Delhi District Court
Complainant/ vs Respondent/ on 16 January, 2015
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
CC. No 02/12
Complainant/Workman
Sh. Jagbir Singh S/o Sh. Mahender
10, V.P.O. Mitraon Gaon
Najafgarh, New Delhi -110 043.
Vs.
Respondent/Management
M/s Skygourmet Catering Pvt. Ltd., Indira Gandhi International Airport Complex, Office : International Airport Approach Road, New Delhi-110 037 Date of institution 25.01.2012 Date of reserving award 02.01.2015 Date of award 16.01.2015 AWARD
1. Present is a complaint u/s 33A of I.D. Act, 1947 filed by the workman, stating therein that he joined the management on 09.05.2008 as Team Member "B" (Transport) at last drawn salary of Rs. 7404/- per month; that an industrial dispute I.D. No 247 of 2010 is going on between the workmen of M/s. Sky Gourmet Catering Pvt. Ltd. through their union C.C.. No 02/12 Page 1 of 13 i.e Airport Employees Union and its management before this Tribunal; that the basic issue in the above said industrial dispute is that all the workmen were given employment with a provision that automatically their services would be terminated after expiry of fixed term, which varies from 3 to 1 year and the management is intended to terminate the services of its workmen using this illegal and unjustified clause, which overrides the protection given in Chapter V-B of the Industrial Disputes Act, 1947 and the workmen challenged such termination provisions in their appointment letters on the ground that they are violative of the provisions of the Industrial Dispute Act, 1947; that during the pendency of the above said industrial dispute, the management suspended the service of the complainant w.e.f. 10.05.2011; that in the suspension order it has been alleged - "it has been reported against you that you have indulged act of misconduct of serious nature, thereby jeopardizing and affecting the overall discipline & operation of the establishment and a detailed charge-sheet in respect of alleged misconducts is being sent to you on your last known residential address as per records in due course"; that the the management terminated his services with effect from 08.11.2011 vide their order of even date and along with this termination letter, the management sent a letter dated 08.11.2011, by saying it as a speaking order; that the management has not moved any application seeking "previous express permission" from this Tribunal under Section 33 (1) (b) of the Industrial Disputes Act, 1947 prior to the termination of the services of the workman; that the management has not moved even "approval application" under Section 33 (2) (b) of the Industrial Disputes Act; that the management neither C.C.. No 02/12 Page 2 of 13 served neither notice nor paid notice pay in lieu of notice at the time of termination of his services; that the management has not paid any retrenchment compensation; that the management has never issued any memo, charge sheet nor conducted any domestic enquiry against him after issuing the suspension letter; that the management violated Section 33 (1) (b) of Industrial Disputes Act as the management has not taken express previous permission from this Tribunal, where the industrial dispute is pending; that management has not moved evn any approval application under Section 33 (2) (b) of Industrial Disputes Act; that he is unemployed since the date of his termination and despite his best efforts, he could not get any alternative employment. Complainant/workman has prayed for directing the management to reinstate him with full back wages and continuity of service.
2. The management has filed written statement, taking preliminary objections that the present complaint under Section 33-A of Industrial Disputes Act is legally incompetent inasmuch as the management has not committed any violation of Section 33 of Industrial Disputes Act as been alleged by complainant; that Section 33 of the Act is attracted only when the termination of service is punitive and founded on an act of misconduct; that on admitted position, the services of the complainant came to an automatic end in terms of his contract of employment. The management has denied all the contents of complaint of complainant/ workman and prayed for dismissal of the same.
3. Replication has been filed for workman, wherein the workman has denied all the averments made in the written statement and has reiterated the contentions made in the present complaint.
