Delhi District Court
Sh. Surender Kumar vs The Directorate Of Family Welfare on 25 March, 2023
IN THE COURT OF MS. MANSIHA TRIPATHY
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI
CNR No.DLCT13-012655-2017
Ref. No. :F.24(191)/73/ND/Co-I/14/Lab./626-628
Dated : 12.12.2017
L.I.R. No.3571/2017
Sh. Surender Kumar,
S/o Sh. Hari Prasad, Aged about 35 years,
R/o H. No.D-32/40, Piou Manihari Road,
Near CPJ College, Behind Master Automobile,
Narela, Delhi - 110040 (Contact No.9711539965)
Through Janhit Mazdoor Union (Regd. No.3978),
Delhi Pradesh Delhi, H. No.14, Gali No.19,
Manavkunj, Mukndpur, Delhi - 110042.
Contact No.9811676481. .................Workman.
Versus
The Directorate of Family Welfare,
Through its Director, Govt. of NCT of Delhi
(Administrative Branch), 'B' & 'C' Wing,
7th Floor, Vikas Bhawan-II, Near Metcalf House,
Civil Lines, Delhi - 110054. ............Management.
Date of Institution of the case : 22.12.2017
Date on which reserved for Award : 20.03.2023
Date on which Award is passed : 25.03.2023
-:A W A R D:-
1.The workman Sh. Surender Kumar, raised an industrial dispute regarding the termination of his services by the management of the Directorate of Family Welfare. The appropriate Government on being satisfied regarding the existence of Industrial Dispute between the parties, made a reference for adjudication. The said reference is as under:-
(L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.1 of pages 14 "Whether there exists employer-employee relationship between the management of The Directorate of Family Welfare, through its Director, Govt. of NCT of Delhi (Administrative Branch) and workman Sh. Surender Kumar S/o Sh. Hari Prasad and if yes whether his services 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. Notice of reference was issued to the workman, upon which statement of claim was filed by him.
Statement of Claim
2.1 The workman averred that he was working with the management continuously since 01.01.2009, initially as daily wager on daily wage of Rs.311/- per day (with effective duty of 6 to 15 days every month) and thereafter on monthly basis (on regular duty) since May 2010 on last drawn salary of Rs.9,330/-.
2.2. The workman further averred that he was working for the management under pulse polio immunization programme at the office as well as godown and during the course of his employment, management had no complaints against him and no charge sheet was given to him by the management.
2.3 He further averred that at the time of appointment, he was not issued appointment letter and during the course of his employment, the management did not maintain proper service record and failed to provide any legal facilities such as appointment letter, confirmation letter, attendance slip, leave book, minimum wages, annual leaves etc. 2.4 He further averred that despite performing duty for more than 240 days each year, he was not confirmed as regular employee by the management regarding which he had been raising oral demands from the management from time to time (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.2 of pages 14 alongwith with the demand of payment of salary as per 6th CPC, due to which the management got annoyed and refused to take him on duty on 01.04.2012 without assigning any reason and without issuing any notice or notice pay and also failed to pay earned wages for March 2012.
2.5 He tried to get back on duty of the management as well as searched for job elsewhere but could not succeed. Thereafter, he sent a Demand Notice dated 19.05.2014 (written as 29.05.2014 in the statement of claim due to typographical error) to the management through speed post, but despite due service, the management neither replied to the same nor took him back on duty. Consequently, he filed a complaint before the Deputy Labour Commissioner, Nimri Colony, Delhi-110052, where management appeared but no settlement could take place and accordingly the matter was referred to the Labour Court for adjudication.
2.6 He averred that termination from service without any notice, charge sheet, domestic inquiry and decision thereon, is in violation of Section 25F, 25G & 25H of the I.D. Act and prayed for reinstatement with full back wages including earned wages and all consequential benefits.
3. Notice of statement of claim was sent to the management and it filed its Written Statement contesting claim of the workman.
Reply/Written Statement 3.1 In its statement of claim, the management stated that the casual workers such as workman are hired in the medical store of the management during Pulse Polio phases for various miscellaneous work (such as shifting and arranging of logistics, helping refrigerator mechanics / others etc.). Their hiring is always intermittent, interrupted and for irregular periods on working days only as and when required and they do not have status of regular employee as there is no sanctioned post for such casual workers in the department. As such, such workers (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.3 of pages 14 are not issued any appointment letter or formal or informal contract regarding continuation, absorption, regularization or provision of any benefit as available to the regular employees of management and there is no employer and employee relationship between them (including the workman herein) and the management.
