Delhi District Court
Sh. Dinesh Kumar vs M/S Cotton Corporation Of India on 12 January, 2010
1
IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 222/06
Sh. Dinesh Kumar
s/o Sh. Ram singh
r/o D348, Sector1,
Avantika, Rohini,
Delhi54. ...... Workman
VERSUS
1. M/s Cotton Corporation of India
604, Ansal Bhawan16,
Kasturba Gandhi Marg,
New Delhi110001.
2. The Secretary,
Ministry of Textiles,
Udyog Bhawan,
New Delhi110001. ...... Management
Date of Institution : 26.07.04
Judgment reserved : 02.12.09
Date of decision : 12.01.10
AWARD
1. The National Capital Territory of Delhi, through its Secretary
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2
(Labour) vide reference no. F24(204)/04/Lab./312327 dated
25.05.04 referred the dispute for adjudication between the
Management 1) M/s Cotton Corporation of India Ltd. and 2) The
Secretary, Ministry of Textiles and its workman Sh. Dinesh
Kumar in the following terms of reference:
"Whether Sh. Dinesh Kumar s/o Sh. Ram Singh
has abandoned the services on his own or his
services 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?"
2. As per claim, workman was employed as a Driver in the
Cotton Corporation of India Ltd on 01.12.97. It is stated that the
workman has been working as a Driver in the Ministry of
Textiles, Udyog Bhawan ever since he joined his services and he
performed his duties to be best of his abilities and there is no single
complaint against him. It is further stated that workman was
getting a salary of Rs. 4000/ per month from December 1997
till April 2003. On 28.08.02 the workman wrote a letter to Mr.
Vishwanath, The Chairman of Cotton Corporation of India Ltd.,
Mumbai for confirmation of his service. It is further stated that the
salary/honorarium of the workman was increased from Rs. 4000/
to Rs. 5000/ by the Secretary (Textiles) and a letter dt. 21.10.02 to
this effect, was written to Sh. Shashi Bhushan, Director, Govt. of
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3
India, Ministry of Textiles to the ChairmancumManaging Director,
CCI Ltd., Mumbai but the workman received a salary @ Rs. 4000/
per month till April 2003. It is further stated that after doing about 6
years continuous service, all of a sudden, C.M.D. to the Cotton
Corporation of India Ltd. and P.A. to The Secretary, Ministry of
Textiles terminated the services of the workman asked orally to
the workman not to come to the office. It is further stated that the
workman was neither issued any notice to termination nor any
show cause notice or any other reason was assigned for his
termination. On 10.07.03 workman got a legal notice served to
the management to reinstate the workman with back wages. The
notice was duly served but the workman has not been reinstated
till date. It is further stated that workman has been issued ICard
by Ministry of Home Affairs under the signature of C.S.O.(M>H>A.).
It is further stated that workman has been signing Log Book
continuously, which is maintained by the office. It is further that on
21.07.03 the Counsel for the workman got a letter from Section
Officer, Govt. of India, Ministry of Textiles, wherein he has
requested to counsel for the workman to send copy of ICard and
copy of salary vouchers. Counsel for the workman sent the copy of
the same to the Section Officer by registered Post and the same
was received by the Section Officer but till date the workman has
not been reinstated. It is further stated that after filing the
statement of claim before Ld. Conciliation Officer, two drivers
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4
namely Sanjeev and Subhash, who are juniors from the
workman, have been appointed by the management. It is
further stated that the workman was employed under the
management in the area of New Delhi, hence, Hon'ble Court has
the jurisdiction to try and entertain the present claim petition.
Workman has prayed reinstatement with continuity of service and
benefits as provided in the law.
3. WS filed on behalf of management no.1 stating therein that
the respondents are owned and controlled by Central Govt. of
India and Govt. of NCT of Delhi is, therefore, not the appropriate Govt. to refer and hold the conciliation proceedings in this matter. The order of reference is, therefore, bad in law. It is further stated that the claimant has no lien on the job as his services were availed by the answering respondent only as and when required. No order of termination was passed by the answering respondent and the claimant was never employed as permanent employee.
