Delhi District Court
Industrial Dispute Between : vs M/S. All India Institute Of Medical ... on 27 March, 2014
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER, LABOUR COURT
KARKARDOOMA CO URTS, DELHI.
ID No. 542/10
INDUSTRIAL DISPUTE BETWEEN :
Sh. Omprakash S/o. Sh. Bihari Lal,
R/o. RZ421, Street No. 4,
Palam Colony, Sadh Nagar,
New Delhi : 45.
........Workman
Versus
M/s. All India Institute of Medical Science,
Ansari Nagar,
New Delhi.
......Management
DATE OF INSTITUTION :17.11.2009
th
DATE OF AWARD : 27 March, 2014
1. The Secretary (Labour), Government of NCT of
Delhi vide its order No. F24 (23)/Lab./SD/2008/10759
dated 16.11.2009 referred an industrial dispute between the
ID No. 542/10 Omparkash vs. AIIMS Page no. 1 out of 36
above mentioned parties to the Labour Court with the following
terms of reference:
"Whether Shri Omparkash S/o. Sh.
Bihari Lal abandoned his job on his
own or his services have been
terminated illegally and/or
unjustifiably by the management; and
if yes, to what relief is he entitled and
what directions are necessary in this
respect?"
2 The brief facts as stated in the statement of claim
filed by the workman is that he was working with the
management w.e.f. 1.07.1990 as Nursing /Peon at the monthly
salary of Rs. 1600/ per month. He was not given any
appointment letter at the time of appointment and was not
provided legal facilities like weekly and festival off, bonus,
overtime etc.. the management were taking work from the
workman for 12 hours and were being paid wages only for eight
hours. They obtained signatures of the workman on blank papers
vouchers etc. which they were misusing against the workman.
The workman continued to demand legal facilities due to which
the management got annoyed and pressurising him to resign and
ID No. 542/10 Omparkash vs. AIIMS Page no. 2 out of 36
on 1.4.95 he was removed from the service illegally. The
workman has filed a complaint before labour department and
labour inspector on 1.4.95 went to the management office but
management refused to take him on job. Therefore, he filed a
complaint before conciliation officer and conciliation officer
issued notice but nobody appeared on behalf of the management.
Hence, dispute was referred to this court. The workman prays for
his reinstatement with complete back wages and other
consequential benefits.
3 The management filed the written statement and
taken the preliminary following preliminary objection :
i) that reference sent by the State Government is not
maintainable as appropriate govt. is central
government hence liable to be rejected.
ii) that claimant was lastly worked up to 31.3.95
and claim has been filed before the labour
commissioner on or after 14.6.07 therefore, he
raised the dispute after about 12 year as such same
suffers from delay and latches.
iii) that the claimant filed writ petition WP (C) 40/02
ID No. 542/10 Omparkash vs. AIIMS Page no. 3 out of 36
challenging the termination and said writ petition
was dismissed on 7.1.2005 and workman filed SLP
before the Supreme Court which was also dismissed.
Hence, the claim is barred by provision of res
judicata.
iv) that the AIIMS is not an industry therefore
provision of industrial dispute act are not applicable.
v) The claimant has not completed 240 days in a
calender year therefore there is no retrenchment.
On merits all the contents of the statement of claim
are denied. It is denied that claimant is working with the
management on post of Nursing orderly/Peon w.ef. 1.7.90 on
monthly salary of Rs. 1600 p.m. but it is stated that he was
engaged against the leave vacancy for a short period on daily
wages and the claimant was paid wages for a day the period he
worked is as under :
Period Days
1.1.90 to 30.9.90 59
1.11.90 to 31.12.90 36
1.1.91 to 30.6.91 70
ID No. 542/10 Omparkash vs. AIIMS Page no. 4 out of 36
4.4.91 to 30.6.91 67
1.9.91 to 30.9.91 27
1.4.92 to 31.7.92 98
1.10.93 to 31.12.93 81
1.1.95 to 31.3.95 80
Further it is denied that the claimant worked for 12
hours but was paid only for 8 hours or that the management had
obtained the signatures of the workman on blank papers and
vouchers which were misused by the management. Further it is
denied that claimant ever demanded legal facilities or
management given assurance for the legal facilities and it is
stated that the said allegations are false and frivolous. It is also
denied that management since claimant was demanding facilities
therfore management got annoyed and presurrized him to resign
and terminated the services on 1.4.95. It is stated that the
claimant was engaged for a short period due to leave vacancy
and same was very much in the knowledge of the claimant and he
had himself left the job after his engagement was over. Further,
it is stated that the claimant was gainfully employed since 1.4.95
and which is evident that he raised the dispute after 12 years of
ID No. 542/10 Omparkash vs. AIIMS Page no. 5 out of 36
his alleged termination.
4 Rejoinder to the written statement was filed by the
workman in which he has reiterated the contents of the statement
of claim as true and correct and denied the averments made in the
written statement as incorrect.
