Delhi District Court
Rajesh Kumar Son Of Sh. Nand Ram Singh vs The Management Of M/S Taj Sats Catering ... on 26 July, 2018
IN THE COURT OF MS SHAIL JAIN,
PRESIDING OFFICER, INUDSTRIAL TRIBUNAL02,
DWARKA COURTS, NEW DELHI
CID no. 2087/16 .
Rajesh Kumar son of Sh. Nand Ram Singh,
R/o C137, Pachhaya Mohalla, Tajpur Road,
Chawla Village, N. Delhi.
..............Applicant/Management
Versus
The Management of M/s Taj Sats Catering Ltd.,
IGI Air port Complex, N. Delhi110037.
.................Respondent/workman
Date of Institution: 18.11.2014
Date of Award:26.07.2018
O R D E R :
1. By this order, I shall dispose off the application filed by the
management for dismissal of the complainant u/s 33 A of the ID Act, as
filed by the complainant/workman on the ground of passing of an Award
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against the workman by the Ld. POLC, along with the issue which was
framed by my Ld. Predecessor to the effect that "Whether the
complaint is maintainable", and was treated as a preliminary issue
vide order dt. 06.03.2018.
2. Brief facts leading to the present application are as
follows:
3. The present complaint u/s 33A of Industrial Disputes Act,
1947 has been filed by the workman submitting that the
applicant/workman has been engaged by the management as driver
since 01.01.2009 and his service record was good and his last drawn
wage was @ Rs. 7500/ per month which is much lesser than the
permanent drivers of the management. It is further alleged by the
workman that the management is one of largest Air Catering industry in
the Delhi Region and having huge profits from its business. It is further
alleged that management is having 1200 employees to run the
business in different posts such as Managers, Assistant Managers,
supervisors, office staff etc. and out of 1200 employees , management
has shown 320 employees as permanent employees of the
management and rest of them shown as Contract workers or Fixed
Term employees whereas all these employees are working for the
management round the clock along with permanent employees and
doing the same job as are doing by the permanent employees. It is
further alleged that just to deny them same pay and perks as availed by
the permanent employees, the management had kept them as either
contract workers or Fixed term contract workers.
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4. It is further stated by the workman that the management is
having 50 vehicles including high lift to deliver food and beverages and
other items to various air lines inside the airport as well as to outdoor
catering and just to deny them same pay , perks and facilities the
management had kept them on contract basis. It is further alleged that
the management engaged the workman for the post of driver which was
permanent and perennial in nature and just to deny proper pay and
perks availing by the permanent drivers of the company, management
issued an artificial appointment letter to the workman , appointing him
on temporary basis for a fixed period for two years w.e.f. 01.01.2009 to
31.12.2010 with a monthly consolidated salary of Rs. 5500/ per month
and assigned Token number 17320. Further , with ulterior motive on
26.08.2009 management called the workman to HR Manager's room
and handed over a letter dt. 26.08.2009 informing him that the
management discontinuing the services of the workman w.e.f.
25.09.2009 while he was performing his duties as a driver, however,
management allowed the workman to perform his duties as usual taken
work from him and paid his wages on voucher from 26.08.2009 up to
15.11.2010. It is further alleged that on 16.11.2010 while the workman
was performing his duties, HR Manager called him in his cabin and
handed over him another artificial appointment vide letter dt.
16.11.2010 reappointing him as driver for six months from 16.11.2010
to 15.05.2011 for a salary of Rs. 7500/ per month issued issued him
token no. 18663. However, the salary offered to the workman was
much lesser than the wages of other permanent drivers of the
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company. It is further alleged that workman was issued Airport entry
pass time to time and also issued daily permit and air side driving
permit time to time. He was also issued identity card and after
completion of the period mentioned in the appointment letter , no fresh
appointment letter was issued to the workman and he was refused to
do the duty on 15.05.2013 when he had gone for duty and was not
allowed to enter the premises of the management.
