Delhi District Court
Rajesh Kumar vs Ndmc on 6 February, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-007297-2019
Ref. No. F.24(221)/18/Ref./CD/Lab./975 Dated 30.08.2019
LIR No. 2953/2019
Sh. Rajesh Kumar, S/o Sh. Puran Singh,
age about 46 years,
R/o House No. B5/92-93, Sector-05,
Rohini, North-West,
Delhi-110085.
Mobile No. 9268681135, Aadhar No. 4086 4855 7360
C/o General Secretary, Municipal Employees Union
(Regd. No. 793),
Agarwal Bhawan, G.T. Road, Tis Hazari,
Delhi-110054. ..... Workman
VERSUS
M/s. North Delhi Municipal Corporation
Through its Commissioner (North),
Civic Centre, J.L. Nehru Marg,
New Delhi-110002. ..... Management
Date of Institution of the case : 20.11.2029
Date on which Award is passed : 06.02.2024
Judgment:
1. By this judgment, I will dispose off the reference from the
office of Deputy Labour Commissioner, District Central, Govt. of
NCT of Delhi U/s 10(1)C & 12(5) of Industrial Disputes Act vide
order no. F.24(221)/18/ref. CD Lab. 975 dated 30.08.2019
whereby the following issue has been referred to this Court for
adjudication:-
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Rajesh Kumar Vs. North Delhi Municipal Corporation
Judgment dated 06.02.2024 Page 1 of 40
"Whether demand of workman Sh. Rajesh Kumar S/o
Sh. Puram Singh, Age about 46 years for reinstatement
alongwith continuity of services, full back wages and
all consequential benefits is justified and if so, what
directions are necessary in this respect?"
2. The aforesaid reference was received by this Court on
20.11.2019 and a notice was accordingly directed to be issued to
the workman and to the management. The workman entered
appearance on 18.01.2020 and filed his Statement of Claim
alleging inter alia that he had joined the employment of the
management w.e.f June 1999 as DBC/ Domestic Breeding
Checker on contract basis, though, the nature of the job was
purely permanent. It has further been alleged by him that despite
discharge of his services by the workman to the entire
satisfaction of his superiors, his services were terminated by the
management vide office order dated 09.02.2017 on the ground of
alleged acceptance of some cash by the workman during his
official duty.
3. It is submitted by the workman in this regard that on
11.05.2016, he, accompanied by 2-3 other persons in a joint
team, had visited Bawana Industrial area to check the breading of
mosquitoes and during investigation, one private person had
captured some vi,deo, wherein he is seen accepting some cash.
He submits that he has already furnished an explanation in this
regard to the management while stating that he had made a
booking with the water agency situated at Bawana for
arrangement of water for his marriage anniversary scheduled on
13.05.2016, however, since the water agency could not arrange
water on the stipulated date and time, he approached the agency
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Rajesh Kumar Vs. North Delhi Municipal Corporation
Judgment dated 06.02.2024 Page 2 of 40
for refund of his amount. It was at the time of refund of the
aforesaid amount, according to the workman, that someone has
recorded a video and misused it to the prejudice of the workman.
The workman has categorically denied acceptance of any amount
by him.
4. He has challenged the order dated 09.02.2017 of the
management inter alia on the ground that act of the management
is in violation of Article 14, 16 and 39 (d) of Constitution of
India as a hostile discrimination has been meted out to the
workman by throwing him out of the Job, while retaining his
junior in the job, despite the fact that the job of the workman was
of regular and permanent nature. It has further been alleged that
the workman had aquired status of permanent employee after
completing 90 days of continuous employment as per model
standing order framed under Industrial Employment (Standing
Order) Act, 1946 and even otherwise, he had completed more
than 240 days of his continuous employment with the
management.
5. It is further his case that his services have been terminated
by the management without any memo or charge sheet and
without any inquiry, in violation of principles of natural justice
despite the fact that the workman had not committed any
misconduct. Considering his long and continuous service for the
period 1999 to 2017, according to him, the workman was entitled
to regularization, however, the management has terminated his
services on the basis of false and baseless allegations despite the
fact that the workman had never accepted any bribe from any
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Judgment dated 06.02.2024 Page 3 of 40
one. He further submits that similar allegations were also leveled
against another DBC namely Sh. Raj Kumar, however, he has
been re-engaged by the management vide office order dated
18.01.2018 while excluding the workman.
6. He has thus alleged that the termination of his services by
the management is in violation of provisions of Section 25 F, G
and H of Industrial Disputes Act, 1947 r/w Rules 76, 77 and 78
of Industrial Disputes (Central) Rules 1957. It is further alleged
by him that employing any person on regular jobs as contract
worker and giving lesser remuneration other than those doing the
identical work amount to unfair labour practice in terms of
Section 2(ra) r/w item no. 10 of the 5th Schedule appended to the
Act and is punishable under section 25(T) of Industrial Disputes
Act, 1947.
7. It is further alleged by the workman that since the date of his
illegal termination, he is totally unemployed and the management
has failed to reinstate him despite the service of demand notice
dated 28.05.2018 by the workman upon the management. The
workman has thus prayed for his reinstatement with continuity of
services and with full back wages including all consequential
benefits and cost of litigation in terms of Section 11(7) of
Industrial Disputes Act, 1947.
8. A written statement to the aforesaid statement of claim was
filed on behalf of the management on 08.02.2021, wherein, the
management has sought dismissal of the claim inter alia on the
ground that the same does not fall under the definition of the
industrial dispute as per Section 2A of Industrial Disputes Act
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Judgment dated 06.02.2024 Page 4 of 40
nor the same has been properly espoused by the union. The
management has also denied the receipt of any demand notice
from the workman and has justified the dis-engagement order
dated 09.02.2017 of the management while alleging that the
workman had committed serious violation/illegally accepted the
money from the factory owner which has led to forwarding of a
complaint against him by the Commissioner North DMC on
09.06.2016 to the vigilance department. During the investigation,
according to management, the CD forwarded by the health
department was seen by the vigilance department, wherein, the
workman can be seen accepting some cash from a private person
in the presence of Sh. Raj Kumar, DBC.
9. The aforesaid conduct of the workman, as per the
management, was inexplicable since the workman had failed to
maintain absolute integrity, devotion to duty and committed gross
misconduct. The management has thus found retention of the
workman on contract as untenable while relying upon the opinion
of vigilance department of the management that it can go by the
terms and conditions of the contract of DBC.
10. It has further been alleged by the management that the re-
engagement of another DBC viz. Sh. Raj Kumar has been
ordered by the management in the light of his representation as it
was found by the management that he may not be aware of the
acceptance of the aforesaid cash by the present workman in the
light of his contention. The management has thus prayed for
dismissal of the present claim of the workman.