5 Vide order dated 9.8.11 the following issues have
been framed :
1. Whether no dispute was
existed between the
management and claimant as
raised in the aforesaid dispute
after twelve years and same has
been suffer from delay and
latches?OPM
2. Whether the claimant is entitled
for relief as claimed ?OPW
3. Relief.
Further on 22.3.03 an additional issue was framed
"whether the management is an Industry".
6 Further vide order dated 27.9.12 issues were
amended and it has been decided that now the issues will be as
under :
ID No. 542/10 Omparkash vs. AIIMS Page no. 6 out of 36
1. The claim of the workman is
suffered from delay and
latches? OPM
2. In terms of reference. OPW
3. Whether the claim of the
workman is barred by Res
judicata?OPM
4. Whether the reference made
by the appropriate government
is bad in law ? OPM
5. Relief
7 In order to prove his case, the workman has
examined himself as WW1 and led his evidence through an
affidavit vide Ex. WW1/A and also relied upon documents Ex.
WW1/1 to Ex. WW1/24. He was cross examined by AR for the
management at length.
8 On the other hand, the management has examined
SK Aggarwal as MW1 has gave evidence thorugh an affidavit
vide Ex. MW1/A and also relied upon documents Ex. MW1/1.
9 After conclusion of the evidence, I have heard the
arguments from Sh. R.S. Kansotia AR for the workman and Sh.
ID No. 542/10 Omparkash vs. AIIMS Page no. 7 out of 36
Sudhir Gupta AR for the management.
10 I have considered the submission of the parties and
also gone through the material on record.
11 Though by subsequent issues framed on 27.09. 12
issue whether management is an industry or not is not framed but
since said issue has been raised in written statement and argued it
would be appropriate to decide the same.
12 The management had to prove that the management
establishment is not covered under the definition of 'industry' as
mentioned in section 2(j) of the Act. The Ld. counsel for the
management referred to the statement of objects and reasons of
the All India Institute of Medical Sciences Act, 1956 and argued
that in view of the rulings of Hon'ble Supreme Court and
Hon'ble High Courts, the management which is a research
institutecumhospital is not covered under the definition of
'industry' as mentioned in section 2(j) of the Act as management
is charging only for the goods/medicines supplied to the patient
as per the actual charge and whereas all the other service like
consultation by the doctors, diagnose etc. are free. He further
relied on cases reported as (i) Physical Research Laboratory vs.
ID No. 542/10 Omparkash vs. AIIMS Page no. 8 out of 36
K.G.Sharma, AIR 1997 SC 1855; (ii) State of Gujarat and ors. vs.
Pratamsingh Narsinh Parmar, JT (2001) 3, SC 326; (iii) State of
U.P. vs. Jaibeer Singh, 2005(4) SCALE 696; (iv) Management of
Safdar Jung Hospital vs. Kuldeep Singh Sethi, AIR 1970 SC
1407.
13 On the other hand, it has been argued on behalf of
the workman that the management is covered under the definition
of an 'industry' as laid down in Bangalore Water Supply and
Sewage vs. A. Rajjappa, AIR 1997 SCC 548.
14 In case of Physical Research Laboratory v. K.G.
Sharma, (supra) a question that arises for consideration was
whether Physical Research Laboratory (for short `PRL'), is an
`industry' within the meaning of Section 2(j) of the Industrial
Disputes Act. The Supreme Court observed:
"It is nobody's case that PRL is engaged in
an activity which can be called business,
trade or manufacture. Neither from the
nature of its organisation nor from the
nature and character of the activity carried
on by it, it can be said to be an
`undertaking' analogous to business or
trade. It is not engaged in a commercial
industrial activity and it cannot be
described as an economic venture or a
commercial enterprise as it is not its object
to produce and distribute services which
ID No. 542/10 Omparkash vs. AIIMS Page no. 9 out of 36
would satisfy wants and needs of the
consumer community. It is more an
institution discharging Governmental
functions and a domestic enterprise than a
commercial enterprise. We are, therefore, of
the opinion that PRL is not an industry even
though it is carrying on the activity of
research in a systematic manner with the
help of its employees as it lacks that element
which would make it an organization
carrying on an activity which can be said to
be analogous to the carrying on of a trade
or business because it is not producing and
distributing services which are intended or
meant for satisfying human wants and
needs, as ordinarily understood.
In case of Executive Engineer (State of Karnataka)
v. K. Somasetty, (supra), the Apex Court has observed:
"3. It is now well settled legal position that
the Irrigation Department and Tele
communication Department are not an
`Industry' within the meaning of definition
under the Industrial Disputes Act as held in
Union of India v. Jai Narayan Singh, 1995
Supp. (4) 672 and in State of H.P. v.
Suresh Kumar Verma, JT 1996(2) 455. The
function of public welfare of the State is a
sovereign function. It is the constitutional
mandate under the Directive Principles, that
the Government should bring about welfare
State by all executive and legislative
actions. Under these circumstances, the
State is not an `Industry' under the
Industrial Disputes Act. Even otherwise,
since the Project has been closed, the
respondent has no right to the post since he
had been appointed on daily wages."