5. It is further alleged that no termination letter was given to him by
the management and management orally informed the workman that
his services stands terminated w.e.f. 15.05.2013 . It is further alleged
that he had submitted a representation letter dt. 17.11.2011 to the
management requesting that he be issued a permanent appointment
letter and after receipt of the representation management not issued
any permanent appointment and also not given same pay, perks and
benefits to the permanent drivers . The workman had further submitted
a reminder dt. 02.12.2011 urging the management to issue permanent
appointment letter, however, instead of considering the genuine
demand for regularization of the job, some officers of the management
threatened him and others for demanding regularization and threatened
them that they will terminate their services . Since the demand of the
workman was not considered by the management, the present
reference has been filed. Further , it is alleged that since the
management has not sought either any permission from the court
before terminating him from service or to resume duty nor has filed any
approval application, the present complaint filed by the workman be
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allowed declaring that the action of the management in terminating the
workman from duty is null and void and management and management
be directed to reinstate the workman with all consequential benefits
from the date of refusal of duty .
6. The respondent/management filed written statement with
facts that the present complaint filed by the complainant/workman is
misconceived, legally not maintainable and is liable to be dismissed. It
is further alleged that the complainant was appointed on a fixed term
contractual basis and his fixed term appointment came to an automatic
end on 15.05.2013 by efflux of time on the expiry of fixed term
contract . Further the automatic termination of the fixed term temporary
contractual appointment of the complainant, in terms of contact of
workman, does not fall within the mischief of Section 33 and section
33A of the Industrial Disputes Act, 1947 (herein after referred as ID
Act).
7. The complainant/workman had already raised an industrial
dispute challenging his termination from service which has been
referred for adjudication to Labour court by the appropriate
Government. Since the subject matter of the legality of termination of
services of complainant is already pending before labour court, the
present complaint as filed is not maintainable. It is further alleged that
the complainant cannot be permitted to indulge in multiple litigation for
challenging the termination from service. The complaint filed by the
complainant before the Hon'ble Court is wholly misconceived , legally
incompetent and not maintainable and as such is liable to be
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dismissed. Further, the section 33 or section 33A of ID Act are not
applicable to the facts of the present case.
8. On merits, it is submitted by the management that there is
no merit or substance in the complaint filed by the complainant and the
complaint filed by the complainant is liable to be dismissed. The
complainant was appointed on a fixed term temporary contractual basis
and the same came to an end on 15.05.2013. It is further alleged that
the management is engaged in the business of airline catering and
management caters the various airlines under different contracts which
are for specific period and the nature of business of air catering keeps
on fluctuating from time to time, depending upon the contracts and the
number of meals catered and thus, the management cannot afford to
have all its employees on permanent roles. It is further alleged that as
per the business requirement and necessity , certain number of
employees are appointed on fixed term contract basis and their
contracts are renewed subject to their performance/contract/suitability
and the organizational requirements. It is further alleged by the
management that before issuing the appointment letter to the workmen,
the management has taken due care to inform them that their
appointments are on a fixed term temporary contractual basis and
thus they have no right to seek continuation or absorption in service of
the management on the expiry of their fixed term employment. Further
in the appointment letter, it is clearly mentioned that the appointments
being for fixed term, shall lapse automatically on the expiry of fixed
term, hence, no relief can be granted to the complainant/workman in
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the present case. All other allegations levelled by the
workman/complainant in the complaint are denied as the same are
vague. With this, it is prayed that the prayer of the complainant is
wholly misconceived, legally incompetent and devoid of merits and as
such the same is liable to be dismissed .
9. Rejoinder to the written statement was filed by the
workman/complainant wherein the workman/complainant has reiterated
the facts mentioned in the complaint and denied the averments made in
the written statement filed by the management.
10. After completion of the pleadings, issues were framed by
my Ld. Predecessor on 03.09.2015. Thereafter matter was listed for
WE. During the pendency of the case for WE, present application was
filed by the management on the ground that the Award has been
passed against the workman by the Ld. POLC in a reference u/s 10(1)
of ID Act declaring that termination of workman was not illegal and was
as per contract, and thereby management has sought the dismissal of
the present complaint. This application was duly replied by the
workman and arguments were heard on the application. Vide order dt.