11. Rejoinder to the aforesaid written statement of the
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Rajesh Kumar Vs. North Delhi Municipal Corporation
Judgment dated 06.02.2024 Page 5 of 40
management was thereafter filed on behalf of the
workman on 29.10.2021, wherein, the workman has once
again reiterated all the averments made by him in his
statement of claim and has denied the contrary averments
of the management in its written statement. It has been
alleged by the workman that in case of termination of
workman no espousal by the Union is required under law
and the proof of dispatch of demand notice dated
28.05.2018 by the workman to the management by post
has already been placed on record by the workman. It has
further been alleged by the workman in his rejoinder that
the claim of the workman has been sought to be refuted
on the basis of absolutely vague averments despite the
fact that the services of the workman were terminated by
the management without considering of his explanation.
12. Thereafter, on the basis of pleadings of the parties,
following issues were settled by Ld. Predecessor of this Court
vide order dated 29.10.2021:-
(i) Whether the services of the workman have been
terminated illegally and unauthorizedly in violation of
provisions of ID Act as stated by the workman in the
statement of claim? OPW.
(ii) In terms of reference.
(iii) Relief, if any.
13. Workman has thereafter examined himself as WW-1 i.e. as
the sole witness in support of his case and tendered his evidence
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Judgment dated 06.02.2024 Page 6 of 40
by way of affidavit Ex. WW1/A alongwith following documents:
(i) Ex. WW1/1: Copy of legal demand notice
dated 28.05.2018
(ii) Ex. WW1/2: Copy of postal receipt regarding
dispatch of Ex. WW1/1.
(iii) Ex. WW1/3: Copy of office order dated
12.05.2016
(iv) Ex. WW1/4: Copy of reply by the management
to Ex. WW1/1
(v) Ex. WW1/5: Copy of office order dated
09.02.2017
(vi) Ex. WW1/6: Copy of representation of
workman against office order dated 09.02.2017 duly
received at mgt. office,
(vii) Ex. WW1/7: Copy of office order dated
18.01.2018
(viii)Ex. WW1/8: Copy of representation dated
31.01.2018 duly received in the office of the
management,
(ix) Ex. WW1/9: Copy of statement of claim filed
before the conciliation officer
(x) Ex. WW1/10: Copy of the written statement
filed by the management before the conciliation
officer
(xi) Ex. WW1/11: Copy of rejoinder filed on behalf
of the workman before the conciliation officer
14. WW-1 was duly cross-examined by Ld. AR for
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management and thereafter, on the submission of Ld. AR for
workman, workman's evidence stands closed vide order dated
27.09.2022.
15. Management has thereafter examined Dr. Madhuri Pant,
DHO/ HQ-III (DBD) from MCD as MW-1 i.e. as the sole
witness in support of its case and she has tendered her evidence
by way of affidavit Ex. MW1/A alongwith following documents:
(i) Ex. M W1/1: Office order dated 09.12.2017 by
which services of workman were terminated;
(ii) Ex. MW1/2: Copy of representation dated
20.04.2017 made by one Raj Kumar, Domestic
Breeding Checker and Co-worker of the concerned
workman Sh. Rajesh Kumar;
(iii) Ex. MW1/3: Copy of office order dated
18.01.2018 by which the said co-worker Raj Kumar
was reinstated in service.
16. MW-1 was duly cross-examined by Ld. AR for workman.
No other witness was examined on behalf of the management
despite number of opportunities and hence, the management's
evidence was closed vide order dated 12.12.2022.
17. Final arguments were thereafter heard on behalf of both the
parties on 08.01.2024. Besides, written submissions have also
been filed on behalf of both the parties.
18. It is submitted by Ld. AR for workman that it is the
admitted case of the management that the workman had joined
the employment with the management w.e.f. June 1999 and had
continuously and uninterruptedly worked upto 09.02.2017. He
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Judgment dated 06.02.2024 Page 8 of 40
submits that the management has further admitted during cross-
examination of MW-1 that during the aforesaid period, nothing
adverse was recorded about the conduct or working of the
workman. It is further submitted by him that the workman has
been able to prove illegal termination of his services by the
management in violation of Section 25 F, G and H of the
Industrial Disputes Act from the admissions on the part of the
management during cross-examination of MW-1 and the
management has failed to produce any document to show that the
management had either served any notice or made any payment
of notice pay/service compensation to the workman or had
displayed the seniority list before the illegal termination of the
workman.
19. He further submits that the workman has also been able to
prove his illegal termination without compliance with the
principles of natural justice since no effective opportunity of
being heard was ever given to the workman. According to him,
admittedly, no notice other than the show cause notice dated
12.05.2016 was ever served by the management upon the
workman prior to his termination and a bare perusal of show
cause notice dated 12.05.2016 shows that the same does not
qualify to be a show cause notice, in as much as, the explanation
has been sought from the workman without disclosing the
complaint and charges against him.
20. He submits that engagement of workman merely as a
contractual employee does not dis-entitle him to a domestic
enquiry prior to his termination on the ground of alleged
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Judgment dated 06.02.2024 Page 9 of 40
misconduct, more so, when his termination was a stigmatic
termination. He submits that order of termination dated
09.02.2017 is liable to be quashed solely on account of omission
on the part of the management to conduct any domestic enquiry.
He further submits that the termination order dated 09.02.2017 is
also liable to be quashed on account of hostile discrimination
with the workman, in as much as, the alleged co-delinquent Sh.
Raj Kumar, who was also terminated alongwith the present
workman on the same charges, has since been re-engaged by the
management vide office order dated 18.01.2018. He submits that
the management has failed to put forth any reasons, if any,
recorded by the management for the aforesaid differential
treatment between the two workmen.
21. Ld. AR for workman further submits that since the alleged
termination of workman vide order dated 09.02.2017 was an
illegal termination, the workman is entitled for his reinstatement
with full back wages, continuity of service and consequential
benefits, more so, when the termination order dated 09.02.2017 is
not a termination simpliciter but is a stigmatic termination
closing all the potential possibility of gainful employment of
workman. He further submits that the workman is unemployed
since the of his illegal termination and the management has failed
to place on record any document to prove that he was gainfully
employed elsewhere after his illegal termination.
22. In support of his aforesaid submissions, Ld. AR for
workman has relied upon the following judgments:-
(a) Delhi Cantonment Board vs. Central Government
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Judgment dated 06.02.2024 Page 10 of 40
Industrial Tribunal & Ors., MANU/DE/8297/2006.
(b) South Delhi Municipal Corporation vs. Ramesh
Singh W.P.(C) No. 11226/2020 decided on
05.01.2021.
(c) MCD vs. Naresh Kumar & Ors.,
MANU/DE/8420/2007.