On merits, it is stated that claimant was never a permanent employee of the respondent. The answering respondent M/s Cotton Corporation of India is a company fully owned and controlled by the Govt. of India. The appropriate Govt. is Central Govt. in this matter. It is further stated that the services of the 4/33 5 claimant were availed as and when required by the answering respondent. It is further stated that as per own pleadings of the claimant, it seems that he is an employee of Ministry of Textiles, Govt. of India. His services by the respondent no.1 were availed only on temporary basis. No order of appointment and/or termination as alleged by the claimant was ever passed by the respondent. He signed the Log Book only on dates on which he had worked. It is further stated that the respondent no.1 being a company owned and controlled by Central Govt. issue employment letter and identity cards to all its employees and as and when the services are terminated, the letters to that effect is also issued. It is further stated that respondent no.1 is not having any permanent vacancy for a driver because when the claimant was not available, the respondent no.1 made alternative arrangements. The statement of claim has presented two conflicting stands. The dual employment is not permissible. The claimant is not entitled to any relief against the answering respondent.
4. Management no.2 also filed written statement wherein it is stated that the respondents are owned and controlled by Central Govt. of India. The Govt. of NCT of Delhi is, therefore, not the appropriate govt. to refer and hold the conciliation proceedings in this matter. The order of reference is, therefore, bad in law. It is 5/33 6 further stated that the claimant has no lien on the job as his services were availed by the answering respondent only as and when required. No order of termination was passed by the answering respondent and the claimant was never employed as permanent employee.
In reply on merits, it is stated that claimant was never a permanent employee of the respondent. The answering respondent is a company fully owned and controlled by the Govt. of India. The appropriate Govt. is Central Govt. in this matter. It is further stated that the services of the claimant were availed as and when required by the answering respondent. The claimant was never inducted into the permanent service of the respondent no.2. the identity cards are issued to even casual employees engaged by the respondent for the sake of security reasons. The claimant was never inducted into the permanent service of the respondent no.2. It is further stated that the identity cards are issued to even casual employees engaged by the respondent for the sake of security reason. It is further stated that for employing a permanent employee by the respondent, there is settled procedure which has to be followed by the respondent. It is further stated that the claimant is claiming dual employment and the same is not permissible under law. It is further stated that no order of appointing the claimant or terminating his services was ever passed by the respondent no.2. The claimant is not entitled to any 6/33 7 relief against the answering respondent.
5. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
6. After completion of pleadings, following issues were framed on 11.02.05 :
1. Whether the Govt. of NCT of Delhi is not the appropriate Govt. to refer the dispute to this court, if so, its effect?
2. As per terms of reference.
7. Parties led their evidence.
On behalf of workman, workman Sh. Dinesh Kumar examined himself as WW1.
On behalf of management, Sh. Bharat Bhushan Passey deposed as MW1.
8. WW1 in his examination in chief supported the averments mentioned in the claim and got exhibited the documents.
In cross examination of WW 1, he deposed that he had submitted the application for appointment to the management at 7/33 8 Bombay. He deposed that no appointment letter was issued to him. He suggested it wrong that he was never appointed by the management. He further deposed that no PF was ever deducted. He admitted in his cross examination that respondent no.1 and 2 are being owned and controlled by Govt. of India. He suggested it wrong that management used to take work from me as and when required. He further suggested it wrong that he had not worked with respondent no.1 and 2 for 240 days during any year. He deposed that he does not know whether the Icard issued to him by respondent no.2 was for the purpose of security check up. He further suggested it wrong that the documents Ex. CW1/A to CW1/H and Ex. H1 to 7 are false and forged. He further deposed that his demand for reinstatement is for M/s Cotton Corporation only. He admitted that he used to sign the log book only on the date when he used to work for the management and not others. He further admitted that General Manager for M/s Cotton Corporation of India and Secretary, Ministry of Textile is the appointing authority for respective managements. He further deposed that there was no letter of termination issued to him by either of the management.