ID No. 542/10 Omparkash vs. AIIMS Page no. 10 out of 36 In case of State of Gujarat v. Pratamsing Narsinh Parmar, (supra) the question for consideration in that appeal was, whether the Forest Department in the State of Gujarat wherein the respondent was appointed as a 'Clerk' can be held to be "an industry" within the meaning of the said expression under the Industrial Disputes Act. The Supreme Court observed:
"5. If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes "an industry". Ordinarily, a Department of the Government cannot be held to be an industry and rather it is a part of the sovereign function. To find out whether the respondent in the writ petition had made any assertion that with regard to the duty which he was discharging and with regard to the activities of the organisation where he had been recruited, we find that there has not been an iota of assertion to that effect though, no doubt, it has been contended that the order of dismissal is vitiated for non compliance of Section 25F of the Act. The State in its counter affidavit, on the other hand, refuted the assertion of the respondent in the writ petition and took the positive stand that the Forest Department cannot be held to be an industry so that the provisions of Section 25F of the Act cannot have any application. In the absence of any assertion by the petitioner in the writ ID No. 542/10 Omparkash vs. AIIMS Page no. 11 out of 36 petition indicating the nature of duty discharged by the petitioner as well as the job of the establishment where he had been recruited, the High Court wholly erred in law in applying the principles enunicated in the judgment of this Court in Jagannath Maruti Kondhare (supra) to hold that the Forest Department could be held to be "an industry".
6. The learned Single Judge as well as the Division Bench of the High Court have failed to carefully examine the ratio of this Court's judgment in the Jagannath Maruti Kondhare's case (supra), inasmuch as in para 15 of the said judgment, the Court has quoted the assertions made in the affidavit of the Chief Conservator of Forests and then in para 17, the Court held that the scheme undertaken cannot be regarded as a part of the sovereign function of the State. We are afraid that the aforesaid decision cannot have any application to the facts of the present case where there has not been any assertion of fact by the petitioner in establishing that the establishment to which he had been appointed is "an industry". In this view of the matter, we have no hesitation to come to the conclusion that the learned Single Judge as well as the Division Bench committed serious error of law in holding that to the appointment in question, the provisions of the Act apply. We would accordingly set aside the judgment of the Division Bench as well as that of the learned Single Judge and hold that the writ petition would stand dismissed."
15 In case of Bharat Bhawan Trust v. Bharat Bhawan ID No. 542/10 Omparkash vs. AIIMS Page no. 12 out of 36 Artists Association, (supra), the Apex Court Observed:
"8. The Bharat Bhawan Trust, as is clear from its objects, to which we have adverted to earlier, is engaged only in the promotion of art and preservation of artistic talent. Such activities are not one of those in which there can be large scale of production to involve the cooperation of efforts of the employer and the employee nor can it be said that the production of the plays will be a systematic activity to result in some kind of service. Therefore, it is doubtful, in spite of the wide connotation given to `industry' in BWSSB v. A. Rajappa's case [supra], if the appellant can be classed as an `industry' under the definition given under Section 2(j) of the ID Act and we need not finally decide this aspect in the present case.
The aforesaid rulings lay down the broad principles for deciding whether an institution is covered under the definition of 'industry' or not? In AIIMS v. Raj Singh, (Delhi), 2007(4) S.C.T. 658, wherein the High Court of Delhi observed:
12. So far as the first issue raised by the Institute to the effect that it is not an "
industry " within the meaning of the Act, and, therefore, neither could the workman raise an industrial dispute, nor could the Labour Court entertain the same for want of jurisdiction is concerned, the same is devoid of merits. Undoubtedly, the threeJudge bench of the Supreme Court in the case of Jai Bir Singh (2005 Lab IC 2092) (supra) has shown its inclination towards the law that was laid down in the Safdarjung ID No. 542/10 Omparkash vs. AIIMS Page no. 13 out of 36 Hospital case (1970 Lab IC 1170) (supra), wherein it was held that "hospital" is not an industry within the meaning of the Act, and accordingly referred the case of Bangalore Water Supply case (1978 Lab IC 467) (supra) which laid down a very wide definition of the term " industry " so as to bring hospitals also within the ambit of the Act, to a larger bench of the Supreme Court, however, in the absence of any stay imposed on the operation of the judgment in Bangalore Water Supply case, the same does not lose its precedential value and still holds the field. As a result, the Labour Court, as also this Court as on date, is bound by the law laid dawn therein. In view thereof, the Labour Court cannot be faulted in holding that Institute is an " industry "
within the meaning of the Act."
