Delhi District Court
Between The vs The on 9 May, 2018
IN THE COURT OF SH. ATUL KUMAR GARG, PRESIDING
OFFICER, LABOUR COURT NO. XVI, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
LIR No. 2043/16
Date of institution 08.06.2011
Date of decision 09.05.2018
BETWEEN THE WORKMAN
Sh. Om Prakash,
S/o Sh. Ghan Shyam Sharma,
aged about 41 years,
H.No. 1478, Gali No. 53,
Block E, Molad Band Extension,
Badarpur, New Delhi-110044.
T.No. 12256/70430, N.No. 38,
Ambedkar Nagar Depot,
New Delhi-110062,
C/o Chamber No. Y-67,
Civil Side, Tis Hazari Courts,
Delhi-110054.
VERSUS
THE MANAGEMENT OF
Delhi Transport Corporation,
I.P. Estate,
New Delhi-110002.
(Through its Chairman/ M.D.).
AWARD
1. By this award, I shall dispose off of the claim filed by the
workman under Industrial Disputes Act. In his statement of claim, the
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workman has stated that he was in the employment of the management
w.e.f. December, 2003 as a Driver in Ambedkar Nagar Depot, Delhi and
he worked with the respondent continuously till 13.04.2009 at the last
drawn salary of Rs. 4,500/- per month. He did his duty with management sincerely and honestly and did not give any chance of complaint. On 13.04.2009, the workman went to duty at Kalkaji Depot as he was directed by the respondent. The management did not give any duty to the workman and the management gave the duty to other driver in place of the workman driver. He requested to the management for duty but the management did not give any duty to the workman. The workman has requested to Sh. Chander Bhan Duty officer to give him duty, but the said duty officer did not give any duty to the workman and they got out the workman from the depot without giving any reason etc. The duty officer misbehaved to the workman. On 22.04.2010, the workman went to resume duty, but the management did not take the workman on duty and the management got annoyed with the workman and it was informed that the service of the workman has already been terminated on 13.04.2009 without giving any charge sheet and holding of any enquiry, hence, the management has violated the provision of Section 25 -F of the Industrial Disputes Act, 194 and the management with held the earned wages of the workman from 01.04.2009 to 13.04.2009. The workman sent a legal LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 2 of 15 notice to the management on 13.01.2011 and demanded reinstatement and earned wages from the management with all other benefits from the respondent. But management neither gave any reply to the legal notice nor took the workman on duty as demanded in the legal notice. He submitted that he is entitled to reinstatement with full back wages and continuity of service with other benefits.
2. Respondent herein had appeared and filed the written statement. Management had stated that workman had not approached the court with clean hands and suppressed the material facts. The claimant was engaged as a contractual driver purely on short term basis w.e.f. 12.05.2006 for eighty - nine days only. Prior to 12.05.2006, he was working under the outsource agency M/s Eye Bird Placement Service Ltd. And an agreement was made between the depot manager and the claimant. According to Clause 14 of agreement, the Corporation shall have the right to ask for the removal of any driver including Black listing who is not found to be competent and orderly in the discharge of his duties. Thereafter, claimant started not only absenting himself form the schedule duty and started misbehaving with other staff and also called the police at the place of management. He has denied that no date has been mentioned in the claim when the claimant reported for duty and as per record no LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 3 of 15 such person named Chander Bhan was posted as Duty Officer in Kalkaji Depot in the year 2009. Hence, he submitted that the claim of the claimant be dismissed.
3. Rejoinder has also been filed by the workman wherein he had reiterated the averments claimed by him in his statement of claim and denied whatever has been stated by the management in the written statement to the statement of claim.
4. After completion of the pleadings of the parties, vide order dated 09.12.2015, following issues have been framed:-
1. Whether the claimant is a workman withing the definition of word 'workman' under the Industrial Disputes Act? OPW.
2. Whether the present claim petition is maintainable?
3. Relief.
No other issue arose or pressed and the matter was listed for workman evidence.
