Delhi District Court
Sh. Rakesh Kumar vs The on 24 March, 2015
1
IN THE COURT OF SH. B.S. CHUMBAK : PRESIDING OFFICER
LABOUR COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID No. 181/10
Sh. Rakesh Kumar
S/o Sh. Mahindra
Through Municipal Employees Union,
Aggarwal Bhawan, G.T.Road, Tis Hazari,
Delhi .......Workman
VERSUS
The Management of
Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk
Delhi ...... Management
Date of Institution :02.06.2010
Judgment reserved:14.01.2015
Date of decision :24.03.2015
Reference no.F.24(292)/ND/698/2006/Lab/69903 dated 21.05.2010
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(292)/ND/698/2006/Lab/69903 dated 21.05.2010 referred the present dispute to this labour court for adjudication with the following terms of reference :
"Whether the services of Sh. Rakesh Kumar s/o Sh. Mahindra have been terminated illegally and unjustif iably by the management; and if so, 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 this reference are that the workman joined the services of the management w.e.f 10.03.2001 as daily wager/muster roll worker. He was being paid fixed salary under the Minimum Wages Act whereas his counter parts were being treated as regular employees and were being paid their salary in proper pay scale with allowances admissible under the rules. It is further averred that services of workman were terminated on 09.12.2001 without assigning any reason i.e in contravention of the various provisions of ID Act. 3
4. It is further averred that workman was innocent and had not committed any misconduct during the tenure of his service. Neither the charge sheet was ever served nor any domestic inquiry was conducted against him and his services were illegally terminated without following the principle of nature justice and thereby the impugned termination is in violation of section 25 F,G & H of the ID Act.
5. It is further averred that the workman is totally unemployed since his services have been terminated i.e w.e.f. 09.12.2001. Despite repeated visits by the workman in the office of management neither his services were reinstated nor his legal dues were ever paid. Legal notice was also served on 21.03.2006 but no reply was ever received. 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 noncooperative attitude of the management and hence the present claim petition is filed before this court requesting therein for reinstatement with continuity of service with full back wages.
6. 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 4 present dispute is not an industrial dispute, no demand notice was ever 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.
7. 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 pleaded that claimant had not worked for 240 days in a calender year and as such he is not entitled for any relief. 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 5 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.
8. 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.
9. 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 01.12.2010 :
i) Whether the workman has worked for more
than 240 days with the management?
ii) As per terms of reference.
10. No other issues were arises or pressed, therefore, case was fixed for workman evidence.
11. 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.WW1/6. Ex.WW1/1 is the copy of demand notice dated 21.03.2006, Ex. WW1/2 is 6 the copy of postal receipt bearing no. 1044, Ex. WW1/3 is the copy of AD card, Ex. WW1/4 is the copy of application dated 19.12.2005, Ex. WW1/5 is the copy of Muster Roll detail for the year 2001 issued by the management to the deponent and Ex. WW1/6 is the statement of claim filed before the Conciliation Officer.
12. During his cross examination by AR for management he deposed that he was working as daily wager Baildar with the management w.e.f 10.03.2001 but no appointment letter was issued to him. He also reiterated that he got the salary for the period he worked with the management and he lastly worked with the management till 08.12.2001. He also admitted that he availed weekly off and all gazetted holidays during the tenure of his service but he denied the suggestion that he had not continuously worked for 240 days during the period 10.03.2001 to 08.12.2001. He also admitted that no termination letter was ever issued to the workman by the management and he was retrenched from the services verbally. He further deposed that Municipal Employees Union sent a demand notice dated 21.03.2006 to the management. 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.
13. Mohd. Illyas, Executive EngineerIV, Shahdara Zone, Delhi appeared as 7 MW1 and filed his affidavit Ex. MW1/A stating therein all the facts which were stated by the management in their written statement.