(Emphasis added) 16 In A.I.I.M.S. v. Raj Singh , (Delhi) 2009(1) L.L.J. 499 the Delhi High court observed:
"7. It was submitted by Mr. Mukul Gupta, learned counsel for the appellant that the correctness of the decision of the Constitution Bench in the Bangalore Water Supply and Sewerage Board has been referred to a larger Bench of the Supreme Court and therefore, this Court should await the judgment of the larger Bench before deciding the present case. We are unable to accept this submission. The law declared in Bangalore Water Supply and Sewerage Board continues to be binding. This Court has to apply the law as it prevails. The reliance placed upon the decision of the Supreme Court in Physical Research Laboratory v. K.G. Sharma, 1997(2) SCT ID No. 542/10 Omparkash vs. AIIMS Page no. 14 out of 36 492 : (1997) 4 SCC 257 is misconceived for the simple reason that the AIIMS does not cease to be a hospital merely because research is also carried on therein.
Applying the law as explained in Bangalore Water Supply and Sewerage Board, AIIMS has to be held to be an industry within the meaning of the ID Act."*** As regards the plea that management is not an industry , the law is well settled. It was held long back by Constitution Bench of the Hon'ble Supreme Court in Bangalore Water Supply v. A. Rajappa, 1978(2) SCC 213 that hospital, research institutes and training centre render valuable material services to the community qualifying for coming within Section 2(J) of Industrial Disputes Act. The same was followed in Dr. V.P. Chaturvedi and Others v. Union of India , reported as 1992(2) SCT 175 :
(1991)4 SCC 171 and V.L. Chandra and Others v. AIIMS and Others, reported as (1990)3 SCC 381. In view of the said authorities pronouncing I have no hesitation in holding that the management is an industry ."
The next argument of the learned counsel is that the petitioner being All India Institute of Medical Sciences is not an industry within the meaning of clause (j) of Section 2 of the Act and, therefore, the proceedings were void, ab initio. The contention is that the petitioner carries on public welfare activities and is, therefore, outside the scope of industry . This argument too cannot be accepted. The question whether the petitioner is an industry or not depends upon the nature of activities undertaken by it and no evidence in this regard has been led before the Labour Court. On the other ID No. 542/10 Omparkash vs. AIIMS Page no. 15 out of 36 hand, it was conceded before the Labour Court that the petitioner is an industry and, therefore, it is not open to the learned counsel to contend to the contrary before us for the first time.***"
The cases referred to by the Ld. Counsel for the management deals only the broad principles for deciding whether any institution is an industry or not? In both the cases titled as A.I.I.M.S. v. Raj Singh (supra) in which one of the party was the management itself, it has been held that 'All India Institute of Medical Science (Hospital)' is an 'industry'.
The findings on the issues are as under : ISSUE NO. 1 " The claim of the workman is suffered from delay and latches?
16 As per the statement of claim/testimony of workman the services of the workman have been terminated on 1.4.95. The workman in his cross examination has admitted that he has not filed any case before any authority or court with regard to the alleged termination after March, 1995 till August, 2002 thus he admitted that first time he raised the dispute for his alleged termination after more than seven years.
ID No. 542/10 Omparkash vs. AIIMS Page no. 16 out of 36 The workman has not given in his claim petition as well as evidence on which date he has filed the complaint before Labour Commissioner though he had stated that in para 6 of the affidavit that he has given an application on 10.5.07, 30.5.07 to the management for taking him back on duty which means he has filed a complaint before the Labour Commissioner for reinstatement only after may 2007 which has been referred by the Labour Commissioner in on 16.11.2009 to this court. Thus, I presume that he has filed the case in the year 2007 there is delay of 12 years in filing the claim before labour department. The workman has given no reason why he has raised the dispute after such a long period. Though answer to this question is given by the management itself by saying that workman had filed a writ petition NO. 42/02 in the Hon'ble High Court against illegal termination. No date is given by the management when when the said writ petition was filed by the workman but from the copy of writ petition WP (C) No. 40/02 WW1/M2 I found that it bears the date of 28.8.01 and affidavit filed alongwith writ petition it bears the date of 29.08.2001 whereas writ petition bears the no.
40/2002 hence same might have been filed in year 200102 2002.
ID No. 542/10 Omparkash vs. AIIMS Page no. 17 out of 36 Hence, even writ petition has been filed almost after more than six years from the date of termination though from writ petition it is evident that he has not challenged the termination being illegal but he has challenged dismissal of his application for re engagement being over age. Hence first time he challenged his termination in the year 2007 i.e. after 12 years. The workman was not a permanent employee but a daily wager and if daily wager approach the court after so many years before the labour court or even if I take the date from filing of writ petition than after six years therefore in these circumstances he is not entitle to relief on ground of delay and latches. In Ramesh Kumar Vs. Delhi Jal Board 2012 LLR 713 wherein it is observed that :
"..........unexplained delay of 61/2 years in raising an industrial dispute by the workman may disentitle him from any relief by the industrial tribunal...."
In Nedungadi Bank Ltd. v. KP Madhavakutty and Others AIR 2000 SC 839 : 2000 LLR 340 wherein it is observed that:
"......Delay of 7 years was held to be fatal an disentitled the workman to relief...."
