Delhi District Court
In The Statement Of Claim Filed By The ... vs Chief Inspector on 21 April, 2008
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IN THE COURT OF SH. I.S. MEHTA:
PRESIDING OFFICER: INDUSTRIAL TRIBUNAL NO.I:
ROOM NO.2: KARKARDOOMA COURTS: DELHI.
ID No. 19/04
BETWEEN
The Management of
1. The Housing & Urban Development Corporation Ltd. (HUDCO)
through its Chairman-cum-Managing Director,
HUDCO Bhawan, Indian Habitat Centre,
Lodhi Road, New Delhi.
2. M/s Anup Mehra & Co. (Chartered Accountant)
2169, Main Road, West Patel Nagar,
New Delhi-8.
3. M/s M. Thomas & Co. (Chartered Accountant)
C-5, M.I.G. Flats, Prasad Nagar,
Karol Bagh, New Delhi-5
AND
Its workman
Sh. Pyare Lal S/o Sh. Raja Ram
R/o 4855, Near Mata Mandir,
Roshnara Road, Delhi-7.
Date of Institution :- 19.01.2004
Date of Reserve for Award :- 17.04.2008
Date of passing of Award :- 21.04.2008
AR for the Workman : Mohd. Mehmuddin
AR for the Managements : Rajender Dhawan
B. S. Rana &
Shefali Dhawan
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AWARD
Secretary (Labour), Govt. of the National Capital Territory
of Delhi has referred this dispute arising between the parties, named
above for adjudication vide notification
No.F.24(2943)/2003/Lab./3608-3614 Dated 04.11.2003 with the
following term of the reference :-
1. ''Whether the services of Sh. Pyare Lal,
S/o Sh. Raja Ram have been terminated
illegally and/or unjustifiably by the
management, if so, to what relief, is he
entitled and what directions are
necessary in this respect?"
2. Whether Sh. Pyare Lal, S/o Sh.Raja
Ram is entitled to be regularized in
proper post and pay scale, if so, what
directions are necessary in this
respect?"
1. In the statement of claim filed by the workman, it is stated
that the workman approached M/s Sonic Systems ( The Software
Group) for the placement/employment, who sponsored his name
to Management no.1, where the workman qualified the test and
interview and appointed as Data Entry & Computer Accounting
Operator Grade-III by the management no.1 w.e.f. April 1995,
which was a sanctioned post but the workman was not issued
Appointment Letter, Identity Card etc. Initially, the wages were
fixed as Rs. 2500/- per month, but he was paid only Rs.1000/- per
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month, which were given to him till January, 1997. The
management never paid the workman for overtime work except
conveyance charges. The management enhanced the wages of
workman from Rs.2500/- to Rs.4000/- per month w.e.f. February,
1997. But the workman was paid only Rs.2000/- per month and his
signatures were procured on cash voucher of management no.2 till
March, 1997, whereas, the workman had no privity of contract with
the management no.2. Thereafter, the management no.1 used to
obtain the signatures of workman on cash voucher of management
no.3 for Rs.2750/- per month w.e.f. April, 1997 till December, 1999
but the workman had also no privity with management no.3. The
management again enhanced the wages from Rs. 4000/- to 5,500/-
per month w.e.f. 01.09.1998 but the workman was paid only
Rs.4000/- and his signature was obtained in the cash voucher of
management no.3, for which, the workman objected and requested
the management to pay full wages. On this, the management
stopped paying wages to the workman arbitrarily w.e.f. January
2000 and took work from the workman continuously and regularly
till November, 2000. On asking of workman, the management
released his earned wages in December, 2000 for the month of
June, 2000 to November, 2000. The management no.1 paid
wages of Rs.4750/- from December 2000 to March 2001 as per
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order dated 07.03.2001 passed by Hon'ble Delhi High Court but the
signature of workman was obtained on the cash voucher of
management no.3. The management again stopped paying wages
w.e.f. April 2001 despite directions of Hon'ble High Court.
