Delhi District Court
Sh. Digamber Sharma vs The on 20 April, 2015
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IN THE COURT OF SH. B.S. CHUMBAK : PRESIDING OFFICER
LABOUR COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID No. 125/10
Sh. Digamber Sharma
S/o Sh. Devki Nandan
Through Municipal Employees Union,
Aggarwal Bhawan, G.T.Road, Tis Hazari,
Delhi .......Workman
VERSUS
The Management of
M/s Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk
Delhi ...... Management
Date of Institution :26.04.2010
Judgment reserved:20.04.2015
Date of decision :20.04.2015
Reference no.F.24(114)/ND/27/2006/Lab/100711 dated 25.02.2010
AWARD
1.On considering the report submitted by the Conciliation Officer u/s 12(4) of the Industrial Dispute Act 1947 and on having been satisfied regarding existence of an Industrial Dispute between the workman and management, Deputy Commissioner, Labour Government of NCT of Delhi 2 in exercise of power conferred by Section 10(1) ( c) and 12(5) of the Industrial Dispute Act 1947 (hereinafter referred to as Act) by virtue of the labour department notification no.F.24(114)/ND/27/2006/Lab/100711 dated 25.02.2010 referred the present dispute to this labour court for adjudication with the following terms of reference :
"Whether services of Sh. Digamber Sharma s/o Sh. Devki Nandan have been illegally and/or unjustifiably terminated by the management; and if yes, to what relief is he entitled and what directions are necessary in this respect?"
2. Notice of the reference was served upon the workman. Pursuant to the service of notice workman filed his statement of claim. Notice of the claim petition was also served upon the management.
3. Brief facts arising out of the claim petition are that the workman joined into the employment of management in its Engineering Department as daily wager w.e.f 30.03.1998. Initially he was posted at JJ Colony Store, Madipur, as a Beldar and since then he has been continuously worked at different departments till 19.07.2001. It is further averred that after 19.07.2001 the workman fell ill and due to his long standing illness he remained absent w.e.f 20.07.2001 to 19.05.2002 and information with regard to his illness was already sent to the management from time to time. It is further averred that after resuming his health the workman 3 visited the office of the management on 20.05.2002 to join his duties, medical certificate was also available with him but he was not allowed to join his duties as such management has terminated the services of the workman by way of not allowing him to join his services w.e.f 20.07.2001.
4. It is further averred that the workman is totally unemployed since his services have been terminated i.e w.e.f. 20.07.2001. It is further averred that neither the notice was served nor notice pay was given by the management. Demand notice was served upon the management by hand vide communication dated 19.09.2005 but no reply was filed, thereafter, statement of claim was also filed before the Conciliation Officer, Government of NCT of Delhi and conciliation proceedings were initiated but the same resulted into failure because of the adamant and non cooperative attitude of the management. It is further averred that said action of the management is totally illegal and in violation of section 25 F, G and H of ID Act and requested for reinstatement with continuity of service with full back wages with other consequential benefits.
5. Notice of the claim petition was served upon the management. Pursuant to which management appeared contested the petition by way of filing written statement controverting therein all the allegations as alleged in the statement of claim and also took many preliminary objections such as the present dispute is not an industrial dispute, no demand notice was ever 4 served upon the management and present reference has been made mechanically without application of mind, therefore, the present reference is bad in law and is liable to be rejected.
6. It is further pleaded that present case suffers from latches as it is evident that the services of claimant were terminated in the year 2001 and the present claim is filed in the year 2010 i.e after the lapse of more than nine years. Reliance is also placed on a decided case cited as State of Punjab Vs. Sh. Kali Dass & another reported in 1997 LLR 349. It is further pleaded that efficacious remedy available with the workman was to file application u/s 2A r/w amended section 104A of the ID Act within 12 months from the date of alleged termination. It is further averred that claimant has been paid wages for the days he actually worked and nothing is due towards him as such the claim of the claimant is liable to be dismissed. It is further submitted that claim of the claimant is not maintainable in view of the provisions of Section 2 (oo) (bb) of the ID Act as the claimant was engaged for a specific purpose i.e on a exigent nature of work against the incidental unsanctioned post. It is further pleaded that daily wager workers are not covered by CCS Conduct Rules as such no domestic inquiry is required to be conducted for disengagement of daily wager employee, therefore, the claimants have not been retrenched in view of the provisions of Section 2 (oo)(bb) of the ID Act and requested for dismissal of the claim petition with heavy cost. 5
7. Rejoinder on behalf of workman to the written statement filed by management is also filed controverting therein all the allegations as alleged in the written statement and reaffirm the contents of the statement of claim as true and correct, thereafter case was fixed for settlement of issues.
