Delhi District Court
Through vs M/S Skygourmet Catering Pvt. Ltd on 11 October, 2018
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
DWARKA COURTS : NEW DELHI
LIR No: 2650/16
Sh. Mangal Tekaria
S/o late Sher Singh Tekaria
R/o: H.No. D325, Shad Nagar,
Street No. 12, Palam Colony,
near Railway Colony,
New Delhi - 110045
Through
Airport Employees Union (Regd.)
BTR Bhawan, 13A, Rouse Avenue,
New Delhi - 110002
....CLAIMANT
VERSUS
M/s Skygourmet Catering Pvt. Ltd.
Indira Gandhi International Airport Complex
Office: International Airport Approach Road,
New Delhi - 110037
Through its General Manager
....MANAGEMENT
Date of institution of the case : 14.03.2012
Date of passing the Award : 11.10.2018
A W A R D
1.A reference dated 27.02.2012 was received for adjudication by this Court which was sent by Dy. Labour Commissioner, under Section 10(1)(c) and 12(5) of I.D.Act, read with Notification no. F.1/31/616/ESTT./2008/7458 dated LIR No: 2650/16 Page 18 of 18 03.03.2009, on a complaint filed by Claimant against the Management, wherein the following reference was to be answered: "Whether services of Sh. Mangal Tekaria s/o Late Sh. Sher Singh Tekaria have been illegally/ and or unjustifiably terminated by the mangement, and if yes, to what relief is he entitled?"
2. Notice of reference was issued to Claimant after which the Claimant had appeared and filed his statement of claim, claiming therein, that he had joined the management's establishment with effect from 02.07.2007 and at the time of his termination (date of termination 13.01.2012), he was working as Team Member "C" (Operations) with his last drawn salary as Rs. 6,884/. It was further stated that the claimant was sincere and hardworking and there was no complaint of any nature regarding his performance. It was further stated that vide letter dated 01.04.2008 he was given revised Performance Linked incentive of Rs. 900/. It was further stated that vide letter dated 01.06.2009, again his performance linked incentive was revised to Rs. 1,000/. Again vide letter dated 01.06.2010 his performance linked incentive was revised to Rs. 1,100/. It was further stated that vide letter dated 01.06.2011, the total emoluments were increased to Rs. 6,884/. It was further stated that his contract was renewed till 31.03.2014 and without any charge sheet or any domestic inquiry, his services were terminated.LIR No: 2650/16 Page 18 of 18
It was further stated that Management is in Air catering business and the nature of business is permanent and perennial in nature, however, the Management with malafide intention had issued only "fixed term appointment letters" to all the workmen with a term of three and half years or for one year. It was further stated that the Management had been taking work for 1416 hours without any overtime payments as well as no conveyance was provided to the workers. It was further stated that in case the workman was hurt at the workplace, there was no provision of an immediate medical treatment and due to all of these factors, the workers were forced to form their Union on 10.10.2009. It was further stated that thereafter the Management had summoned its workers from Chennai, Mumbai, Benguluru and Hyderabad to terminate the services of Union workers and leaders and from May 2010 onwards the Management started terminating the services of President, General Secretary and so on.
It was further stated that by using the word "fixed term appointment", the Management was only depriving the workman of the protection given in Section 25F, 25G, 25H and 25N of the I.D.Act 1947.
It was further stated that Management was not inclined to absorb the workmen of the establishment in permanent capacity as then it had to pay them higher wages as compared to the temporary staff and to avoid all these LIR No: 2650/16 Page 18 of 18 financial and statutory obligations, the Management had with malafide intent issued letters of fixed term appointment to all the workers.
It was further stated that the workmen of Management establishment through their Union had raised an Industrial Dispute No. 247 of 2010 regarding illegality of this "fixed term Appointment" method and the matter was still pending. It was further stated that management will the sole aim of discouraging and threatening the workers from joining "Workers Union" and further to discourage them from filing of court cases, started terminating/ suspending the workers who had either joined "Workers Union" or filed court cases for his rights.
It was further stated that appointment letter to the workman was issued by Director (HRD) of the establishment but the termination letter was issued by Senior Human Asset Manager, who was inferior in designation to the Director (HRD) and as per the settled principles of law, the termination letter could have been issued only by the appointing authority and on the said ground also, the termination was illegal and unjustified.
It was further stated that after termination of the service of workman, the workman had sent a demand notice to Management to which it did not file any reply. It was LIR No: 2650/16 Page 18 of 18 further stated that the workman had preferred statement of claim before Asst. Labour Commissioner/ Conciliation Officer, however, the management had not participated in the said conciliation proceedings, hence, the Jt. Labour Commissioner had referred the matter through reference to this Court. A prayer was made that an award be passed directing the management to reinstate the workman with full back wages as well as continuity of service and all other consequential benefits.