(d) MCD vs. Praveen Kumar & Ors., AIR 1999 SC
1540.
(e) Union of India and Anr. vs. Lakhoo Ram and
Anr.,MANU/DE/1361/2009.
(f) Badshah Singh vs. Delhi Jal Board, LPA 604/2014;
(g) Mahendra Pal vs. Delhi Transport Corporation,
LPA 533/2017.
(h) Project Director Department of Rural development
Vs. Its workman through DPVVIE Union 2019 SCC
Online Delhi 7796
23. On the other hand, it is submitted by Ld. AR for
management that as per Section 95 of DMC Act, 1957, every
municipal employee shall be liable inter-alia for his removal or
dismissal for any breach either of any departmental regulation or
of discipline or for neglect of duty or other misconduct by such
authority as may be prescribed by the regulation. He submits that
admittedly the appointment of claimant was on contractual basis
and he was found to be indulging in illegal activities. He submits
that in view of the admission on the part of the workman that his
employment with the management was merely on contractual
basis, there was no requirement on the part of the management to
hold a formal inquiry prior to his termination and it was sufficient
that he was given an opportunity to explain his conduct by
serving of show cause notice dated 12.05.2016.
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Judgment dated 06.02.2024 Page 11 of 40
24. He further submits that in any case, the workman is not
entitled to his reinstatement with back wages as per the judgment
of Hon'ble Delhi High Court in Brahm Pal v. PO Industrial
Tribunal No. II & Anr. 2014 SCC OnLine Del 948 and the
judgment of Hon'ble Supreme Court in BSNL Vs. Bhurumal
dated 11.12.2013 in Civil Appeal no. 1095/2013. He has thus
prayed for dismissal of the claim of the workman.
25. I have heard the submissions made on behalf of the parties
and also carefully perused the material available on the record in
the light of various judgment relied upon by Ld. ARs for the
parties. My issue was finding on the issue settled by this Court
vide order dated 29.10.2021 are as follow:
Issue no. (i): Whether the services of the workman
has been terminated illegally and unauthorizedly
in violation of provision of ID Act as stated by the
workman in the statement of claim? OPW.
26. Onus to prove the aforesaid issue was upon the workman.
As has already been observed hereinabove, it is submitted by Ld.
AR for workman that workman has been able to discharge the
onus to prove the aforesaid issue by cross-examination of MW-1,
who has admitted that the workman was dis-engaged by the
management without any formal inquiry, without any notice pay,
service compensation and without display of the seniority list.
27. On the other hand, it has been submitted on behalf of the
management that the services of the workman were terminated in
consonance with the applicable rules and regulations while duly
following the principles of natural justice while calling upon the
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workman to explain his conduct and after consideration of his
explanation. It is further submitted on behalf of the management
that since the workman was admittedly a contractual employee,
his services could have been terminated by the management
without any formal departmental inquiry after giving him an
opportunity of being heard and hence, the termination of the
workman vide order dated 09.02.2017 cannot be treated as illegal
or in violation of provisions of Industrial Disputes Act, 1947.
28. I have heard the submissions made on behalf of the parties
and have carefully perused the material available on record.
29. It is significant to note that the workman has alleged himself
to be an employee of the management w.e.f. June, 1999 as a
Domestic Breeding Checker on contractual basis and has alleged
his termination by the management vide order dated 09.02.2017.
None of the aforesaid facts have been disputed by the
management either in its written statement to the statement of
claim or in its evidence. In fact, MW-1, during his cross-
examination dated 12.12.2022, has categorically admitted that
though the workman was a contractual employee, however, he
has continuously and uninterruptedly worked with the
management since June, 1999 to 09.02.2017.
30. The workman has alleged his termination on the part of
management vide order dated 09.02.2017 as illegal on the ground
that although as per order dated 09.02.2017, the workman has
been purportedly removed on the ground of gross misconduct,
however, no proper inquiry into the allegations of misconduct
was conducted by the management. On the other hand, it is the
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case of management that since the workman was merely a
contractual employee, no formal departmental inquiry was
required to be conducted against him before his termination on
the ground of misconduct.
31. I do not find force any force in the aforesaid submission
made on behalf of the management in view of the authoritative
pronouncements of Hon'ble Delhi High Court in SDMC vs.
Ramesh Singh (Supra), in MCD vs. Naresh Kumar & Ors.
(Supra) and the judgment of Hon'ble Supreme Court in MCD vs.
Praveen Kumar & Ors. (Supra).
32. In first of the aforesaid cases, Hon'ble Delhi High Court has
recognized the requirement of compliance with the principles of
natural justice in case of termination of even a daily wager.
Similar is the law laid down by the Hon'ble Delhi High Court in
MCD vs. Naresh Kumar (Supra), wherein, Hon'ble Delhi High
Court has struck down the termination order in respect of a
workman on the ground that the workman was terminated
without issuing any show cause notice to him, much less, a
charge-sheet and no departmental proceedings were conducted by
the management in the aforesaid case and hence, on the facts of
the case, the management has violated the principles of natural
justice.
33. The termination order in MCD vs. Praveen Kumar
Jain(supra) was also found to be in violation of principles of
natural justice by Hon'ble Supreme Court while holding that the
same was passed without any departmental inquiry, wherein, the
disciplinary authority would have satisfied itself about the
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Judgment dated 06.02.2024 Page 14 of 40
alleged misconduct. It was further held by Hon'ble Supreme
Court that in case the discharge of the workman was by way of
penalty, the management was required to, at least, conduct a
departmental inquiry followed by the inquiry officer's report
resulting in adverse finding against the workman and its
acceptance by the disciplinary authority.
34. Under the aforesaid circumstances, in my considered
opinion, irrespective of the fact whether the workman was a
contractual employee or a permanent employee, the management
was required to conduct a proper departmental inquiry by serving
a charge-sheet against him and confronting him with the person
who had allegedly made the video of alleged acceptance of cash
by the workman while permitting him to cross-examine the said
person. Since, admittedly, no such procedure has been followed
by the management while terminating the services of the
workman in the present case, the termination order dated
09.02.2017 is liable to be set-aside on the ground of violation of
principles of natural justice.
35. Even otherwise, in view of the authoritative pronouncement
of Hon'ble Supreme Court in MCD vs. Praveen Kumar Jain's
case (Supra), since the fact that the workman was working with
the management for a continuous period of 240 days,
immediately preceding the date of his termination, has not been
disputed by the management, even if, the order dated 09.02.2017
is considered to be a simple order of discharge of the workman,
the same is in violation of Section 25 F of the Industrial Disputes
Act, 1947 since, admittedly, neither any notice was served upon
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the workman nor any notice pay was given to him.