2. It is further stated that there was no difference in the
nature of job being performed by the concerned workman and
permanent workmen but there was great disparity in their wages
and benefits. The management no. 1 recruited 17 fresh graduates
having no experience as regular/permanent EDP Asstt. Grade-III
in 1998, for which, the workman also qualified the test but the
management did not appoint him for the said post. The
management no.2 & 3 are fictitious inventions of management
no.1. The management no. 1 was circumventing payment of wages
to the workman by procuring his signature on the cash vouchers of
management no. 2 & 3 in order to show that the workman is the
contract labour, whereas, the management no. 2 & 3 cannot
engage contract labour nor they can execute any work through
contract labour as they are not license holders under the provision
of Section 12 of Contract Labour (Regulations and Abolition) Act,
1970.
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3. It is further stated that as per direction of Hon'ble High
Court, the workman filed petition/statement of claim before the
Labour Commissioner on 27.01.2003, whereby he requested the
Conciliation Officer to induce the management for amicable
settlement securing regularization and payment of unpaid earned
wages but the management no.1 terminated the services of
workman w.e.f. 26.05.2003 by way of refusal. The management
neither served one month's notice nor paid one month's wages in
lieu of notice nor paid retrenchment compensation, whereas, the
workman worked more than 240 days with the management w.e.f.
1995 till the date of his termination, without any break. The
management also did not serve any charge-sheet nor any enquiry
was constituted against the workman. It is prayed that the
workman be held entitled for reinstatement with full back wages,
continuity of service and all consequential benefits and also for
regularization in the post and scale of EDP Assistant Grade-III/
Assistant(Grade-III).
4. The written statement filed by the management no.1
stating therein that the reference is bad in law for non-joinder of
necessary party as the claimant has not impleaded M/s Sonic
Systems as a party. The claimant is not the workman. He used to
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visit the office of management no.1 for carrying out the work
assigned by the management no.2 & 3. The claimant was never on
the pay-rolls of management no.1 nor his attendance was marked
by management no.1. The claimant was reimbursed his
conveyance expenses for visiting management no.1 by cheque.
The claimant has not specified as to with which management, he
had been performing his duty. The fact that management no.1 did
not issue any appointment letter or identity card, as mentioned in
the statement of claim, itself shows that claimant was never the
employee of management no.1. The claimant had applied for the
post of Data Entry Operator Grade-III only in the year 1998 and the
Selection Committee of management no.1 did not find him suitable.
Thus, the claimant was never an employee of management no.1
and there was no occasion for the management no.1 to pay the
alleged earned wages. The work contract of the management no.1
with management no.3 was not renewed from January, 2000
onwards. Therefore, there was no occasion left or the claimant to
act on behalf of the other managements so to visit the office of
management no.1. Rest of the contentions have been denied by
the management no.1.
5. The management no.2 did not file the Written Statement
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and proceeded exparte vide order dated 08.10.2004.
6. The management no.3 also filed its Written Statement
stating therein that management no.3 was retained by
management no.1 as Chartered Accountant as the management
no.3 is providing accounting services as Chartered Accountant, for
which the management no.3 charged professional fees for their
services from management no.1. The management no.1 finalized a
contract with the management no.3 for providing services of a
person to management no.1 for data entry and computer operator,
relating to accounting activities of management no.1. The workman
was selected by management no.1 much before the contract. The
management no.1 made payment to management no.3 towards
professional fees, salary of the workman and expenses for
providing such services. There was no further renewal of contract
between management no.1 and management no.3 after its expiry.
7. Rejoinders to the Written Statements of management no.1
& 3 filed, wherein all the contents made in the written statements
have been controverted and the averments made in the claim have
been reiterated.
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8. Out of the pleadings of the parties, the following issues
were framed :-
1. Whether the present statement of claim is
maintainable? OPW
2. Whether appropriate authority is the Central
Government in the present case and if so,
to what effect? OPM
3. Whether the workman was on the pay rolls
of HUDCO-respondent no.1? OPW
4. Whether the workman has set up a new case in the statement of claim qua CWP No.511/2001 earlier filed by workman in Delhi High Court out of which the present reference has arisen? OPW
5. Whether the workman was a temporary employee of HUDCO-respondent no.1?
6. Whether the workman is eligible for the post of EDP Assistant (Grade-III)/Assistant (Grade-III)? OPW
7. Whether the present statement of claim is bad for non-joinder for necessary parties i.e. Sonic System? OPM
8. Whether HUDCO had conducted any written test and interview of the workman, as alleged? If so, to what effect.
9. Whether selection committee of HUDCO had rejected the candidature of the workman in 1998 and if so, its effect.
10.Whether the workman was ever an employee of HUDCO? If so, its effect.