14. During his cross examination he admitted that attendance of the workman were to be marked on the muster roll which is in the possession of the management. He also admitted that muster rolls are the authentic record in respect to the attendance and payments made to the worker. He also admitted that muster rolls are maintained and preserved by the management but he denied that there is any policy in the MCD to regularize the muster roll employees in phase manner. He further stated that it is not in his knowledge if management framed a policy of regularization of muster roll employees first time in the year 1978 and thereafter, time and again the policies are being framed to regularize muster roll employees. He also admitted that MCD is divided in 12 zones in Delhi and combined seniority list of regular employees category wise as well as of muster roll employees who had worked for longer period is maintained. He also admitted that seniority list is available in the office of management. He also produced the muster roll showing therein number of working days of the claimant w.e.f 12.03.2001 till November 2001 i.e 199 days excluding the holidays/leave availed during the said period.
15. During his further cross examination he produced the muster roll for the month of August and December 2001 wherein no name of the concerned 8 workman is shown on both these muster rolls, however, the name of one Rakesh Kumar s/o Sh. Dhani Ram is appearing in these two months and as per record he had worked for about 28 days in the month of August 2001 and 27 days in December 2001 but he failed to explain whether name of Rakesh Kumar s/o Sh. Dhani Ram does appear in any other muster rolls except the month of August and December 2001. He further denied the suggestion that name of Rakesh Kumar appearing in the month of August and December 2001 is the name of the claimant or that the father's name is wrongly mentioned as Sh. Dhani Ram. He further denied the suggestion that management has wrongly and intentionally mentioned the name of father of workman as Dhani Ram with the aim to defeat the claim of workman. He further admitted that management does not have any material or cogent evidence to show that workman is gainfully employed elsewhere after December 2001 but he denied the suggestion that he had worked continuously and uninterruptedly w.e.f 10.03.2001 to 09.12.2001 and further denied the suggestion that workman had worked for more than 240 days with the management. 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.
16. I have heard the arguments on behalf of AR on behalf of both the parties.
After hearing arguments on behalf of AR of both the parties and also on 9 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 worked for more than 240 days with the management?
17. On this issue workman in his affidavit specifically deposed that he had continuously worked with the management w.e.f 10.03.2001 till 08.12.2001. In support of his contention the workman filed a copy of the letter addressed to Executive Engineer, CSE Department, North Zone Shahdara praying therein to issue and experience certificate w.e.f the month of March till December 2001. The application is Ex.WW1/4 bearing the signature of the workman and of the receipt clerk. He also filed a letter bearing no. 8783/EE/CSE/SH (N) dated 19.12.2005 which is Ex. WW1/5 showing therein that he had worked for 18 days in the month of March 2001, 25 days in the month of April 2001, 26 days in the month of June 2001, 27 days in the month of May 2001, 26 days in the month of July 2001, 25 days in the month of September 2001, 28 days in the month of October 2001 and 26 days in the month of November 2001 excluding the weekly off and gazetted holidays during the said period. 10
18. MW1 Mohd. Ilyas Executive EngineerIV produced the muster roll for the month of August and December 2001 during his cross examination in support of his contention that the workman had not worked in these two months but on perusal of the said muster roll the name of Rakesh Kumar s/o Dhani Ram is shown in two months only. On asking a question by the workman with regard to his attendance on the muster rolls prior to the month of August and after the month of December, he failed to explain as to whether Rakesh Kumar other than the claimant was ever employed as a daily wager Beldar. However, it is admitted by MW1 that Rakesh Kumar had worked for 28 days in the month of August and 27 days in the month of December excluding weekly off and gazetted holidays. Inspite of asking question to him as to why he did not place the muster roll of the remaining months of the year 2001 bearing the name of Rakesh Kumar s/o Dhani Ram, he failed to comment after having been given numerous opportunities to MW1 to verify. Rather he specifically answered that neither he can produce Rakesh Kumar s/o Dhani Ram whose name appears in the month of August and December 2001 due to an old matter nor he brought on record that Rakesh Kumar s/o Dhani Ram ever worked before or after the month of August and December respectively. He also failed to produce the seniority list of the relevant period of the impugned categories of employees. MW1 also admitted that the management does not have any material or any evidence to show that the workman had gainfully employed elsewhere after December 2001 only denied the 11 suggestion that the workman continuously and uninterruptedly worked w.e.f 10.03.2001 to 09.12.2001 but during his further cross examination at one place MW1 admitted that the name of the workman was removed from the muster roll in the beginning of the month of December 2001. Thereby it is established that the workman produced sufficient evidence to show that he had joined the service with the management as Beldar w.e.f 10.03.2001 till the beginning of the month of December 2001. The contents of document Ex.WW1/5 is not denied by the MW1 during his cross examination. In such circumstances, I am of the considered view that workman succeeded in proving that he had continuously worked for more than 240 days in a calender year with the management. This issue is decided accordingly in favour of the workman and against the management.
