Delhi District Court
Sh. Shobh Nath vs M/S Ashok Hotel on 10 January, 2011
IN THE COURT OF SH. T. S. KASHYAP:
PRESIDING OFFICER: LABOUR COURT-XIX ( EAST):
KARKARDOOMA COURTS: DELHI
LIR D NO. 892/06 (OLD NO.424/05)
Unique I.D. No. 02402C0526542005
SH. SHOBH NATH
S/O SH. CHAVI LAL
REPRESENTED BY PRESIDENT OF ASHOK HOTEL
MAZDOOR JANTA UNION, SH. S.S. UPADHYAYA
166, PRATAP NAGAR, OPP. MAYUR VIHAR
PH-I, POCKET-IV, DELHI-91 ...CLAIMANT/WORKMAN
Vs.
1.M/S ASHOK HOTEL A UNIT OF ITDC, 50-B, CHANAKYAPURI NEW DELHI.
2. M/S RECRUITMENT BUREAU CONTRACTOR H- 1564, CHITTARANJAN PARK, NEW DELHI-19 ................MANAGEMENTS Date of institution : 05-10-05 Date of reserving judgment : 16-12-10 Date of Award : 10-01-11 AWARD (ORAL) This claim U/s. 10 (4A) of the Industrial Disputes Act, 1947 LIR D No. 892/06 Page 1 of 19 pages (hereinafter referred as Act) has been filed by workman against the management of M/s Ashok Hotel and M/s Recruitment Bureau with the prayer for passing an award in his favour with direction to the management to reinstate him back in duty with continuity of service, back wages and consequential benefits submitting that he was employed with the management, and was working with the management of M/s Ashok Hotel as Cashier in different Restaurants. His services were used through management no. 2 M/s Recruitment Bureau, Contractor and he was paid salary of Rs. 6000/- per month which was increased Rs. 7000/- per month by the management of M/s Ashok Hotel. He claims to have worked in different shifts as per requirement and carried duties of regular nature which could not be used by the management no. 2 M/s Recruitment Bureau, Contractor. He alleged that as per Section 7 of the Contract Labour Regulation Act, the management was bound to get registered with Delhi Govt. and the Contractor was also bound to take licence from the Labour Department, Delhi Govt. as per Section 12 of Contract Labour Act and the Contract Labour Act. Section 10 of the said Act prohibits the management of M/s Ashok Hotel to use the service of the employees against perennial nature job as such management cannot use his service through management no. 2 M/s Recruitment Bureau, Contractor. He claims that management had also issued an I. Card and his attendance was also marked with the management. According to him on 23-4-05, he was on duty as Cashier in the night Bazar LIR D No. 892/06 Page 2 of 19 pages of Ashok Hotel when Mr. Anil Makker, AM(A/Cs) vide his letter dt. 25-4-05 alleged that a sum of Rs. 250/- was found excess over and above in the ticket sale and workman was asked to explain the reason for such excess. He submitted an explanation vide letter dt. 27-4-05 but after receiving the reply, said Mr. Anil Makker did not allow him to perform his duty w.e.f. 29-4-05. He made a representation dt. 29-4-05 to G.M. Accounts but his office refused to receive the same but some how, it was submitted on the same day. He also claims to have performed continuous duty for more than 240 days with the management in one Calender Year 2004 as he worked since 14-7-03 till 28-4-05. As per Section 3 of the Sanding Orders of the management, the management could not employee any workman through Contractor. The claimant remained un-employed and therefore he made a representation dt. 14-8-05 and sent a demand notice dt. dt. 15-9-05 through Union but no reply was given. Hence the claim.
