Delhi District Court
Bijender Kumar vs Health And Family Welfare on 26 April, 2025
OLD CASE
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
F. No. 24(76)/Lab/CD/15/425
Dated: 22.05.2015
LIR NO.: 6756/2016
Workman:
Sh. Bijender Kumar, S/o Sh. Gopal Behari,
Lastly posted as Nursing Orderly in
Dr. Baba Saheb Ambedkar Hospital,
Sector-6, Rohini, Delhi
as represented through Secretary,
Hospital Employees' Union,
Agarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-110054.
Vs.
The Management of:
1. Health & Family Welfare Department
Through its Secretary (Health),
Govt. of NCT of Delhi, 9th Level,
A-Wing, Delhi Secretariat, New Delhi-110002.
2. Dr. Baba Saheb Ambedkar Hospital,
Through its Medical Superintendent,
Sector-6, Rohini, Delhi-110085.
3. M/s. Security Solution & Man Power Service,
Through its owner/Proprietor,
1283, Sector-29, Noida, U. P.
Date of Filing : 03.09.2015
Date of Arguments : 26.04.2025
Date of Award : 26.04.2025
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between
LIR-6756-16 Page No. 1/29
the parties named above for adjudication to this Tribunal
with following terms of the reference:-
"Whether the services of workman Sh. Gopal Sen
and 17 Ors. have been terminated illegally and /or
unjustifiably by the management during the
pendency of an Industrial Dispute and in
contravention of section 33 (2) (b) of the Industrial
Dispute Act, 1947, if yes, what is its effect and what
relief are they entitled?
2. Vide order dated 03.09.2015, Ld. Predecessor of this
Tribunal observed that this reference is for 18 workers and
separate statement of claim have been filed for 17 workers
and thus it was directed that photostat copy of reference be
annexed with every statement of claim and all claims were
ordered to be registered separately.
3. Statement of claim has been filed on behalf of the
claimant wherein it is stated that the claimant joined the
services of the management in the month of December
2008 on the post of Nursing Orderly and he was taken in
job on contract basis. It is submitted that contractor
(Management No. 3 herein) of management No. 2 changes
from time to time but the claimant concerned was
discharging his duties continuously and uninterruptedly
irrespective of change of contractor. It is stated that
claimant is continuously discharging his service without
even a single break and basically the said contract is
merely a camouflage and the contractor/ management No.
LIR-6756-16 Page No. 2/29
3 is involved by the management No. 2 just to circumvent
the law and to avoid various legal liabilities.
4. It is averred that management No. 2 was not
regularizing the services of the claimant, therefore, he
raised the said dispute in September 2008 regarding
regularization of his services and said dispute is yet
pending adjudication before the Hon'ble Industrial
Tribunal. It is stated that recently on 15.10.2014, Sh.
Jayant Kumar who is Medical Superintendent at Dr. Baba
Saheb Ambedkar Hospital refused duties to claimant and
said that there is no further requirement of his services and
hence, he need not to come on job in future. As such the
management No. 2 aforesaid has terminated the services of
claimant concerned during the pendency of said dispute
which is totally illegal, bad, unjust and malafide for the
following amongst other reasons.
5. It is stated that any such action of management
tantamount to violation of Section 33A of Industrial
Dispute Act and management has no right at all to
terminate the service of claimant during pendency of said
case and they have also not given any prior notice as
required under I.D. Act regarding change of service
condition to their prejudice. It is also pleaded that job
against which the claimant was working is of a regular and
permanent nature of job which is still continuing with the
management and they cannot terminate the services of the
workman concerned in the manner it has been done.
LIR-6756-16 Page No. 3/29
Rather, action of termination amounts to unfair labour
practice as provided in Section 2 (ra) read with Item No. 5
of Fifth Schedule of I.D. Act 1947. It is also stated that
action of management is in complete violation of Section
33 of I.D. Act in as much as no permission or approval has
been sought by management from the Authority where the
dispute regarding regularization is already pending.