3. Notice of the statement of claim was sent to the Management which was duly served upon it and Management had also appeared and contested the statement of claim on merits by filing its WS, wherein, it was contended that workman was appointed in service on fixed term contractual basis and his services came to an end on the completion of his fixed tenure of employment. It was further stated that the nature of business of Management was uncertain, as such the company could not have a fixed workforce of permanent workmen and due to the fixed term employment of the workman herein, it should not have vested any right in him to seek continuation or absorption in service of company on the expiry of his fixed term employment. It was also stated that the workman had duly accepted the fixed term appointment and the said acceptance had not vested any right in him to seek continuation or absorption in service of the company on the expiry of his fixed term employment of LIR No: 2650/16 Page 18 of 18 three years.
Regarding other paras which were either not specifically admitted or essentially and purely constituted matter of record, same were denied by it as incorrect.
4. Workmen had also filed his replication to the said written statement wherein he had denied the contents of WS as wrong and reiterated the contents of their statement of claim as correct.
5. Vide order dated 15.02.2013, ld. Predecessor of this Court was pleased to frame the following issues :
1. As per terms of reference.
2. Relief.
6. In order to discharge the onus of proving the issues, the workman had appeared as his own witness and filed in evidence, his examination in chief by way of affidavit Ex. WW1/A wherein he had reiterated the contents of his statement of claim on solemn affirmation. Besides this, he had also placed on record the following documents :
1. copy of appointment letter dated 02.07.2007 is Ex. WW1/1;
2. performance incentive letter dated 02.07.2007 is Ex. WW1/2;
3. copy of increment letter dated 01.04.2008 is Ex. WW1/3;
LIR No: 2650/16 Page 18 of 184. copy of the increment letter dated 01.06.2009 is Ex. WW1/4;
5. contract renewal letter dated 27.04.2011 is Ex. WW1/5;
6. copy of another renewal of contract letter dated 01.06.2011 is Ex. WW1/6;
7. copy of government gazette notification/ order dated 10.10.2007 is Ex. WW1/7;
In his cross examination conducted by ld. AR for management, he had denied the suggestion that his employment with the management was only for a fixed term. Though he had denied his signatures at pt. A on his appointment letter Ex. WW1/1, however, he had admitted its authenticity and thus it was again exhibited as Ex. WW1/M1. He had further denied the suggestion that performance linked incentive was given to him on the basis of the performance of the management and not on the basis of his individual performance or that business of management used to fluctuate as per the number of flights being catered by it. However, it was admitted to be correct by him that various other companies were also involved in the business of catering meals to the airlines, however, he had no knowledge that there was any Performance Appraisal Committee constituted by the management. It was further denied by him as wrong that since the Performance Appraisal Committee had found his performance below average, as such the LIR No: 2650/16 Page 18 of 18 management had decided not to extend his fixed term contract any further or that his services had come to an automatic end on the expiry of his contract period. He had knowledge about I.D. No. 671/2010 but he did not know if the same was still pending or not. It was further denied by him as wrong that his services were not terminated only because of pendency of I.D.No. 671/2010. However, it was admitted as correct by him that benefits of increments were given to him as a matter of routine and not on the basis of his performance. The suggestions with regard to his making false accusation against the management for victimizing him due to his joining the Union activities or the false allegations of his fixed term appointment or that he was performing the work of permanent and perennial nature were denied by him as wrong.
A letter dated 13.01.2012 was put to the witness which was accepted as having received by him and the same was then exhibited as Ex. WW1/M2 on record. However, he had denied the receipt of letter dated 13.04.2011 Mark A. His family was stated to be comprising of himself, his wife, three children, mother and one unmarried sister. His household expenses were stated to be met out by the pension of his mother who was getting an amount of Rs. 15,000/ as pension. Though he was stated to have tried his level best for another employment but could not get any due LIR No: 2650/16 Page 18 of 18 to pendency of the present case. Other formal suggestions regarding gainful employment etc., were denied by him as wrong and thereafter workman's evidence was closed.