8. After hearing arguments and on the basis of contentions from both the sides following issue were framed by the then Ld. POLC vide order dated 20.10.2010 :
i) Whether the workman has filed delayed claim ?
ii) Whether the workman left the management of his own?
iii)As per terms of reference.
9. No other issues were arises or pressed, therefore, case was fixed for workman evidence.
10. Claimant/workman appeared as WW1 and filed his affidavit Ex. WW1/A stating therein all the facts which were stated by him in his statement of claim. He also relied upon the documents Ex.WW1/1 to Ex.WW1/23. Ex.WW1/1 is the copy of demand notice dated 19.09.2005, Ex. WW1/2 to Ex. WW1/9 are the office orders by virtue of which the services of the workman has been reengaged vide order dated 30.03.1998, 20.07.1998, 02.11.1998, 29.04.1999, 10.08.1999, 12.01.2000, 11.08.2000 and 6 15.09.2000 respectively, Ex.WW1/10 to Ex. WW1/13 are the orders of transfer of workman dated 20.11.2000, 14.02.2001, 15.04.2001, 15.06.2001 respectively, Ex. WW1/14 is the copy of muster roll details of the workman for the period w.e.f 21.01.2000 to 14.08.2000, Ex. WW1/15 and Ex.WW1/16 are the copies of order dated 12.01.2000 and 22.10.2001 by virtue of which the services of workman were continued as daily wager, Ex. WW1/17 is the copy of joining report dated 20.05.2002, Ex. WW1/18 is the copy of medical certificate submitted by the workman, Ex. WW1/19 is the copy of fitness certificate of workman, Ex.WW1/20 is the copy of file noting regarding workman, Ex. WW1/21 is the copy of statement of claim filed before the Conciliation Officer, Ex. WW1/22 is the copy of office order dated 26.12.2005 issued by the management and Ex. WW1/23 is the reply of the workman to the office order dated 26.12.2005 issued by the management.
11. During his cross examination by AR for management he denied the suggestion that he himself left the employment of the management on 20.07.2001 however, voluntarily stated that despite repeated visits in the office of management he was not allowed to join his duty. He further denied the suggestion that he had not completed 240 days w.e.f 20.05.2001 to 19.05.2002. He further admitted that he had intimated the management about the factum of illness and also submitted the medical certificate of G.R.P. Hospital, Kosi Kalan, Mathura. He also admitted that 7 G.R.P. Hospital is not on the penal of MCD. He also denied the suggestion that he is gainfully employed after his termination. Rest of his testimony is reiterated by him as submitted by him during examination in chief. Thereafter, workman evidence was closed and case was fixed for management evidence.
12. Srimandir, Executive Engineer (ProjectI), Municipal Corporation of Delhi, West Zone, Delhi appeared as MW1 and filed his affidavit Ex. MW1/A stating therein all the facts which were stated by the management in their written statement.
13. During his cross examination by Ld. AR for workman he admitted that the workman joined into the employment of management w.e.f. 30.03.1998 in Engineering Department as daily wager Beldar. He also admitted that the workman was paid minimum wages as per revised scale from time to time. He further stated that the attendance of the workman was marked on the attendance register stock muster roll. He also admitted that the muster rolls are maintained and preserved by the management. He also admitted that the workman continuously worked till 19.01.2000. He also admitted that he had not produced the muster roll from the period 30.03.1998 to 19.01.2000. He further stated that the services of the workman were transfered from Engineering Department to Toll Tax Department. He also admitted that the name of workman was deleted 8 from the rolls of the management w.e.f 20.07.2001 on the ground of unauthorized absence from duties. He further deposed that no call letter was sent to the workman to join his duties being daily wager. He further stated that neither the charge sheet was ever issued nor any inquiry was conducted against him being daily wager. He further deposed that neither notice nor notice pay/service compensation etc. were offered or paid to the workman. He also failed to explain whether any seniority list of Beldar/peon was exhibited on or before 19.05.2002. He also stated that he cannot produce any document or material to show that the workman is gainfully employed after 20.07.2001 or 19.05.2002. He also admitted that the office order Ex. WW1/2 to WW1/7, Ex. WW1/15 and WW1/17 are the office orders issued by the management but he failed to explain whether Ex. WW1/8 to Ex.WW1/14 are also issued from the management. He also admitted that Ex. WW1/18 and 19 were submitted by the workman in the office of management, Ex. WW1/20 is the official noting and Ex. WW1/22 is the order issued by AE on behalf of management. He also admitted that the Beldar/peon who joined in the month of March 1998 stand regularized in service in the regular pay scale by the management as per the policy regularization. Rest of his testimony is reiterated by him as submitted by him during examination in chief. Thereafter, management evidence was closed and case was fixed for final arguments.