Further, no notice pay was given to the claimant and as
such the impugned termination is in total violation of
Section 25 (f) (g) & (h) of the I.D. Act. It is also stated that
claimant is totally unemployed and idle since 15.10.2014
i.e. the day of his illegal termination. Hence, it was prayed
that award be made in favour of claimant holding that
claimant is entitled to be reinstated in service along with
continuity of service and full back wages alongwith all
consequential benefits either monetary or otherwise. It is
also prayed that concerned officials of management be also
prosecuted for offence committed by them as provided
under I. D. Act regarding change of service condition to
the prejudice of claimant concerned during the pendency
of said dispute.
6. Written statement was filed by managements no. 1
and 2 taking the plea/objection to the effect that claim filed
by the claimant is not maintainable as claimant has
concealed the true and material facts from this court. It is
stated that there is no relationship between the parties i. e.
the workman and management No. 1 and 2. It is also stated
LIR-6756-16 Page No. 4/29
that management No. 1 neither appointed the workman as
temporary or permanent in the said establishment/hospital
and workman is not the employee of management No. 1
and 2. It is stated that present claim is misuse of the
process of law and is without any merits of the case.
7. On merits, it was stated that the Nursing Orderly
services are functioning on outsourced basis vide letter
dated 27.02.2008 from the department of Health and
Welfare. It is stated that tender was invited for providing
ward boys/maids services on outsourced basis and as per
clause No. 2 of the Section (3) of the General Conditions
at page No. 15 of tender document "The Ward Boys/
Maids deployed by contractor shall be the employees of
contractor." It is stated that there is no employer and
employee relation between hospital management and
Nursing Orderly /Ward boy / Maids. It is also stated that
their service is outsourced and is allotted through open
tender system. It is also stated that the successful bidder is
awarded work contractor a stipulated time period and the
contractor provides outsources manpower for ward boy
/maids service of hospital.
8. As far as recruitment of manpower is concerned,
workers are employed by working agency/ contractor and
not by the hospital management. It is further stated that as
per agreement, the contractor will deploy required number
of ward boys/maids as per the bid document and they will
be the employees of contractor for the purpose of this
LIR-6756-16 Page No. 5/29
agreement and not of department. It is also averred that
hospital makes payment to contractor for providing ward
boys/ maids services on monthly basis after submission of
bill and verification of services provided by the
contractor's personnel and as per wage roll provided by
contractor, he is paying the workers minimum wages as
per the orders of Labour Department, GNCT of Delhi
through ECS.
9. With regard to continuous length of service, it is
pertinent to mention here that it is the discretion of every
new contractor to assess suitability and whether he
employs the old workers or replaces them with new
appointments and the hospital management does not
interfere in this matter. It is stated that contractor which
has terminated the contract with hospital vide termination
notice dated 29.09.2014, therefore, there is no question of
illegal termination, by the answering respondent. In fact, it
is management No. 3 who was their employer and grievance, if any has to be redressed by them and not by management No. 1 and 2 as no employer-employee relationship exists between the claimant and answering managements. Rest of the contentions of the statement of claim were also denied.
10. Management No. 3/contractor filed separate written statement raising preliminary objections to the effect that claim petition is totally false, frivolous, misconceived and without cause of action. It is stated that by way of present LIR-6756-16 Page No. 6/29 claim petition, the workman is trying to blackmail the answering management with a view to get away with his illegitimate demands which management No. 3 has not acceded to. It is stated that present claim petition has been filed by workman to harass the answering respondent and to extract money in illegal way by using pressure tactic, otherwise there is no iota of truth in the allegation leveled by the workman.
11. On merits, it was stated that management No. 3 has been awarded the contract by the management No. 1 from 01.01.2013 to 22.03.2014 and from 23.03.2014 to 15.10.2014 for supply of some semi-skilled, skilled and unskilled services and management No. 3 had provided the said services and the complete wages/salary and all benefits had been paid to the workers of management No. 3 for the contract period. Rest of the contentions of the statement of claim were also denied.
12. Rejoinders were filed on behalf of claimant to the written statements of managements No. 1 and 2 and management No. 3 separately wherein contents of claim petition were reiterated and reaffirmed and those of written statements were denied.
13. On the pleadings of parties, the following issues were framed vide order dated 21.05.2019:
1. Whether there is relationship of employer and employee between the workman and management No. 1 and 2?
(OPW).