Similar view was reiterated in SM Nilajkar and ID No. 542/10 Omparkash vs. AIIMS Page no. 18 out of 36 Others vs. Telecom District Manager, Karnakaka, 2003 (4) SCC 27 : 2003 LLR 470 (SC). Relying upon above said authorities our Hon'ble High Court in Satbir Singh vs. Management of Suptd. Engineer and Others 2007 LLR (SN) 659 (Del HC) : 138 (2007) DLT 528 (DHC) has held that :
".......inordinate and unexplained delay in raising industrial dispute world defeat the rights of the workman and would disentitle him to any relief."
17 Hence, I hold that the claim of the workman is barred by delay and latches and he is not entitled for any relief. ISSUE NO. 3
"Whether the claim of the workman is barred by Res judicata?OPM"
18 It is contented by the AR for the management that workman has filed a writ petition WP (C) 40/02 EXWW1/M2 before the High Court seeking reinstatement and Hon.ble Justice Vikramjit Sain vide order dated 7.1.05 EXWW1/M3 dismissed the said writ petition on merit by saying that " workman was daily wager appointed against leave vacancy, ID No. 542/10 Omparkash vs. AIIMS Page no. 19 out of 36 therefore, the intervention of the court in service matter whether the employer is using the service of a person in such a manner as to thwart the rights of permanent regular employment. Hence, the present petition which is also filed on the same ground seeking reinstatement is barred by principle of resjudicata and same is liable to be rejected.
19 The workman in his cross examination has admitted that he has filed the said writ petition Ex. WW1/M2 and same was dismissed vide order dated 7.1.05 Ex. WW1/M2. Ld. AR for the management further contended that the said order has been confirmed by the Hon'ble Supreme Court in SLP. Though copy of order of Supreme Court has not been placed on record by the management but it has been admitted by Ld. AR for workman that their appeal has been dismissed by Supreme Court. Hence it is proved that workman has filed the writ petition seeking reinstatement and same is dismissed by High Court and Supreme Court.
The principal of Resjudicata is defined in section 11 of CPC which is as under:
11. Res judicata. No court shall try any suit ID No. 542/10 Omparkash vs. AIIMS Page no. 20 out of 36 or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
The principal of Res judicata is based on the need of giving finality to a judicial decision. Res judicata applies when same subject matter between the same parties or litigating under the same title has been raised and heard and finally decided on merit previously by a competent court.
20 Undoubtedly aforementioned writ petition has been filed by workman against the management hence parties are same. On perusal of the writ petition Ex. WW1/M2 it is evident that Workman has filed the said writ petition challenging his application by management seeking temporary status and re engagement of his service as casual labour vide order dt. 20.12. 2000 and 08.08.200 and decision of the management not to give age relaxation for the period of his employment. In para 2 of the writ petition he has stated that he last worked for management on ID No. 542/10 Omparkash vs. AIIMS Page no. 21 out of 36 31.03.1995 and management vide oral order dt 01.04.1995 has refused to allow duty and in para 3 he has stated that his representation for his service as casual labour as well as grant of temporary service was rejected by citing that he is over age and he was not given age relaxation for the period which was rendered by him i.e. 885 days.
21 Hence, from perusal of the writ petition it is evident that subject matter in the said writ petition was not termination but rejection of his application for reengagement on the ground of refusing to give age relaxation and not regularizing him. Therefore, in my view subject matter of both the present petitions and writ petition are not same though the parties are same. Hence, in my view case is not barred by the principles of resjudicata.
ISSUE NO. 4
"Whether the reference made by the appropriate government is bad in law ? OPM"
22 It is contended by the Ld. AR for the management that AIIMS i.e. management is a government institute established ID No. 542/10 Omparkash vs. AIIMS Page no. 22 out of 36 by Central Government through Parliament Act and as per section 2 A of the Industrial Dispute Act the appropriate Government in case of industry run by Central Government is Central Government whereas present reference has been sent by Labour Commissioner NCT Of Delhi who is not authorized to refer the dispute. Hence, this court has no jurisdiction to entertain this petition hence same is liable to be dismissed. In support of its contention the ld. AR for the management relied upon judgement Standing Conference of Public Enterprises vs. Government of NCT of Delhi and Anr. MANU/DE/9654/2006 in WP (C) No. 1782/2004.
23 On the other hand, Ld. AR for the workman contended that since Delhi is a union territory, hence this court has jurisdiction to decide this case. I have considered the arguments.
24 The onus to prove this issue is on the management. Ld. AR for management submitted that management is an government institution for research in medical field established by Central Government by the All India Institute of Medical Sciences Act,1956 passed by Parliament, thus appropriate ID No. 542/10 Omparkash vs. AIIMS Page no. 23 out of 36 government as defined under section 2 (a) of the I.D.Act 1947 is Central Government, therefore, this court has no jurisdiction to decide this claim.