5. Both the parties has examined one witness each in support of their respective stand. Workman had examined himself as WW 1 and closed the workman evidence. Management had also examined one Sh. LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 4 of 15 Ashok Kumar Khosla as MW 1 and closed his evidence. Workman had reiterated the facts mentioned by him in his statement of claim narrating the facts that he has been employed with the management w.e.f December, 2003 as a Driver on contractual driver at Ambedkar Nagar Depot, New Delhi at the salary of Rs. 4,500/- per month and his services were illegally terminated on 13.04.2009. He had relied upon the two documents. Ex. WW 1/1 is the legal demand notice dated 19.01.2011 along with postal receipt and Ex. WW ½ are the original pay slips for the month of February, 2008 to December, 2008, January, 2009, Feburary, 2009, April, 2009 and November, 2007 (collectively). This witness had denied the that he was black listed by the management for the said misbehaviour on 17.04.2009. He had denied that any contract was entered into for his contractual service on 04.05.2007 and his last drawn salary was Rs. 10,500/- in the year 2003.
6. Management had examined one Ashok Kumar Khosla who had stated that the workman was engaged as a contractual driver purely on short term basis w.e.f. 12.05.2006 for eighty - nine days only. The period of his engagement as Driver were extended further. Prior to 12.05.2006, he was working under the outsource agency M/s Eye Bird Placement Service Ltd. and an agreement was made between depot LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 5 of 15 manager and the claimant, according to Clause 14 of the agreement, the corporation shall have the right to ask for the removal of any driver including black listing who is not found to be competent and orderly in the discharge of his duties. He further deposed that the claimant absented from his scheduled duty and came late and misbehaved with first fleet incharge. He created unpleasant scene in the depot premises and called the police. He was discontinued and black listed from the services of the management vide memo dated 17.04.2009 under Clause 14 of the Agreement. The management has not violated any provision of the Industrial Disputes Act, 1947. Since, the claimant was engaged on contractual basis and hence no enquiry and charge sheet is required to be done or served upon the claimant. The deponent was working with the competent authority and other subordinate staff of Kalkaji Depot during the year of 2009. Management had relied upon the letter dated 17.04.2009 which is Ex. MW 1/1, Ex. MW 1/2 is a copy of Short Term Agreement for engaging driver dated 02.08.2008, Ex. MW 1/3 is another copy of Short Term Agreement for Engaging Driver dated 31.10.2008 and Ex. MW 1/4 is another copy of short term agreement for engaging driver dated 30.01.2009.
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7. This witness was put to the test of cross examination wherein he had admitted that he was appointed as a driver w.e.f. December, 2003 at Ambedkar Nagar Depot. He has admitted that the management had maintained the attendance register and they used to mark attendance on the attendance register. He has admitted the Ex. MW 1/2 to Ex. MW 1/4 ie., short term agreements for engaging drivers wee not prepared in his presence and same were not signed by Om Prakash in his presence. He further admitted that salary slips Ex. WW ½ issued by Ambedkar Nagar DTC Depot. He denied that Ex. MW 1/1 letter dated 17.04.2009 was not served to the claimant. He has not filed the receipt of the speed post on record. He has denied that the workman never misbehaved with any employee of Kalkaji Depot. Witness has produced the record of attendance register for the period w.e.f. 12.05.2006 to 31.12.2007 and details (Ex. M1 two pages colly) and Physical presence during the period between February, 2008 to March, 2009 (Ex. M2). He has admitted the document Ex. M1 which is not bearing the signature of the claimant Om Prakash.