LIR-6756-16 Page No. 7/292. As per terms of reference?OPW
14. In evidence, claimant produced himself in witness box as WW-1 and filed his evidence by way of affidavit Ex. WW-1/A and relied upon several documents. He was duly cross-examined by respective ARs for managements. Thereafter, W. E. was closed by AR for claimant.
15. The present matter was listed for M. E. and on 17.04.2025, AR for managements No. 1 and 2 submitted that in connected matters of regularization, MW-1 namely Dr. Kumar Akhilesh has already been examined on behalf of managements No. 1 and 2. It was also submitted that since the present matter is connected matter with said industrial dispute bearing POIT No. 406/2019, therefore, it was prayed that evidence of Dr. Kumar Akhilesh led on behalf of management no. 1 and 2 in said matter be read in the present matter as well. Ld. AR for management no. 3 and workman also gave no objection regarding adoption of said evidence by management no. 1 and 2. Accordingly, said evidence recorded in connected matter was adopted and M. E. was closed and matter was posted for final arguments.
16. Perusal of order sheet dated 17.04.2025 reveals that AR for management no. 3 did not lead any evidence on its behalf on the ground that claimant has not claimed any relief against management No. 3 and thus M. E. on behalf of management No. 3 was also closed.
LIR-6756-16 Page No. 8/2917. I have heard the arguments and perused the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence. The issue wise findings of this Tribunal are as under:-
18. Issue No. 1: Whether there is relationship of employer and employee between the workman and management no. 1 and 2?OPW
19. Ld. AR for the workman submits that it is settled legal position that in cases where there is no abolition of contract labour under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA Act), the industrial adjudicator has the jurisdiction to examine the arrangement between the principal employer and the contractor. Specifically, the court can determine whether the contract is genuine or a sham and camouflage, intended to deprive the workmen of rightful employment benefits. Ld. AR for the workman further submits that the Hon'ble Supreme Court has time and again reiterated that the industrial adjudicator is empowered to pierce the veil of such arrangements to assess whether the intermediary was engaged merely as a facade. Where a contract is found to be nominal or a ruse, and it is established that a direct relationship of employer and employee exists between the principal employer and the workmen, appropriate relief can be granted.
20. To substantiate his claim, ld. AR for workman has relied upon case titled as Hussainbhai v. Alath Factory LIR-6756-16 Page No. 9/29 Thezhilali Union [(1978) 4 SCC 257], wherein the Hon'ble Supreme Court held that when a definite plea is raised before the industrial adjudicator asserting that the appointment of a contractor was sham and nominal, it is within the jurisdiction of the Tribunal to examine the evidence and determine whether the contractor was interposed only to evade statutory obligations. The principle has also been echoed in Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. [(2004) 3 SCC 514], wherein the Hon'ble Supreme Court observed that the question of whether a contract is genuine or a mere camouflage is a question of fact. The industrial adjudicator, based on evidence, is entitled to pierce the corporate veil and determine whether the relationship between the principal employer and the workman is, in substance, that of an employer and employee.
21. Keeping in view the above position of law and the evidence brought on record in the present case, it is to be analyzed whether the arrangement between Management No. 1 & 2 with Management No. 3 is genuine or whether it is a sham and camouflage intended to evade compliance with labour laws and deny the workman the benefits of an employer-employee relationship. The Court is required to consider several factors, as established in a catena of cases, including Balwant Rai Saluja vs. Air India Ltd. [(2014) 9 SCC 407] and Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. [(2004) 3 SCC 514]. These factors LIR-6756-16 Page No. 10/29 directly influence the determination of whether the arrangement between the principal employer and the contractor is genuine or a sham. The factors include:
(a) who is the appointing authority;
(b) who is the paymaster;
(c) who has the authority to dismiss;
(d) the duration and continuity of the service;
(e) the extent of control and supervision exercised over the workman;
(f) the nature of the job;
(g) the nature of the establishment; and
(h) the right to reject work or services.
22. Keeping in view the factors enumerated above, this Tribunal has carefully examined the pleadings, evidence, and material placed on record by both parties.