25 It is not disputed by the workman that management is an institution established by Central Government work. As per section 2(a) of the I.D. Act Central Government is the appropriate authority for industry established by Central Government and hence State Government has no juruisdiction to send dispute if it pertain to industry established by Central Government. Section 2
(a) of ID Act is reproduced as under :
(a) " appropriate Government" means (i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute concerning. This Act has been extended to Goa, Daman and Diu by Reg. 12 of 1962, to Pondicherry (w. e. f. 1 10 1963 ) by Reg. 7 of 1963 and Laccadive, Minicoy and Amindivi Islands by Reg. 8 of 1965, s. 3 and Sch. 2. Subs. by Act 36 of 1956, s. 2, for the former sub section (w. e. f. 29 8 1956 ). 3. Proviso omitted by Act 51 of 1970, s. 2 and Sch. (w. e. f. 1 9 1971 ). 4. Certain words and figures inserted by Act 10 of 1963, s. 47 and Sch. II, Pt. II have been omitted by Act 36 of 1964, s. 2 (w. e. f. 19 12 1964 ). 5. The words" by the Federal Railway Authority" omitted by the A. O. 1948. 6. Ins. by Act 65 of 1951, s. 32. 7. The words" operating a Federal Railway"
omitted by the A. O. 1950. 8. Ins. by Act 47 of 1961, s. 51 and Sch. II, Pt. III (w. e. f. 1 1 1962 ). 9. Subs. by Act 36 of 1964, s. 2, for" the Deposit Insurance Corporation ID No. 542/10 Omparkash vs. AIIMS Page no. 24 out of 36 established" (w. e. f. 19 12 1964 ). 10. Subs. by Act 45 of 1971, s. 2 (w. e. f. 15 12 1971 ).
[ a Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1940 ), or the Industrial Finance Corporation of India established under section 3 of the Industrial Finance Corporation Act, 1948 (15 of 1948 ), or the Employees' State Insurance Corporation established under section 3 of the Employees' State Insurance Act, 1948 (34 of 1948 ), or the Board of Trustees constituted under section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948 ), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5A and section 5B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952 ), or the"
Indian Airlines" and" Air India" Corporations established under section 3 of the Air Corporations Act, 1953 (27 of 1953 ), or the Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956 ), or the Oil and Natural Gas Commission established under section 3 of the Oil and Natural Gas Commission Act, 1959 (43 of 1959 ), or the Deposit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961 ), or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962 ), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963 ), or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16, of the Food Corporations Act, 1964 (37 of 1964 ), or the International Airports Authority of India constituted under section 3 of the International Airports Authority of India Act, 1971 (48 of 1971 ), or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976 ), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India 2[ [ the National Housing Bank established under section 3 of the National Housing Bnak Act, 1987 (53 of 1987 ) or] 3[ a banking or an insurance company, a mine, an oil field] 4[ , a ID No. 542/10 Omparkash vs. AIIMS Page no. 25 out of 36 Cantonment Board,] or a major port, the Central Government, and
(ii) in relation to any other industrial dispute, the State Government;
26 Hence, for the purpose of Central Government Industry the appropriate government is Central Government but question of Delhi is different Delhi is not a State but it is a union territory and in union territory the power of the Central Government is exercised by the administrator i.e. Leftinent Governer as per article 239 A of the Constitution. Hence, the labour Commissioner will be a competent authority to refer the dispute.
The Hon'ble High Court in Apparel Export Promotion Counsel vs The P.O. Indul.Tribunal no.1 and others MANU/DE/0664/2002 dismissed the writ petition challenging the decision of Labour Tribunal that since management is an organization established by the Central Government hence appropriate Govt. to refer dispute is central government. The High Court where while relying upon the judgement of MCD vs. MCD vs. Mahavir and Ors. The relevant para no. 6 of the judgement is reproduced as under :
ID No. 542/10 Omparkash vs. AIIMS Page no. 26 out of 36 "6.In Municipal Corporation of Delhi Vs. Mahavir and another (supra) judgment of the learned Single Judge of this Court in NBCC Ltd. Vs. M.K. Jain & Ors. 1981 LAB.
I.C.62 was also taken note of where in paras 6 and 8 of the judgment learned single Judge observed as under:
"The Award was sought to be voided, inter alia, on the ground that by virtue of the constitution and composition of the Corporation, Central Government was the only authority competent to make a reference of the dispute to the industrial court and that the reference by the Lieutenant Governor of Delhi was, therefore, in excess of powers.
"Even otherwise no exception could be taken to the order of reference, even if it be assumed that Central Government was the appropriate Government, inasmuch as the distinction between the Central and the State Governments in relation to the Union Territory in our constitutional framework is rendered illusory. Union Territory is administered by the President of India under Art.239 of the Constitution of India, acting to such extent as he thinks fit, through the Administrator, to be appointed by him. In the case of a Union Territory, there is an amalgamation of the constitutional classification of legislative and executive powers between the Centre and the States. According to Section 3(8) of the General Clauses Act, "Central Government" in relation to the administration of a Union Territory means the Administrator acting within the scope of authority given to him under Article 239 of the Constitution of India and in terms of Section 3(60) of the General Clauses Act, "State Government", as respects anything done or to be done in a Union Territory, means the Central Government. In the case of a Union Territory, therefore, the Central and State Governments merge and it is immaterial whether an order of reference is made by one or the other. This contention must, therefore, fail..........."