9. MW 1 in evidence by way of affidavit supported the averments made in the claim.
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9 In cross examination of MW 1, he deposed that during the year 1997 he was posted at Bombay which is the Head Office of respondent no.1. After 1997 he joined respondent no.1 in August 2004. He further deposed that back door entry is neither permissible nor possible in our organization. He deposed that all the permanent employees in our organization are given appointment letter. He suggested it wrong that the claimant has worked continuously for 240 days in either of the respondents. He deposed that the per son who visits the management no.2 is issued visiting card for security purpose which is not an ICard. He further deposed that visiting card is not issued for one year.
10. Perusal of file shows that during the course of proceedings, an application has been moved on behalf of workman for adducing additional evidence and summoning documents and witnesses. The same was allowed.
11. After allowing the application, the case was again fixed for WE. Sh. Satpal was examined as WW2, Sh. Tej Pal Singh as WW3, Sh. Raj Kumar as WW4 and Sh. Subhash Chand as WW5.
12. WW2 Sh. Satpal, in his examination in chief, deposed that restricted ICard were issued by Ministry of Home Affairs to the workman on 17.09.98 and 12.11.99. He further deposed that the 9/33 10 record of Identity Card was weeded out after one year from the expiry date of the ICard and therefore the application moved by workman for issuing ICard has already been weeded out. He further deposed that the record of the issuing ICard is maintained in a register. He got exhibited the record of issuing two Icards which were entered in the register as Ex. WW2/A and WW2/B. In his cross examination, he admitted that the register produced does not bear the stamp of Ministry of Home Affairs. He suggested it wrong that management no.1 and 2 had never sent any application to Ministry of Home Affairs for issuance of ICard to workman. He deposed that the ICard is issued for the purpose of entry to the Govt. building under security cover of MHA.
13. WW3 Sh. Tejpal Singh, in his examination in chief, deposed that he has been working as peon in the management since 1993 and working as Peon till date. He deposed that he used to get uniform from CCI after signing in the register maintained for this purpose. He further deposed that he know workman dinesh as he used to meet him sometimes. He further deposed he does not remember when he and Dinesh Kumar had received uniform on 25.08.04 at the same time. He suggested it wrong he was deposing falsely he is still working with CCI while services of workman have been terminated.
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11 In his cross examination, he deposed that he got appointment letter issued by CCI. He further deposed that he did not know whether Sh. Dinesh Kumar was permanent employee of CCI or not.
14. Sh. Raj Kumar was examined WW4. In his examination in chief, he deposed that he has been working as Driver in CCI since 1992 and workman Dinesh Kumar used to work as Driver in CCI. He deposed that he did not know whether he used to receive uniforms or not from CCI. He suggested it wrong that he was deposing falsely to support CCI.
In cross examination of WW4, he admitted that he got appointment letter from CCI. He further deposed that he cannot say whether Dinesh Kumar was a permanent employee of the CCI or not.
15. WW5 Sh. Subhash Chand, in his examination in chief, deposed that he has been working as Driver in CCI since April 1998 and became permanent employee in May 2004. He further deposed that Dinesh Kumar did not use to work with him as Driver. He used to meet him sometimes in the office. He further deposed that he does not remember whether he and Dinesh Kumar received 11/33 12 the uniform on 25.08.00 and he had signed in the register at serial no.11 and Sh. Dinesh Kumar had signed at serial no.9. he suggested it wrong that he was deposing falsely since I was made permanent driver after filing this case and still working there.
In his cross examination, he deposed that Dinesh Kumar used to meet him sometimes. He further deposed that Dinesh Kumar was not permanent employee of CCI.