23. The workman has filed Identity Card issued by M/s.
Prime Services. While these ID cards was issued by previous contractors, a crucial aspect remains consistent is that his continuous employment within the establishment of Dr. Baba Saheb Ambedkar Hospital/Management No. 2. In the cross-examination dated 24.08.2024, conducted by Ld. AR for the management, workman (WW-1) deposed that - I was working in the Baba Saheb Ambedkar Hospital as Nursing Orderly. I was not a permanent employee of the aforesaid hospital. I came to know about the vacancy in the aforesaid hospital through word of LIR-6756-16 Page No. 11/29 mouth and pursuant to which I applied in the aforesaid hospital. I underwent the selection procedure consisting of written test as well as interview conducted by the officials including Dr. Matolia of the said hospital. My salary was disbursed by the staff (Rajesh, Mukesh etc.) of the management hospital." The workman categorically denied being employed by the contractor or being posted in the hospital through the contractor. He also refuted the claim that his services were terminated by the contractor (Management No. 3), stating that his termination was effected by Management No. 1 & 2. Furthermore, during cross-examination by Management No. 3, it emerged that Management No. 3 was not even in the picture in 2008, when the workman was initially appointed as a Nursing Orderly.
24. On the other hand, Management No. 1 & 2, in their Written Statement, claimed to have annexed a copy of the "tender document" as ANNEXURE R-1 and the termination notice dated 29.09.2014 as ANNEXURE R-2. However, in fact, no such documents have been placed on record. The order sheet only reflects the filing of the Written Statement on behalf of Management No. 1 & 2, with no mention of any supporting documents being filed. Furthermore, the management witness (MW1 Dr. Kumar Akhilesh), in his Affidavit Ex. MW1/A and while leading evidence on behalf of Management No. 1 & 2 (in connected matter), did not rely on or produce any LIR-6756-16 Page No. 12/29 document in support of their claims. Thus, it is evident that no documentary evidence has been submitted by the managements to substantiate their assertions. As far as management no. 3 is concerned, it did not lead any evidence and same was closed.
25. Even the relevant portion of cross-examination of the MW-1 (Dr. Kumar Akhilesh) for the purpose of establishing the employer-employee relationship is important which is as follows:
* The service particular given in Annexure-A of terms of reference dated 22.05.2015 are correct, which is Ex. MW1/W1.
* It is correct that prior to 2010, the workmen were directly employed including the concerned workmen by the management no. 1 & 2. It is also correct that the outsource system started somewhere in 2009-10. * It is correct that after 2010, contractors kept changing, however, concerned workmen worked continuously and uninterruptedly with management no. 1 & 2. * It is correct that the management no. 1 & 2 do not have any registration certificate under CLRA Act. * It is correct that concerned workmen were working under the control and supervision of the doctors/nurses and various officials of management no. 1 & 2. * It is also correct that all the material required for performing duties of nursing orderly, was provided to the concerned workmen by management no. 1 & 2. * It is also correct that management no. 1 & 2 were taking the attendance of the concerned workmen. * It is correct that the job of the contractors/agencies was merely to disburse the salaries to the concerned workmen, and apart from that, the former do not have any role to play.
* It is correct that the workmen concerned had worked against the vacant post of nursing orderlies since their initial appointments.LIR-6756-16 Page No. 13/29
26. The testimony of the management witness (MW-1) confirms the service particulars of the workmen, which includes their date of joining and designation, which now remain undisputed. It also establishes that the outsourcing system was introduced at a later stage, whereas the workmen were initially engaged directly by management No. 1 & 2, without any intermediary. The workmen have been continuously working with management No. 1 & 2, while contractors/intermediaries have come and gone over time.