36. Another ground taken by the workman, to challenge the
order dated 09.02.2017, is that vide order dated 09.02.2017, the
workman has been meted out with hostile discrimination, in as
much as, the co-accused of the alleged misconduct namely Sh.
Raj Kumar, whose services were terminated along with the
workman vide order dated 09.02.2017, has been re-engaged by
the management vide office order dated 18.01.2018. In support of
his aforesaid submission, Ld. AR for workman has relied upon
the judgment of Hon'ble Delhi High court in Union of India &
Another Vs. Lakhoo Ram (Supra).
37. Although, there can be no dispute about the proposition of
law laid down by Hon'ble Delhi High Court in Lakhoo Ram's
case (Supra), however, in my considered opinion, whether or not
the workman in the present case has been meted out with hostile
discrimination, as alleged by the workman, depends upon the
facts and circumstances of each individual case. It is significant
to note in this regard that as per the termination order dated
09.02.2017, although the allegations against the workman were
of acceptance of some cash by him from a person during his
official duty, however, the allegations against Sh. Raj Kumar
were not the same. Rather the allegations against him were that
he was present at the site at the time of acceptance of the
aforesaid cash by the present workman. Under the aforesaid
circumstances, his re-engagement by the management, pursuant
to his representation that he was not aware of the nature of cash
transaction between the workman and the third person, in
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Judgment dated 06.02.2024 Page 16 of 40
considered opinion, does not amount to discrimination in
punishment provided to the workman vis-a-vis the co-accused
Raj Kumar. Challenge to the termination order dated 09.02.2017
on the aforesaid ground, in my considered opinion, is thus bound
to fail.
38. Similarly, challenge by the workman to the termination
order dated 09.02.2017, on account of violation by the
management of the provisions of Section 25 G, is bound to fail
for want of any evidence on the part of workman to the effect that
he was not the last person to be employed in the category of
domestic breeding checker. Moreover, a bare perusal of the
termination order dated 09.02.2017 shows that the workman has
been disengaged from the services of the management
purportedly on the ground of his indulging in misconduct and
hence, Section 25G was not applicable to him.
39. The plea taken by the workman, regarding violation by the
management of Section 25 H, in my considered opinion, is also
unsustainable in view of the fact that neither there is any pleading
nor any proof by the workman of employment of any person by
the management in the post held by the workman after his
retrenchment.
40. It has further been submitted on behalf of the workman that
the management has also indulged in unfair labour practice in
terms of section 2(ra) of the Industrial Disputes Act, 1947 r/w
Item no. 10 of the 5th Schedule and Section 25T of the Act, in as
much as, the workman has been employed on contractual basis
for fairly long period of time just to deny the benefits of the
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labour laws to the workman. No doubt, the workman in the
present case has been appointed way back in June 1999 and
rendered continuous service to the management as a domestic
breeding checker until 09.02.2017, however, in my considered
opinion, the aforesaid fact by itself is not sufficient to prove that
the management has indulged in unfair labour practice in terms
of Section 2(ra) of the Act. It is significant to note in this regard
that as per Section 25T of the Industrial Disputes Act, 1947, the
employer is prohibited from adopting any unfair labour practice,
which has been defined U/s 2 (ra) of the Act. As per Section 2
(ra) of the Act, an unfair labour practice means any of the
practices specified in the 5th Schedule. As has already been
observed hereinabove, the workman has relied upon the practice
specified under Item 10 of the 5th Schedule which reads as
under:-
"To employ workmen as "badlis", casuals or
temporaries and to continue them as such for years, with
the object of depriving them of the status and privileges
of permanent workmen".
41. A bare perusal of the aforesaid clause shows that mere
employment of the workmen as casuals/temporaries and to
continue them as such for years by itself is not sufficient to
render such employment as unfair labour practice within the
meaning of Industrial Disputes Act, 1947. Before such an
employment can be termed as an unfair labor practice, within the
meaning of the aforesaid clause, it is further necessary that the
management should continue with the casual workmen for years
with the object of depriving them of the status and privileges of
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permanent workmen.
42. In the case in hand, there is not even an iota of evidence led
on behalf of the workman to prove that the management has
continued to employ the workman as contractual employee for
long, only with the object of depriving him of the status and
privileges of a permanent workman. For want of proof of the
aforesaid objective on behalf of the management, in my
considered opinion, mere long employment of the workman by
the management as a contractual employee for almost 18 years
does not amount to any unfair labour practice within the meaning
of the aforesaid section. While taking the aforesaid view, I draw
support from the following observations of Hon'ble Supreme
Court in ONGC Vs. Krishan Gopal (2021) 18 SCC 707:
"28. The following propositions would emerge upon
analysing the above decisions:
28.1. Wide as they are, the powers of the Labour Court
and the Industrial Court cannot extend to a direction to
order regularisation, where such a direction would in the
context of public employment offend the provisions
contained in Article 14 of the Constitution.
28.2. The statutory power of the Labour Court or Industrial
Court to grant relief to workmen including the status of
permanency continues to exist in circumstances where the
employer has indulged in an unfair labour practice by not
filling up permanent posts even though such posts are
available and by continuing to employ workmen as
temporary or daily wage employees despite their
performing the same work as regular workmen on lower
wages.
28.3. The power to create permanent or sanctioned posts
lies outside the judicial domain and where no posts are
available, a direction to grant regularisation would be
impermissible merely on the basis of the number of years
LIR No.2953/2019
Rajesh Kumar Vs. North Delhi Municipal Corporation
Judgment dated 06.02.2024 Page 19 of 40
of service.
28.4. Where an employer has regularised similarly situated
workmen either in a scheme or otherwise, it would be open
to workmen who have been deprived of the same benefit
on a par with the workmen who have been regularised to
make a complaint before the Labour or Industrial Court,
since the deprivation of the benefit would amount to a
violation of Article 14.
28.5. In order to constitute an unfair labour practice
under Section 2(ra) read with Item 10 of Vth Schedule to
the ID Act, the employer should be engaging workmen as
badlis, temporaries or casuals, and continuing them for
years, with the object of depriving them of the benefits
payable to permanent workmen."(Emphasis mine)
43. In view of the aforesaid discussion, issue no. 1 is hereby
decided in favour of the workman while holding that the
workman have been terminated illegally by the management in
violation of principles of natural justice without any inquiry.
Issue no. 2: In terms of reference i.e. whether
demand of workman Sh. Rajesh Kumar S/o Sh.
Puran Singh, Aged about 46 years for reinstatement
alongwith continuity of services, full back wages and
all consequential benefits is justified and if so, what
directions are necessary in this respect?