2. The management of M/s Ashok Hotel has contested the claim by filing the written statement taking preliminary objections such as that no Industrial Dispute exists between the parties; that the claimant was not an employee of the management no. 1 as he was hired from management no. 2 M/s Recruitment Bureau, the Contractor who had employed the claimant and claimant had left the services of the management no. 2 M/s Recruitment Bureau, the Contractor on 30-4-05 on his own after tendering his resignation; the ESI and PF facilities were provided by management no.2 and there was no question of LIR D No. 892/06 Page 3 of 19 pages any compensation and notice pay to be paid to the claimant who had left the service on his own. On merits, it has been submitted that the claimant was not working as an employee of M/s Ashok Hotel but he was performing the duty of Cashier on the instructions of the management no. 2, Contractor and his services were being used through the Recruitment Bureau. It has been submitted that salary to the claimant was paid by management no. 2 and not by management no. 1. It was denied that M/s Ashok Hotel has increased the salary of the claimant from Rs. 6000/- to Rs. 7,000/-. The management no. 1 has nothing to do with the payment of salary to the claimant as it was the arrangement between the workman and the Recruitment Bureau. The management no. 1 has denied that it had hired the services of the Recruitment Bureau for doing certain type of work which was not of regular nature. It was denied that the salary bill of the claimant was passed by M/s Ashok Hotel. It has been submitted that I. Card was issued to identify the person and not as employee of Ashok Hotel who is a Govt. Hotel and there were lot of VIP Visitors and for security reasons, the identity card was issued to the claimant. The claimant himself left the services of the Recruitment Bureau after tendering his resignation dt. 30-4-05 and there was not dispute with management no. 1.
3. The management no. 2 contested the claim by filing separate written statement/reply submitting that the claimant was appointed by the management no 2 as Trainee and subsequently appointed as LIR D No. 892/06 Page 4 of 19 pages Cashier on contract but he resigned from the service of Recruitment Bureau on 30-4-05 on his own as he had to move out of Delhi for some family work and was not in a position to continue the job of Cashier and had requested for immediate relieving. The terms of appointment as Trainee/Cashier on Contract was clearly made known to him and he had agreed to the terms in writing as well as by accepting the appointment letter. There was no pressure rather he was willing to accept the fact that his services will never be absorbed in the services of the client companies i.e Ashok Hotel. His absorption if at all will be in Recruitment Bureau on the conditions stipulated in the appointment letter dt. 14-7-04. After he left the services of Recruitment Bureau, he visited the Office at C.R. Park and requested for a help in learning the job. However, since there was no ill will against him and he left the services of the Recruitment Bureau on his own, he was entertained and was helped to look for better job prospects. Considering his request, a formal request was made to the CA firm situated at C.R. Park to provide him suitable training and the CA firm obliged and the claimant was selected in an IT related company at Gurgaon as Accounts Clerk on a substantially higher pay than what he was drawing earlier. Due to his incompetency and irregularity, the company turned him out after paying him one month's salary.
Thereafter, he again approached Recruitment Bureau for help and he was recruited at the same time to complete the on job LIR D No. 892/06 Page 5 of 19 pages
training and Recruitment Bureau has no knowledge of any dispute as claimant never informed the Recruitment Bureau. He has mislead the bureau even though there was no dispute. It has been submitted that there was no increase in his salary during the period of his employment and the claim was false.
4. Workman filed a separate rejoinders to the written statements on behalf of both the management and on pleadings of parties, the following issues were framed by my Ld. Predecessor on 12-9-06:-
1. Whether their existed any relationship of employee and employer between the workman and the management no. 1 i.e. M/s Ashoka Hotel?
2. Whether the services of the workman had been terminated illegally and/or unjustifiably?
3. Relief.
5. In support of his claim, the workman examined himself as WW1 and tendered his affidavit Ex. WW1/A relying on documents Ex. WW1/1 to Ex. WW1/8 and also examined WW2 Sh. S.S. Upadhayay who tendered his affidavit Ex. WW2/A relying on documents Ex. WW2/1 to Ex. WW2/3 as well as Ex. WW2/A and Ex. WW1/4 and workman's evidence was closed.
On behalf of the management, MW1 Sh. R.L. Ramanand, Assistant Manager (HR) tendered his affidavit Ex. MW1/X and he was partly cross-examined but subsequently this witness failed to appear and to produce the management's record and no other other LIR D No. 892/06 Page 6 of 19 pages witness was examined on behalf of the management. Therefore management's evidence was closed by court.