27. On one hand, management No. 1 & 2 contended that the workmen are employees of the contractor/management No. 3, yet on the other hand, they admit that they have not obtained any registration certificate under the CLRA Act for employing outsourced labour in their establishment. The management witness further admitted that complete control and supervision over the workmen have always remained with management No. 1 & 2. It is also admitted that management No. 1 & 2 provided the workmen with tools and materials, and maintain their attendance records. The workman had admittedly worked against the vacant post of Nursing Orderlies. The role of the contractor was limited solely to salary disbursement. Reliance is also placed on the admission of the MW-1 regarding not having any registration certificate as mandated under CLRA Act. Neither the management no. 1 & 2 nor the management no. 3 has placed on record any registration certificate and LIR-6756-16 Page No. 14/29 labour license as mandated under Section 7 and 12 of the Contract Labour (Regulation & Abolition) Act, 1970. The Division Bench of the Hon'ble High Court of Gujarat in Gujarat Mazdoor Panchayat v. State of Gujarat, 1991 SCC OnLine Guj 80 has observed the the following:
"37....In this connection, it will be necessary to note that even if contract labour system is in vogue in a concern, employees employed by the contractor can validly raise the following contentions which may buttress their grievance that even though they are the direct employees of the principal employer, they have wrongly been treated as employees of the contractor who is not a real intermediary. Such types of dispute under the I.D. Act can legitimately be raised in the following cases which are mentioned by way of illustrations only without suggesting that they are exhaustive:--
(1) When it is alleged that employees were directly employed by the principal employer and subsequently contract system was introduced for the same activities resulting in snapping of relationship of employee-employer between the workmen on one hand and the main employer on the other, thus violating Section 9A of the I.D. Act. (2) When there is absence of proper registration of the concerned principal-employer under the Contract Labour Act.
(3) When there is absence of proper licensing of the concerned contractor who employs contract labour at a given point of time.
(4) Even though principal employer be registered employer under the act and the concerned contractor may be licensed contractor under the Act his licence may not cover the activity which is carried on by the contract labour. (5) Even though principal employer may be registered employer under the Contract Labour Act and the contractor may be having a valid licence to employ contract labour, under the Contract Labour Act, for a given activity, still licence issued to him may not cover exact number of LIR-6756-16 Page No. 15/29 employees employed by him meaning thereby, number of permissible employees under the licence may be less than number of employees actually employed and qua such excess number of employees protective umbrella of licence would not be available to the contractor so far as the activity covered by the licence is concerned.
(6) Even though principal employer may be registered employer and the contractor may be licensed contractor and the workmen employed by him might be covered by the permissible number of employees as recognised by the licence and even though such activities may be covered by a licence, in fact and in substance, control including disciplinary control and supervision of the entire activity would be with the principal employer and the wages of the employees may in fact be coming out of coffers of the principal employer, and may be getting paid through the contractor who may operate as a mere conduct (sic) pipe.
Such type of control, supervision and payments being outside the scope of Section 10(2)read with Sections 20 and 21 of the Contract Labour Act would give rise to a legitimate contention that the principal employer is in fact and substance the real employer and the so-called contractor is an eye-wash.
28. In view of the settled position of law, as well as the documentary and oral evidence placed on record, this Tribunal concludes that the managements have failed to comply with the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA Act). Despite claiming to be governed by the CLRA Act, neither a valid registration certificate nor a license, as required under the Act, has been produced before this Tribunal.
29. Based on the factors established for determining an employer-employee relationship, the evidence clearly points towards Management No. 1 & 2 being the actual employer of the workman. It is evident that the LIR-6756-16 Page No. 16/29 appointment authority is management no. 1. The workman was directly appointed by management No. 1 initially, with intermediaries only introduced in 2009-10 to ostensibly shift the employer-employee relationship. The pay master is management no. 1, and the role of the contractor was merely to disburse the salary to the workman. There is continuity in service, as the contractors kept changing but the workman remained the same. The control and supervision over the workman also lies with the management no. 1 & 2. It exercises exclusive control over the workman, including maintaining attendance, supervising their work, supplying the tools and materials for performing their duties. The work of Nursing Orderlies which the workman had been performing is of permanent and perennial nature, which is evident by his continuous engagement with the management no. 1 & 2. Neither the management no.1 nor the management no. 2 possess any registration certificate and labour license as mandated under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 prior to deploying the contractual workers.
30. Keeping in view above narrated facts and circumstances, it is held that the contractual arrangement between management No. 1 & 2 with management No. 3 is mere sham, nominal, and a camouflage just fabricated to deprive the workman of his rightful employment benefits. The evidence on record clearly establishes that the LIR-6756-16 Page No. 17/29 workman is, in fact, an employee of management No. 1 &
2. Accordingly, the Issue No. 1, is decided in favor of the workman and against the managements.
31. Issue No. 2 : As per terms of reference?
Whether the services of workmen Sh. Gopal Sen & 17 Ors. have been terminated illegally and/or unjustifiably by the management during the pendency of an industrial dispute, and in contravention of Section 33(2)(b) of I.D. Act, 1947, if yes, what is its effect and what relief are they entitled?