7. In rebuttal, management had examined Sh. V.Ranga Rao, working with it as Sr. Manager (HR) who had placed on record, his examination in chief by way of affidavit Ex. MW1/A reiterating the stand of management as contained in its written statement on solemn affirmation. Besides this, he had also placed on record the following documents :
1. staff performance report pertaining to the present workman dated 25.11.2011 is Ex. MW1/1;
2. copy of letter dated 27.04.2011 relating to renewal of fixed term contract is Ex. MW1/2 and its postal receipt is Ex. MW1/3;
3. staff performance report dated 18.04.2011 is Ex. MW1/4;
4. copy of letter dated 13.04.2011 is Ex. MW1/5 along with its postal receipt as Ex. MW1/6;
5. list showing confirmation of fixed term employees with effect from 01.04.2014 is Ex. MW1/7;
6. copy of letter dated 02.01.2011 regarding renewal of fixed term contract is Ex. MW1/8;
7. notice dated 31.10.2011 is Ex. MW1/9;
8. notice dated 16.11.2011 is Ex. MW10;
LIR No: 2650/16 Page 18 of 189. copy of extracts of minutes of meeting of Board of Directors dated 23.04.2010 is Ex. MW1/11;
10. chart showing the meals provided/catered by the management since April 2008 till March 2013 as Ex. MW1/12;
11. list of team members employed since 2005 till 2013 is Ex. MW1/13;
12. copy of order dated 30.11.2007 passed u/s 5(2) of Industrial Employment (Standing Orders) Act 1946 is Ex. MW1/14;
During his cross examination conducted by ld. AR for workman, it was deposed by MW1 that he was working with the management for the last about 10 years and was appointed as Senior Manager. Management was stated to be operating its business in Delhi since 2005 and was in the business of catering food, meals for different airlines like Indian Airlines, Jet Airways, Air Asia, Oman Air, Spice Jet, Indigo and Zoom Air. The working of the management was stated to be continuous in nature, however, it was volunteered by him that it kept on fluctuating in terms of the volume. The workmen were used to be reemployed after expiry of their fixed term employment as per their requirement. He could not tell as to services of how many workmen had come to an end along with the present workman. No workman was stated to have been allowed to work after expiry of his term without extension of his future term. The witness could not tell the exact date of joining of LIR No: 2650/16 Page 18 of 18 workman with the present management.
The HODs of management were stated to be appointed as members of the Appraisal Committee who used to submit their report to the HR Department. Certain procedures were stated to be followed by Appraisal Committee to apprise the workman or the employee, however, he could not tell as to when such Appraisal Committee was constituted for the first time or how many meetings it had held from the date of its inception till 2011. Record of meeting was stated to have been retained by the management, however, he could not tell as to services of how many workman were terminated on the basis of reports of such Appraisal Committee before the year 2011 nor he could tell if there was any Appraisal Committee in existence prior to 2011.
He had admitted the fact that a letter was written to the workman extending his term on the condition that he shall improve his work and conduct. Witness could not remember if any complaint was received by the management about work and conduct of the workman. However, it was not stated to be a hard and fast rule that a workman with unsatisfactory performance would not have been promoted to the higher post. No departmental inquiry was conducted for termination of the services of a fixed term employee after completion of his term of employment. It was also admitted LIR No: 2650/16 Page 18 of 18 to be correct by him that in the year 2009, some workmen had filed a case against the management for their regularization, however, the said case was stated to have already been decided but he could not remember if the present workman was also one of the parties in the said case. It was denied as wrong by the witness that in the year 2011, only those workmen had been terminated from their services who were petitioners in the said case or were members of the Union. Workman's Union was stated to be operational within the management company who had also filed the said case, however, it was denied by him as wrong that the present workman was pressurized to leave the worker's Union and upon his refusal to do so, his services were terminated. Witness could not tell as to how many fixed term workmen were removed from the services since 2010 who were not even the members of the Labour Union.
Copy of the standing orders of management was stated to be placed on record as Ex. MW1/14 which were also certified, however, he could not remember as to when the application for certification of the standing orders was filed by the management, nor, he remembered as to whether the provision of fixed term employee was abolished by the Government of India by a gazette notification prior to certification of their standing orders.
It was also admitted to be correct by him that LIR No: 2650/16 Page 18 of 18 Airport Employees Union had filed an application before Certifying Officer for modification of the standing orders which were already certified and Certifying Officer had also asked the management to remove the word "fixed term employee"
from its certified standing orders. It was also admitted by him that although the appointment letter of workman was signed by Director, HRD, however, his termination order was signed by Senior Human Asset Manager and other formal suggestions were also denied by him as incorrect. Thereafter, management's evidence was also closed.
In the light of the aforesaid testimony of the parties appearing on record, my issue wise findings are as under : Issue no. 1. As per terms of reference Whether services of Sh. Mangal Tekaria s/o Late Sh. Sher Singh Tekaria have been illegally/ and or unjustifiably terminated by the management, and if yes, to what relief is he entitled?