44. It is significant to note in this regard that workman in his
statement of claim has prayed for his reinstatement with
continuity of service, full back wags and all consequential
benefits. It is submitted by Ld. AR for Workman that the law
regarding the consequences of illegal termination of workman by
the management is fairly well settled in view of the authoritative
pronouncements of Hon'ble Delhi High Court in Badshah Singh
Vs. Delhi Jal Board's case (supra) and Mahender Pal Vs.
LIR No.2953/2019
Rajesh Kumar Vs. North Delhi Municipal Corporation
Judgment dated 06.02.2024 Page 20 of 40
DTC's case (supra), wherein, it has been held that once the
termination of the workman by the management is held illegal,
the workman is entitled to consequential relief of reinstatement
alongwith continuity in service and full back wages.
45. On the other hand, Ld. AR for the workman has relied upon
the judgment of Hon'ble Delhi High Court in Brahmpal's case
(supra) and the judgment of Hon'ble Supreme Court BSNL Vs.
Bhurumal's case (supra) to contend that a contractual workman/
daily wager is not entitled to his reinstatement except in very
exceptional circumstances as noted by Hon'ble Supreme Court in
Bhurumal's case (supra).
46. After the Management has referred to the judgment of
Hon'ble Supreme Court in BSNL Vs. Bhurumal's case (supra),
wherein, Hon'ble Supreme Court has relied upon the judgment of
a Constitutional Bench of Hon'ble Supreme Court in State of
Karnataka Vs. Uma Devi (2006) 4 SCC 1 to deny the relief of
reinstatement to a daily wager, Ld. AR for Workman has relied
upon a judgment of Hon'ble Delhi High Court in Project
Director Department of Rural Development Vs Its workmen
(2019) SCCOnline Delhi 7796, wherein, Hon'ble Delhi High
Court, while relying upon the judgments of Hon'ble Supreme
Court in ONGC Ltd Vs. Petroleum Coal Labour Union (2015) 5
Scale 353, in Umrala Gram Panchayat Vs. Secretary Municipal
Employee Union (2015)4 Scale 334, in Ajay Pal Singh Vs.
Harayana Warehousing Corporation (2015)6 SCC 321 and the
Judgment of Hon'ble Division Bench of High Court of Delhi
dated 08.09.2015 in Shri Ram Singh Vs Management of PWD
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Rajesh Kumar Vs. North Delhi Municipal Corporation
Judgment dated 06.02.2024 Page 21 of 40
LPA No. 755/2014 has held that the rigors applicable for grant of
regularization in case of public employment as per the judgment
of Hon'ble Supreme Court in Uma Devi's case (Supra) cannot be
read in such a manner so as to take away the wide powers of
Industrial Tribunal under the Industrial Disputes Act and hence
decision in Uma Devi had no application in industrial
adjudication.
47. I have heard the submissions made on behalf of both the
parties and have carefully perused the material available on
record in the light of judgments relied upon by them in support of
their respective submissions.
48. It is significant to note that in Project Director Department
of Rural Development Vs Its workmen (2019) SCCOnline Delhi
7796, Hon'ble Delhi High Court has primarily relied upon three
judgments of Hon'ble Supreme Court noted hereinabove. The
first of the aforesaid judgment i.e. Ajay Pal Singh Vs. Harayana
Warehousing Corporation (2015)6 SCC 321 has merely
followed the earlier judgment of Hon'ble Supreme Court in
Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari
Sanghatana, (2009) 8 SCC 556 which has also been relied upon
by Hon'ble Supreme Court in ONGC Ltd Vs. Petroleum Coal
Labour Union (2015) 5 Scale 353 and in Umrala Gram
Panchayat Vs. Secretary Municipal Employee Union (2015)4
Scale 334.
49. The view taken by the Hon'ble Supreme Court in ONGC
Vs. Petroleum Coal Labour Union (2015) 5 Scale 353 has
recently come up for consideration before Hon'ble Supreme
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Rajesh Kumar Vs. North Delhi Municipal Corporation
Judgment dated 06.02.2024 Page 22 of 40
Court in ONGC Vs. Krishan Gopal (2021) 18 SCC 707, wherein,
it was observed that the applicability of the decision of the
Constitution Bench of Hon'ble Supreme Court in Uma Devi's
case (Supra) in the context of labour adjudication was first
considered in Uttar Pradesh Power Corporation Ltd. Vs. Bijli
Mazdoor Inustrial (2007)5 SCC 755 and it was held that the law
propounded by Hon'ble Supreme Court in Uma Devi's case
(supra) was also applicable to Industrial Tribunals and Labour
Courts. It was further observed that it was only in Maharashtra
SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana,
(2009) 8 SCC 556 that it was for the first time held that the
decision of Hon'ble Constitution Bench of the Supreme Court of
India in Uma Devi's case (Supra) limits the scope of the powers
under Articles 32 and 226 to issue directions for regularisation in
a matter of public employment and the aforesaid judgment does
not denude the Industrial and Labour Courts of their statutory
powers under the relevant provisions of Industrial Disputes Act
to order permanency/ regularization of workers who had been the
victims of unfair labour practice on the part of the employer,
while clarifying that the creation of post does not lie within the
domain of judicial functions and the status of permanency cannot
be granted by the Court where no post exists.
50. The aforesaid divergence of opinion of Hon'ble Supreme
Court in the aforesaid two judgments, it was further observed in
ONGC v. Krishan Gopal (supra), was sought to be reconciled in
another judgment reported as Hari Nandan Prasad v. Food
Corpn. of India, (2014) 7 SCC 190, wherein, it was held that
when there are posts available, in the absence of any unfair
LIR No.2953/2019
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Judgment dated 06.02.2024 Page 23 of 40
labour practice, the Labour Court shall not give directions for
regularization only because the workman had continued as daily
wage worker/ad-hoc/temporary worker for number of years,
whereas, if there are no posts available, such directions for
regularization would be clearly impermissible, since directions to
regularize a person only on the basis of number of years put in by
such a worker as daily wager may amount to back door entry in
services which is anathema to Article 14 of Constitution of India.
51. With utmost respect to Hon'ble Superior Courts, it is
significant to note that all the three judgments of Hon'ble
Supreme Court relied upon by Hon'ble Delhi High Court in
Project Director Department of Rural Development's case
(Supra) were based on the reasoning given by the Hon'ble
Supreme Court in Maharastra SRTC case (Supra), the effect of
which has been dealt with by Hon'ble Supreme Court in FCI's
case (supra) and the correctness of the reasoning has further been
doubted by Hon'ble Supreme Court in ONGC Vs. Krishan Gopal
(Supra) by making the observation in Para 28 to 28.5 quoted
herein above.