06.03.2018 this Tribunal was of the opinion that since an issue in
respect to the maintainability of the complaint has already been framed
by my Ld. Predecessor, this issue can be decided without the evidence
and hence issue no.2 "Whether the complaint is maintainable" was
treated as preliminary issue and arguments on the preliminary issue as
well as application filed by the management for dismissal of the
complaint were heard together.
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11. Arguments heard from Ms. Poonam Dass , Ld. AR for the
management and Sh. Manu Nayyer, Ld. AR for the
workman/complainant.
12. The contention of the workman/complainant in respect to
the application, as filed by the management is two folds, firstly, that
since the management has changed the service condition of the
present workman/complainant by terminating his service during the
pendency of an Industrial dispute no. 69/2012 raised by the workman
for regularization of his services along with other workmen, hence,
termination of service of present workman/complainant is a violation of
Section 33 of ID Act and thus, the present complaint is legally
maintainable in the present form. The second limb of argument on
behalf of workman/complainant has been that the Management Taj
Sats Catering Ltd. has violated the Model Standing orders by
appointing the present complainant on a fixed term contract. It was
argued by the Ld. AR for the workman that since the year 2007 "Fixed
term employment" has been replaced with the term "Badli" , in the
Model Standing Orders, despite that the present management
continued to appoint the complainant/workman and other similarly
situated workman on a fixed term contract, which in itself is illegal and
against the "Model Sanding Orders" . Therefore, it is prayed by the
Ld. AR for the workman that the application filed by the management
be dismissed and preliminary issue be decided in favour of the
workman. Workman has relied upon following judgments:
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(1) The Standard Vaccum Refining Company of
India Vs. It's workmen 1960 AIR SC 948
(2) Oil and Natural Gas Corporation Vs. The
Petroleum Coal Labour Union and ors. , WP no.
1846/2000 Madras High Court.
(3) Smt. Vandana and 22 ors. Vs. MCD, ID no.
166/2016 decided by Sh. Chandra Gupta, POIT on
05.05.2017
(4) Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd.
Vs. Ram Gopal Sharma and ors, decided by
Supreme Court of India on 17.01.2002.
13. On behalf of management, Ms Poonam Dass had argued
that the workman/complainant was appointed for a fixed period and
after completion of his contractual period the services of
workman/complainant came to an end by efflux of time and there is no
change in service condition of the workman, therefore, the provisions of
Section 33 have not been violated by the Management. Hence, the
present complaint u/s 33 A of ID Act , as filed by the workman is not
maintainable. As regards the arguments of Ld. AR for the workman in
respect to violation of "Model Standing orders" by the management, it
is submitted by the Ld. AR for the management that the management
Taj Sats Catering Ltd. , has their own "Certified standing orders " and
as per their certified standing orders, there is no such category of
employment called a "Fixed term employment". This term has been
used by the workman/complainant himself in his complaint. As per the
"Certified Standing orders" of the Management, the term used is the
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Temporary employees who are appointed for a limited period of time,
as mentioned in the appointment letter. It is, therefore, stated by the Ld.
AR for the management that since admittedly in the appointment letter
of the workman/complainant, limited period of employment has been
mentioned, hence, he was appointed as a "temporary workman" and
after the completion of term of contract of employment as per the
appointment letter, he was relieved from his services as no other
renewal of his employment was there. It is, therefore, submitted by Ld.
AR for the management that as the workman/complainant was never
terminated nor discharged nor his service conditions were changed
rather his services have come to an end by efflux of time, as per the
period of employment, hence, there is no violation of Section 33 of ID
Act, thus, the present complaint is not maintainable. It is further
submitted by the Ld. AR for the management that vide order dt.
18.07.2017, Ld. POLC Sh. Surender Kumar Sharma has answered
the reference in negative in LIR no. 2847/16 which was preferred by
present complainant against his alleged termination of services. Ld.
