Delhi District Court
Sh. P.K. Ramesh vs M/S Chefair Flight Catering on 26 September, 2007
P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 1
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR
COURT-I : ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO. 466/2001
BETWEEN
Sh. P.K. Ramesh
C/o New Delhi General Mazdoor Union,
B-89, Gulmohar Park,
New Delhi- 110049.
........ Workman
AND
M/s Chefair Flight Catering,
I.G.I.A., New Delhi - 110037.
........ Management
AWARD
Secretary (Labour), Government of National Capital
Territory of Delhi has referred this dispute arising between the parties
named above for adjudication to this Labour Court vide notification
No. F.24 (4846)/2000- Lab./3802-806 dated 07.02.2001 with the
following terms of the reference:-
"Whether the services of Sh. P.K. Ramesh have
been terminated illegally and/or unjustifiably by
the management, and if so, to what relief is he
entitled and what directions are necessary in this
respect?"
1 On receiving a notice from the court, the workman
P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 2
namely Sh. P.K. Ramesh filed his statement of claim contending that
he had been working initially as handy man with the management
since 21.01.1982. His last drawn wages were Rs. 3,900/- per month.
It was stated that initially the management did not issue any
appointment letter to the workman for the period from 21.01.1982 to
29.10.1982. On 30.10.1992, the workman was promoted to Assistant
cook and the management issued him appointment letter for 40
days. After the expiry of the said period, the management used to
take work from the workman for 10 days and the payment for that
period was made through vouchers. It was further stated that after
artificial breaks the management used to issue him appointment
letters for another 40 days in order to deprive him of the legal
benefits. The workman along with several other workmen protested
against the anti labour practice of the management and
demanded the legal benefits and valid appointment letter. They
were warned on behalf of management not to raise these demands
or to face termination. The workmen, therefore, approached the
Hon'ble High Court for regularisation of their services. Hon'ble High
Court passed an interim order directing the management to
maintain the status quo till disposal of the case. On 30.10.99 the stay
was vacated and the workmen were asked to approach the
appropriate forum for regularisation. On 21.10.99 when the claimant
P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 3
along with some other workmen reported for duty, the
management did not allow the workmen to join duty and told the
claimant that his services stand terminated. No notice was given
prior to termination nor any notice pay and retrenchment
compensation was paid to the workman. Since then the workman is
unemployed.
2 The management in its written statement controverted the
averments of the respondent regarding illegal termination. The
relationship of employer and employee was not disputed but it was averred that the claimant was never a regular employee. He was appointed as handy man on daily-wage basis from time to time. It was stated that the workman was engaged as assistant cook on temporary basis from 01.11.1992 to 10.12.1992 for a period of 40 days and he was engaged for fixed durations thereafter as per details given below and depending on exigencies of work.
Period Duration
From 01.11.92 to 10.12.92 40 days
From 25.09.93 to 03.11.93 40 days
From 27.11.93 to 05.01.94 40 days
From 15.02.94 to 26.03.94 40 days
From 14.08.95 to 22.09.95 40 days
From 16.11.95 to 25.12.92 40 days
From 05.01.96 to 22.10.2000 40 days
P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 4
The filing of case before Hon'ble High Court was admitted but all other averments of the claimant were denied by the respondent.
3 In rejoinder, the claimant controverted the contentions of the management and reaffirmed his own submissions. On the pleadings of the parties, following issue was framed by the ld. predecessor on 20.10.2003 :-
1) As per terms of reference.
4 The workman tendered himself as WW-1. He also examined one more witness from ESIC as WW2. The management on the other hand examined one Sh. Ashok Vashisth as MW-1.
Evidence was closed. written final arguments were filed by the parties. Oral arguments were also advanced by both the sides. 5 I have carefully considered the matter and gone through the records. I have also perused the entire case law relied upon by both the sides.
My findings on the above issue are as follows:-
P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 5
ISSUE NO.1 From the above narration of averments of the parties, it is apparent that the management does not dispute that the claimant was working with it as assistant cook since 01.11.1992. It is also not disputed that the services of the workman stood ceased after 22.10.2000. Likewise workman also does not deny that on his first appointment as assistant cook, he was issued appointment letter as a purely temporary employee for a fixed duration of 40 days and that after expiry of the said period the fresh appointments were granted again for 40 days on his fresh applications for the said post.
The main bone of contention between the parties is though discontinuation of service of the claimant after 22.10.2000, however the workman has also contended that his initial appointment with the management was on 21.01.1982 as handy man which is not admitted by the management. The crux of the defence raised by the management is that the claimant was only a casual employee appointed as assistant cook on temporary basis from 01.11.1992 to 10.12.1992 for a period of 40 days and that he was given similar subsequent appointments intermittently as per requirement till 20.10.2000. The workman labels this as an unfair labour practice adopted by the management to deny the legal benefits to the P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 6 employees. On the contrary, the management claims that it is engaged in the business of providing catering services to on flight air passengers on contract basis for a particular period. Therefore, on award of contract, it has to engage temporary/casual workers as per exigencies of work as the award of contract is never a certain fact.