32. At the outset, the AR for the workmen has placed reliance on Ex. WW1/6, which is the complaint filed under Section 33A before the conciliation officer. The pleadings and grounds raised before both the conciliation officer and this Tribunal pertain to the alleged illegal termination of the services of the workmen by the management in violation of Sections 25F, 25G, and 25H of the Industrial Disputes Act, as well as Section 33 of the said Act. The primary contention is that the services of the workmen were terminated without seeking prior permission or approval from the competent authority, rendering the termination illegal and void-ab-inito. It has been argued that the terms of reference must be read in light of the pleadings of the parties and should not be restricted merely to a violation of Section 33 (2) (b) of the Industrial Disputes Act.
LIR-6756-16 Page No. 18/2933. In this regard, reliance is placed on the judgment in Dharamvir Singh vs. MCD, W. P. (C) No. 6862/2011, decided on 24.01.2013, wherein the Hon'ble Delhi High Court, after considering various precedents, reaffirmed the settled position that the terms of reference must be construed liberally in light of the pleadings of the parties. The Court emphasized that industrial adjudication must be guided by a broader perspective, keeping in mind the objectives of labour legislation, and that procedural and technical objections should not be allowed to defeat the legitimate claims of workmen. The relevant portion of the judgment is as follows:
"Section 10(1)(c) of the I.D. Act empowers the appropriate Government to refer the existing or apprehended industrial dispute or any matter appearing to be connected or relevant to the dispute relating to any item specified in the Second Schedule to a Labour Court for adjudication. Section 2(k) of the I.D. Act defined the term industrial dispute. Any dispute or difference between the employer and individual workman connected with or arising out of discharge, dismissal, retrenchment or termination is deemed to be an industrial dispute under Section 2-A of the I.D. Act. The definition of industrial dispute is itself wide enough to include any dispute or difference connected with the employment or non-employment. There is a long line of decisions of the Supreme Court taking a view that order of reference should be liberally construed and the reference should not be rendered incompetent merely because it is made in general terms and it is always permissible for the Labour Courts or the Tribunals to construe the reference in the light of the backdrop against which it is made and to bring out the real dispute for its decision. The obvious reason for this approach is not only the width of language used in the definition of industrial dispute in Sections 2-A and 10 of the I.D. Act LIR-6756-16 Page No. 19/29 but also the object behind the labour legislations. Industrial peace has to be achieved as early as possible and the battle is generally between unequals. At least one party, namely, the worker cannot afford to fight continuous long drawn battle against the employer and hence technical, formal and procedural points have almost no place in such disputes. Indeed the duty of Courts and Tribunals is to discourage ingenuity on such points and to adjudicate at controversy on merits. Many times the reference is cryptic and vague and is not properly worded. Sometimes it is not even possible to mention therein the defence of the other party. In such case it is the duty of the adjudicating authority to examine the pleadings, documents etc. and to locate the exact nature of dispute."
34. In view of the settled legal position, this Tribunal holds that the scope of the present reference must be determined in light of the pleadings before the appropriate authority. Consequently, the claim of the workmen of illegal termination is not confined solely to a violation of Section 33(2)(b) of the Industrial Disputes Act but must also be examined in view of other provisions i.e. Section 33, 25F, G & H of the I.D. Act.
35. Now, moving on to the aspect of illegal termination of services of the workman, the workman has argued that his services have been terminated by the managements during the pendency of their industrial dispute seeking regularization of their services. It is argued that the industrial dispute was raised in February 2014, whereas, the services of the workman was terminated w.e.f. 15.10.2014 by the Medical Superintendent of Dr. Baba Saheb Ambedkar Hospital and the workman was told that LIR-6756-16 Page No. 20/29 his services are no longer required. Such termination is in violation of Section 33 of I. D. Act and is void-ab-initio. In support of this contention, reliance is placed on the judgments in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, Appeal (Civil) No. 87-88 of 1988, decided on 17.01.2002, Tops Security Ltd. vs. Subhash Chander Jha, LPA 1044/2011, decided on 16.07.2012, and Badshah Singh vs. Delhi Jal Board, LPA No. 604/2014, decided on 27.08.2019. These judgments have consistently held that any termination of workmen during the pendency of an industrial dispute, without obtaining prior approval under Section 33 of the Industrial Disputes Act, is unlawful and invalid.