8. In the light of above evidence, my issuewise findings are as under:-
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9. Issue no. 1:- Whether the claimant is a workman within the definition of word 'workman' under the Industrial Disputes Act? The onus of proving this issue is upon the workman as he has to prove that he is the workman under the definition of word 'workman' under the Industrial Disputes Act. Workman has stated in his evidence that he was in the employment of the management as Driver in Ambedkar Nagar Depot, Delhi and he worked with the respondent continuously till 13.04.2009 at the last drawn salary of Rs. 4,500/-. The above said fact has not been challenged by the respondent/ defendant. Respondent's stand is only that initially the workman was engaged as a contractual driver purely on short term basis w.e.f. 12.05.2006 for eighty - nine days only. Earlier he was working under the outsource agency M/s Eye Bird Placement Service Ltd. And thereafter an agreement was made between the depot manager and the claimant. According to clause 14 of agreement, the corporation shall have the right to ask for the removal of any driver including black listed who is not found to be competent and orderly in the discharge of his duties. They had submitted that the claimant is not found orderly. As per clause 14 of the agreement entered with the workman, they had black- listed the defendant on 17.04.2009 and discontinued his services. There LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 8 of 15 is no challenge in respect of any other fact that the claimant is not a workman. Accordingly, this issue stands proved in favour of the workman and against the management.
10. Issue no. 2:- Whether the present claim petition is maintainable? The onus of proving this issue is upon the workman as he has to prove that his claim is maintainable or not. It is the management who had taken the objection stating that the claim petition is not maintainable under Section 2 (oo) (bb) of the Industrial Dispute Act. According to him, the workman was a contractual driver and his contract came to an end with the passage of time. He has relied upon the documents Ex. MW ½, Ex. MW 1/3 and Ex. MW ¼ which are the copy of short term agreement for engaging the driver dated 02.08.2009 to 29.08.2009, 31.10.2009 to 27.01.2009 and 30.01.2009 to 28.04.2009 respectively. Ex. MW 1/1 is the order passed by the Senior Manager (Tr.) - Cum - Depot Manager who by exercising the power under Clause 14 of the agreement had discontinued the services of the workman and he was black listed from the services of the corporation with immediate effect. They submitted that the corporation used to make the contract of eighty - nine days only.
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11. On the other hand, the claimant has asserted that he was in the employment of the management w.e.f. December, 2003 as a Driver in Ambedkar Nagar Depot, Delhi and he worked with the respondent continuously till 13.04.2009 at the last drawn salary of Rs. 4,500/- per month. He did his duty with honesty and sincerity and no complaint has been received against him. He submitted that on 13.04.2009, he went to the duty at Kalkaji Depot as he was directed by the respondent. The management did not give any duty to the workman at the depot and the management gave the duty to other driver. He had requested to Sh. Chander Bhan, duty officer to give him duty, but the duty offer did not give him duty and they got out the workman from the depot without giving any reason etc. He further submitted that on 13.04.2009, the management had terminated his duty without giving any charge sheet, which is the violation of the provision of Section 25 of the Industrial Disputes Act.
12. Section 2(oo) of the Industrial Disputes Act defines the word retrenchment. For the sake of convenience, Section 2 (oo) of the Industrial Disputes Act is required to be reproduced herein:-
Section 2 (oo) of the Industrial Disputes Act:-
LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 10 of 15 '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) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb)] termination of the service of the workman as a result of the non - renewal of the contract of employment between the employer being terminated under a stipulation in that behalf contains therein; or
(c) termination of the service of a workman on the ground of continued ill - health.
Section 2 (bb) of the Industrial Disputes act which has been inserted in the Act in the year 1984, had given exceptions to the word retrenchment. It has excluded the workman from retrenchment when the services of any workman was terminated as a result of non- renewal 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.
13. From the plain reading of the definition of 'retrenchment' and in particular of Sub-cl. (bb) of S. 2 (oo) of the Industrial Disputes Act, it appears that the services of the workman are liable to be terminated at any time without any notice and without assigning any reasons" and the termination purporting to be in exercise of that power is a LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 11 of 15 stipulation in the contract contemplated by clause (bb). The said clause contemplates a contract which expressly provides for certain circumstances or situation or situations in which the contract can be terminated. The objects and reasons appended to the Bill which became Industrial Disputes (Amendment) Act, 1984 also do not disclose that the said clause was intended to provide for or save such unilateral clauses imposed by the employer. In the present day realities, such a clause cannot be given too great a sanctity. Giving effect to the said contention would practically render the protection sought to be extended by the Act to workmen nugatory and it would make it easy for an employer to insert or introduce such a clause in the contract of employment and on that basis defeat the rights of workman conferred upon him by the statute.