C.C.. No 02/12 Page 3 of 134. On the basis of pleadings of the parties, following issues were framed vide order dated 23.07.2012 :-
1. Whether the management has violated provisions of Section 33 of Industrial Disputes Act ? OPW
2. Whether complainant/workman is entitled to relief claimed, on merits ? OPW
5. Workman examined himself as WW 1 relying upon documents Ex. WW 1/1 to Ex. WW 1/7. In his affidavit, he has reiterated more or less the contentions made in the present complaint. In his cross- examination, WW 1 has denied the suggestion that the motives attributed by him to the management for incorporating the clauses regarding fixed term contract in his appointment letter are baseless and devoid of any merit. He has denied the suggestion that the management never leveled any false or concocted allegations against him. He has admitted that his services came to an automatic end on 8.11.2011 on the expiry of his fixed term contract. He has deposed voluntarily that prior thereto he was suspended from service on 10.5.11. He has denied the suggestion that there is no connection between ID No.247/10 pending before this Tribunal and his cessation from service on 8.11.2011. He has denied the suggestion that letter dated 17.7.10, copy of which is mark A, was issued to him by the management. He has deposed that he had received letter, copy of which is Ex. CW1/M1. He has further deposed that he was not issued letter dt. 3.7.10, copy of which is mark B. He has admitted that Ex. CW1/M2, which is letter dt. 5.6.10, bears his signatures in the portion mark X. He has deposed voluntarily that the speed has to be kept slow, where the plane is already parked.He has deposed that he C.C.. No 02/12 Page 4 of 13 was issued letter dt. 2.7.10, copy of which is Ex. CW1/M3, and same bears his signature at the portion mark X. He has deposed that his family consists of himself, his widowed mother, his wife and his two children, aged 07 years and 03 years. He has deposed that his monthly expenses are about Rs.7000/-. He has denied the suggestion that he is gainfully employed.
6. Management has examined Mr. Ranga Rao, Senior Manager (HR) as MW 1 relying upon documents Ex. MW 1/1 to Ex. MW 1/3, Ex. CW 1/M1, Ex. CW1/M2, Ex. CW1/M3 and CW1/7. In his affidavit, he has deposed that on un-disputed position, the workman Mr. Jagbir Singh was appointed on fixed term basis vide appointment letter dated 09.05.2008; that his fixed term employment came to an automatic end by efflux of time on the expiry of the fixed term for which he was appointed, i.e with effect from 08.11.2011; that automatic termination of his fixed term contract employment is not punitive and, as such, the same does not fall within the meaning of Section 33 or Section 33-A of the Industrial Disputes Act; that the purported complaint filed by the workman is, thus, wholly misconceived in law and is not maintainable; that purported motives attributed to the management for appointment the workman on a fixed term basis are baseless, imaginary and devoid of any merit; that the appointment of the workman on a fixed term contract was valid, lawful and in accordance with the law; that having accepted the terms and conditions of fixed term contract appointment, the workman is bound by the same; that the workman's allegations that the management levelled false or concocted allegations against him are baseless and incorrect; that though the workman was suspended from service vide C.C.. No 02/12 Page 5 of 13 letter dated 10.05.2011, no charge sheet was issued to him nor was he dismissed for any misconduct; that his fixed term contract employment came to an automatic end by efflux of time with effect from 08.11.2011 and, as such, his name stood removed from the rolls of the company with effect from the said date; that in this connection, the speaking order dated 08.11.2011, intimating workman about his automatic termination was sent to him; that in view of the automatic termination of his service, his suspension suo moto stood revoked; that his automatic termination by efflux of time, on the expiry of his fixed term contract, was, thus, not founded on any misconduct and therefore, management not required to seek any permission from this Tribunal under Section 33 of Industrial Disputes Act; that the purported dispute I.D. No 247/10 pending before this Tribunal does not constitute an industrial dispute; that there is no connection between the said dispute I.D. No. 247/10 and the automatic termination of the workman's service on the expiry of his fixed term contract employment with effect from 08.11.2011. The respondent/ workman did not cross-examined this witness.
7. I have heard arguments from respondent/workman and Sh. Alok Bhasin, Ld. Counsel/AR for the management. I have carefully gone through the entire record of the case. My findings on issues are as under:-
8. Findings on issues no.1 Issue no.1 is "whether the management has violated provisions of Section 33 of Industrial Disputes Act ? OPW".
