Delhi District Court
Claim Was Filed Under Section 10(2A) Of ... vs Rakesh Kumar 2006 Llr on 1 December, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
I.D. NO.898/2006
Date of Institution: 10.10.2005
Award reserved on: 22.11.2007
Date of Award : 1.12.2007
BETWEEN
SH. SHAILENDER S/O SH. RAM PRASAD R/O A-72/5, VIR SINGH
COLONY, BUDH VIHAR, PHASE-II, NEW DELHI-41.
C/O HINDUSTAN ENGINEERING & GENERAL MAZDOOR
UNION, C-49, NEW MOTI NAGAR, NEW DELHI-15.
AND
MANAGEMENT OF
1. M/S NORTH DELHI POWER LTD. HUDSON LINE, KINGSWAY
CAMP, DELHI.
2. T. P. SINGH
M/s SWEKA POWER TECH ENGINEERS PVT. LTD., D-16/322,
ROHINI, SECTOR-3, DELHI.
AWARD
1. Claim was filed under section 10(2A) of the Industrial
Disputes Act, 1947 (hereinafter called the Act) by the claimant
pleading therein following averments :
He worked with the management as 'Helper' for the last 2
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years and his last drawn wages were Rs.2863/- per month. He never
gave any cause of complaint to the management. Management did not
maintain his service record nor provided any legal facilities to him.
He was not given appointment letter. He was not given benefit of
ESI & Provident Fund Contribution, bonus, overtime allowance etc.
Management obtained his signatures on blank vouchers and stamped
papers. He complained to the SHO PS Prashant Vihar against the
management on 5.7.05. Consequently management got engaged and
terminated his services on 01.08.2005 without any notice or payment
which is violative of section 25 F of the Act.
2. He sent a demand notice to the management through his
union on 20.09.2005. He also complained to the Assistant Labour
Commissioner on 4.8.05. Management refused to reinstated him.
Claimant is unemployed since the date of termination of his services.
He has prayed for his reinstatement with full back wages.
3. Management no.1 contested his claim vide its written
statement pleading therein that applicant is not its workman within the
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meaning of section 2 (s) of the Act and there is no relationship of
employer and employee between the parties. It is also stated that it is
an establishment registered under section 7 of the Contract Labour
(Regulation and Abolition) Act, 1970. it is further stated that it
awarded a contract to management no.2 for the period 10.5.03 to
31.3.04 which was extended w.e.f. 1.4.04 to 31.3.05 and then again
vide letter dated 31.3.05 for a further period of one year. Contractor
was to bear all the expenses towards wages, allowances and statutory
benefits of its employees during the currency of the contract.
Contractor was to be paid lumpsum amount of Rs.2,00,000/- per
month plus service tax. It is further stated that contract of
management no.2 was terminated w.e.f. 31.7.05. It is stated that
claimant has no cause of action against management no.1 and claim be
dismissed.
4. Management no.2 contested his claim vide its written
statement. It is stated that it came into existence in December 2002.
It was awarded contract for maintenance and repair of electricity
supply lines by the management no.1 for a specific period so it
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engaged labour for this purpose. It is further stated that the claimant
was appointed w.e.f. 1.11.04 vide appointment letter containing terms
and conditions of appointment. Claimant was working as a helper. It
is also stated that he was given all statutory benefits. It is denied that
his signatures were obtained on any blank papers or vouchers. It is
denied that his services were terminated unlawfully. It is stated that
services of the claimant came to an end in accordance with the terms
of his employment on 31.7.05. It is stated that the job for which
claimant was engaged was not of permanent nature and was for
specific period. It is stated that his contract was not renewed and
services of the claimant came to an end with termination of the
contract.
5. Following issues were framed :
1. Whether the applicant is a "Workman" of the
management no.1 ? OPW
2. Whether the appointment of the claimant was for a
fixed term and for a specific project which came to an
end with the afflux of time ? If so its effect ? (OPM2)
3. Whether the services of the claimant were terminated
unlawfully on 1.8.2005 as pleaded in the statement of
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claim ? OPW
4. Relief.
ISSUE NO. 2 & 3
6. Both issues are interconnected and are therefore taken up
together for adjudication.
7. Claimant has pleaded that his employment was terminated on
1.8.05 whereas management no.2 has pleaded that claimant was
appointed for a specific term and for specific project which came to
end on 31.7.05, therefore his case is covered under section 2 (oo) (bb)
of the Act and there is no unlawful termination of his services.
8. Onus is on the claimant to prove that his services were
terminated unlawfully by the management. He did not appear in the
witness box. He was accordingly proceeded under Rule 22 on the
Industrial Disputes (Central) Rules, 1957.
9. Management no.2 examined Sh. T P Singh, its Director as
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MW2 who vide his affidavit Ex.MW2/A deposed that management
no.1 awarded a contract of work to management no.2 and it ended on
31.7.05 vide letter of management no.1 dated 31.7.05.
10. He further deposed that the claimant was appointed vide
Ex.MW2/1 and Ex.MW2A. Report of the labour inspector was
proved as Ex.MW2/2. It was deposed that management gave notices
to the workers informing them about the termination of contract
between management no.1 and 2 vide Ex.MW2/3 and MW2/4.
11. Perusal of the documents placed on record by management
no.2 which have remained unchallenged show that appointment of
claimant was for a specific project and for specific period which
came to an end on termination of the contract on 31.7.05. As such
case is covered under section 2(oo)(bb) of the Act.