. In view of the aforesaid observation it was found that there can be no exception to an order of reference even ifit is assumed that central government is an appropriated government."
ID No. 542/10 Omparkash vs. AIIMS Page no. 27 out of 36 Further in Sports Authority of India vs. Sports Authority of India, Kamgar Union and Ors. MANU/ DE/1245/2004 has dismissed the writ petition by SAI which is an authority established by the Government of India has held in para 9 the said para is reproduced as under :
"9. Lastly, it was contended that Sports Authority of India is a body under the control of Central Government and as such Govt. of Delhi had no jurisdiction to make a reference. The appropriate Government which could exercise the jurisdiction under Section 10(1)(c) of the Act, was the Central Government. It has already been discussed that the petitioner authority is an industry and is under the control of the Union. Full Bench of this Court in the case of Indian Tourism Development Corporation, New Delhi Vs. Delhi Administration and Ors., 1982 (61) FJR 139 clearly enunciated the principle that Lt. Governor or Administration of Union Territory of Delhi would discharge functions and powers of the State Government under the Industrial Disputes Act, 1947 and powers of the kind to make reference stood delegated to the State Government under Section 39 of the Notification. Even earlier to this, this view was followed by a Division Bench of this Court in the case of M/s. Lila Separator Pvt. Ltd. Vs. The Secretary (Labour), Delhi Administration, and Ors., 1981 (43) FLR
170. Reference can also be made to the judgment of this Court in the case of Apparel Export Promotion Council Vs. Presiding Officer, Industrial Tribunal No.1 ID No. 542/10 Omparkash vs. AIIMS Page no. 28 out of 36 and Ors., 2002 (3) LLJ 511......."
So far as the judgement relied upon by the management i.e. Standing Conference of Public Enterprises vs. Government of NCT of Delhi and Anr. MANU/DE/9654/2006 in WP (C) No. 1782/2004 is concerned undoubtedly in this case High court has held that since management is a Central government therefore, appropriate government in this case would be Central Government and reference made by Delhi Government is illegal and beyond jurisdiction but it is settled law that whenever two judgements on the same issue are available then the one which is prior to is be followed. Hence, I while relying upon the aforesaid judgments of Apparel Export and Sport Authority Of India (supra) held that the refernce sent by Labour Commissioner Govt. Of NCT of Delhi is not bad in law. Issue no. 4 decided accordingly.
ISSUE NO. 2.
" As per term of reference"
27 The term of reference is that whether workman abandoned his job on his own or his services has been illegally or unjustifiably terminated by the management. The onus to prove ID No. 542/10 Omparkash vs. AIIMS Page no. 29 out of 36 this issue is upon the workman. The workman in his claim petition has stated that he was terminated illegally by the management on 1.4.95 without any notice whereas the management has in the written statement as well as through the testimony of MW1 has denied that service of the workman was not terminated but since he was appointed for duty against leave vacancy on daily wages he left the service after his engagement was over. The management in the written statement has given the period of service as follows :
Period Days 1.1.90 to 30.9.90 59 1.11.90 to 31.12.90 36 1.1.91 to 30.6.91 70 4.4.91 to 30.6.91 67 1.9.91 to 30.9.91 27 1.4.92 to 31.7.92 98 1.10.93 to 31.12.93 81 1.1.95 to 31.3.95 80 28 Though the workman in the rejoinder has denied the
said chart as incorrect. On perusal of WW1/M3 i.e. order passed ID No. 542/10 Omparkash vs. AIIMS Page no. 30 out of 36 on writ petition his days of working has been mentioned are same as mentioned in the writ petition. Since said order has become final therefore now same cannot be disputed. Hence I found that workman has worked for only 80 days in the year 1995 and he has not worked for any day in the year 1994 hence I am agree with the contention of Ld. AR for management that claimant has not completed 240 days in one calender year prior to his termination therefor he is not entitle to retrenchment compensation as per section 25 of the I. D. Act. 29 Now coming to the next contention of Ld. AR for the management that he was appointed for short duration as daily wager against leave vacancy. The workman in his affidavit Ex. WW1/A has deposed that he was appointed on monthly salary of Rs 1600 per month. From the document relied upon by workman Ex. WW1/1 dated 11.1.92 it is evident that the workman was appointed as Nursing orderly on daily wages w.e.f. 1.7.90 to 31.1.90 to 30.9.90 and 4.10.90 to 31.12.90 and then 1.1.91 to 31.10.91, and then 4.4.91 to 30.6.91, and then 1.8.91 to 30.9.91. Further from the document Ex. WW1/2 it is evident that workman has worked from 11.1.92 till 30.3.92 and from ID No. 542/10 Omparkash vs. AIIMS Page no. 31 out of 36 document Ex. WW1/3 it is evident that he worked for 10.4.12 to 31.7.92, and from document Ex. WW1/4 that he worked from 1.10.93 to 31.10.93 and then 1.1.95 to 31.3.95 on daily wages. Hence, from his testimony also it is established that workman was not a regular employee of the management and was working on daily wages and not against monthly salary as claimed by the workman. Further on perusal of the aforesaid