11.Whether the management of HUDCO had induced the workman that his services will be regularized.
12.As per terms of reference.
13.Relief.
8. The workman examined himself as WW1 and proved his affidavit Ex.WW1/A and relied upon documents Ex.WW1/1 to -: 9 :- WW1/43. On the other hand, the management examined MW1 Mr. Vivek Kumar, Chief (Finance), who proved his affidavit Ex.MW1/A and relied upon the documents Ex.MW1/1 to MW1/2 and MW2 Sh. Rajan George, Partner with management no.3, who proved his affidavit Ex.MW2/A.
9. Ld. AR of the workman Mohd. Mehmuddin has submitted that the workman approached M/s Sonic Systems ( the Software Group), 303, 1, Community Centre, Phase-I, Naraina, New Delhi- 110028 for his employment and Sonic Systems sponsored his case to M/s HUDCO i.e. management no.1. The management no.1 conducted written test and interview. The workman qualified the test and interview and thereafter, the workman was selected and appointed as Data Entry & Computer Accounting Operator Grade-III by the management no.1 w.e.f. April, 1995. Initially, his wages were fixed as Rs. 2500/- per month. The workman was selected against the sanctioned post. However, the management no.1 did not issue Appointment Letter, Identity Card etc. The workman/claimant was allured to be regularized and made permanent. The workman was paid Rs.1000/- per month till January, 1997. Thereafter, the salary of the workman was enhanced to Rs.4000/-. The management no.1 indulged in unfair -: 10 :- labour practice and only paid Rs.2000/- per month and his signatures were procured on cash voucher of M/s Anup Mehra & Company i.e. the management no.2 till March, 1997. The management, who indulged in unfair labour practice, further started obtaining the signatures of workman on the cash voucher of M/s M. Thomas & Company i.e. management no.3 w.e.f. April 1997. The workman was paid during this period Rs. 2750/- per month and signature was obtained on the cash voucher of management no.3. The workman was not having privity of contract with management no.2 & 3. Thereafter, the management further enhanced the wages from Rs.4000/- to Rs.5500/- per month from 01.09.98 but the workman was paid only Rs.4000/- per month and signature was obtained on the cash voucher of management no.3 till March, 1999. When the workman requested the management no.1 not to take his signature on the fictitious voucher, the management no.1 in retaliation, stopped paying wages to the workman arbitrarily w.e.f. January 2000. Thereafter, the workman approached Hon'ble High Court of Delhi in Writ Petition No. 2026 of 2000 against the management no.1. The management no.1 paid wages @ Rs. 4750/- per month from December 2000 to March 2001 and obtained signature on the cash voucher of management no.3. Ld. AR of the workman further submitted that -: 11 :- the management no.1 stopped paying wages to the workman/claimant w.ef. April 2001 despite the order dated 07.03.01 passed by Hon'ble High Court of Delhi. The management no.1 recruited 17 fresh graduates having no experience as regular/permanent EDP Assistant Grade-III in 1998. The management no.1 neither advertised nor displayed the said vacancies on the Notice Board. However, the management no.1 allowed the workman to appear in the test. The workman qualified the test but the management no.1 did not select and appoint him. The management no.1 appointed the employees from outside. The management no.2 & 3 are not the license holders under the provisions of section 12 of the Contract Labour (Regulations and Abolition) Act, 1970. As such, they cannot engage contract labour nor can they execute any work through contract labour. Moreover, Ld. AR of the workman further submitted, that, even if at all, this Hon'ble Court comes to the conclusion that there is no post against which the case of the workman could be considered, in such situation, the management has terminated the service of the workman and the workman is entitled to the reinstatement with full back wages. Ld. AR of the workman further submitted that order be set aside and workman be reinstated and regularized with full back wages and relied upon following judgments: -: 12 :-
1. Silver Jubilee Tailoring House and others Vs. Chief Inspector of Shops and Establishments and another (1974) 3 SCC 498
2. Chief Conservator of Forests &Anr. etc.etc.(1996)1LLJ 1223 SC
3. V. M. Chandra Vs. Union Of India & Ors. AIR 1999 SC 1624
4. Hindustan Prefab Ltd. Vs. Labour Commissioner & Ors. 108 (2003) DLT 585
5. Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors.