52. It has further been observed by Hon'ble Supreme Court in
ONGC Vs. Krishan Gopal (supra) that the decision in ONGC
Ltd. Vs. Petroleum Coal Labour Union (Supra) needs to be
revisitedin order to set the position in law which it adopts in
conformity with the principles emerging from the earlier line of
precedents. Relevant observations of Hon'ble Supreme Court in
ONGC Vs. Krishan Gopal (supra) in this regard are being
reproduced hereinbelow for ready reference:
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Judgment dated 06.02.2024 Page 24 of 40
"20. The second aspect on which we are of the view that
the present appeals would require to be placed before a
larger Bench for consideration is in regard to the
applicability of the principles set out and formulated by
the Constitution Bench in Umadevi (3) [State of Karnataka
v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753]
in the context of industrial adjudication. In Umadevi (3)
[State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753], the Constitution Bench made a
distinction between appointments or selections which are
merely irregular and those which are illegal. The Court
observed : (SCC pp. 24-25, para 16)
"16. ... We have, therefore, to keep this distinction in
mind and proceed on the basis that only something
that is irregular for want of compliance with one of
the elements in the process of selection which does
not go to the root of the process, can be regularised
and that it alone can be regularised and granting
permanence of employment is a totally different
concept and cannot be equated with regularisation."
21. In this context, the Court held : [Umadevi (3) case
[State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :
2006 SCC (L&S) 753] , SCC p. 36, para 43]
"43. ... It has also to be clarified that merely
because a temporary employee or a casual wage
worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed
in regular service or made permanent, merely on the
strength of such continuance, if the original
appointment was not made by following a due
process of selection as envisaged by the relevant
rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees
whose period of employment has come to an end or
of ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High
Courts acting under Article 226 of the Constitution,
should not ordinarily issue directions for absorption,
regularisation, or permanent continuance unless the
recruitment itself was made regularly and in terms of
the constitutional scheme."
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Judgment dated 06.02.2024 Page 25 of 40
22. In para 53 of the judgment in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] , the Court made a one-time exception, for the
regularisation of the irregularly appointed persons, who
had worked for ten years or more in duly sanctioned
posts : [Umadevi (3) case [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , SCC p. 42,
para 53]
"53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
[State of Mysore v. S.V. Narayanappa, 1966 SCC
OnLine SC 23 : (1967) 1 SCR 128 : AIR 1967 SC
1071] , R.N. Nanjundappa [R.N. Nanjundappa v. T.
Thimmiah, (1972) 1 SCC 409] and B.N. Nagarajan v.
State ofKarnataka [B.N. Nagarajan v. State of
Karnataka, (1979) 4 SCC 507 : 1980 SCC (L&S) 4]
and referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have
been made and the employees have continued to
work for ten years or more but without the
intervention of orders of the courts or of tribunals.
The question of regularisation of the services of such
employees may have to be considered on merits in
the light of the principles settled by this Court in the
cases abovereferred to and in the light of this
judgment. In that context, the Union of India, the
State Governments and their instrumentalities should
take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts
but not under cover of orders of the courts or of
tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are
being now employed."
(emphasis in original)
23. The applicability of the decision in Umadevi (3) [State
of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] in the context of labour adjudication was
considered in U.P. Power Corpn. Ltd. v. Bijli Mazdoor
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Judgment dated 06.02.2024 Page 26 of 40
Sangh [U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh,
(2007) 5 SCC 755 : (2007) 2 SCC (L&S) 258] (Bijli
Mazdoor Sangh). This Court held that the law propounded
in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006)
4 SCC 1 : 2006 SCC (L&S) 753] was applicable also to
Industrial Tribunals and Labour Courts. The Court held :
(Bijli Mazdoor Sangh case [U.P. Power Corpn. Ltd. v.
Bijli Mazdoor Sangh, (2007) 5 SCC 755 : (2007) 2 SCC
(L&S) 258] , SCC p. 758, paras 6-7)
"6. It is true as contended by the learned counsel for
the respondent that the question as regards the effect
of the industrial adjudicators' powers was not
directly in issue in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] . But the foundational logic in
Umadevi (3) case [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is based
on Article 14 of the Constitution of India. Though the
industrial adjudicator can vary the terms of the
contract of the employment, it cannot do something
which is violative of Article 14. If the case is one
which is covered by the concept of regularisation, the
same cannot be viewed differently.
7. The plea of the learned counsel for the respondent
that at the time the High Court decided [U.P. SEB v.
Industrial Tribunal, 2003 SCC OnLine All 481 :
(2003) 4 AWC 2661] the matter, decision in
Umadevi (3) case [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was not
rendered is really of no consequence. There cannot
be a case for regularisation without there being
employee-employer relationship. As noted above the
concept of regularisation is clearly linked with
Article 14 of the Constitution. However, if in a case
the fact situation is covered by what is stated in para
45 of Umadevi (3) case [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S)
753] the industrial adjudicator can modify the relief,
but that does not dilute the observations made by this
Court in Umadevi (3) case [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S)
753] about the regularisation."
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Judgment dated 06.02.2024 Page 27 of 40
24. Subsequently, in Maharashtra SRTC v. Casteribe
Rajya Parivahan Karmchari Sanghatana [Maharashtra
SRTC v. Casteribe Rajya Parivahan Karmchari
Sanghatana, (2009) 8 SCC 556 : (2009) 2 SCC (L&S)
513] (Maharashtra SRTC), it was held that the Industrial
and Labour Courts under Section 30(1)(b) of the MRTU
and PULP Act have wide powers to direct the employer to
take affirmative action in a case of unfair labour practice
including the power to order regularisation or
permanency. The decision in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] was held to limit the scope of the powers
under Articles 32 and 226 to issue directions for
regularisation in a matter of public employment. However,
the power to take affirmative action under Section 30(1)(b)
was held to be intact even after the judgment of the
Constitution Bench. This Court held : (Maharashtra SRTC
case [Maharashtra SRTC v. Casteribe Rajya Parivahan
Karmchari Sanghatana, (2009) 8 SCC 556 : (2009) 2 SCC
(L&S) 513] , SCC p. 574, paras 35-36)
"35. Umadevi (3) [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is an
authoritative pronouncement for the proposition that
the Supreme Court (Article 32) and the High Courts
(Article 226) should not issue directions of
absorption, regularisation or permanent continuance
of temporary, contractual, casual, daily wage or ad
hoc employees unless the recruitment itself was made
regularly in terms of the constitutional scheme.
36. Umadevi (3) [State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753] does not
denude the Industrial and Labour Courts of their
statutory power under Section 30 read with Section
32 of the MRTU and PULP Act to order permanency
of the workers who have been victims of unfair
labour practice on the part of the employer under
Item 6 of Schedule IV where the posts on which they
have been working exist. Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] cannot be held to have overridden
the powers of the Industrial and Labour Courts in
passing appropriate order under Section 30 of the
MRTU and PULP Act, once unfair labour practice on
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Judgment dated 06.02.2024 Page 28 of 40
the part of the employer under Item 6 of Schedule IV
is established."