9. Present complaint has been filed u/s Section 33A of I.D. Act.
Section 33 of Industrial Disputes Act, 1947 is reproduced as below:-
C.C.. No 02/12 Page 6 of 13"33. 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 proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman 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 standing orders applicable to a workman concerned in such dispute 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.
(3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute -
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.
Explanation- For the purpose of this sub-section, a "protected workman" in relation to an establishment, means a workman C.C.. No 02/12 Page 7 of 13 who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.
(4) ......................
(5) ......................
10. Section 33 A of Industrial Disputes Act is reproduced as under:-
Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding. - Where an employer contravenes the provisions of Section 33 during the pendency of proceedings 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
(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.
11. Workman (WW 1) has relied upon document Ex. CW1/3 which is his appointment letter dated 09.05.2008 for appointment on Fixed Term Contract. The extract & first two terms & conditions of the said appointment letter are reproduced below : -
Skygourmet Catering Pvt. Ltd.
Indira Gandhi International Airport Complex Off International Airport Approach Road, New Delhi-110 037 Ref : SKY DEL/HR/ng/08/OD0578 Date : 09/05/2008 C.C.. No 02/12 Page 8 of 13 To, Mr. Jagbir Singh, 10, VPO Mitraon Gaon, Najafgarh, New Delhi -11- 043 FIXED TERM CONTRACT Dear Mr. Jagbir Singh, Further to your application and subsequent interview, the management is pleased to inform you that you have been appointed as TEAM MEMBER -B (TRANSPORT), with effect from 09/05/2008. Your appointment shall be subject to the following terms & conditions :
1. To begin with, your appointment shall be for a period of six months on trial basis. In case the management finds that your performance during the trial period which is akin to probation is not satisfactory or up to the required standard, your services shall stand terminated on the completion of your trial period of service of six months.
2. In case your retained in service on your successful completion of trial period of six month, your appointment in service shall be for a fixed period of three years with effect from the date of the completion of your trial period of service.
Your fixed term employment of three years shall lapse and come to an automatic end on the completion of your fixed term contractual employment of three years.
3 to 14 ..........................
If you are agreeable to the aforesaid terms & conditions, please return the duplication copy of this letter with your signature thereon signifying your acceptance thereof.
We are pleased to have you in our organization and we sincerely hope that your collaboration with our organization will be beneficial to both of us.
Yours faithfully, for SKYGORMET CATERING PVT. LTD.
Sd/- xxxxx PATRICK RODRIGUES DIRECTOR -HRD
12. Workman has also relied upon document Ex. CW1/6, which is the letter of Intimation on End of Fixed Term Contractual Appointment which is reproduced as under :-
C.C.. No 02/12 Page 9 of 13Skygourmet Catering Pvt. Ltd.
Indira Gandhi International Airport Complex Off International Airport Approach Road, New Delhi-110 037 Date : 08/11/2011 To, Mr. Jagbir Singh, Team Member _B (Transport) Employee Code - 0D0578 Sub: Letter of Intimation on End of Fixed Term Contractual Appointment In terms of your letter of appointment dated 09/05/2008, you have been appointed on a fixed term contractual appointment for a period of 42 months with effect from 09/05/2008 to 08/11/2011. Your fixed term contractual appointment, thus, comes to an automatic end on 08/11/2011 by efflux of time and, as such, your name shall stand removed from the roll of company w.e.f. said date. A copy of the speaking order dated 08/11/2011 passed by Mr. Sanjeev Ardekar General Manager - Human Asset is annexed herewith.
for SKYGORMET CATERING PVT. LTD.