12. Claimant has not appeared in the witness box to show that the
work was of permanent nature and there was unlawful/ malafide
termination of his services.
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13. In BSES Yamuna Power Ltd. vs. Rakesh Kumar 2006 LLR
1144 our own Hon'ble High Court observed :
"8. A perusal of sub. section (bb) of the Act clearly
shows that termination of services of workman as a
result of non renewal of the contract of employment
does not amount to retrenchment. In 2006 LLR 68
(SC) 2005 (X) AD (SC) 168; AIR 2006 SCC 387
Punjab State Electricity Board v. Darbara Singh the
Board had appointed the respondent as Peon from
8.1.1988 to 29.02.1988 and his period of service was extended from time to time and his services were dispensed with in June 1989. The respondent therein had raised an industrial dispute and the Labour Court passed an award in favour of the respondent. Writ petition filed before the Hon'ble High Court was dismissed and so the matter came up before the Supreme Court. Supreme Court observed that the engagement of the respondent was for a specific period 7 and conditional and held that the termination of workman engaged for a specific work did not amount to retrenchment. Section 2(oo)(bb) of the Act was considered and it was observed that such a case as that of respondent, was covered under section 2 (oo) (bb) of the Act.
9. 2006 LLR 65 (SC): 2005 X AD (SC) 171: 2006 I LLJ 685 : Kishore Chandra Samal v. Divisional Manager, Orissa State Cashew Development Corporation Ltd., Dhenkanal,, the appellant was appointed by the respondent as Junior Typist on N.M.R. Basis for a period and was engaged again and again on daily wage basis for specific periods. When no extension was given he raised a dispute which was referred to the Labour Court, the Labour Court held the termination illegal for non- compliance of section section 25F of the Industrial Disputes Act, 1947 of the Industrial Disputes Act, 1947. The Hon'ble High Court set aside the Labour 8 Court's award and hence the appellant came before the Hon'ble Supreme Court. Hon'ble Supreme Court observed that appointment of writ petitioner was on daily wages basis for a fixed period. The contractual period of engagement ended and there was no further renewal since engagement was for a fixed period. The order of High Court setting aside the order of Labour Court was not bad.
10.In the present case the respondent was appointed as a comptist for totaling the accounts of ledger for the year 1986-87 and then for 1987-88. his initial appointment was for the period of three months. It was extended from time to time and no extension was given after 20th September 1990. He was appointed without any regular process of appointment purely casual and temporary basis for specific work of totaling of ledger. When this work was over, no extension was given. I consider that appointment as that of respondent is squarely 9 covered under section 2 (oo) (bb) of the Act. Giving of non extension did not amount to termination of service, it was not a case of retrenchment. The order of Tribunal is perverse."
14. In Surjeet Kumar vs. Presiding Officer & Ors. 2007 LLR 504 our Hon'bleHigh Court held :
"The legislative intent to introduce sub-clause (bb) by an amendment in the year 1984 was to take out this particular class of employment who are on contract basis under any project or for some specific period from the rigour of section 25 F of the Industrial Disputes Act. It purports to exclude the following from the ambit of definition of retrenchment; (i) the termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned, on its expiry; or (ii) the termination of contract of employment in terms of a stipulation contained in the 10 contract of employment, in that behalf. The first part relates to a termination of the service of a workman as a result of a non-renewal of the contract of employment between the employer and the workman concerned, on its expiry. The second part refers to such contract being terminated under a stipulation in that behalf, contained therein. The expression such contract, used in the second part, refers to the contract of employment between the employer and the workman, mentioned in the first part. Therefore, if there is a stipulation in the contract of employment between the employer and the workman providing the mode and manner of the termination of service, such termination of service has now specifically been excluded from the definition of retrenchment, by this sub-clause. The cases contemplated under both the parts therefore will not be retrenchment. Conversely a case not falling within the either of the parts of this sub-clause will be retrenchment falling within the main part of the 11 definition. In another recent decision reported in (2007) 1 SCC 214: 2007 LLR 154 (SC) titled as National Small Industries Corp. Ltd. v. V. Lakshminarayanan, the Supreme Court has held that on account of his contractual tenure, his case would come within the exception of section 2 (oo) of the Industrial Disputes Act and in such a case, the provisions of section 25 F of the said Act would have no application. The judgment relied upon by counsel for the petitioner reported in 1998 LLR 391: 1998 (78) FLR 857 titled as H.B. Vinobha v. The M.D. Hindustan Photo Films (Mad. HC) is not applicable in the facts and circumstances of the present case."
15. In Punjab State Electricity Board v. Darbara Singh, AIR 2006 LLR 68 the Hon'ble Apex Court observed where engagement of workman was for specific period, as such his termination will be excluded as per the provisions of section 2 (oo) (bb) of Industrial Disputes Act and hence no retrenchment compensation will be 12 payable on his termination even when he has worked for more than 240 days in the preceding twelve calender months.
16. Management no.2 has proved that the case is covered under section 2 (oo) (bb) of the Act and there is no unlawful termination of employment of the claimant.
17. Issue no.2 and 3 are accordingly decided in favour of the management and against the claimant.
ISSUE NO.1
18. Management no. 1 has disputed the status of the applicant as its workman but has not led any evidence nor pressed the same. Accordingly applicant is held to be a workman. This issue is accordingly decided in favour of the workman and against the management.
ISSUE NO. 4
19. As claimant has not been able to show any unlawful 13 termination of his services, he is not entitled to any relief. File be consigned to record room.
Announced in open court
on 1.12.2007 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS
DELHI
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