25. The Court however clarified in Maharashtra SRTC
[Maharashtra SRTC v. Casteribe Rajya Parivahan
Karmchari Sanghatana, (2009) 8 SCC 556 : (2009) 2 SCC
(L&S) 513] that there is no doubt that the creation of posts
does not lie within the domain of judicial functions "which
obviously pertains to the executive" and the status of
permanency cannot be granted by the Court where no
posts exist. In Maharashtra SRTC [Maharashtra SRTC v.
Casteribe Rajya Parivahan Karmchari Sanghatana, (2009)
8 SCC 556 : (2009) 2 SCC (L&S) 513] , the two-Judge
Bench was construing the provisions of the MRTU and
PULP Act, 1971. In holding that the creation of posts
could not be directed by courts, the judgment in
Maharashtra SRTC [Maharashtra SRTC v. Casteribe
Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC
556 : (2009) 2 SCC (L&S) 513] relied upon the decisions
in Mahatma Phule Agricultural University [Mahatma
Phule Agricultural University v. Nasik Zilla Shet Kamgar
Union, 1997 SCC OnLine Bom 791 : 1997 LLR 1136] and
State of Maharashtra v. R.S. Bhonde [State of
Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 : 2005
SCC (L&S) 907] .
26. The divergence between the decisions in Bijli Mazdoor
Sangh [U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh,
(2007) 5 SCC 755 : (2007) 2 SCC (L&S) 258] and
Maharashtra SRTC [Maharashtra SRTC v. Casteribe
Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC
556 : (2009) 2 SCC (L&S) 513] was sought to be
reconciled in a two-Judge Bench decision of this Court in
Hari Nandan Prasad v. Food Corpn. of India [Hari
Nandan Prasad v. Food Corpn. of India, (2014) 7 SCC
190 : (2014) 2 SCC (L&S) 408] (FCI). A.K. Sikri, J.
speaking for the two-Judge Bench held : (FCI case [Hari Nandan Prasad v. Food Corpn. of India, (2014) 7 SCC 190 : (2014) 2 SCC (L&S) 408] , SCC pp. 213-14, para
39) "39. On a harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 29 of 40 give direction for regularisation only because a worker has continued as daily-wage worker/ad hoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularisation would be impermissible. In the aforesaid circumstances giving of direction to regularise such a person, only on the basis of number of years put in by such a worker as daily- wager, etc. may amount to back door entry into the service which is an anathema to Article 14 of the Constitution. Further, such a direction would not be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules. However, wherever it is found that similarly situated workmen are regularised by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularisation in such cases may be legally justified, otherwise, non-regularisation of the left-over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the industrial adjudicator would be achieving the equality by upholding Article 14, rather than violating this constitutional provision."
27. In FCI [Hari Nandan Prasad v. Food Corpn. of India, (2014) 7 SCC 190 : (2014) 2 SCC (L&S) 408] , the grievance of the appellants was that in terms of a scheme contained in a circular, similarly placed workmen had been regularised on the completion of 240 days' service. While dealing with the case of two workmen, it was found that one of them had been dispensed with four years prior to the date of the circular as a result of which the workman would only be entitled to monetary compensation. On the other hand, the second workman was in service on the date of the circular and completed 240 days of service within a few months. The Court held that the failure to regularise his services was discriminatory.
28. The following propositions would emerge upon analysing the above decisions:
28.1. Wide as they are, the powers of the Labour Court LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 30 of 40 and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution.
28.2. The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages.
28.3. The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service.
28.4. Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit on a par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14.
28.5. In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of Vth Schedule to the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.
29. The decision in PCLU [ONGC Ltd. v. Petroleum Coal Labour Union, (2015) 6 SCC 494 : (2015) 2 SCC (L&S) 290] needs to be revisited in order to set the position in law which it adopts in conformity with the principles emerging from the earlier line of precedent. More specifically, the areas on which PCLU [ONGC Ltd. v. Petroleum Coal Labour Union, (2015) 6 SCC 494 : (2015) 2 SCC (L&S) 290] needs reconsideration are:LIR No.2953/2019
Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 31 of 40
29.1. The interpretation placed on the provisions of Clause 2(ii) of the Certified Standing Orders.
29.2. The meaning and content of an "unfair labour practice" under Section 2(ra) read with Item 10 of Vth Schedule to the ID Act.
29.3. The limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts. The decision in PCLU [ONGC Ltd. v. Petroleum Coal Labour Union, (2015) 6 SCC 494 : (2015) 2 SCC (L&S) 290] would, in our view, require reconsideration in view of the above decisions of this Court and for the reasons which we have noted above"
(Emphasis mine)
53. It is further significant to note that Hon'ble Delhi High Court in Project Director Department of Rural Development case (Supra) was dealing with a reference as to whether the workmen in the aforesaid case were entitled for regularization of their services in the regular payscale and that was not a case of illegal termination of the workman on account of violation of principles of natural justice or for that matter of the provisions of Industrial Disputes Act, 1947. Very recently, in another Judgment reported as Vikas Kumar Vs. SDMC (2023) SCC online Delhi 274, Hon'ble Delhi High Court has dealt with the issue of service benefits to which the workman, whose termination is held to be illegal by the Court, is entitled, while holding that the latest trend adopted by the Hon'ble Supreme Court in a catena of decisions is that even if the order of termination of the workman is found to be illegal by the Court on account of non-payment of retrenchment compensation, not if the order of termination has been found to be illegal on account of non payment of retrenchment compensation, it does not necessarily result in LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 32 of 40 reinstatement of workman in service and compensation may be granted in lieu of reinstatement. The shift in trend has also been noted by Hon'ble Supreme Court in Jagbir Singh vs Haryana State Agricultural Marketing Board (2009) 15 SCC 327 in the following words:
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
54. No doubt Section 11 A of Industrial Disputes Act, 1947 gives a wide discretion to the Labour Court in determination of the relief which can be awarded to a workman after his termination is held to be illegal by the Court, however, it is settled legal position that the aforesaid discretion is to be exercised by the Court judiciously while taking into consideration the relevant facts. The relevant factors to be considered by the court in determining the question whether the workman is entitled to reinstatement with or without back wages and continuity of services or to the compensation in lieu of reinstatement have been succinctly stated by Hon'ble Supreme Court in Mehboob Deepak vs. Nagar Panchayat Gajraula (2008) 15 SCC 575 in the following words:
"6. Such termination of service, having regard to the LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 33 of 40 fact that he had completed 240 days of work during a period of 12 months preceding the said date, required compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act. An order of retrenchment passed in violation of the said provision although can be set aside but as has been noticed by this Court in a large number of decisions, an award of reinstatement should not, however, be automatically passed.