2006(5) SRJ 380
6. Oil & Natural Gas Corporation Ltd. Vs. Engineering Mazdoor Sangh 2007 (2) SRJ 591 SC
7. Deep Chandra Vs. State of UP and anr. 2001-I-LLJ SC 742
8. On the other hand, Ld. AR of the management Sh. Rajender Dhawan has submitted that the reference made is bad. The Central Government in the present case is the appropriate Government and not the State Government. There is no relationship of employer and employee between the management no.1 and workman. Therefore, the workman is not entitled to any relief.
10. ISSUE NO.2 The management in its Written Statement has taken the objection that the Industrial Dispute is not referred by the competent appropriate Government for adjudication. As such, the Industrial Dispute referred, is liable to be rejected. In the present case, the appropriate Government for the purpose of making reference is a Central Government and not State Government to -: 13 :- refer the matter for adjudication of the industrial dispute between the parties. The management is a Central Government concern sponsored by the Government of India, Ministry of Urban Development and Poverty Alleviation.
11. The workman in reply to the Written Statement, has filed rejoinder and denied the same and stated that Government of NCT of Delhi is the appropriate Government in the present case as per Government Notification to refer the present Industrial Dispute to this Hon'ble Tribunal for adjudication.
12. The contention of Learned AR of the management that the notification bearing no. S-11025/6/97- IR (PL) Dated 03.07.1998, came in the year 1998 and prior to that for the purpose of the appropriate Government, the Central Government is the Appropriate Government and not the Delhi Government, does not seems to be correct. The management failed to bring on record any such document or evidence that the appropriate Government was the Central Government and not the Delhi Government. It is an admitted case that the management is situated at Delhi and its territorial jurisdiction lies with Delhi. The Lt. Governor is the agent of the President of India, therefore, he for all intent and propot, -: 14 :- would be the Central Government, in relation to statute which are applicable to NCT of Delhi, under the ID Act. Therefore, this issue is decided against the management and in favour of the workman. 13. ISSUE NO. 1 & 7
Issue no. 1 & 7 are taken together as both these issues are interconnected. The reference, reference no. F.24(2943)/2003/Lab./3608-3614 Dated 04.11.2003 received on 24.02.2002. Thereafter, in pursuance to reference, the workman filed the statement of claim on the same day i.e. 24.02.2002 through his authorized representative Mohd. Mehmuddin, Advocate. The workman has filed statement of claim u/s 2A of the Industrial Disputes Act, which is duly signed by the workman as well as his authorized representative. The workman has not claimed any relief against the M/s Sonic Systems nor there exists any interest qua the present dispute with the M/s Sonic Systems. Therefore, Both the issues are decided in favour of workman and against the management.
14. ISSUE NO. 3, 4, 5, 6, 8, 9, 10, 11 & 12
Issue No. 3, 4, 5, 6, 8, 9, 10, 11 & 12 are taken together as all these issues are interconnected. The workman in its -: 15 :- statement of claim has specifically stated that workman approached M/s Sonic Systems for his employment. The management no.1 conducted the written test and interview and the workman selected and appointed as Data Data Entry & Computer Accounting Operator Grade-III at the fixed wages of Rs. 2500/- per month. Thereafter, the management in the year 1997, enhanced the wages to Rs. 4000/- and further the same was enhanced to Rs. 5500/- from 01.09.1998. However, his signatures were obtained on the cash vouchers of M/s Anup Mehra & Co. and M/s M. Thomas & Co. i.e. management no.2 & 3. The management no.1 kept the workman as temporary for eight long years and thereafter, the management no.1 recruited 17 fresh graduates having no experience as regular/permanent EDP Asstt. Grade-III in the year 1998. The claimant despite qualifying the test, was not regularized and approached to the Hon'ble High Court of Delhi in Writ Petition No. 511/2001, wherein, the Hon'ble High Court of Delhi directed to maintain the status quo. The management no.2 & 3 are not the license holders. As per direction of Hon'ble High Court, the workman filed petition/statement of claim before the Labour Commissioner on 27.01.2003, whereby he requested the Conciliation Officer to induce the management for amicable settlement securing regularization and payment of unpaid earned -: 16 :- wages but the management no.1 terminated the services of workman w.e.f. 26.05.2003 by way of refusal.