6. I have heard the submissions from Ld. AR for workman but no one appeared on behalf of the management. I have also gone through the case file and my finding on the issues are as under:-
7. ISSUE NO. 1The onus to prove this issue was not placed by my Ld. Predecessor on either party. However, as per provisions of Section 102 of the Indian Evidence Act and as per authority reported as RANGE FOREST OFFICER VS. ST HADIMANI, AIR 2002, SC 1147, the onus was to be discharged by the workman. On behalf of the workman, it has been submitted by Ld. AR that the workman had proved on record the I. Card issued by the management no. 1. The workman has relied on documents Ex. WW1/1 to Ex. WW1/8. His testimony has been corroborated by WW2 who has relied on documents Ex. WW1/1 to Ex. WW1/3 as well as Ex. WW1/2A and Ex. WW1/4 and testimony of both these witnesses has fully proved on record that the workman was employee of management no. 1. He also submitted that MW1 has failed to produce the summoned record and therefore his testimony cannot be read in evidence and an adverse inference deserves to be drawn against the management. He also submitted that the management no. 1 failed to produce the certificate of registration and no licence has been produced by the management no. 2. As per Section 10 of the Contract Labour Regulation Act, the employment of LIR D No. 892/06 Page 7 of 19 pages the workman by the management was prohibited and any such employment has to be treated as sham and camouflage. As per section 3 of the said Act there was no provision of employment of the claimant through the Contractor. The nature of job performed by the workman was of perennial nature and his service could not have been terminated as such he should be deemed to be an employee of management no. 1.
Although, MW1 has not appeared in witness box subsequent to 28-4-08 nor the summoned documents were produced but MW1 was substantially cross-examined on behalf of the workman and therefore his testimony cannot be totally ignored. In his cross- examination, MW1 has stated that the hotel used to reimburse the contractor, the salary paid to the workman to the extent permissible under the agreement. The contractor was not depositing EPF of the workman in EPF Trust Account of Ashoka Hotel which was only for permanent employees of Ashoka Hotel. He proved on record the EPF Trust Rules Ex. MW1/W1 (colly). He also stated that Standing Orders of Ashoka Hotel were applicable only for permanent employees of the Hotel and not for those who engaged through Contractor. He admitted that duties of the workman used to be in Ashoka Hotel Restaurants but voluntarily added that his duties were assigned by the supervisor in other offices of Ashok Hotel also. Although, for non production of record by MW1 on behalf of management an adverse inference could be drawn but such an LIR D No. 892/06 Page 8 of 19 pages inference can be drawn only if the plea taken on behalf of the management that the claimant/workman was an employee of management no. 2 has not been proved. The testimony of WW2 does not help the workman because Sh. S.S. Upadhayaya, WW2 in his cross-examination has admitted that he had retired from the service of the management no. 1 in the year 1995 whereas as per the affidavit of workman Ex. WW1/A, the workman was working in Ashoka Hotel only since 14-7-03 which establishes on record that WW2 was not in the employment of the management during the period when the claimant/workman performed duty with management no. 1. WW2 has also submitted that Sh. Anil Makkar was not working with M/s Ashok Hotel in the year 1995 and WW2 has not claimed that he has seen Sh. Anil Makkar working with him till 1995. WW2 also admitted that he has not filed any document to show that workman is a member of M/s Ashok Hotel Mazdoor Janta Union nor he has produced any receipt regarding deposit of subscription of the workman with the said Union. WW2 has also failed to produce on record any documentary evidence to establish that workman was employee of management no. 1 M/s Ashok Hotel. He also admitted that PF contribution of the workman was being deducted by the contractor and he was also paid salary through contractor.
The workman WW1 in his cross-examination, has stated that he does not know whether he was appointed by the management through the Contractor, M/s Recruitment Bureau. Although he has LIR D No. 892/06 Page 9 of 19 pages admitted his signatures at point Mark A on Ex. WW1/MX1 to Ex. WW1/MX3. The document Ex. WW1/MX1 is a letter of appointment issued by Recruitment Bureau, the management no. 2. Ex. WW1/MX2 is the letter of request submitted by the workman to management no. 2 Recruitment Bureau, expressing his inability to report for duty on 30th April and request for his relieving with immediate effect and Ex. WW1/MX3 is the request submitted by him to management no. 2 Recruitment Bureau that he would not like to be covered under PF and ESI provisions, particularly during the period of his training. However, it cannot be believed that he does not know whether he was appointed by the management through Contractor which is patently false and contrary to the contents of document Ex. WW1/MX1, the letter of appointment issued by the management no. 2 Recruitment Bureau in his favour for the post of Cashier on 14-7-04. Even though he was employed with the management no. 2 subsequent to 14-7-04 but in his claim, he had stated that he was employed since 14-7-03 but no document in this regard has been produced by him. He has also failed to produce any document