back door entry. Therefore, to avoid future complications, it is imperative that factual position be put into right perspective. On this count also, claim of petitioners pales into oblivion.."
Therefore, such disengagement does not amounts retrenchment u/s 25F of Industrial Disputes Act.
11. Workman also cannot claim any relief of restoration of service/continuity of service from management No. 2 which is an outsourcing agency. It would be relevant to extract Section 2(oo) of Industrial Disputes Act:
(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 -
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service 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) termination of the service of a workman on the ground of continued ill-health;
The reading of above section make it clear that the term "retrenchment" does not include termination of the service of the claimant as a result of the non-renewal of the contract of employment between the employer and the claimant concerned on its expiry.
Reliance is also placed on case titled Nuclear Fuel Complex Vs. K.P. Reddy (2002) 2LLN 966 (AP) (DB) of Hon'ble High Court of Andhra Pradesh wherein it was held that the contract labour, engaged by a contractor for a particular job, are not workman under the I.D. Act. Such employment LIR No. 329/21 Page 9 of 11 comes to an end automatically as soon as the time is over and the job is over.
12. As per affidavit of MW 1 Ms. Deepti Gupta, Manager (Legal) of management no. 1 ICSIL, the department of Industries, New Delhi of Government of NCT of Delhi, issued a Circular Vide No. F.1/DSIIDC/ICSIL/04A/260/2016/4753-60 dated 29th March, 2016, with respect to empanelment of M/s ICSIL for hiring of contractual manpower in different department of Govt. of NCT of Delhi. Subsequently, the same was extended for two months but vide a intimation letter by management No. 1 to management No. 2, vide no. F.18(3)/2018-19/BSAMCH/CD/No. 000508086/Pt. File III/860-865 dated 26.02.2020, the tender of the work- order has been terminated and some other contractor were selected through GeM to provide work-person.
13. Admittedly, it is case of the workman that she was working with management no. 1 through management No. 2, since 01.12.2016 meaning thereby that hiring of the present workman was for the purpose of placing her to work with management No.1. Stated simply, it is not the case of the workman that she was earlier also on the roll of management No. 2 and placed somewhere else. Hiring of the present workman was only to place him at the disposal of management no. 1, which admittedly has ended due to non- renewal of contract consequent upon change of policy of the Government. Therefore, worker cannot also ask for restoration of her service from management No. 2 as the contract of management No. 2 was not renewed by management No. 1.
14. In view of above discussion and evidence available on record it is established that there was no relationship of employer and employee between LIR No. 329/21 Page 10 of 11 the claimant and management No. 1 and that workman was working purely on contractual basis for a fixed period and that the contract between the management No. 1 and management No. 2 discontinued w.e.f. 29.02.2020 and was given to third party and therefore question of terminating services of the claimant illegally and/or unjustifiably by the managements does not arise. So on all counts, the claimant has failed to prove that she was a permanent employee of the managements and that her services have been terminated illegally. Accordingly, all the issues are decided against the workman and in favour of managements.
15. Issue No. 5 Relief In view of the findings of the court on all the issues, it is held that the workman is not entitled to any relief, as claimed against either of the management, and claim of workman stands rejected and award to that effect is hereby passed. Reference stands answered and disposed off accordingly 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. Announced in open court on 19.04.2023 (CHANDER MOHAN) PRESIDING OFFICER: LABOUR COURT-06 ROUSE AVENUE DISTRICT COURT NEW DELHI.
LIR No. 329/21 Page 11 of 11