15. In reply to the statement of claim, the management no.1 has denied the allegations alleged in the statement of claim and stated that there is no relationship of employer and employee between the management and workman. The workman never remained on the pay rolls of HUDCO. The workman is the employee of management no. 2 & 3 as admitted in his Civil Writ Petition No. 511/2001 (Annexure R-1/B). The works contract of the management no.1 with management no.3 was not renewed from January 2000 onwards. Therefore, there was no occasion left for the claimant to act on behalf of other managements so to visit the office of management no.1. As such, the workman is not entitled to any relief as claimed. The management no.3 has filed written statement, wherein, it is stated that the management no.3 is a partnership firm carrying on the business as Chartered Accountant and providing accounting services to various firms and individuals in their capacity as Chartered Accountant. The management no.3 was retained by management no.1 as Chartered Accountant. The management no.3 charged professional fees for their services from management no.1 and rendered the required services as desired -: 17 :- by management no.1. The management no.1 finalized a contract with management no.3 for providing services of a person to the management no.1 for data entry and computer operator, related to the accounting activities of the management no.1. The workman was selected by management no.1 much before the contract was finalized between management no.1 and management no.3 for providing such services. The management no.1 reimbursed the salary to workman through management no.3 who made payment of salary to the workman after getting the workman's signatures on their voucher. The management no.1 made payment to management no.3 towards professional fees, salary of the workman and expenses for providing such services. The management no.1 has however not reimbursed the professional fees, salary of the workman and expenses for providing such services to management no.3 @ Rs.5500.00 per month, plus conveyance @ Rs.750.00 per month from July 2000 to March 2001. After expiry of contract agreement between management no.1 and management no. 3, there was no further renewal of contract and therefore, the arrangement between management no.1 and management no.3 ceased to exist.
16. The onus to prove that there exists a relationship of -: 18 :- employer and employee is on the workman. The workman in his statement of claim has stated that he has filed a Writ Petition No.511/2001 before Hon'ble High Court of Delhi. The management no.1 too, has relied upon the said Writ Petition no. 511/2001, the copy of which is annexure R-1/B. The workman has not denied its so filing Writ Petition before Hon'ble High Court of Delhi in the replication. The workman in para-24 of its Writ Petition No.511/2001 filed before the Hon'ble High Court of Delhi in annexure R-II, has stated that the workman is working with the management since April 1995 continuously till the date of filing of the Writ on the contract basis to perform the data entry operator work, but since February 1997, he is working direct with the HUDCO as his staff. The workman in para-9 of the Writ Petition, has shown the period of work with the management no.2 & 3, as under:
Chartered accountant firm Period Salary per month M/s Anup Mehra & Co. From February-97 to March 97 @ 4000.00 M/s M. Thomas & Co. From April-97 to 31-August @ 4000.00 98 M/s M. Thomas & Co. From September 98 till date @ 6250.00 (5500.00+750.00)
17. The workman himself has relied upon the document of management i.e. office order Ex. WW1/13, which is reproduced as -: 19 :- under:
UIF Wing Due to closing of the financial year, the following officials will attend office on 25.3.2000.
1. Shri R S Gunawat, SFO
2. Shri Ajay Munjal, SFO
3. Shri Lalit Singla, FO
4. Smt. Monica Sarin, FO
5. Shri Vimal Roy Kumar, AFO
6. Shri K K Dutta, AFO
7. Shri P. Narayana, AFO
8. Shri Sham Gulati, TOF
9. Shri Susil Pal, TOF
10.Miss. Bhanumati, TOF
11.Shri Siya Ram, AF
12.Shri Pyare Lal, Contact
13.Shri Santosh Kumar, Contact CFI 24.03.2000 Concerned officials.