On these premises, I shall proceed to deal with the controversy in hand. So far as engagement of the claimant by the management since 21.01.1982 as handy man is concerned, though it is denied by the management but the records speak otherwise. Even the management in preliminary objection no.1 of the written statement admits that the workman was engaged as handy man purely on casual/daily-wages basis. So it is admitted that the claimant at one or other point of time was engaged by management as handy man. Now the applications of the workman and the letters of the management for appointment to the post of assistant cook in 1992 are relevant. These applications and appointment orders have been proved by MW1 in his evidence as exhibits MW1/44 to MW1/53. In every application the workman has stated that he has been working as casual handy man with the management for the last twelve years. All the appointment letters have been issued on the basis of these applications. In none of the P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 7 letters, the management has challenged this statement of the workman. Further, the workman has through WW2, UDC, ESIC branch proved his ESIC record to show that he was given ESIC number w.e.f. 21.01.1982 and the same number is reflected as workman's ESIC number in the documents produced by the management as Ex.MW1/30 to Ex.MW1/39. Even MW1 in his cross- examination did not deny this fact. From these documents it is apparent that the workman was engaged by the management as handy man since 21.01.1982 on temporary basis. Though he has tried to convass that he was working regularly since 21.01.1982 with the management but he has failed to produce any evidence to substantiate this contention. In his own applications for appointment as assistant cook, he has himself written that he had worked only on casual basis as a temporary employee. Even otherwise in my considered opinion the appointment of the claimant in 1992 as assistant cook was not his promotion by the management based on his performance as claimed by him but was the fresh appointment to the post of assistant cook independent of his previous work. This is gathered from his application Ex.MW1/44 wherein he has written that he has come to know about vacancies for the post of assistant cook (temporary) with the management and that he was applying for the same. On this application he was issued appointment letter, P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 8 Ex.MW1/45 dated 30.10.1992 clearly stipulating that appointment was purely temporary for 40 days and his services could be terminated without any notice or reason by the management and that the workman was also at liberty to leave the service at any time without any notice or reason. On the bottom of the letter the workman has appended his signatures with his eyes open, accepting all these terms and conditions without any reservation. His subsequent applications and the corresponding appointment letters are exactly same. Even today the workman does not dispute that he was always appointed on temporary basis. AR for workman has claimed that he was given artificial ten days breaks so as to deny him the legal benefits of a regular employee and that even during those ten days, he was made to work with the payment being given through vouchers. No such vouchers have been produced or proved on record. In fact, the MW1 has categorically deposed that there were no artificial breaks of ten days and the workman was engaged as per the exigencies of work to meet the urgent requirements. He clarified that after 10.12.92, the workman was engaged on 25.09.93 to 03.11.93 i.e. after a gap of nine months. Similarly after 26.03.94, he was engaged on 14.08.95 i.e. after about five months. In cross- examination of MW1 this part of his testimony was not challenged at all. It was not suggested that the workman P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 9 was always appointed immediately after expiry of ten days nor any such appointment letters showing artificial breaks of ten days have been produced in evidence. The management on the other hand, has proved various contract letters in its favour by the air lines to show that the contracts were not certain or regular. These documents are also not rebutted in evidence. Similarly management has produced the ESIC returns filed by it with the department from 01.10.1996 to 31.03.2000 showing the number of days the claimant has worked in a particular period. These documents are also not challenged by the workman in evidence as forged or fabricated. None of these documents show that he was given artificial breaks of ten days after every fourty days. Likewise the uncontroverted copies of wages registers proved as Ex.MW1/18 to MW1/29, negate the claim of the workman. The claimant has though alleged that such repeated temporary appointments amounted to unfair labour practices but he has no where claimed that such appointments were against any rules governing management. In the case of 'Regional Manager, SBI vs. Raja Ram'. Hon'ble Supreme Court has laid down that short term appointments per se are not illegal and unfair labour practice except when they are with artificial breaks solely with the view to deprive the workman P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 10 of the status and privileges of permanent workman.
In a recent judgment, in case of 'Punjab SEB vs. Darbara Singh (2006) 1SCC 121'. It was held that the conditional appointment for a specific period does not attract conditions laid down in section 25F. Same was the view of the court in case of 'Kishore Chandra Samal vs. Orissa State Cashew Development Corporation Ltd. (2006) 1SCC 253'.
In a latest case of 'Gangadhar Pillai vs. Siemens Ltd. 2007 (1) LLL 139', the workman was initially appointed in 1978 on temporary basis and he continued so with intervals till 10.05.2000. Hon'ble Apex Court held that act of employer in terminating services of such employee cannot amount to unfair labour practice. It would come within purview of section 2 (oo) (bb). Same was the view of the court in 'Municipal Council Samrala vs. Rajkumar (2006) 3SCC 81'.
I am afraid that the case law relied upon by AR for claimant viz. 'Sriram Industrial Enterprises Ltd. vs. Mahak Singh & Ors (2007) 1 Supreme Court Cases (L&S) 961' and 'Kanya Junior High School, Bal Vidya Mandir, ETAH, U.P. vs. U.P. Basic Shiksha Parishad, Allahabad, U.P. & Ors. (2007) 1 Supreme Court Cases (L&S) 971' are P.K. RAMESH VS. M/S CHEFAIR FLIGHT CATERING 11 not applicable being distinguishable on facts.
In circumstances, I am of the view that the services of the workman ceased on expiry of his temporary appointment period and it does not amount to retrenchment as it is squarely covered under section 2 (oo) (bb) of Industrial Disputes Act. Therefore, there is no question of illegal termination or unjustifiable termination by the management. The issue is decided in favour of management and against the workman.
In view of my findings on the above issue, the workman is not entitled to any relief or directions in this reference. The reference is answered accordingly. Copies of the award be sent to the appropriate government for publication as per law after necessary compliance by Ahlmad. File be consigned to record room.
Announced in the open court (MAMTA TAYAL)
on 26th September, 2007 PRESIDING OFFICER LABOUR COURT-I
KARKARDOOMA COURTS, DELHI
(SIX COPIES ATTACHED)