Delhi District Court
Karkardooma Courts vs Uoi Air 1982 Sc 879 And Hira Singh Vs on 18 September, 2009
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IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.116/08
The workman
Mohd Wasin, s/o Sh. Mohd Yasin, Commi Grade II, c/o
Ashok Hotel Majdoor Janta Union, Pratap Vihar, 166,
Pocket IV, Opposite Mayur Vihar, New Delhi.
Versus
M/s Ashok Hotel, a Unit of ITDC, 50B, Chanakyapuri, New
Delhi.
Date of institution 23.09.2008
Arguments concluded on 14.09.2009
Date of award 18.09.2009
AWARD
1.Workman through his union namely Ashok Hotel Majdoor Janta Union has raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal in the following terms:-
Whether demand of Mohd Wasim s/o Mohd Yasim Card No.1735, for regular pay scale and allowances on the post of Commis. Grade II, from the initial date of joining is justified and if yes, what directions are necessary in this respect ?2
2. In statement of claim it is alleged that workman was employed by the management as Commi II (Cook) w.e.f April, 1996 on consolidated salary of Rs.3500/- pm. It is alleged that his services have been extended from time to time. According to him, he was appointed against the post of Commi II (Cook) lying vacant in the hotel in the pay scale of 4660. it is alleged that workman had raised demands for regularisation of hi services. However, he has not been given regular appointment in the regular pay scale. It is alleged that as per Standing Order, office of hotel section 3 (b) provides that if an employee put in continuous services, he is deemed to be a permanent employee of the hotel. It is alleged that he has put in regular service of more than 240 days, therefore, he is entitled to be regularised on the post of Commi II (Cook) lying vacant with the management.
3. In the WS, it is alleged that he is not entitled for regularisation inasmuch he was appointed on contract basis who can not ask for regularisation. However, it has not been disputed that he was appointed as Commi Grade II from 3.8.98 on a consolidated salary of Rs.3500/- pm or that he has been working since then with the management. It is alleged that he has been working for more than 12 months, will not automatically entitle him for regularisation.
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4. On the basis of pleadings of the parties following issue was framed :
As per terms of reference
5. I have heard AR for parties and have carefully gone through record of the case. My issuewise findings are as under:-
6. Finding on issue no.1:-
7. Issue no.1 is Whether demand of Mohd Wasim s/o Mohd Yasim Card No.1735, for regular pay scale and allowances on the post of Commi. Grade II, from the initial date of joining is justified and if yes, what directions are necessary in this respect ?
8. Workman WW 2 Mohd Wasin in his affidavit has deposed that he was appointed by the management vide appointment letter dated 3.8.96 as Commi II on consolidated salary of Rs.3500/- alongwith one Nizamuddin and that management had been extending his services from time to time. It is also deposed that he was appointed against vacant post carrying pay scale of Rs.4660. It is deposed that he had written letter to the management to regularise him and when his request was not considered, he had approached his union which also got letter to the management and served a demand notice dated 25.10.06 but the same were not replied to by the management. It is deposed that he had been continuously working with the management since 1.6.96 without any break 4 and had completed service of more than 240 in a Calender year therefore, he is entitled to be regularised as Commi Grade II w.e.f 1.6.96 in proper pay scale.
9. On the other hand, MW 1 Joseph Mathias in his affidavit has deposed that workman was appointed on contract basis and that he is not entitled for regularisation. It is deposed that workman was not appointed against any regular vacancy. He deposed that appointment against regular post is required to be done as per Recruitment, Promotion and Seniority Rules of ITDC. It is deposed that workman is governed by terms and conditions of his appointment on contract basis and deposed that he can not claim regularisation.
10. It has been argued by AR for the workman that workman had been employed by the management in April 1996 and since then he has been working. It has been argued that there is also a provision in Ashok Hotel Standing Order that if any employee worked continuously for a period of 12 months, he is to be treated as permamanent employee as per section 3(2)(b) of the Standing Order. Therefore, It has been argued that he has put in continuous service of more 240 days, therefore, he is entitled to be regularised as Commi Grade II in proper pay scale.
11. On the other hand It has been argued on behalf of management that management is owned by ITDC and recruitment therein is done in accordance with Recruitment, 5 Promotion and Seniority Rules of ITDC. It has been argued that workman in his cross examination has admitted that he is illiterate and does not possess any qualification. Therefore, he can not be allowed to enter into the service of the management as back door entry. It has been argued that he is not entitled for regularisation.