16. Written arguments filed by both the parties.
It is stated in the written arguments filed by AR for the workman that the workman was employed with the management as a driver since 01.12.97. It is further stated that workman wrote a letter on 02.08.02 to Mr. Vishwanath, The Chairman of Cotton Corporation of India Ltd. Mumbai for confirmation of workman's service which is in evidence and exhibited as Mark CW1/C and it was not rebutted by the management. It is further stated that the salary of workman was increased from Rs. 4000/ to Rs. 5000/ by the Secretary, Ministry of Textile and a letter was written to this effected by Director, Shashi Bhan, which letter is in evidence exhibited as Mark CW1/D. It is further stated that the services of workman was terminated orally without any notice. It is further stated that the workman was issued identity card on yearly basis on many years which is Ex. CW1/E and marked CW1/E1. These 12/33 13 identity card issued by Ministry of Home Affairs and WW2 Satpal has admitted in his statement. It is further stated that WW2 Satpal, Section Officer of Ministry of Home Affairs has admitted in his statement that these Icards are genuine and issued on the request of Cotton Corporation of India Ltd. It is further stated that the workman was issued uniform year by year. The slip to issue uniform in the year 2000 and 2001 has been exhibited as mark 1 and mark 2 which shows the name of workman Dinesh Kumar with other workmen of CCI and WW2 Sh. Tej Pal, Peon of CCI has admitted in his statement that he know the workman Dinesh Kumar. It is further stated that workman brought in 2001 the staff car of Cotton Corporation of India Ltd. No. DL2CD923 by driving from Kanpur to Delhi and for this purpose, a letter was given to him which is exhibited as mark 2 which shows that his job was of permanent nature. It is further stated that the workman used to get the service of vehicle of CCI which were registered in the name of management CCI and the vehicle service slip which were issued by workshop and showroom are exhibited on record which proves that claimant is a workman of Cotton Corporation of India. This fact has not been denied/rebut by the management. It is further stated that after filing the claim before this court, management CCI has appointed in 2004 two driver namely Sanjeev Kumar and Subhash Chand. These two drivers are junior to the claimant and by this act, the management has disregarded to the rules and regulations. 13/33
14 It is further stated that WW5 Subhash Chand who is junior to the claimant has admitted in his statement that he is working in CCI since 1998 but he became permanent in May 2004. It is further stated in the written arguments that the management has admitted that attendance of workman was being recorded in the attendance register when he worked, however, contended that workman did not work for 240 days continuously but did not bring the relevant documents/record where from it could be found whether the concerned workman had worked for 240 days in a Calender year. It is further stated that the management deliberately did not produce the relevant documents which are in the control of the management. It is further stated that the workman himself moved an application before the Court to produce relevant documents but management did not produce any evidence/document/record before this Hon'ble Court which gives an adverse inference against the management. It is further stated that MW1 has stated in his statement that all the documents filed by the workman are forged and fabricated. So the burden of proof is on the management to rebut the claim of the workman by producing the relevant documents as Log Book, attendance register and other documents. it is pertinent to mention here that MW1 has stated that all the documents forged and fabricated. However, WW2 Satpal, Section officer of Ministry of Home Affairs has admitted in his statement that the Icards issued to the workman are genuine 14/33 15 and issued on the request of management CCI. It is further stated that the plea of management that Govt. of NCT of Delhi has no jurisdiction on the matter is not correct because in a Union Territory like Delhi, there is no difference between Central Govt. and State Govt.
Citations were also filed on behalf of workman.