POLC has dismissed the claim of the workman that his services was
terminated illegally and has held that his services had come to an end
due to efflux of time. Therefore, it was again prayed by the Ld. AR for
the management that the present complaint, as such is not
maintainable as there is no violation of Section 33 of the ID Act and
once the Award has been passed in favour of the management stating
that the termination of the workman was not illegal or unjustified, the
present complaint is not maintainable and thus should be dismissed.
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The Management has relied upon following judgments:
1. BA Security Agents Employees Union
Vs. Regional Labour Commissioner and
ors, 2010 LLR 1083.
2. Mahender Singh Dhantwal Vs.
Hindustan Motors Ltd. And ors. 1976 II LLJ
259 SC.
3. Management of Essopre Mills Ltd. vs.
Presiding Officer, Labour Court and ors.,
2008 III LLJ 614 SC.
14. I have considered the submissions of Ld. ARs for the
parties, perused the record carefully and have carefully gone through
the judgments relied upon by Ld. ARs for the parties.
15. Before filing the present complaint, the
workman/complainant herein has already raised an industrial dispute in
respect to his termination, the same was referred by the Government of
NCT u/s 10 of ID Act to the court of Ld. POLC in following terms :
" Whether the services of Sh.
Rajesh Kumar son of Sh. Nand Singh have
been terminated illegally and/or
unjustifiably by the management and if so,
to what relief is he entitled?"
16. Thus, it is clear that by way of ID no. 2847/16 , workman
herein has challenged his termination to be illegal or unjustified by the
management in the year, 2013. Thereafter in the year, 2014 present
complaint u/s 33A of ID Act was filed by the workman/complainant on
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the same facts and circumstances.
17. In order to understand the scope of Section 33 A of the ID
Act , it is necessary to reproduce the provisions of Section 33 and
Section 33A of ID Act.
"Section 33 of ID Act:
Condition of service, etc., to remain
unchanged under certain circumstances
during pendency of proceedings: (1) During
the pendency of any conciliation proceeding
before a conciliation officer or a Board or of any
proceeding before, (an arbitrator or) a Labour
Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer
shall
(a) in regard to any matter connected with
the dispute, alter, to the prejudice of the
workmen concerned in such dispute, the
conditions of service applicable to them
immediately before the commencement of such
proceedings; or
(b) for any misconduct connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, any workmen concerned
in such dispute, save with the express
permission in writing of the authority before
which the proceeding is pending.
(2) During the pendency of any such
proceeding in respect of an industrial dispute,
the employer may, in accordance with the
standing orders applicable to a workman
concerned in such dispute (or, where there are
no such standing orders, in accordance with
the term of the contract, whether express or
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implied, between him and the workman.
(a) alter, in regard to any matter not
connected with the dispute, the condition of
service applicable to that workman immediately
before the commencement of such proceedings;
or
(b) for any misconduct not connected with
the dispute, discharge or punish, whether by
dismissal or otherwise , that workman:
Provided that no such workman shall be
discharged or dismissed, unless he has been
paid wages for one month and an application
has been made by the employer to the authority
before which the proceeding is pending for
approval of the action taken by the employer.
(3)
(4)
(5)
Section 33A:
Special provision for adjudication as to
whether conditions of service, etc, changed
during pendency of proceedings Where an
employer contravenes the provisions of Section
33 during the pendency of proceedings (before
a conciliation officer, Board, an arbitrator,
Labour Court, Tribunal, National Tribunal) any
employee aggrieved by such contravention, may
make a complaint in writing, in the prescribed
manner.
(a) To such conciliation officer or board, and
the conciliation officer, or board shall take such
complaint into account in mediating in, and
promoting the settlement of, such industrial
dispute; and
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(b) to such arbitrator, Labour court, Tribunal or
National Tribunal and on receipt of such
complaint, the arbitrator, Labour Court,
Tribunal or National Tribunal, as the case may
be, shall adjudicate upon the complaint as if it
were a dispute referred to or pending before it,
in accordance with the provisions of This Act
and shall submit his or its award to the
appropriate Government and the provisions of
this Act shall apply accordingly.