3.2 Averments of the workman in his claim were denied in the corresponding paras of reply. It was specifically denied that the workman was getting monthly salary of Rs.9,330/- and it was stated that the workman was actually getting daily wages at the rate approved by the Labour Department for the number of his actual working days during a particular month or period, being casually hired worker on as and when required basis. It was stated that the workman was not entitled to 6th CPC benefits or for any kind of compensation owing to the nature of his engagement.
3.3 It was further stated that the legal demand notice was sent by the workman in May 2014 and the present case was filed in April 2018 after a gap of around four years and thereby the case is time barred. s Rejoinder
4. In rejoinder to the Written Statement of the management, the workman denied all the averments of the management in its written statement and reaffirmed that of statement of claim.
Issues
5. From the pleadings of the parties, vide order dated 04.12.2018 the following issues were framed:-
1. Whether the workman has been continouing his job with the management regularly w.e.f. 01.01.2009 till the date of his (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.4 of pages 14 termination i.e. 01.04.2012 or he was only doing job on casual basis with the management as and when required? (OPW)
2. Whether services of the workman have been terminated illegally and unjustifiably by the management? (OPW)
3. Relief.
Workman's Evidence
6. Thereafter, workman led his evidence and stepped into the witness box as WW-1. He tendered his evidence by way of affidavit Ex.WW1/A, wherein he reiterated on oath the averments made in his statement of claim.
6.1 He relied on the following documents:-
I. Legal Demand Notice dated 19.05.2014 - Ex.WW1/1;
II. Original postal receipt of the speed post - Ex.WW1/2; and
III. Copy of bank statement - Mark WW1/3.
6.2 He was cross examined by Ld. AR of the management and the
workman's evidence was closed.
Management's Evidence
7. In support of its defence, Management examined two witnesses namely Sh. Brij Kishore Tyagi, Medical Officer, Directorate of Family Welfare, GNCTD as MW-1 and Dr. Shintoo Doomra, Central Co-ordinator Pulse Polio, Directorate of Family Welfare, GNCTD as MW-2 respectively, who deposed on the basis of their knowledge derived from the official record maintained by the department and tendered their evidence by way of affidavit as Ex.MW1/A and Ex. MW2/A respectively, wherein they substantially reiterated on oath the averments made in (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.5 of pages 14 the Written Statement.
7.1 MW-1 Sh. Brij Kishore Tyagi deposed that there is no sanctioned post for undertaking miscellaneous work as was being performed by the workman as casual/ daily wager. He further deposed that the workman was paid as per minimum wages depending on the number of days worked through account payee cheques from the funds provided under NRHM (National Rural Health Mission) to DSHM (Delhi State Health Mission) and further to the Reproductive and Child Health (RCH) programme as per the proposal approved by MOHHW, GOI on year to year basis for hiring of casual/ daily wager subject to the requirement. He further deposed that the workman worked at the medical store of management under RCH programme only for 170 days during the year 2010-11 and for 246 days during the year 2011-12 intermittently as and when required and did not work with the management after March 2012 till date.
7.2 He relied on the following documents:-
I. List of approved posts as on 15.10.2015 of Directorate of Family Welfare, Vikas Bhawan, New Delhi Ex.MW1/1;
II. Copy of muster roll, showing attendance, calculation of wages and receipt by the claimant for the period September 2010 to March 2012 Ex.MW1/2 (colly.);
III. Copy of the sanction orders dated 03.02.2011, 10.02.2011, 17.03.2011 and 12.07.2011 Ex.MW1/3 (colly.).
7.3 He was cross examined by Ld. AR for the workman, wherein he admitted that the workman had worked for 246 days in the year 2011-2012 but claimed that it was on as and when required by the management and he denied that the workman was working against the sanctioned post.
(L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.6 of pages 14 7.4 MW-2 Dr. Shintoo Doomra deposed that the workman was hired for Pulse Polio Programme, at Central Medial Store, DFW, GNCTD as casual wager for a few days from open market when there was a polio round in Delhi under intensified pulse polio programme as per recommendation of Government of India.
He further deposed that the polio cell is a temporary cell formed under Directorate of Family Welfafre and there is no provision to recruit and appoint any worker on regular basis as under the programme the funds are provided for limited period during implementation of programme as intimated by Government of India. Nowadays, the outsourcing of persons to carry out such miscellaneous job is done round wise from private vendors through government e-market place (GeM) portal following due procedure as per GFR rules 2017. However, engagement of workman at the relevant time was purely on as and when required basis on daily wages for temporary, intermittent, interrupted and irregular period and owing to the nature of engagement, the service documents were not issued or maintained except muster roll purely for calculation and payment of wages purpose. He further deposed that the workman worked under Pulse Polio programme only for 11 days in the year 2009-10, for 13 days in 2010-11 and for 12 days in the year 2011-12 during various pulse polio round and did not work under pulse polio programme after March 2012 till date.