19. Management in this case also 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 in the year 2001 and the claim has been filed in the year 2010.
12
20. 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.
21. 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)."13
22. 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 2001, conciliation proceedings were filed in the year 2006 and thereafter the reference was sent to this court on 02.06.2010 i.e well prior to the coming in force to the provisions of Section 2A of the ID Act. Prior to the said amendment not 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.
ISSUE NO.2
ii) As per terms of reference.
"Whether the services of Sh. Rakesh Kumar s/o Sh.
Mahindra have been terminated illegally and unjustifiably by the management; and if so, 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 wherein it is observed that the workman was employed as Beldar with the management on 10.03.2001 as daily wager and continuously remained in 14 the service till 08.12.2001, thereby it is established that the workman was in continuous service within the meaning of clause I of section 25B of the ID Act which reads thus :
"25B. Definition of continuous service For the purposes of this Chapter (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer
a) for a period of one year, if the workman, during a period of twelve calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than
i) One hundred and ninety days in the case of a workman employed below ground in a mine; and
ii) two hundred and forty days, in any other case;"15
24. I also relied upon the provisions of section 25F and G and H which reads as follows :
Section 25F : Condition precedent to retrenchment of workman No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until
a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice
b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and
c) Notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette.) Section 25G Procedure for retrenchment Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, 16 unless for reasons to be recorded the employer retrenches any other workman.
Section 25H Reemployment of retrenched workmenWhere any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity (to the retrenched workmen who are citizen of India to offer themselves for re employment, and such retrenched workmen) who offer themselves for reemployment shall have preference over other persons.
25. In view of the aforesaid provisions of ID Act and on considering the facts and circumstances brought on record by both the parties, particularly the finding of fact that the workman has worked for more than 240 days in a calender year in such circumstances, the termination/retrenchment of the workman without following the provisions of Section 25F, G and H is voidabinitio in law due to its non compliance, therefore, 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. Relief
26. In view of the observation given while deciding aforesaid issues and on relying upon the observation given by their lordships in a decided case cited as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidalaya (D.ED) and others (2013) 10 SCC 324 wherein it has 17 been held that if the order of termination is voidabinition, the workman is entitled to full back wages the relevant para of the decision is extracted as follows :
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get 18 consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments.
Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer be relieving him of the obligation to pay back wages including the emoluments.
27. In view of the observation given by their lordships in the aforesaid decided case and taking into consideration the facts and circumstances in this case, coupled with the fact that the workman was a daily wager employee, I am of the view that reinstatement with continuity of service as daily wager and also with other consequential benefits but without back wages shall be in the interest of justice on the principle of no work no pay.
28. Accordingly the services of the workman be reinstated as daily wager with consequential benefit without back wages. It is further clarified that in case the juniors of the claimant are regularized in service the claimant shall also be entitled to be regularized as per his seniority.
29. 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 19 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)"
30. 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.
31. 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 24 March, 2015
th
Additional District & Session Judge
Presiding Officer Labour Court XVI
Karkardooma Courts, Delhi