to prove that he was a member of M/s Ashok Hotel Mazdoor Janta Union. He admits that in para 9 of his affidavit Ex. WW1/A, he had mentioned that his PF was deducted by the Contractor and deposited by him with authority. He denied the suggestion that I. Card Ex. WW1/1 was issued to him by the management of M/s Ashoka Hotel only to facilitate his movement in the hotel for the security reason and he LIR D No. 892/06 Page 10 of 19 pages admitted that he has not filed any other documents besides this identity card to show that he was appointed by the management of Ahsoka Hotel. A perusal of I. Card Ex. WW1/1 clearly shows that it was issued as a temporary pass and the explanation given by MW1 deserves to be believed that the Ashok Hotel is a Govt. undertaking visited by VIPs and I. Cards are required to be issued for security reasons. Even though the workman/claimant was appointed by management no 2 Recruitment Bureau but he was working with management no. 1 being deployed by management no. 2, Contractor namely Recruitment Bureau. He has taken the plea that he does not know whether he was appointed by the management no. 2, Contractor namely M/s Recruitment Bureau. Therefore, he is deemed to be an employee of management no. 2, Recruitment Bureau only. In my considered view, no adverse inference deserves to be drawn against the management no. 1 for non production of the summoned record because the workman has admitted his signatures on documents Ex. WW1/MX1 to Ex. WW1/MX3 including the letter of appointment for the post of Cashier dt. 14-7-04. Ld. AR for workman has failed to prove on record any notification U/s 10 of CLRA prohibiting employment of cashier through the Contractor for the post of Cashier. Non filing of certificate of registration or licence referred by Ld. AR for workman does not make it mandatory that the employee so employed by the Contractor shall be deemed in employment of management no 1. Hon'ble Supreme court in authority reported as LIR D No. 892/06 Page 11 of 19 pages STEEL AUTHORITY OF INDIA LTD. VS. N.U. WATERFRONT WORKERS (AIR 2001 SC 3527)" has quashed the notification covering the jobs which was upheld in AIR INDIA STATUTORY CORPORATION AND OTHERS VS. UNITED LABOUR UNION AND OTHERS, 1997 (9) SCC 377, in as much as it laid down the principle of automatic absorption which has also been overruled. It was also held that:-
"The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended, does not extend to reading in the provisions of the Act what the legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the legislature. We have already noticed above the intendment of the of the CLRA Act that it regulates that conditions of service of the contract labour and authorizes in Section 10 (1) prohibition of contract labour system by the appropriate Government on consideration of factors enumerated in sub-section (2) of Section 10 of the Act among other relevant factors. But, the presence of some or all those factors, in our view, provide no ground for absorption of contract labour on issuing notification under sub-section (1) of Section 10. Admittedly when the concept of automatic absorption of contract labour as a consequence of issuing notification under Section 10(1) LIR D No. 892/06 Page 12 of 19 pages by the appropriate Government, is not alluded to either in Section 10 or at any other place in the Act and the consequence of violation of Sections 7 and 12 of the CLRA Act is explicitly provided in Sections 23 and 25 of the CLRA Act, it is not for the High Courts or this Court to read some unspecified remedy in Section 10 or substitute for penal consequences specified in Sections 23 and 25 a different sequel, be it absorption of contract labour in the establishment of principal employer or a lesser or a harsher punishment. Such an interpretation of the provisions of the statute will be far beyond the principle of ironing out the creases and the scope of interpretative legislation and as such clearly impermissible. We have already held above, on consideration of various aspects, that it is difficult to accept that the Parliament intended absorption of contract labour on issue of abolition notification under Section 10(1) of CLRA Act.
An analysis of the cases, discussed above, shows that they fall in three classes : (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the Industrial adjudicator/Court ordered abolition of contract labour or because the appropriate Government issued notification under Section LIR D No. 892/06 Page 13 of 19 pages 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered ;
(ii) where the contract was found to be sham and nominal rather a camouflage in which case the contract labour working in the establishment of the principal employer was held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited ; (iii) where in discharge of a statutory obligation of maintaining canteen in an establishment the principal employer availed the services of a contractor and the courts have held that the contract labour would indeed be the employees of the principal employer."
Ld. AR for workman has not produced any notification issued by Govt. of India prohibiting the employment of workman as required under CRLA Act. Hon'ble Supreme Court has further held that :-
"Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub- section (1) of Section 10, prohibiting employment of contract LIR D No. 892/06 Page 14 of 19 pages labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment.
On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for that purpose.