14. I have heard the arguments on behalf of AR on behalf of both the parties. 9
After hearing arguments on behalf of AR of both the parties and also on having been taken into consideration the facts and circumstances of the case and the evidence adduced by the workman my findings on the issues are as follows :
ISSUE NO.1
i) Whether the workman has filed delayed claim ?
15. On this issue Management in this case took the preliminary objection that the present claim suffers from latches and is barred by limitation and relied upon the observation given in a decided case cited as State of Punjab Vs. Kali Dass & Ors. 1997 LLR 349. In this case the relief was denied to the workman raising the industrial dispute after expiry of three years of accrual of cause of action. In the case in hand the services of the claimant allegedly terminated on 20.07.2001 on the ground that the workman remained absent w.e.f 20.07.2001 to 19.05.2002. After resuming his health he filed the joining report alongwith medical/fitness certificate, the matter was taken up by the management and till the year 2005 no final decision could be taken rather the workman was not allowed to join his duty. He also sent a legal notice dated 19.09.2005 which is Ex. WW1/1. He also filed the conciliation proceedings in the office of labour commissioner in the year 2006 and thereafter reference was sent to this court on 26.04.2010.
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16. In view of the aforesaid discussion, I also relied upon the observation given by their lordship in a decided case cited as Ajaib Singh Vs. The Sirhind CoOperative Marketing cum Processing Service Society Ltd. & another (1999) 6 SCC 82 wherein it is observed that there is no period of limitation to the proceedings in the Act. It is also observed that provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. It is also observed that the plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone, even in cases where the delay is shown to be existing.
17. In rebuttal to the plea of the workman on the ground of latches, I also carefully perused the provisions of Section 2A of the ID Act which has come into force on 15.09.2010 vide SO.2278(E) dated 15.09.2010 and sub section (3) of section 2A provides as under :
"The application referred to in sub section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub section (1)."11
18. On bare perusal of the aforesaid provisions of the Industrial Dispute Amendment Act 2010 and the provisions of amended section 2A r/w section 1 (2) of the ID Act wherein it is provided that the Industrial Dispute Amendment Act 2010 shall come into force on such date as the central Government may by notification in the official gazette, appoint and admittedly the amended provision brought into force on 15.09.2010 and the cause of action in this case arose in the year 2002, conciliation proceedings were filed in the year 2006 and thereafter the reference was sent to this court on 26.04.2010 i.e well prior to the coming in force to the provisions of Section 2A of the ID Act. Prior to the said amendment no limitation was provided in the Industrial Dispute Act. In view of the aforesaid discussion the plea of latches taken by the management is devoid of merit and hence declined. This issue is decided accordingly in favour of the workman and against the management.
ISSUE NO.2
ii) Whether the workman left the management of his
own?
19. On this issue Ld. AR for management submitted that the claimant remained absent w.e.f 20.07.2001 to 19.05.2002 without prior intimation, which amounts to the abandonment of the service by the workman, therefore, he is not entitled for any relief. It is further pleaded that daily 12 wagers are the temporary worker and have no right or lien to his post. It is further submitted that claimant after 20.07.2001 never sent intimation of any kind including his illness as such his contention about his illness in the statement of claim is baseless. It is further submitted that the claimant was engaged for a specific purpose i.e for seasonal nature of work, therefore, he has not been retrenched in view of section 2(oo) (bb) of ID Act.
20. On the other hand Ld. AR on behalf of workman submitted that the workman joined the employment of management w.e.f 30.03.1998 as daily wager and he continuously worked till 20.07.2001. The workman, thereafter become ill and remained absent w.e.f. 20.07.2001 to 19.05.2002 due to long standing illness and after his recovery from the illness he approached the management to resume his duty but he was not allowed and his services were terminated by way of refusal from duty. Demand notice was also served upon the management on 19.09.2000 and submitted that it is not a case of abandonment of the service by the workman himself and requested for dismissal of the plea of abandonment of service taken by the management.