From the language of the issue itself, it is clear that onus to prove the same was upon the workman. Needless to state that workman was initially appointed for a fixed term vide his appointment letter Ex. WW1/1 as a Team Member "C" (Operations). It is not in dispute that the workman had not only received increments from the management who had also got his employment contract LIR No: 2650/16 Page 18 of 18 renewed from time to time, however, on the basis of the evidence available on record, document Ex. WW1/5 becomes a document of prime importance which is letter dated 27.04.2011 pertaining to renewal of fixed term contract of the workman, wherein the management despite having observed that performance of the workman was rated below average by Performance Evaluation Committee, it was pleased to extend the contract of his employment for a further period of three years till 31.03.2014. It was also stated in the said letter that the performance of workman was liable to be re evaluated after six months and his further confirmation in service for the remaining period of employment shall be subject to positive improvement in his performance and in the eventuality of nonimprovisation of his performance, the contract shall come to an automatic end. Other terms and conditions of his employment as contained in the letter of appointment dated 02.07.2007 were to remain unchanged and he was continued to be governed by the same.
As per the case of management, in view of the Appraisal Report Ex. WW1/1 and Ex. WW1/4, it had decided to call an end to the services of the workman. Interestingly, the letter Ex. WW1/5 containing the factual assertion regarding judgment of workman's performance below average and recommendation of Performance Evaluation Committee not to renew the fixed term contract is dated 27.04.2011, whereas, the document wherein such LIR No: 2650/16 Page 18 of 18 recommendation was made, pertained to 25.11.2011 i.e., after about 7 months of execution of Ex. WW1/5.
A perusal of the record further revealed that the recommendations as contained in Ex. MW1/1 were required to be signed by at least three persons if not by all five and was further subject to the approval of G.M of the Unit or Unit Head, however, Ex. WW1/1 had only been recommended by two persons whose names and designations were also not clear and it was not containing the signatures of approval either by G.M. or the Unit Head where the workman was employed.
Similarly in document Ex. MW1/4 which was dated 18.04.2011 i.e., immediately before the issuance of letter Ex. WW1/5 to the workman, the said performance appraisal was signed by three persons but no recommendation of any kind whatsoever was made therein, nor, the same was ever approved by the G.M or the Unit Head.
It shall be further pertinent to mention here that MW1 during his cross examination had categorically stated that he could not remember if there was any complaint received against the present workman of any nature whatsoever, nor it is the case of management set up before this Court that at any time before or after issuance of the LIR No: 2650/16 Page 18 of 18 letter Ex. WW1/5, it had apprised the workman about the shortfalls, nonperformance either related to the work of the workman or related to his conduct while on job, nor even factors or parameters in respect of which, the improvement in performance was expected by the management was ever conveyed by it to the workman concerned. Neither any such defence had been taken up by the management before this Court nor it has been established or pleaded on record by it.
It has also not been clear as to on what basis the Appraisal Committee was constituted or had evaluated the performance of the workman because not even a single complaint or adverse comments either from any coworkers or superior officers of the workman have been placed on record by the management to show that either he was not behaving properly with his coworkers and superiors or that his performance was not up to the optimum mark.
Hence, I find support in the contention of AR for workman that it was only because of the workman's participation in the Union activities and filing of a general demand case for regularization, that the management had got annoyed from him and had decided to terminate the services of workman on one pretext or the other and ultimately had chosen to terminate him by making the alleged report of Performance Appraisal Committee as basis for the same.LIR No: 2650/16 Page 18 of 18
Therefore, I have no hesitation in holding that this act of management was unjustified and totally uncalled for and not in conformity with the legal norms as laid down in the labour laws as well as various pronouncements of Hon'ble Higher Courts. Therefore, the issue is answered in affirmative and decided in favour of workman and against the management.
Issue no 2 Relief : In view of my findings to issue no. 1, it is hereby held that the workman shall be deemed to be in employment with the management till 31.03.2014 and shall be entitled to receive all emoluments and benefits up to the said period including full back wages and all consequential benefits from the date of alleged termination of his services till the date his renewed contract could have come to an end by efflux of time.
Besides this, the workman shall also be entitled to recover/receive compensation of Rs. 1,00,000/ from the management for his mental and financial sufferings due to unjustified termination of his job. The aforesaid benefit be provided to the workman within a month from the date of publication of the Award failing which this amount shall also carry an interest of 8 percent per annum.
Statement of claim as filed by claimant is allowed LIR No: 2650/16 Page 18 of 18 in the said terms. Reference also stands answered accordingly. Copy of the award be sent to the Labour Commissioner for publication. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 11.10.2018
LOKESH Digitally signed by
LOKESH KUMAR SHARMA
KUMAR Date: 2018.10.16 09:39:08
SHARMA +0530
(LOKESH KUMAR SHARMA)
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER - LABOUR COURT XIX
DWARKA COURTS : NEW DELHI
LIR No: 2650/16 Page 18 of 18