17. It is stated in the Written Arguments filed by management no.1 and 2 that the claimant has raised an Industrial Dispute against the management no.1 and 2 to which both the managements submitted their respective written statements with the preliminary objections that the Govt. of NCT of Delhi is not the appropriate Govt and management no.1 is owned and controlled by the Central govt. and the order of reference is, thus, bad in law. The second objection was that the claimant was never employed as permanent employee of the management and has no lien on the job. It is further stated that for employing a permanent employee, there is settled procedure i.e. post has to be created, sanction has to be obtained, interviews are conducted by the proper authority and then person so selected is appointed by the proper authority. It is further stated that in the present case,, the management no.1 and 2 are governed by Central Govt. and there is no doubt about it. Therefore, the management no.1 and 2 falls within the first line of Section 2(a)(i) of the Industrial Dispute Act i.e. 15/33 16
(a) Appropriate Govt. means : (i) in relation to any Industrial Dispute concerning any industry carried on by or under the authority of the Central Govt. It is further stated that MW1 has clearly mentioned and stated on oath that the management no1. is a company duly owned and controlled by the Central Govt. of India and Govt. of NCT of Delhi is not the appropriate Govt. There is no cross examination on this point. This clearly establishes that the Govt. of NCT of Delhi is not the appropriate Govt to refer the matter in this case. It is stated in the written arguments that the claimant has sent demand notice Ex. CW1/F wherein he has mentioned that he had joined and worked with management no.2 only. He has nowhere stated that he had worked with the management no.1 also. It is further stated that the claimant in his cross examination has admitted that no appointment letter was issued to him and no PF was deducted. This simply prove that the claimant was not an employee and was never inducted into the employment of management no.1 and 2. It is further stated that in the demand notice, the claimant demanded reinstatement against management no.2 but in cross examination and statement of claim, the claimant has demanded reinstatement against management no.1. It is further stated that the claimant has admitted that he signed the log book only on days he worked for the management and further admitted that General Manager for management no.1 and The Secretary for management no.2 are the appointing authorities. it 16/33 17 is further stated that the dual employment is even otherwise prohibited by law and the Delhi Shops and Establishment Act, Section 9 specifically prohibits it. It is further stated that the back door entry in Govt. jobs cannot be permitted, if the appointment is illegal, then in cases of such employees, the termination cannot be held to be illegal. The appointment should firstly be legal and proper.
AR for the management has filed further arguments stating therein that as per deposition of WW2, the ICard issued to the claimant are restricted identity card and in the cross examination, he admitted that the Icard was issued for the purpose of entry to the Govt. building under the security cover. It is further stated that even if a person is engaged to work for some work by some officer but not by Appointing Authority and has worked for 240 days, that will not provide him job security.
Citations were also filed by AR for the management.
18. I have seen the file, evidence, documents and also considered the written arguments filed by both the parties and my findings on the issues are as under:
REGARDING ISSUE NO. 1 : Appropriate Govt.
AR for the workman cited N.B.C.C v/s M.K.Jain 1981 Lab 17/33 18 I.C. P.62 (Del), wherein it was held that:
"So far as Union Territory of Delhi is concerned, there is no difference whether the reference is made by Central Govt.or State Govt."
AR for workman also cited Taj Services Ltd. v/s Delhi Administration 75 FLR 149 (Del), wherein it was held that:
"question whether there is valid reference or not, has to be decided by the Labour Court before the writ court or the appellate court interferes. Whether the reference has been made by the appropriate govt. or not, has to be decided by the Industrial Tribunal and not by the High Court under article
226."
AR for the workman also cited Mool Chand Khairati Ram Hospital v/s Labour Court, 91 FJR P.294 (Del), wherein it was held by their Lordship of Delhi High Court that:
"that the State Govt. has to be extremely careful while drafting the reference of an industrial dispute. It must be taken into consideration all the vital facts, circumstances and material produced by both the management and the workmen."
AR for the workman also cited Goa Sampling Employees' Association v/s General Superintendence Company of India Pvt. Ltd. 1985 (66) FJR 114, wherein it was held that: 18/33
19 "so far as Union Territories are concerned and in that case Goa Daman and Due, Central Govt. is the appropriate Govt."
AR for the workman also cited MCD v/s Mahavir 2002 II LLJ Del.766, wherein it was held that:
"so far as Govt. of NCT is concerned, it can validily made reference of dispute with respect to MCD."
AR for the workman also cited Kanhiya Lal vs. Union of India 2007 LLR 492(Del), wherein it was held that:
"The Secretary, Labour, Govt. of NCT is competent to refer the dispute with respect to Rajghat Samadhi Samiti and authority under the Central Govt."