18. From the bare reading of the provisions of Section 33 of ID
Act, it is clear that the purpose of section 33 of the Act is to protect the
workman during pendency of any Industrial dispute against
victimization by the employment for raising such Industrial dispute and,
therefore, it has been laid down by the legislature that during the
pendency of any proceedings in respect to an Industrial dispute, no
employer shall alter the conditions of service, applicable to any
workmen to the prejudice of the workmen.
19. Section 33A on the other hand enables the employee i.e.
workman who has been aggrieved by such act of contraventions of
provisions of Section 33 of ID Act by the Management or employer to
make a complaint in writing to the Tribunal or Labour court and it has
also been provided that such complaints shall be treated as a reference
made u/s 10 of the ID Act.
20. From the provisions of Section 33 and section 33A of the
ID Act, it is abundantly clear that section 33 prohibits the employer to
alter the service conditions of the workman during pendency of any
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Industrial dispute, related to such Industrial dispute and in case any
such term or condition is changed or altered by the employer, workman
has been provided a right u/s 33 A, ID Act to make a complaint in this
regard to the Labour Court or Industrial Tribunal where the matter is
pending . In order to apply these principles to the present facts for
applicability of Section 33A of ID Act, it is necessary that there should
be an alteration in terms of service conditions of workman during the
pendency of earlier industrial dispute. In the present case, as per the
case of the workman, he was working with the employer/management
for a fixed period of time and his service contract was time to time
renewed by the management. Finally on 15.05.2013 he was not
allowed to resume duty , as per the claim of the workman. It is the
contention of the workman that he was being penalized for raising the
Industrial dispute for regularization of his services. Whereas the
contention of Ld. AR for the management is that workman was
appointed only for a fixed period of time, as the nature of business of
management i.e. of Air Catering is such that it keeps on fluctuating from
time to time depending upon various contracts entered into between
the management and other parties. Hence, management cannot afford
to have all its employees on permanent basis. It is also the case of the
management that as per the limited requirement and necessity ,
management appoints certain number of employees on contractual
basis. Present workman is one of them. Since the term of employment
of the present workman came to an end on 15.05.2013 and his services
were not required by the management beyond 15.05.2013, therefore,
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the workman/complainant ceased to be in service w.e.f. 16.05.2013, or
that his contract was not renewed further.
21. Workman has contested the claim of the management on
two grounds, firstly that appointing of person for fixed term contract is
illegal as is against the modal standing orders and Secondly that it was
a change in service condition of the workman as he has raised an
industrial dispute for his regularization. On the other hand, the
contention of management is that workman was not appointed on fixed
term contract basis as there is no such category of employees on fixed
term contract, therefore, there is no violation of Model Standing orders
and second aspect of the argument of Ld. AR for the management has
been that the workman/complainant was appointed for a limited period
of time which come to an end on 16.05.2013 and, therefore, as his
service were not required further by the management, hence his
further contract was not renewed. Thus, it is claimed by the
management that it is not a case of termination but it is a case of non
renewal of contract of the workman.
22. In order to prove their contentions, in respect to the fixed
term contract and whether it is violation of the Model Standing orders.
Ld. AR for the workman has placed on record replies received by him in
RTI wherein it is stated that the Fixed Term employment was removed
from the Model Standing Orders, in the year, 2007 by the Government
and, therefore, anyone still employing a person on Fixed Term Contract
basis is in violation of the Model Standing orders. On the other hand,
Ld. AR for the management has placed on record their certified
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standing orders which specifically describe the classification of an
employee in clause 2 of the rules, which is as follows:
Classification of employees:
Employees shall be classified as:
A. Permanent
B. Probationer
C. Relief Employee/Reliever
D. Temporary
E. Casual
F. Apprentice
G. Trainee
(A) Permanent:
(B) Probationer:
(C) Relief Employee/Reliever:
(D) Temporary:
Temporary employee' will include:
i) A person who is appointed for a limited
period of time mentioned in the Appointment
letter
ii) A person employed in connection with
increase in work which is of a seasonal or
temporary character."