18. The office order dated 21.05.2001 Ex. WW1/15 shows that one of the contract employee is none else but the present Petitioner, which is reproduced as under:
General Accounts Section Ref: Office Order No.258/2001 dated 18.5.2001 Vide above Office Order Shri D. Guhan, ACF who is posted at present in General Accounts has been transferred to UI Wing. In this regard, it is stated that during discussions with CMD in the last week when DF and EDH were also present, it was requested that the transfer of Shri D Guhan from General Accounts may not be done and in lieu of Shri Ajay Munjal, who has resigned, Shri Satish Gupta, ACF posted at HSMI may be posted in UIFW. The reasons in support of this were given as under:
1. Shri Guhan has been looking salary of HO, UIF, HSMI and individual taxation of HO, UIF & HSMI.
In addition, he is also looking after housing appraisal, correspondence with NHB, Ministry and with any other agency related to housing schemes, and payment of interest and repayment of principal on loans taken from Financial institutions/banks, SLR Debentures, etc.
2. Shri Guhan has become quite well versed with the -: 20 :- files and the system in General Accounts after his transfer from Mumbai last year and his transfer at this stage will destablise the entire work handled by him.
3. Shri Satish Gupta is professional ( CA) and had looked after loan accounts and appraisal for more than 5 years in the past.
4. Transfer of Shri Guhan o UIFW will be a new process which can be done even with Shri Satish Gupta and thereby avoiding destablising General Accounts Section.
In addition to above, following facts are also put up for consideration please:
At present, UIFW having following finance staff without Shri Aajay Munjal:
1. Shri R S Gunawat,ACF
2. Shri Narayana, FO
3. Smt. Monica Sood, FO
4. Smt. Bhanumati, AFO
5. Shri Vimal Roy Kumar, AFO
6. Ms. Sona, NE
7. Ms. Rajni, NE
8. Shri Pyare Lal, Contact
9. Shri Santosh Kumar, Contact It can thus be seen from the above that there is one ACF, 2 FOs, 2 AFOs, 2 Non-executives and two contract employees i.e. total 9 employees and against which work handled related to finance is UI schemes appraisal, releases and UI accounting.
Keeping above facts into view, it is submitted for reconsideration that Shri D. Guhan may not be transferred from General Accounts and if it is felt necessary to place somebody, then Shri Satish Gupta may be considered to be posted there.
Submitted for consideration please.
CF(A) 21.5.2001
19. The another office order dated 31.3.2001 Ex. WW1/16 is also reproduced as under:
HUDCO : UIFW SUB: Immediate requirement of two EDP Assistants in UI Wing Two assistants have been engage in UIF wing through a firm of chartered accountants. The arrangement has -: 21 :- been continuing for around six year owing to acute shortage of staff. With the reduction of staff strength of UI Finance Wing from 16 officers in 1995-96 to 8 officers at present it has been difficult to discontinue with the arrangement. The two assistants are doing Book Keeping and Data Entry job in Loan Accounts of UIFW.
Incidentally, one of the assistants has filed a suit and obtained stay from the court for maintaining Status Quo. In view of above, we had requested EDH vide our note dated 28.2.2001 (Copy enclosed) for deputing a EDP assistant in UIFW so that we may discontinue engaging the second assistant. The Data Entry jobs being handled by the assistant include critical areas of Loan Accounting of UIFW. Accordingly, a reminder to our note was also sent on 15.3.2001 to EDH for arranging immediate replacement (Copy enclosed) The accounting work relating to UIF involves transactions of high financial magnitude and as such should be handled by experienced regular staff only. In the absence of regular staff, the adhoc arrangement has continued for six years now. This matter was discussed with EDH last week, when it was indicated that 2 out of the regular EDP assistants available with MS Wing could be re-deployed in UIFW where strength of officers has also gone down considerably.
The above may please be approved immediately, pending posting of other officers/staff as requested by UIFW.