36. The managements no. 1 & 2, on the other hand, has contended that it never terminated the services of the workman, and argued that he was in fact the employee of management No. 3. However, in light of the findings on the issue of employer-employee relationship, this contention is untenable. The workman is an employee of management No. 1 & 2, and the latter cannot absolve themselves of liability by shifting responsibility onto an intermediary.
37. It is undisputed and, in fact, admitted by the management that the workmen had raised an industrial dispute regarding their regularization on the post of Nursing Orderly, titled as "Gopal Sen & Ors. vs. Department of Health & Family Welfare & Anr.", before LIR-6756-16 Page No. 21/29 the conciliation officer, GNCTD. The management witness (MW-1) in his cross-examination conceded it as correct that the workmen/its union raised an industrial dispute regarding regularization of the services of the concerned workmen on the post of Nursing Orderly in November 2013. It is also correct that subsequent to Legal Demand Notice, the workmen filed their statement of claim before the conciliation officer in January 2014. Therefore, the factum of pendency of industrial dispute for regularization of services of the workman is not disputed.
38. The workman has contended that his services were terminated w.e.f. 15.10.2014. While the management witness (MW-1) showed ignorance regarding the exact date of termination, it is significant to note that from the outset including the legal demand notice (Ex. WW1/1), the complaint under Section 33A before the conciliation officer, the claim filed before this Tribunal, and the affidavit of the workman (Ex. WW1/A), the workman has maintained that his termination was effected by the Medical Superintendent of management No. 2 on the said date. Furthermore, the management, during the cross- examination of the workmen, did not dispute the date of termination, thereby leaving it unchallenged and rendering it an undisputed fact on record.
39. Section 33 of the Industrial Disputes Act imposes a statutory bar on employers from altering the service conditions of workmen to their prejudice during the LIR-6756-16 Page No. 22/29 pendency of an industrial dispute. The relevant provision states:
33. Conditions 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 194[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 proceeding; 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 195[or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; 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.
40. The Hon'ble Supreme Court in Bhavnagar Municipality v. Alibhai Karimbhai, (1977) 2 SCC 350 has categorically held that if an industrial dispute concerning LIR-6756-16 Page No. 23/29 regularization is pending, the service conditions of the workmen, however insecure, must subsist during the pendency of such a dispute. The relevant portion of the judgment is as follows:
14. The character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition of employment, however, insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be altered to their prejudice by putting an end to that temporary condition. This could have been done only with the express permission of the Tribunal. It goes without saying that the respondents were directly concerned in the pending industrial dispute. No one can also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case. To permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of Section 33 which is principally directed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication. We are, therefore, clearly of opinion that the appellant has contravened the provisions of Section 33(1)(a) of the Act and the complaint under Section 33-A, at the instance of the respondents, is maintainable. The submission of Mr. Parekh to the contrary cannot be accepted.
41. In the present case, it is an admitted position by management No. 1 & 2 that no prior permission or approval was sought from any competent authority before terminating the services of the workmen. The MW-1 has admitted the same in his cross-examination. Even otherwise, the managements have failed to produce any document or order evidencing compliance with the statutory requirement of obtaining permission or approval under Section 33 of the Industrial Disputes Act.
LIR-6756-16 Page No. 24/29Accordingly, this Tribunal holds that the termination of the services of the workman w.e.f. 15.10.2014 by the management no. 1 & 2, without prior permission or approval from the appropriate authority, is in violation of Section 33 of the Industrial Disputes Act and is, therefore, void ab initio. Further reliance is placed on the judgments of Tops Security Ltd. v. Subhash Chander Jha, 2012 SCC OnLine Del 3691, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, Appeal (Civil) No. 87-88 of 1988, decided on 17.01.2002.
42. Even otherwise, the said termination is in contravention to Section 25F, G and H of the I.D. Act. The MW-1 has admitted in his cross-examination that " it is correct that no notice, or notice pay in lieu of notice or retrenchment /service compensation was paid by the managements to the women prior to terminating their services. It is correct that Nursing Orderlies who joined into the employment of the management no. 1 & 2 in 2012, 2013 and thereafter are still working with the management.