23. From the reading of classification of employee, as per
Certified Standing Orders of the Management company, it is clear that
the "Temporary employee" means and include a person who is
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appointed for a limited period of time mentioned in the appointment
letter. It has been admitted by the workman/complainant that initially he
was appointed as a driver on 01.01.2009 till 31.12.2010. Thereafter he
was again appointed as a driver on temporary basis from 26.08.2009
up to 15.11.2010. Further he was appointed from 16.11.2010 up to
15.05.2011 and after completion of this period he was again re
appointed from 16.05.2011 vide which the contractual employment of
workman was extended for a period of two years commencing from
16.05.2011. Thereafter, admittedly the contract of employment of
workman has not been extended by the management and his services
came to an end on 16.05.2013. It is admitted on the part of the
workman that his service tenure was for contractual period as per the
appointment letter given to him, unless extended otherwise. Therefore,
it can be presumed that on 16.05.2013 when obviously his service
contract was not extended by the management, thus, his tenure of
service had come to an end by efflux of time and not by any change of
service condition, as per appointment letter issued by the management.
24. Except during the course of the argument, Ld. AR for the
workman has not raised the point in his pleadings that the workman
was appointed on Fixed Term Contract service which was illegal being
in contravention of the Model Standing orders and since the workman
had acted upon employment contract and worked for all the periods so
appointed, as admitted by both the parties, now it cannot be claimed by
the workman that his service orders were illegal. This argument of Ld.
AR for the workman cannot be accepted.
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25. The question here is that what will be the effect of
amendment of "Model Standing Order" after the certified standing
orders have already made and certified for the management. This issue
has been dealt with by the Hon'ble High Court of Judicature,
Karnataka in case of M C Raju Vs. Executive Director , in this case
Hon'ble High Court of Karnataka was dealing with the effect of
amendment in Model Standing Orders on the Certified standing
orders of a business establishment. In this case Hon'ble High Court of
Karnataka has considered various provisions of Industrial employment
(standing orders) Act, 1946 which deals with the provisions of Model
Standing orders to be framed by the Government and Certified
Standing orders which apply to the business establishment. After
considering the issue of effect of amendment in Model Standing
Orders on the Certified Standing orders of business establishment,
Hon'ble High Court of Karnataka , has observed that :
"The language of S.12A makes
it clear that the Model Standing Orders
shall be deemed to be applicable until the
Standing Orders are made as contemplated
by the Act. The reference to the Standing
Orders, as finally certified under the Act in
S.12A, is obviously to the first standing
orders made for the establishment after the
Act came into force. It, therefore, follows
that if the Model standing Orders are
amended subsequent to the coming into
operation of the first Standing Orders in
respect of the particular establishment, the
same do not automatically become
applicable to the establishment concerned.
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Steps have to be taken to amend the
existing Standing Orders in accordance
with S.10 of the Act. Until such steps are
taken to amend the existing Standing
Orders to bring them in conformity with
the amended Model Standing Orders, the
amended Model Standing Orders will not
be applicable to the establishment".
26. It has been further held that :
" Thus, it becomes clear that it was
not the intention of the legislature that the
Model Standing Orders should become effective
and come into operation immediately as and
when they are amended. If the intention of the
legislature was that they should be deemed to
come into operation, as soon as the amendment
came into operation, there would not have been
a bar as contemplated in Subs.(1) of S.10. This
is an additional reason which suggests that the
legislature did not contemplate that the
amendment to the Model Standing Orders
should become operative as soon as the
amendment comes into operation. We have,
therefore, no hesitation in taking the view that
as and when the Model Standing Orders are
amended, the only way to give effect to the
amendment is by resorting to the procedure of
amendment contemplated by S.10 of the Act
and that until the existing Certified Standing
Orders are suitably amended, the amended
Model Standing Orders cannot be deemed to be
applicable to the concerned establishment".