On the other hand, management has cited ITDC v/s Delhi Administration 61 FJR P.139 SC, Bhimsen v/s H.R.Chaturvedi , 1LLN (P&H) 1990, Y.P.Bhanusimha v/s L.E.O .(c) 101 FJR 374 (2002). In all these cases, it was held by their Lordship that:
"where the Central Govt. or an organization of Central Govt. is involved then the appropriate Govt. would be a Central Govt. not a State Govt."19/33
20 CONCLUSION :
i) So far as Delhi is concerned, previously, Delhi was partly a Union Territory under the Central Govt. At that time, the case laws shows that there is no difference between the reference by the authority under the Union Territory or the Central Govt. as ultimately the authority was the same.
ii) Subsequently, when the Union Territory acquired the statehood, arguments were advanced that since Delhi Govt. is a separate Govt., a reference by Delhi Govt. or a corporation or a department under the management of Central Govt. within the reference by Delhi Govt. will not be a valid one. Here, there is a difference of case laws, so far as strict Central Govt. departments are concerned and the corporation under the Central Govt. There are some decisions where it was held that reference from the Central Govt. would be valid. However, in one Supreme Court's decision, it was held that since a corporation is a distinct entity, a person employed in Delhi or the place, the appropriate Govt. shall be State of that place.
iii) My impression is that so far as the present working in Delhi is concerned, a reference made by Delhi Govt. would be valid reference as both Delhi Govt. and the Central Govt. 20/33
21 would be legally competent for making a reference in case of undertaking/corporations even if incorporated under Central Law.
19. REGARDING ISSUE NO.2 : As per terms of reference.
From perusal of file, my inference is that the terms of reference be answered in negative on the following grounds :
(a) Burden of Proof
(i) Workman in his claim had maintained that he was employed as a Driver in management no.1 i.e. Cotton Corporation of India Ltd. on 01.12.97 and was working in management no.2 i.e. Ministry of Textiles and worked there till the date of termination. On the other hand, in the replies, both the managements have denied the claimant to be its permanent employee. Both the managements have taken the stand that claimant has no lien on the job as his services were availed by them only as and when required.
(ii)It is well settled that it is for the workman to prove that he was employee of the management or worked with the management. It is further the duty of the workman to prove 21/33 22 that he had been in continuous service of the management for at least 240 days in a year preceding the date of alleged termination of his employment.
(iii))In workmen of Nilgiri Coop. Mkt. Society Ltd. 2004 3 SCC 514, it has been held that :
"It is a well settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him."
(iv)In Swapan Dass Gupta vs. First Labour Court of W.B. 1975 LIC pg.202 it has been held that :
"Where a person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person."
(v)In N.C.John Vs. Secy. Thodupusha Taluk Shop and Commercial Establishment Workers" Union, it has been further held that :
"The burden of proof being on the workman to establish the employer employee relationship an adverse 22/33 23 inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employeremployee relationship."
(vi)To discharge his onus, workman examined himself as WW1. He relied upon some documents Ex. CW1/A to CW1/H and mark 1 to 4. None of the document could prove that he was a permanent employee of any of the answering managements.
(vii)Workman has filed his ICard issued by the Ministry of Home Affairs. This Icard was issued to the claimant only for ingress and outgress of the concerned building i.e. Udhyog Bhawan where the office of the management is situated. This does not prove that the claimant is a workman or employee of the management.
b) Completion of 240 days in a calender year
i) It is stated by the claimant that he has completed 240 days with the management. However, management denied that the workman in any year completed 240 days continuously. The burden of proof is on the workman to prove that he completed 240 days.