43. Meaning thereby, the termination of the workmen was effected in blatant violation of the mandatory provisions of Sections 25F, 25G, and 25H of the I.D. Act, as neither notice nor notice pay in lieu thereof, nor retrenchment compensation was offered or paid prior to his termination. Furthermore, it stands established that co-workers and even juniors to the workmen--some appointed in 2012, LIR-6756-16 Page No. 25/29 and even in 2013 and thereafter, i.e., after the termination of the workmen--continue to remain in employment with Management No. 1 & 2. This conclusively proves that the principle of "last come, first go" as mandated under Section 25G of the I.D. Act was disregarded, and fresh appointments were made without granting the workmen concerned the statutory preference under Section 25H. Considering the material on record and the legal submissions advanced, this Tribunal holds that the present complaint filed by the workman is maintainable. It further finds that his termination was carried out during the pendency of their industrial dispute regarding regularization, in clear contravention of Section 33 of the I.D. Act, without obtaining prior permission or approval from the competent authority. The said termination is also held to be in violation of Section 25F, G and H of I.D. Act. Therefore, this Tribunal holds that the termination of the workmen w.e.f. 15.10.2014 by Management No. 1 & 2 is non est and void ab initio, having no value in the eyes of law. Accordingly, this issue is decided in favour of the workman and against the managements.
44. Relief: The AR for the workman has argued that once the termination is held to be illegal, the normal relief is to award reinstatement with continuity in service and full back wages. He placed reliance upon the judgment of Hon'ble High Court in Management of DTC v. Ram Kumar, 1981 SCC OnLine Del 377 wherein it was held LIR-6756-16 Page No. 26/29 that once the termination is held to be illegal and unjustified, the normal rule is to award reinstatement with full back wages and continuity in service except when the workman is gainfully employed coupled with receiving wages equivalent to his last drawn salary at the time of his illegal termination. The Para 13 of the aforementioned judgment is as follows:
"13...The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his services was unjustified he would normally be entitled to reinstatement with full back wages excepting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus 'full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure.' See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha (13). Thus if the employer wishes to show that workman was gainfully employed he must establish and prove that fact no presumption of being gainfully employed can he raised. It is not disputed that no evidence has been led or even shown on the record by the appellant which shows that the workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement, because as said in Panitole Tea Estate case (P. 240) "if his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule"
45. Further, reliance upon case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324, wherein the Hon'ble Supreme Court has held that onus to prove that the gainful employment shifts to the management once the workman has pleaded that he/she is LIR-6756-16 Page No. 27/29 not gainfully employed elsewhere. The Para 33 of the aforementioned judgment is as follows:
"38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
46. The workman, in his complaint, has categorically stated that he remained unemployed following his illegal termination on 15.10.2014. He has further reiterated the same in his Affidavit (Ex. WW1/A) filed before this Tribunal, on which he was not subjected to cross- examination, thereby rendering the statement unrebutted and uncontroverted. Furthermore, Management No. 1 & 2 neither pleaded nor produced any documentary evidence to establish that the workman was gainfully employed elsewhere after 15.10.2014. As the burden of proving gainful employment lies upon the employer, the management has failed to discharge its onus of demonstrating that the workman was employed and LIR-6756-16 Page No. 28/29 receiving the same or substantially similar emoluments. In the absence of such evidence, this Tribunal cannot presume gainful employment. Moreover, no exceptional circumstances or compelling reasons were advanced by the AR for the management to justify any deviation from the settled principle that, once termination is held to be illegal, the normal relief granted is reinstatement with continuity of service and full back wages. In light of the foregoing, this Tribunal holds that the workman is entitled to reinstatement along with continuity of service and full back wages. Thus, the managements No. 1 and 2 are directed to implement the award within 60 days of the publication of this award, failing which the management will be liable to pay interest @ 8 % per annum from the date of reference i.e. 22.05.2015 till its realization. The award is passed accordingly.
47. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Digitally Records after due compliance. signed by MOHINDER MOHINDER VIRAT VIRAT Date:
2025.04.26 14:32:55 +0530 Announced in open Tribunal on this 26.04.2025 (MOHINDER VIRAT) POIT-I/RADC, New Delhi.LIR-6756-16 Page No. 29/29