27. In view of this, I am of the opinion that the arguments of Ld.
AR for the workman that Certified Standing Orders of the
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Management herein were in contravention of Model standing orders
and hence not applicable, cannot be accepted, as once Certified
Standing Orders having been made by the Management and have
been duly certified, the same will remain in effect till the amendment in
Model Standing Orders is incorporated by the Management in their
own Certified Standing Orders, by way of amendment.
28. The other limb of argument of Ld. AR for the workman is
that his service conditions were violated by terminating his services.
Once workman has himself admitted in his complaint that his service
contract was renewed from 16.05.2011 for two years and thereafter
there was no renewal letter, issued to him, this clearly shows that the
service of the workman had come to an end when the contract had
completed or expired on 15.05.2013. Therefore, there is no substance
in the argument of Ld. AR for the workman that any service condition of
the workman has been altered by the management or that the
management has terminated the services of the workman during the
pendency of the Industrial dispute. Pendency of Industrial dispute for
regularization of the worker was separate from the completion of the
term of contract of employment of the workman. Just because an
Industrial dispute was pending between Management and workman,
Management cannot be forced to continue with the employment of a
contractual worker even after completion of contract. There are various
judgments which have already held that discharging of service of the
workman due to expiry of the duration of their contract does not violate
the provisions of Section 33 of I.D. Act. I will discuss the judgments,
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while considering the authorities relied upon by Ld. AR for the parties.
29. Ld. AR for the workman has relied upon four judgments, in
order to prove his case, but none of the judgments as relied upon by
the Ld. AR for the workman supports the case of the present
complainant/workman. As regards , The Standard Vaccum Refining
Company of India Vs. It's workmen 1960 AIR SC 948, this is a
case in respect to regularization , being an Industrial dispute and it
nowhere talks about the provisions of Section 33 and Section 33A ID
Act, hence this judgment is not applicable to the facts of the present
case. Similarly Oil and Natural Gas Corporation Vs. The
Petroleum Coal Labour Union and ors. , WP no. 1846/2000 Madras
High Court and Smt. Vandana and 22 ors. Vs. MCD, ID no.
166/2016 decided by Sh. Chandra Gupta, POIT on 05.05.2017 are also
on the point that dispute of regularization of service is an Industrial
dispute , as per section 2 (k) of the ID Act. Here again, present matter
is not related to the regularization of the workman, hence, it cannot
provide any help to the workman. As regards , case of Jaipur Zila
Sahkari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and ors,
decided by Hon'ble Supreme Court of India on 17.01.2002, it also does
not provide any help to the workman herein. As in that case Hon'ble
Supreme Court has considered the provisions of Section 33 (2)(b) of
the ID Act and the effect of the dismissal of the approval application of
the employer. Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Vs.
Ram Gopal Sharma and ors, as mentioned above, was not a case of
a limited period of contract. In that case Hon'ble Supreme Court has
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held that once approval application u/s 33 (2)(b) is disallowed , the
dismissal or discharge order will have no effect. Thus, this judgment
also does not support the case of the workman.
30. On the other hand, Management has relied upon BA
Security Agents Employees Union Vs. Regional Labour
Commissioner and ors, 2010 LLR 1083, this is a case, which
squarely applies to the facts in hand. In this case Hon'ble High Court of
Delhi has considered the judgment of Division bench of the Hon'ble
High Court in CWA (P) 1305.1991 titled Delhi Pradesh Rajdhani
Mazdoor Union (Regd.) Vs. DDA (unreported). In that case Hon'ble
Division Bench of Hon'ble High Court of Delhi has held that :
"The DDA in terminating the
services in terms of the contract had not
in any manner varied the terms of service
of the members of the petitioner union in
that case and therefore there was no
question of seeking any express
permission in writing of the authority
before which the proceedings were
pending because the services got
extinguished by efflux of time on the
expiry of their contract. It was further
held that if the DDA had tried to
terminate the services before the contract
was over then the workmen would have
been protected under section 33."