7. The factors which are relevant for determining the same, inter alia, are:
(i) whether in making the appointment, the statutory rules, if any, had been complied with;
(ii) the period he had worked;
(iii) whether there existed any vacancy; and
(iv) whether he obtained some other employment on the date of termination or passing of the award.
8. The respondent is a local authority. The terms and conditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a local authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the constitutional scheme of equality as contained in Articles 14 and 16 of the Constitution of India would be a nullity.
9. Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same would not mean that his services were liable to be regularised.
10. Applying the legal principles, as noticed hereinbefore, the relief granted in favour of the appellant by the Labour Court is wholly unsustainable.
LIR No.2953/2019Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 34 of 40 The same also appears to be somewhat unintelligible.
11. The High Court, on the other hand, did not consider the effect of non-compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947. The appellant was entitled to compensation, notice and notice pay.
12. It is now well settled by a catena of decisions of this Court that in a situation of this nature in stead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary compensation. (See M.P. Admn. v. Tribhuban [(2007) 9 SCC 748 : (2008) 1 SCC (L&S) 264] .)
13. In this view of the matter, we are of the opinion that as the appellant had worked only for a short period, the interest of justice will be subserved if the High Court's judgment is modified by directing payment of a sum of Rs 50,000 (Rupees fifty thousand only) by way of damages to the appellant by the respondent. Such payment should be made within eight weeks from this date, failing which the same will carry interest at the rate of 9% per annum."
55. The relevant factors in this regard have also been stated by Hon'ble Supreme Court in Jagbir Singh vs Haryana State Agricultural Marketing Board (2009) 15 SCC 327 in following words after reference to precedents:
"17. While awarding compensation, a host of factors, inter alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances."
56. The following observations of Hon'ble Supreme Court in U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 are also worth quoting since Hon'ble Supreme Court in these observations has also tried to highlight the rationale behind such a shift in trend:
LIR No.2953/2019Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 35 of 40 "41. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve.
When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
44. In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya [(2002) 6 SCC 41 : 2002 SCC (L&S) 818] this Court noticed Raj Kumar [(2001) 2 SCC 54 :
2001 SCC (L&S) 365] and Hindustan Tin Works [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : (1979) 1 SCR 563] but held: (SCC p. 45, para 16) "16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 36 of 40 this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement."
45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence."
57. Similar are the observations of Hon'ble Supreme Court in Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353:
"9. Although according to the learned counsel appearing on behalf of the appellant the Labour Court and the High Court committed an error in arriving at a finding that in terminating the services of the respondent, the provisions of Section 6-N of the U.P. Industrial Disputes Act were contravened, we will proceed on the basis that the said finding is correct. The question, however, would be as to whether in a situation of this nature, relief of reinstatement in services should have been granted. It is now well settled by reason of a catena of decisions of this Court that the relief of reinstatement with full back wages would not be granted automatically only because it would be lawful to do so. For the said purpose, several factors are required to be taken into consideration, one of them being as to whether such an appointment had been made in terms of the statutory rules. Delay in raising an industrial dispute is also a relevant fact."
58. In view of the aforesaid authoritative pronouncements, in my considered opinion, the claimant can't seek his automatic LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 37 of 40 reinstatement into the services of the management, with or without back wages and continuity of service, merely on the basis of finding of this Court that his termination vide order dated 09.02.2017 is illegal and this Court is required to take a decision regarding the relief to be granted to the claimant while considering the peculiar facts and circumstances of the case. One of the relevant factors for the aforesaid determination in view of the aforesaid authoritative pronouncements the method of appointment of the workman that is whether the same is in consonance with the statutory rules as well as the constitutional scheme enshrined under Article 14 and 16 of the Constitution of India.
59. It is significant to note that the management in the present case is a local authority and terms and conditions of the employment of its employee are notified by a statute and statutory rules and no appointment can be made by the management without following the procedure prescribed under recruitment rules. In the case in hand, admittedly the workman is merely a contractual employee which indicates that the statutory scheme for selection of the workman might not have been followed by the management. It is not even the case of workman that there exists any permanent post of DBC in North MCD.
60. Moreover, it is significant to note that the workman in the present case was terminated vide order dated 09.02.2017, however, the first request for review of the aforesaid order was submitted by him with the management on 14.11.2017 and thereafter, a request for his re-engagement was made by him to LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 38 of 40 the management on 31.01.2018. For the first time, the workman has approached the conciliation officer of the labour department alongwith his statement of claim in the later part of the year 2018. It is further significant to note that the show cause notice dated 12.05.2016 has admittedly been served upon the workman on 13.05.2016 and though it is submitted by the workman that he has furnished reply/ explanation in terms of the aforesaid show cause notice, however, no such explanation of the workman has been placed on record by him.
61. Thus, in the peculiar facts and circumstance of the present case, wherein, the workman was employed by the management as a contractual employee without following the statutory rules for recruitment, non furnishing of any explanation by him in response to the show cause notice dated 12.05.2016, delay on the part of the workman in raising industrial dispute and lapse of considerable period since the date of termination of the workman, in my considered opinion, in view of dicta laid down by Hon'ble Supreme Court in the judgments referred to hereinabove, workman is not entitled to relief of reinstatement. Ends of justice, in my considered opinion, would be served by awarding him a lump sum compensation to the extent of Rs. 1,00,000/-. Issue no. 2 is thus decided against the workman while holding that the demand of workman for his reinstatement with full back wages, continuity of service and consequential benefits is not justified in the peculiar facts and circumstances of the present case.
Issue No. (iii): Relief, if any.
62. In view of my findings on issue no. 2, a lump sum LIR No.2953/2019 Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 39 of 40 compensation of Rs. 1,00,000/- is awarded in favour of the workman in lieu of his reinstatement. Management is directed to pay the aforesaid compensation to the workman within a period of 8 weeks from today failing which an interest @ 9 % per annum shall be payable by the Management on the compensation amount from the date of expiry of 8 weeks from today.
63. Reference is answered accordingly.
64. Requisite number of copies of this award be sent to the competent authority for publication as per rules.
Announced in the open Court on this 06th day of February, 2024. This award consists of 40 number of signed pages.
ARUN Digitally signed by
ARUN KUMAR GARG
KUMAR Date: 2024.02.07
GARG 09:27:35 +05'30'
(ARUN KUMAR GARG)
Presiding Officer Labour Court-III
Rouse Avenue Court, New Delhi
LIR No.2953/2019
Rajesh Kumar Vs. North Delhi Municipal Corporation Judgment dated 06.02.2024 Page 40 of 40