21. After hearing arguments on behalf of AR for both the parties, I carefully perused the evidence adduced by both the parties wherein it has come in evidence that the workman fell ill from 20.07.2001 and during his illness 13 i.e vide order dated 22.10.2001 which is Ex. WW1/16 the claimant was relieved from Toll Tax Department to the office of EE XX and facutm of issuance of this order is not denied by the management. It has further come in evidence that after recovering of his illness the workman admittedly approached the management for resuming his duty. The said matter was taken up by the management and proceedings conducted by the management is Ex. WW1/20 which clearly shows that after considering the joining report filed by the workman a copy of the order dated 26.12.2005 Ex. WW1/22 was also served upon the workman directing therein to file an affidavit with regard to the fact that he has not involved in any criminal or civil case during his period of absence but without passing any final order the workman was not allowed to resume his duties. Reliance is also placed on a decided case cited as Shri Shiv Kumar Vs. Hansita 2010 (127) FLR 260, Hon'ble High Court wherein it is observed as under :
"It is a settled position that the abandonment of service cannot be readily inferred. Abandonment of service is a question of intention which can be gathered from the totality of the facts and circumstances of each case. There has to be a clear evidence on record to show that despite grant of reasonable opportunity to the employee by the management, he failed to join back his duties without any sufficient reasons and therefore in the absence of any such cogent and convincing evidence, voluntarily abandonment on the part of 14 the employee cannot be readily inferred."
22. On following the observation given in the aforesaid decided case and on considering the evidence adduced by both the parties, I am of the considered view that there is no clear intention and evidence on record to show that despite grant of reasonable opportunity to the workman, he failed to join his duties. Accordingly I hold that the management failed to prove that the workman himself stopped coming to his duties, however, he shown his willingness to join his services after resuming his health. Medical/fitness certificates were also placed on record alongwith the joining report which further shows the bonafide of the workman to resume his duties. In such circumstances, I am of the considered view that the workman of his own not stopped coming to his duty. This issue is decided in favour of the workman and against the management.
ISSUE NO.3
iii) As per terms of reference.
"Whether services of Sh. Digamber Sharma s/o Sh. Devki Nandan have been illegally and/or unjustifiably terminated by the management; and if yes, to what relief is he entitled and what directions are necessary in this respect?"
23. In view of the observation given while deciding issue no.1 and 2 coupled with the fact that the claimant was not allowed to join his duty without 15 deciding his claim of resuming his duty after recovering from his illness, I am of the considered view that his services were terminated without following the provisions of section 25 F, G and H of the ID Act. The factum of not joining the claimant deemed to be termination of his services without following due process of law and also without conducting any inquiry with regard to his alleged absence from the duty w.e.f 20.07.2001 till 19.05.2002. I am of the view that service of workman has been illegally terminated without following due process of law and even without conducting any inquiry.
24. Admittedly the claimant was on duty till 20.07.2001, thereafter he become seriously ill and after his recovery from illness he took steps to resume his duty, medical and fitness certificates were also furnished in the office of management but he was not allowed to join his duties, rather his application was also not disposed off on merit. Legal notice was also served upon the management. When no action was taken by the management the workman also moved an application before the conciliation officer in the office of labour commissioner and when matter was not reconciled the present case was referred to this court vide reference no. F.24(114)/ND/27/2006/Lab/100711 dated 25.02.2010, thereby, it is proved that inadvertently the representation was not considered by the management. It has also come in evidence that workman was not under any gainful employment during his 16 unemployment.
25. Accordingly, keeping in view the fact that termination of the claimant was without any justification and the management misused its position as an employer and failed to bring anything on record to show that non joining of the claimant was justified, I am of the view that the act of the management was totally in contravention of provisions of section 25F, G and H of the ID Act, therefore, the termination of the workman is set aside. Since the workman was daily wager and he had not worked with the management during the period of his absence and also during the trial of this case, therefore, on the principle of no work no pay I am not inclined to grant him back wages but he shall be entitled to claim seniority for the purpose of his regularization in service qua his other juniors if they have been regularized in the service as per procedure established by law. The workman has also become entitled for reinstatement with continuity of service without back wages with consequential benefits of seniority for the purpose of regularization of service as per procedure required to be followed by the management. Accordingly, management is directed to allow the workman to join his duty within 30 days from the date of publication of the award failing which the claimant shall become entitled for the wages @ rate of minimum wages prevalent on the 1 st day of expiry of 30 days of publication of award with interest @ 9% p.a till the age of his superannuation.
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26. Award has been passed. By recent amendment, Subsection 9 has been added in Section 11 of the I.D. Act which provides as under: "Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree of a Civil Court under order 21 of the Code of Civil Procedure, 1908 (5 of 1908)"
27. The territorial jurisdiction of Labour Court is decided or determined at the place where management is situated. In the present case, management is situated at Chandni Chowk, Delhi, which falls within the jurisdiction of Central District. Hence, copy of the award be sent to the Sr. Civil Judge, Central District for appropriate order on execution.
28. Reference is answered accordingly. Copy of the award be also sent to the appropriate Government for publication as per law. File be consigned to Record Room after necessary compliance by Ahlmad.
Announced in the Open Court (B.S. CHUMBAK)
on 20th April, 2015 Additional District & Session Judge
Presiding Officer Labour Court XVI
Karkardooma Courts, Delhi