31. in view of the judgment of the Division bench in Delhi
Pradesh Rajdhani Mazdoor Union (stated above), Hon'ble High
Court of Delhi in B A Security Agents Employees Union has held that
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terminating the services in terms of contract does not very the terms of
service , therefore, section 33 would not be applicable.
32. The second judgment Mahender Singh Dhantwal Vs.
Hindustan Motors Ltd. And ors. 1976 II LLJ 259 SC, is also relied
upon by the Ld. AR for the management. However, I am of the opinion
that this judgment is not applicable to the present facts in hand as the
issue before the Hon'ble Supreme Court in Mahender Singh's case
was that "Whether the termination of the workman was on account
of misconduct of employee or not and it was not in respect to a
fixed term contract. Hence, the facts of both the cases can be
differentiated. Similarly , Management of Essopre Mills Ltd. vs.
Presiding Officer, Labour Court and ors., 2008 III LLJ 614 SC, does
not apply to the facts of present case as the case before the Hon'ble
Supreme Court was in respect to the strike of the workman which is not
the case here.
33. Therefore, in view of my above discussion, I am of the
opinion that the workman/complainant herein was appointed for a
limited period of contract and the contract has come to an end on
15.05.2013, this fact has not been disputed by the workman. After
15.05.2013 management had not renewed the service contract of the
workman, hence, his services has come to an end due to expiry of his
contract by efflux of time and he has not been dismissed or retrenched
by the management. It is also important here to consider the provisions
of section 2 (oo) (bb) of the I.D. Act wherein it is clearly mentioned that
the term "retrenchment" would not include the termination of service
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which results due to non renewal of contract of employment on expiry
of the contract period. Therefore, it is clear that neither the workman
was terminated nor he was retrenched in any manner as his service
contract had come to an end and was not further renewed by the
management, therefore, there is no violation of Section 33 of ID Act by
the management and hence provisions of Section 33A of ID Act does
not apply to the facts of present case. The complaint is thus not
maintainable u/s 33A of ID Act as there is no violation of Section 33 of
ID Act by the management.
34. My view also gets support from the recent judgment of
Hon'ble Punjab and Haryana High Court in Baljeet Singh Vs.
Industrial Tribunal, Bathinda and ors. , 2018 LLR 622, wherein it
was held that :
"Undisputedly the petitioner was
appointed on contract basis. He has no
legal right to hold the post after the fixed
period of employment is over."
35. Further from the Award passed by Ld. POLC Sh. Surinder
Kumar Sharma in LIR no. 2847/16, between the same parties , on the
same facts, it is clear that Ld. POLC has already held that
complainant/workman was appointed only for a fixed period and in this
way his case is not covered u/s 33 of ID Act, 1947, as the services of
the workman was never terminated by the management , and the same
has come to an end due to efflux of time and hence, it was not
retrenchment. Therefore, Ld. POLC has answered the reference to the
effect that the services of the workman were not terminated illegally or
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unjustifiably by the management.
36. In view of my above discussion, various judgments
considered and as per the judgment of POLC Sh. Surinder Kumar
Sharma in LIR no. 2847/16 , it is clear that workman/complainant had
been employed only on contractual basis and after completion of his
contract, it was not further renewed hence his services came to an end,
on expiry of his employment contract, and there was no violation of
Section 33 ID Act, committed by Management. Hence, the application
of the management and the preliminary issue , both are decided in
favour of the management . The service of workman had come to an
end by efflux of time and not due to change in service conditions of the
workman. The application of the management and the preliminary issue
" Whether the complaint is maintainable", both are allowed in favour
of management to the effect that the complaint filed by the
workman/complainant is not maintainable and hence dismissed.
37. The copy of the award be sent to the Government of NCT
of Delhi for publication of the award. File be consigned to Record
Room.
38. File be consigned to the Record Room.
Announced in the open Court on (SHAIL JAIN)
this 26th July, 2018. Presiding Officer,POIT02
Dwarka Court, New Delhi.
SHAIL Digitally signed
by SHAIL JAIN
Date: 2018.07.28
.
JAIN 14:13:12 +0530 26/26