14. Here, in the present case, the management has relied upon the clause 14 of the contract entered with the workman. Clause 14 of the agreement had empowered the management to dispense with the services of the workman if the workman is not found to be competent and orderly in the discharge of his duties.
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15. Admittedly, the workman was at least in the employment with the management since 2006 - 2009. Three contract Ex. MW 1/2, Ex. MW 1/3 and Ex. MW 1/4 had given the impression that the DTC has been using the services of the workman. Only the break of one or two days has been given in entering the agreement which shows that intentionally the management has been entering into such agreement showing the break of one or two days though his service as a driver was required for quite a lengthy time. Nature of work of the workman is not casual or emergency work. On the pretext of regular job, the workman has been given the job on contractual basis. However, it appears that the workman has completed 240 days in each calendar years and the workman services cannot be dispensed with without following the provision of Section 25-F of the Industrial Disputes Act. In that sense, it appears that the workman services have been terminated illegally which is the violation of Section 25-F of the Industrial Disputes Act which is mandatory in nature because admittedly the workman has not been given the notice pay and retrenchment compensation equivalent to fifteen pay. Hence, the present claim petition is maintainable. Hence, this issue goes in favour of the workman and against the management.
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16. Relief.:- Now the court has to see what relief can be given to the workman. It is an admitted fact that the claimant is a contractual driver with the respondent for more than three years. In the absence of any unfair labour practice, the labour court would not give direction for reinstatement because the workman continued as contract labour/ temporary worker for number of years. Appointment of driver in the DTC is a public appointment. In the judgment titled as State of Karnataka Vs Umadevi, apex court had already said that there is no back door entry given to any person in public appointment. The judgment titled as State of Karnataka Vs Umadevi has been considered by the Hon'ble Supreme Court of India in Hari Nandan Prasad and anr. Vs Employer I/R to Management of Food Corporation of India and anr., (2014) 7 Supreme Court Cases 190: 2014 SCC Online SC 132 whereby the Supreme Court of India had affirmed the fact that Uma Devi Judgment is applicable in the Industrial cases also. Thus, the court has to achieve the balance while adjudicating a particular dispute, keeping in mind that the Industrial Disputes are settled by Industrial adjudication on principles of fair play and justice. Thus, objective of Industrial Disputes Act has been achieved in the present case if the LIR No. 2043/16, Om Prakash Vs DTC 09.05.2018 Page No. 14 of 15 workman/ claimant is awarded compensation inserted of reinstatement because admittedly, the respondent had flouted the provision of Section 25-F of the Industrial Disputes Act. In such circumstances, I deem it appropriate to grant compensation to the workman instead of reinstatement. Considering the length of the service and the fact that the management has not paid his earned wages, back wages, gratuity and notice pay, this court has considered it fit to grant a lump sum amount of compensation of Rs. 90,000/-. The compensation shall be in lieu of above said benefit. The aforesaid amount shall be paid by the Respondent/Management within two months from the date this Award becomes enforceable, failing which the management shall also pay interest @ 9% per annum on the aforesaid amount from the date of Award till the date of realization.
17. A copy of the award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
PRONOUNCED IN OPEN ATUL Digitally signed by
ATUL KUMAR
COURT ON 09.05.2018 KUMAR GARG
Date: 2018.06.01
GARG 14:46:37 +0530
(ATUL KUMAR GARG)
RESIDING OFFICER
LABOUR COURT-XVI/
SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
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Om Prakash Vs DTC 09.05.2018 Page No. 15 of 15
LIR No. 2043/16,
Om Prakash Vs DTC
09.05.2018
Present: Sh. Ashok Kumar Mishra, AR for the management.
Vide my order dictated and announced in the open court,
award is passed accordingly. 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.
(ATUL KUMAR GARG) RESIDING OFFICER LABOUR COURT-XVI/ SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI.
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