If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the LIR D No. 892/06 Page 15 of 19 pages appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation of other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications."
There is no merit in the submissions made by Ld. AR of the workman. Similarly, the submissions that management could not employ workers beyond the provisions of Section 3 of the Certified Standing Orders has no merits because the said orders are applicable only to employees of the management no. 1 and not to the workman who were deployed by Contractor. Therefore, it is held that the workman was only an employee of management no. 2 Recruitment Bureau, Contractor and not of management no. 1 M/s Ashok Hotel.
The issue is decided in favour of the management and against the workman.
8. ISSUE NO. 2
The onus to prove this issue was on the workman who has
LIR D No. 892/06 Page 16 of 19 pages
alleged that management no. 1 has illegally terminated his services
w.e.f. 29-4-05 but he has not proved on record any documentary
evidence. The management no. 1 M/s Ashok Hotel has denied the
allegation and management no. 2 has pleaded that workman had
himself resigned from the service and had joined another job
and in that respect workman had made a request to management no.
2. Even though in his cross-examination, the workman has denied that he was employee of management no. 2 Ms/ Recruitment Bureau but he admits his signatures on Ex. WW1/MX1 to Ex. WW1/MX3 as such it is established that he was employee of management no. 2 Ms/ Recruitment Bureau, Contractor and Issue no 1 above has been decided against him. He also admitted in para 2 of his affidavit that the management no. 1 M/s Ashok Hotel was using his services alongwith other employees through management no. 2 Recruitment Bureau, Contractor. He denied the suggestion that he had submitted his resignation on 30-4-05 to management no. 2 Recruitment Bureau, Contractor saying that he had to move out of Delhi for some family work and management no. 2 Recruitment Bureau, Contractor helped him getting in another job at Gurgaon but his denial appears to be false and cannot be believed because he has admitted his signatures on the documents Ex. WW1/MX1 to Ex. WW1/MX3 without any protest and has not even come with any plea that his signatures were taken by the management by some dubious means.
Sine he had joined the service with management no. 2 Recruitment LIR D No. 892/06 Page 17 of 19 pages Bureau, Contractor, it was obvious that he made a request for
relieving only to management no. 2 Recruitment Bureau, Contractor and his request on Ex. WW1/MX2 dt. 30-4-05 is as under :-
Recruit Bureau H. N 1564, C.R.Park New Delhi-19 Sir, This is to inform you that I have to move out of Delhi for some family work accordingly I will not be in a position to continue the job of Cashier offer to me.
I am not reporting on duty from 30th April I may be relieved with immediate effect.
Thanking You Your faithfully sd/-
Place- New Delhi (SHOBH NATH VISWAKARMA)
B-43, Sita Puri Dabari More,
New Delhi-45
Syndicate Bank Janakpuri
Bank A/C -14200
He has neither mentioned nor given any explanation in his
claim, and/or his affidavit Ex WW1/A about these documents for obvious reasons. He claims to have made representation dt. 14-8-05 but has not proved on record any such representation. He also claims to have sent a demand notice through Union but no such demand notice has been proved on record. If he had not submitted Ex.
WW1/MX2 dt. 30-4-05 to management no. 2 Recruitment Bureau, Contractor, he could have immediately made a complaint to the LIR D No. 892/06 Page 18 of 19 pages
authorities of the labour office or police but no such complaint was made by him and he has directly filed the complaint after lapse of about 5 months which shows that filing of claim is an afterthought after voluntarily requesting the management no. 2 to relieve him with immediate effect. Under these circumstances, there was no requirement for the management No. 2 to issue any letter, re-calling him for service when he had already tendered his resignation with the request for relieving. Therefore, it cannot be said that his services were illegally terminated by management no.1 M/s Ashok Hotel and management no. 2 Recruitment Bureau, Contractor has relieved him on the basis of request made by him. Therefore, the workman has failed to prove on record that his services were illegally terminated by the management.
This issue is accordingly decided against the claimant.
9. RELIEF In view of my findings on the Issue no. 1 and 2 above, the claimant is not entitled for any relief.
10. The claim is answered accordingly. Copies of award be sent for publication and case file be consigned to Record Room.
Announced in the open court.
Date : 10th JANUARY 2011 (T. S. KASHYAP) PRESIDING OFFICER, LABOUR COURT-XIX, KARKARDOOMA COURTS, DELHI.
LIR D No. 892/06 Page 19 of 19 pages