A.C.F. 31.3.2001
20. There is no dispute that management no.1 is a public undertaking. The workman has further admitted that he was not given any appointment letter by management no.1. There is no satisfactory reason explained by the workman that he was not given appointment letter. The workman has further admitted during the cross examination that in the year 1998, when the post was advertised, he applied and appeared in the Written Test. He also -: 22 :- appeared in the interview but was not selected. The advertisement was not published in the newspaper and the names were called from the Employment Exchange. The said admission is reproduced as under:
When the advertisement appeared I applied for the same and appeared in written test. I also appeared for interview but I was not selected. The advertisement was not published in newspaper but the names were called from Employment Exchange.
21. The workman has admitted that management no.3 is Chartered Accountant Firm. However, he has denied that he used to work on behalf of management no.3 for the work of management no.1 assigned to management no.3.
22. The workman, who filed the Writ Petition dated 10.01.2001 before Hon'ble High Court of Delhi, has pleaded that initially the workman was appointed on the contract basis in the year April 1995 to perform the data entry operator work. The workman has also pleaded in his Writ Petition that he was kept as DEO through M/s Anup Mehra & Co. and M/s M. Thomas & Co. till 10.01.01. It is admitted case of the workman that he was never issued appointment letter by the management no.1. The workman has also admitted that the post was advertised by the management no.1 and he appeared in test and interview, but could -: 23 :- not qualify the same. The facts and evidence on record clearly show that the workman was working with the management no.1 on behalf of Chartered Accountant Firm and not as a direct employee, as a result of which, initially he was not issued appointment letter and later on, when he appeared in the test, he could not be selected in the said test, as a result of which, the workman was left out on the basis of merit and consequently, the dispute was raised by filing a Writ Petition No.511/2001 dated 10.01.2001 (annexure R-II) by the workman and thereafter, the present dispute was raised after thought, against, the management no.1 and the workman failed to prove that the management no.1 has terminated the services of the workman. Had the workman been the employee of the management no.1, there was no occasion for his appearing in written test and in the interview. The management no.1 is not bound to take the workman, who could not qualify the selection procedure. The claimant cannot be allowed to say that HUDCO's contracts with the contractors were sham. No such issue was claimed by him. No such issue has been framed. The said contract is also not mentioned in the terms of reference. Therefore, the workman has to succeed on the case set up by him only. In the present case, it is not the case of the workman that he was the contractor employee upto a particular date and that he was -: 24 :- subsequently employed by HUDCO. The date of alleged employment by HUDCO has never been pleaded in the Statement of Claim. It is because of this reason, the workman has not claimed any relief against rest of the managements i.e. management no.2 M/s Anup Mehra & Co. and management no.3 M/s M. Thomas & Co. and tried to change its stand in the Statement of Claim. Therefore, the workman failed to establish the relationship of the employer and employee between management no.1 and the workman. Therefore, issues no.3, 4, 5, 10, 11 & 12 are decided against the workman and in favour of managements. So far the issue no.6 is concerned, the finding on the issue no.6 is not relevant for the purpose of outcome of present reference in view of my findings on issues no.3, 4, 5,10,11 & 12. Therefore, this issue is decided accordingly. In view of the admission made by the workman in his cross examination, the workman himself has admitted that he was not got selected after written test an interview, therefore, its effect is insignficant. As such, the issues no. 8 & 9 are also decided accordingly in view of my findings on issue no. 3,4, 5, 10, 11 & 12.
23. Keeping in view the facts & circumstances and the discussions made above and in view of the judgments: (1) -: 25 :- Nagendra Chandra Etc. Etc. Vs. State of Jharkhand and Ors. 554 Services Law Reporter 2008 SC, (ii) N. Sathasivam Vs. Joint Commissioner of Police, North Zone, Perambur and others 2008(2) SLR Madras High Court 557 and (iii) Himmat Singh & Ors. Vs. I.C.I. India Ltd. & Ors. 2008 LLR 357, the workman is not entitled to any relief. The judgments filed on behalf of workman is no help to him. The reference is answered against the workman. Award is passed, accordingly. ANNOUNCED IN THE OPEN COURT ON DATED : 21.04.2008.
[ I.S. MEHTA ] PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I:
DELHI.