7.5 He relied on copy of muster roll showing attendance, calculation of wages and receipt by the workman vide Ex.MW2/1 (colly.) except for the muster rolls for 23rd to 27th August 2010, 24.04.2011, 22.05.2011 and 15.01.2012, copies of which were marked as Mark A1, Mark A2, Mark A3 and Mark 4 respectively.
7.6 He was cross examined by Ld. AR for the workman and discharged. Thereafter, management evidence was closed and case was fixed for final arguments.
8. Sh. Arvind Kumar, Ld. LAC for the workman and Ms. Aditi Gupta, Ld. (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.7 of pages 14 AR for the management have addressed final arguments. I have considered their submissions and perused the record carefully.
9. My issue wise findings are as under:-
10. -:ISSUE No.1:-
Whether the workman has been continuing his job with the management regularly w.e.f. 01.01.2009 till the date of his termination i.e. 01.04.2012 or he was only doing job on casual basis with the management as and when required? (OPW) 10.1 The workman deposed that he was working with the management continuously since 01.01.2009, initially as daily wager and thereafter on regular duty since May 2010 on last drawn salary of Rs.9,330/- under pulse polio immunization programme. Even though the workman pleaded being in regular employment w.e.f. May 2010, he did not file any order issued by the management in this regard. Admittedly, no letter of appointment as well as regularization or confirmation was issued to him by the management.
10.2 On the other hand MW1 and MW2 deposed that engagement of workman was purely on as and when required basis on daily wages for temporary, intermittent, interrupted and irregular period under RCH and Pulse Polio programs and he was paid as per minimum wages depending on the number of days worked through account payee cheques from the funds provided under NRHM (National Rural Health Mission) to DSHM (Delhi State Health Mission) and further to the Reproductive and Child Health (RCH) programme as per the proposal approved by MOHHW, GOI on year to year basis for hiring of casual/ daily wager subject to the requirement.
(L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.8 of pages 14 10.3 MW1 deposed that the workman had worked at the medical store of management under RCH programme only for 170 days during the year 2010-11 and for 246 days during the year 2011-12 intermittently as and when required and did not work with the management after March 2012 till date and similarly MW2 deposed that the workman had worked under Pulse Polio programme only 11 days in the year 2009-10, for 13 days in 2010-11 and for 12 days in the year 2011-12 during various pulse polio round and did not work under pulse polio programme after March 2012 till date.
10.4 MW1 produced list of approved posts as on 15.10.2015 of Directorate of Family Welfare, Vikas Bhawan, New Delhi vide Ex.MW1/1, copy of muster roll, showing attendance, calculation of wages and receipt by the workman under RCH program vide Ex.MW1/2 (colly.) and Copy of the sanction orders dated 03.02.2011, 10.02.2011, 17.03.2011 and 12.07.2011 Ex.MW1/3(colly.) and MW2 produced copy of muster roll showing attendance, calculation of wages and receipt by the workman under Pulse Polio Program vide Ex.MW2/1 (colly.), Mark A1, Mark A2, Mark A3 and Mark A4.
10.5 The workman did not produce any documentary or oral evidence except his self serving affidavit in support of his contention of regular and continuous service w.e.f. 01.01.2009 till the date of his termination i.e. 01.04.2012. Whereas the management produced list of approved posts in the Directorate of Family Welfare (Ex.MW1/1), copies of muster roll under RCH and Pulse Polio Program [Ex.MW1/2 (Colly.), Ex.MW2/1 (Colly.), Mark A, Mark A1, Mark A2 and Mark A3 and A4 respectively] and Copy of the sanction orders dated 03.02.2011, 10.02.2011, 17.03.2011 and 12.07.2011 Ex.MW1/3(colly.) None of these documents have been disputed by the workman except for the bald suggestion that muster rolls were not properly maintained. Considering that neither it has been explained as to how muster rolls were not maintained properly nor any evidence (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.9 of pages 14 has been led in this regard, this suggestion is liable to be rejected. A perusal of Ex.MW1/1 shows that there was no sanctioned post against which the workman could have been appointed as a regular employee under RCH or Pulse Polio Program. Copies of muster rolls further corroborate contention of the management that the workman was working as daily wager on as and when required basis and was not as a regular employee and had rather worked for 170 days during the year 2010-11 and for 246 days during the year 2011-12 under RCH program and only 11 days in the year 2009-10, for 13 days in 2010-11 and for 12 days in the year 2011-12 under pulse polio programme, intermittently and had not worked under any program after March 2012. In view of the same, Issue No.1 is decided in favour of the management and against the workman by holding that the workman was engaged by the management and doing job as casual labour as and when required.