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ii) AR for workman cited Bank of Baroda v/s G.H.Rabare (2005) 10SCC 792, wherein it was held that:
"Where the relationship has not been denied and due other conditions, it was for the management to prove that the workman has not completed 240 days."
iii) AR for workman also cited Radha Krishanan v/s POLC 631 2004 III LLJ (Mad), wherein it was held that:
"Service of person who has worked for 240 days continuously in one year, held, cannot be terminated without following procedure under Sec. 25F. His right cannot be defeated by alleging it to be case of non selection at interview and not of termination."
On the other hand, management cited S.S.Gupta v/s Labour Court 1976 Lab.IC 202, wherein it was held that :
"burden of proof is on the workman to prove that he is a workman and he has completed 240 days."
AR for management cited H.K.Vidayarthi v/s Bihar 90 FJR 465 SC, wherein it was held that:
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25 "temporary employee when terminated cannot claim the benefit u/s 25F of the I.D. Act."
Management also cited M.P.Electricity Board v/s Hari Ram 2005 LLR 1 SC, wherein it was held that :
"the burden of proof that the workman completed 240 days is on the workman and unless the same is proved, workman cannot take the benefit of the Industrial Dispute Act."
Similar was held in Manager of RBI v/s S.Mani 2005 LLR 737
iv) In Bhogpur Cooperative Sugar Mills Ltd. Vs. Huarmesh Kumar 2007 LLR 183 SC, the Hon'ble Apex court held that :
"For applicability of Section 25 F of I.D. Act, the workman is bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination."
v) In his evidence, claimant has filed certain job cards Ex. CW1/H1 to CW1/H7 alongwith other documents but these documents do not prove that the claimant rendered continuous service of 240 days in a calender year. Moreover, he admitted in his cross examination that he 25/33 26 used to sign the log book only on the date when he used to work for the management.
vi) AR for workman has stated in his written arguments that the claimant was issued Icard on yearly basis which proves that he complete 240 days. It has already been held in issue no.1 that the ICard was issued to the claimant only for the purpose of ingress and outgress of the building where the office of the management was situated. This Icard cannot be a proof of working/completion of 240 days in any year.
vii)So far as temporary or adhoc employees are concerned, if the claimant proved that he completed 240 days, merely because he was temporary or adhoc or casual, would not be material, but proof of completion of 240 days is sine quanon for applicability of labour laws.
20. Government/Semi Govt. appointments
i) AR for workman cited The President Srirangam Co operative Urban Bank Ltd. v/s The Presiding Officer, Labour Court, Madurai , wherein it was held by the Madras High Court that:
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27 "legality of appointment is not a relevant factor under the Labour Law. The factum of employment is relevant and it does not make any difference whether the appointment has been made in accordance with law or not."
AR for workman cited Director Tourism Department v/s Industrial Tribunal, Kollam & Anr. 2005 1 LLJ 431, wherein it was held by their Lordship of Kerala High Court that:
"whether a workman has worked for more than 4 years, his termination on the face of it is not justified."
AR for workman cited Ram Narain v/s Management of Delhi SCSC 139 DLT 193 2007, wherein it was held by their Lordship of Delhi High Court that:
"If a workman has completed 240 days, he is entitled for reinstatement where the termination is in violation of Industrial Dispute Act."
AR for workman cited U.P. State Electricity Board v/s Puran Chand Pandey 2007 11 SCC 92, wherein it was held that:
"U.P. State Electricity Board has taken over the work from the society with the promise that all the employees of the society will be observed in the Board and when the Board itself issued a circular for regularization, hence the workmen are entitled for 27/33 28 regularization in the UP State Electricity Board."
ii) On the other hand, AR for management cited General Manager, BSNL v/s Mahesh Chand 2008 LLR 435, wherein it was held that:
"when there exists no sanctioned post, reinstatement cannot be made."
AR for management also cited State of U.P. v/s POLC 2009 LLR P.51, wherein it was held that:
"when the workman was not having any appointment letter issued by the management, no presumption of employment can be raised in favour of the workman."
AR for management also cited Vijay Kumar v/s Presiding Officer, Labour Court 2009 LLR 68, wherein it was held that:
"unless the person has confirmed and remained on training is not entitled for confirmation as a matter of right."