Sd/- xxxxx V. Ranga Rao Sr. Human Asset Manager
13. The case of complainant/workman is that during the pendency of industrial dispute I.D. No. 247 of 2010 going on between the workmen of M/s Skygourmet Catering Pvt. Ltd through their union and the management, his services has been terminated by the management w.e.f. 08.11.2011 vide its order of even date without seeking "previous express permission" from this Tribunal prior to termination of his service and that the management has not moved even "approval application" under Section 33 (2) (b) of Industrial Disputes Act .
C.C.. No 02/12 Page 10 of 1314. The case of the management is that the present complaint under Section 33-A of Industrial Disputes Act is legally incompetent inasmuch as the management has not committed any violation of Section 33 of Industrial Disputes Act; that Section 33 of the Industrial Disputes Act is attracted only when the termination of service is punitive and founded on an act of misconduct; that on admitted position, the services of the complainant came to an automatic end in terms of his contract of employment and the termination of service of the complainant is not punitive and, as such Section 33-A is not attracted.
15. Management has relied upon the judgment reported as BA Security Agents Employees Union Vs. Regional Labour Commissioner & Ors, 2010 LLR 1083, wherein Hon'ble High Court of Delhi held as under : -
"10. However, my research finds this Court to have taken a view contrary to that of the Orissa High Court. Recently a Single Judge of this Court in Jai Pal Singh V. Delhi Development Authority, MANU/DE/1718/2009 negated the argument of non-compliance of Section 33 (1) of the Act in the case of Security Guard employed by the DDA on contract basis for a period of six months at a fixed salary with the period of employment coming to the end on 30th April, 1991; the union, of which the said workman was a member, before that day filed a writ petition and in which the DDA was directed to maintain status quo; the writ petition was dismissed on 6th January, 1993 and the DDA dispensed with the services of workman in terms of contract of employment w.e.f. 3rd March, 1993. Notwithstanding the pendency of an industrial dispute regarding regularization of contractual employees of DDA on that date, it was held that DDA was not required to C.C.. No 02/12 Page 11 of 13 obtain the permission of the authority before which the dispute was pending. In holding so, the Single Judge relied upon the judgment dated 6th January, 1993 of the Division Bench of this Court in CW(P) 1305/1991 titled Delhi Pradesh Rajdhani Mazdoor Union (Regd.) V. DDA. I have called for a copy of the said unreported judgment of the Division Bench. In that case also the DDA has employed the member of the petitioner union as Security guards on a term contract and the union had moved the industrial dispute before Industrial Tribunal for regularization of their services. The union by way of the Writ Petition sought a direction from this Court that the services of its member be not terminated during the pendency of the dispute before the Industrial Tribunal as they were protected under Section 33 of the Act. The Division Bench of this Court 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, they was not 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. It was further held that the question of regularization was already pending before the Labour Court.
11.The aforesaid dicta of the Division Bench of this Court is fully applicable to the fact of the present case also".
16. As per the above judgment of Hon'ble High Court, Section 33 of the Industrial Disputes Act, providing for approval of dismissal from C.C.. No 02/12 Page 12 of 13 service of a workman by the authority before whom the industrial dispute is pending, will not be attracted in case of the discharge of concerned workmen, who were appointed on contract basis. Admittedly, workman was employed with the management on fixed term contract and as per his own reliance on documents Ex. CW1/3, his fixed term contract employment came to automatic end on 08.11.2011. In cross-examination of WW 1, he has admitted that his services came to an automatic end on 8.11.2011, on the expiry of his fixed term contract. In my considered view, termination of service on completion of fixed term contract is not punitive. Hence, management has not violated the provisions of Section 33 of Industrial Disputes Act. This issue is decided in favour of the management and against the workman.
17. Findings on issue no.2 Issue no.2 is "whether complainant/workman is entitled to relief claimed, on merits ? OPW".
18. Complaint under Section 33-A of the Act is applicable only in case of violation of Section 33 of the Industrial Disputes Act. Since, violation of Section 33 of the Act has not been proved, complainant is not entitled to any relief. This issue is decided accordingly.
19. Copy of this award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal
on 16.01.2015 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
C.C.. No 02/12 Page 13 of 13