11. -:ISSUE No.2:-
Whether services of the workman have been terminated illegally and unjustifiably by the management? (OPW) 11.1 The claim of the workman in the present case is that he had rendered continuous service w.e.f. 01.01.2009, initially as daily wager and w.e.f. May 2010 to 01.04.2012 as regular worker for the management, prior to his termination, and that his services were terminated illegally and unjustifiably by the management when he demanded confirmation letter and service benefits as per 6th CPC.
11.2 On the other hand, it was contended on behalf of the management that the workman being a casual labour, working intermittently as and when required, was not an employee of the management. As such, there was no entitlement of any compensation and no question of illegal termination of his services.
11.3 Issue no.1 already stands decided against the workman rejecting his (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.10 of pages 14 claim of being a regular employee of management and holding that he was working for management as casual labour as and when required.
11.4 However, law relating to termination of services of contractual/casual labour is well settled. The nature of appointment is not a pre-condition for compliance of Section 25F. Section 2(s) of the Industrial Dispute Act doesn't make any difference between workman hired as daily wager/ casual labour/ contractual labour and the one employed against regular post. Scheme of the Industrial Dispute Act 1947 contemplates that if the employee who is a workman under Section 2(s) has been retrenched as contemplated under Section 2(oo) and was in continuous service for more than 240 days in the preceding 12 months from the alleged date of termination as contemplated under Section 25B of the Act, the employer is under an obligation to comply with the mandatory requirement of clauses (a) and (b) of Section 25F, failing which termination is void ab initio. Vide State Bank of India Vs. Shri N. Sundara Money [1976 (1) SCC 822]; L. Robert D'Souza Vs. Executive Engineer, Southern Railway and Another [982 (1) SCC 645] ;
Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others [1990 (3) SCC 682]; K.V. Anil Mithra & Anr. Vs. Sree Sankaracharya University of Sanskrit & Anr. (Civil Appeal No. 9067 of 2014, decided on 27.10.2021).
11.5 In the instant case, admittedly the workman had worked for more than 240 days in the preceding 12 months from the alleged date of termination. It is also admitted that at the time of termination of services of the workman, the mandatory statutory requirements under section 25F were not complied with by the management. In view of the same, undoubtedly, services of the workman have been terminated illegally by the management. Issue no.2 is decided accordingly.
12. -:RELIEF:-
12.1 The workman herein has sought the relief of reinstatement with full back wages including earned wages and all consequential benefits.
(L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.11 of pages 14 12.2 The issue of appropriate relief in cases of illegal termination of daily wagers was considered by Hon'ble Apex Court in case of BSNL Vs. Bhurumal, 2013(15) SCALE 131. After considering a catena of judgements on the point, the Hon'ble court observed as under:-
"23. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
24. Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka Vs. Uma Devi (2006) 4 SCC 1). Thus, when he cannot claim regularization and he has no right to continue even as a (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.12 of pages 14 daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose."
12.3 In the instant case, the workman has worked as a daily wager for a period of approximately 3 years and 3 months. There is a long gap of more than 10 years since his services were terminated by management. The management has since started outsourcing of daily wager/casual labour as per requirement from private vendors through government e-market place (GeM) portal following due procedure as per GFR rules 2017.
12.4 Although the workman has pleaded that he searched for alternative employment, but did not succeed, yet he has not led any evidence to show what efforts, if any at all, were made by him to search for employment. Also, in these days of high cost of living, It cannot be presumed that workman would have remained idle for such a long period of more than 10 years. Further, no evidence has been adduced by the workman as to how he was able to meet his ends for all these years without any employment. Therefore, it can be presumed that workman must have been working somewhere.
12.5 In totality of the facts and circumstances and in light of the case law cited above, I am of the view that in the present case reinstatement of workman would not be justifiable and ends of justice would be met by granting lump sum compensation to the workman instead of his reinstatement. Considering the length of service of the workman, nature of his duties and all other attendant facts and circumstances, I award a lump sum compensation of Rs.45,000/- in favour of the workman and against the management, which includes the cost of litigation expenses. The management is directed to pay the said amount to the workman (L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.13 of pages 14 within a period of one month from the date of publication of the award, failing which the amount shall carry an interest @ 6% p.a. from the date it becomes due till the time it is realized. Ordered accordingly.
13. Reference stands answered in aforesaid terms. Requisite number of copies of this award be sent to the competent authority for necessary compliance, as per rules. File be consigned to the Record Room after due compliance.
(Announced in the open Court
on 25.03.2023) (MANSIHA TRIPATHY)
Presiding Officer Labour Court-III
Rouse Avenue Courts, New Delhi
(L.I.R. No.3571/2017) (Sh. Surender Kumar Vs. The Directorate of Family Welfare) Page No.14 of pages 14