AR for management also cited Meham Cooperative Sugar Mill Ltd. v/s Presiding Officer & Anr. 2009 LLR 89 wherein it was held that:
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29 "back door entry in the Govt. departments are not allowed and the person appointed as such is not entitled for reinstatement."
AR for management also cited General Manager, Tanda Thermal Power Project v/s Jai Prakash Srivastava & Anr. 2008 LLR 30, wherein it was held that:
"where there is no post, no reinstatement can be ordered by the court."
AR for management also cited State of Bihar v/s U.N.Singh 2009 4 SCC 577 wherein it was held by their Lordship of Supreme Court that:
"that the illegality of initial appointment cannot be cured by regularization of the workman, hence, where initial appointment is illegal, same cannot be regularized by the court."
AR for management also cited Secretary, State of Karnataka & Others v/s Umadevi & Others, 2006 II LLJ 722 SC , wherein The Supreme Court of India has clearly held that:
"Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a 29/33 30 contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could no claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wages worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules."
AR for management also cited Mineral Area Development Authority v/s The Presiding Officer, Labour Court & ors. 2006 LLJ 737 wherein Jharkhand High Court has held that:
"workman cannot get any benefit where the appointment is illegal. "
AR for management also cited U.P. State Electricity Board v/s POLC IV 2004 LLR 418 wherein it was held that:
"where there was no proof of 30/33 31 appointment letter or interview submitted by the workman, he is not entitled to be regularized."
iii) For any appointment in the Government Department there are rules and regulations of the appointment. According to that rules, appointment can be made. Similarly the appointment is to be made to vacancy or post which is duly sanctioned by the competent authority. Once these conditions are fulfilled there is then procedure of advertisement, calling of applications, selections from the selection body and then formal appointment as approved by the competent authority.
iv) None of the procedure has been adopted in case of the workman. The workman could not show or prove that there was a sanctioned post, advertisement and there was a selection process and appointment by the Corporation. Claimant has failed to prove any document in nature of appointment letter, PF contribution, ESI Contribution etc. which may show that he was employed by management. Moreover, workman has admitted in his cross examination that neither any appointment letter was issued to him nor any PF was deducted 31/33 32
v) There is no reference regarding advertisement, calling applications and selection. If the workman is ordered to be reinstated or regularised, then on the face of it the illegality committed in the appointment would be justified which cannot be done by the court.
vi) In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and ors, 2006 (2) SCALE 115, it is held that :
"A regular appointment to a post under the State or Union cannot be made without issuing advertisement."
vii)In R.N Nanjundappa Vs. T.Thimmiah, 1972 AIR (SC) 1767 : 1972 (1) SCC 409 : 1972 SLR 94 : 1972 LIC 618 :
1972 (1) LLJ 565 : 1972 (2) SCR 799 wherein it was held by the lordship of Supreme Court that :
"if the appointment itself is in infraction of the rules or if it is violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non compliance with procedure or manner which does not go to the root of the appointment. Accordingly, where procedure is not followed, regularization cannot be made." (Paras 26,27,28) 32/33 33
viii)In Ashwani Kumar and ors Vs. State of Bihar and ors., 1996 Supp. (10) SCR 120, it was held by their lordship of Supreme Court that :
"the confirmation or regularization can be done only in case of available vacancy which is also sanctioned."
In the present case there is no available vacancy nor any sanctioned post.
In view of the above reasons and discussions, workman has failed to prove that he was ever employed as per rules on sanctioned post by either of the answering managements, hence, question of terminating him from the management does not arise. The question of illegal termination would raised only if he was an employee of the respondent (Chhathoo Lal Vs. The management of Goramal Hariram Ltd.)
21. Accordingly, reference is answered in negative and against the workman/claimant. Award has been passed. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH) th on 12 January, 2010 Additional District & Session Judge Presiding Officer labour Court XVI Karkardooma Courts : Delhi.
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