12. AR for the workman has relied upon authorities reported as The UP Co-operative Spinning Mills Ltd Etawah vs State of UP and others 1978 Lab. I.C.1137, Randhir Singh vs UOI AIR 1982 SC 879 and Hira Singh vs Management of Hotel Samrat and others LPA 171/07 decided by Hon'ble Mr. Justice A.K. Skri and J.R. Midha on 30.5.2008 to press his contention that an employer cannot enter into an agreement with a workman which is inconsistent with Standing Orders of the company.
13. However, AR for the Management has drawn my attention to Director, Institute of Management Development, UP vs Pushpa Srivastava 1992 ( 3) SCR 712 in which it has been held that when appointment was on purely contractual and adhoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. It was also held that when appointment was purely on adhoc and contractual basis for a limited period, on expiry 6 of the period, the right to remain in the post came to an end.
14. AR for the Management has also relied upon Secretary, State of Karnataka vs Umadevi and others AIR 2006 SC 1806, it has been held that unless the appointment is in terms of relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. 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 was also held that employment of daily wager/ contractual workers confers no right of permanent employees. Secondly, it was held that contractual employee working on less than wages than regular employees is also not illegal because when they are employed, they know that they were being employed as daily wager purely on temporary basis. It was also held that permanent absorption of daily wager can not be claimed as a matter of right and set of 7 persons can not be preferred over vast majority depriving them of their opportunity to compete for public employment. It was also observed that temporary employees appointed in violation of constitutional scheme do not have an enforceable legal right to be permanently absorbed nor the court is competent to direct Government to make them permanent. It was further held that Govt. should frame one time policy for regularization of the workmen who had been working since long. Similar observations were also made in UP Power Corporation vs. Bijli Mazdoor Sangh and others 2007 (5) SCC
755.
15. In the present case, the dispute referred to this tribunal is regarding demand of workman for regular pay scale for the post of Commi Grade II and not for regularisation.
16. Applying the above yardsticks to the present case, I find that workman had been engaged on contract basis as shown in Ex WW2/1. His contractual employment was extended from time to time as shown in Ex WW2/15. Certified Standing order of the Management has been proved as Ex WW2/1. In section 3 employees have been classified into categories of permanent, temporary, badlis, casuals, probationers and apprentices. In clause (b) of section 3(ii) a temporary employees is a workman who has been engaged for work which is of temporary nature, 8 any employee who has been in continuous employment of th Management for 12 months may be absorbed as a permanent hand subject to availability of a vacancy in the permanent cadre of the particular trade. Such an employee shall always be monthly rated unless specifically agreed to otherwise. In my considered opinion this section is not applicable to the workman. The workman had not been employed on regular temporary basis in accordance with rules governing service conditions of employees of Ashoka Hotel. Rather he had been employed on contract basis. In Uma Devi ( supra), it has been specifically held that if services of contractual persons are dispensed with, it would not amount to retrenchment as defined U/s 2(oo) I.D. Act nor the same would be illegal.
17. Workman in his cross examination has stated that he is illiterate and he accepted the terms and conditions of contractual employment. He has also admitted that he had not undergone any course nor he had undergone any trade test. When the workman does not fulfill requisite qualification for the post has been employed on contract basis, in my opinion, he does not have a right to regular pay scale prescribed for the said post. Ashoka Hotel is run by ITDC which is a statutory Corporation and it is a State instrumentality. Being the state instrumentality, it is 9 as much bound by provisions of part III of the Constitution of India as State. Therefore, when the workman has not been appointed in accordance with rules and regulations governing service conditions of employees of Ashoka Hotel or other hotels owned by ITDC, in my opinion, he has neither any right to the post nor can he claim regular pay scale.
18. It is also argued that one Nizamuddin who was appointed with him has been regularized is concerned, the case of the Management is that he was appointed on the basis of public notification issued against vacant post and from amongst candidates who responded to public notification. In view of this, the workman can not equate himself with Nizamuddin.
19. In view of reasons given above, I hold that demand of the workman for regular pay scale and allowances on the post of Commis Grade II from initial date of joining is not justified. Accordingly, he is not entitled for any relief. This issue is accordingly decided in favour of Management and against the workman.
20. Relief:- In view of my findings on issue No 1, I hold that demand of the workman for regular pay scale and allowances on the post of Commis Grade II from initial date of joining is not justified. Accordingly, he is not entitled for any relief. Reference is answered in above 10 terms. Award is accordingly passed. Same be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 18.09.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.
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I.D. No.
18.09.09
Present None for the parties
Vide separate award, I have held that I hold that demand of the workman for regular pay scale and allowances on the post of Commis Grade II from initial date of joining is not justified. Accordingly, he is not entitled for any relief. Reference is answered in above terms. Award is accordingly passed. Same be sent to GNCT of Delhi for publication. File be consigned to record room.
(BABU LAL) POIT-II,KKD,DELHI