documents I found that there is a big interval in his two assignment. It is not the case where the workman was given artificial break of one or two days it is evident that there are break of more than one year as after 31.12.93 he was engaged on 1.1.95. Workman himself in the crossexamination has admitted that he was appointed at one go for three month only. Hence it is proved that his appointment was for specific period on daily wages and disengagement from work after the expiry of said period would not be a retrenchment in view of section u/s 2(oo) (bb) of the I.D Act. In support of my view I rely upon judgement Kishore Chandra Samal vs Divisional Manager, Orrissa State Cashew Development Corporation Ltd. Dhenkanal AIR 2006 SC36. In this case appellant/workman was appointed as Junior Typist on 12.7.1982. ID No. 542/10 Omparkash vs. AIIMS Page no. 32 out of 36 He continued in the said post for more than one year. Another order was issued appointing him for 44 days with effect from 1.10.1983. On its expiry on 15.11.1983 another appointment order was issued on 5.12.1983 for a fixed period giving effect from 16.11.1983. Thereafter, he was allowed to continue for about 8 months. Later he was appointed on ad hoc basis in the usual scale of pay of Rs.2555285EB730612390/ with effect from 23.7.1985. Thereafter without any rhyme or reason, he was again kept in N.M.R. on payment of Rs.10/ per day for a period of 90 days from 1.12.1985 to 28.2.1986. Thereafter he was allowed to continue from 29.6.1986 to 25.9.1986 and further from 27.9.1986 to 24.12.1986. Thereafter, he was allowed to continue without any break till 11.8.1989. Alleging that refusal of work beyond 11.8.1989 amounting to retrenchment, workman raised industrial dispute. The respondent's case before the Labour Court was that the appellant was working on N.M.R. basis as a Typist with effect from 12.7.1982. He was appointed for a specific period on daily wage basis. On consideration of the representation for further engagement and having regard to the requirement, he was engaged again and again on daily wage basis ID No. 542/10 Omparkash vs. AIIMS Page no. 33 out of 36 for specific period. The last order of appointment on N.M.R. basis was issued to him on 28.4.1989. Thereafter no further extension was given. Thereafter, his service automatically ceased and it is not a case of retrenchment. Labour court held that since workman continued for many year hence held it a case of retrenchment. Whereas High Court allowed the appeal of management. Supreem Court while upholding the decision of High Court held that:
"9.Recently, the question was examined in Batala Co operative Sugar Mills Ltd. v. Sowaran Singh(2005 (7) Supreme 165) Section 2(oo) of the Act reads as follows: "Section 2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include
(a) ......
(b) ......
(bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein"
The decision in S.M. Nilaikar's case (supra) has no application because in that case no period was indicated and only indication was the temporary nature of engagement. In the instant case in all the orders of engagement, specific periods have been mentioned. Therefore, the High Court's order does not suffer from any infirmity."
30 Therefore,I held that even if workman contract was ID No. 542/10 Omparkash vs. AIIMS Page no. 34 out of 36 not renewed by the management after expiry of the contract which was fixed period of three month at a time and he was not given job same would not amount to retrenchment. From the evidence led by Ex. MW1 it is proved that workman was given opportunity to regularize as to other daily wager. The workman applied for the same in year 1997 and was called for interview but he did not appeared thereafter in 1999 again application were called as some vacancy occurred and workman applied however his application was got rejected as he was found over age. Though the workman has denied the said fact in his cross examination and stated that he is not aware that due to over age he was not considered for the post but on perusal of the writ petition filed by the workman Ex.WW1/M2 it is evident that workman himself stated that he should have been given age relaxation of 885 days in para3, hence it is proved that he was not regularize as he was not found fit for regularization due to over age. As stated above the workman claim for regularization was rejected by High Court vide order dt. 07.05.2001 EXWW1/M3. Hence, in these circumstances, I held that his services were not terminated illegally or unjustifiably by the management and same ID No. 542/10 Omparkash vs. AIIMS Page no. 35 out of 36 is not a retrenchment. Further I held that he would not been entitle to any retrenchment compensation even if is considered as retrenchment as he had not completed 240 days in the year prior to his termination. Issue no. 2 decided accordingly.
RELIEF 31 In view of the findings on issue no. 1 and 2 I hold that he workman is not entitled for any relief. Hence the claim filed by the workman does not found any merit and same is hereby dismissed. Reference is answered accordingly. Copy of the award be sent to the Secretary (Labour), Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). File be consigned to record room.
Announced in the Open Court on 27.03.2014 (SANJEEV KUMAR) Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
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