Delhi District Court
Sakirun Nisha vs Deputy Director Education And Ors on 12 September, 2024
DLCT130005532019
IN THE COURT OF MS. CHETNA SINGH, PRESIDING
OFFICER LABOUR COURT-06, ROUSE AVENUE DISTRICT
COURT, D.D.U. MARG, NEW DELHI.
LIR No. 187/2019
Date of Institution 21.01.2019
Date of Award 12.09.2024
BETWEEN THE WORKMAN
Smt. Sakirun Nisha W/o Late Sh. Zuber Ahmed,
R/o H. No. G-594, G-Block, Gali no.12,
Janta Enclave, Prem Nagar-3, Kirari Suleman Nagar,
North West, Delhi-86.
Mobile No.9773914941
AND
THE MANAGEMENT OF
1) M/s Deputy Director Education, North West District-B,
F.U. Block, Pritam Pura, Delhi-34
2) Principal, Govt. Girl Senior Secondary School,
LIR No.187/2019
Page 1 of 24
Code No.1412131, Nithari Goan, Delhi-86
3) M/s Advance Services Pvt. Ltd.
214, Laxmi Chamber, D-223, Laxmi Nagar,
Main Vikas Marg, Delhi-92
4) M/s Orion Security Solution Pvt. Ltd.
5-E, 1st Floor, Lane no.5, Jungi House,
Shahpur Jat, New Delhi-49
AWAR D
1.Vide this award, I shall dispose of the statement of claim filed by the work lady against the managements. The work lady in this matter is a "Security Guard" with the management no. 2 bearing Code no. 141231 Nithari Village Delhi. Management no. 1 is the department of education, management no. 2 is the school where the work lady was employed, management no. 3 is the contractor, who was providing the services of security guard to management no. 2. Management no. 4 is the successor agency to which the contract was granted by management no. 1.
CLAIM OF THE WORK LADY
2. According to the work lady, she was working with the management no. 2 being Government Girls Senior Secondary LIR No.187/2019 Page 2 of 24 School Code no. 1412131 Nithari Village, Delhi from 30.04.2013 onwards as a Security Employee. Her last drawn wages were Rs.13,000/- per month. On 09.08.2017, her services were illegally and unlawfully terminated by the managements. The work lady has demanded Government mandated pay scale, medical allowance, appointment letter, house rent allowance and LTC facility from the managements because of which, they got annoyed with her and ultimately terminated her services without giving her any notice/notice pay or service compensation. It is also alleged that the managements did not even pay her the complete earned wages for the period for which she has worked.
2.1 Aggrieved by the action of the managements, the work lady then approached the worker's union and gave a representation/complaint to the Assistant Labour Commissioner wherein, management no 2 gave their written reply on 13.03.2018 and 20.03.2018. A rejoinder to the said reply was given by the work lady on 26.03.2018. No settlement was arrived at between the work lady and the managements.
2.2 Thereafter, the work lady sent a demand letter dated LIR No.187/2019 Page 3 of 24 21.04.2018 and 03.05.2018 vide speed post to the managements which was replied to by management no. 2 only and no reinstatement was offered by any of the managements. Thus, as all efforts by the Conciliation Officer also failed between the parties, the work lady had to approach this court against unlawful and illegal termination of her services by the managements claiming reinstatement with back wages.
REPLY OF MANAGEMENT
3. All four managements filed written statements. Management no. 1 and 2 filed a joint written statement, management no. 4 filed a separate written statement and written statement was also filed by management no. 3. In its written statement, managements no. 1 and 2 claimed that the claim of the work lady is not maintainable on the grounds that she was never engaged by the answering management no. 1 and management no. 2 and that she never worked under their pay roll.
3.1 It was further submitted that the work lady was the employee of the contractor i.e. Advance Security Private Limited/management no.3 upto 31.7.2013 as well as Orion LIR No.187/2019 Page 4 of 24 Security Private Limited/management no. 4 w.e.f. 01.08.2017 uptil 08.08.2017 and managements no. 1 and 2 engaged the above said management no. 3 and 4 as contractors for ancillary work. It is further reiterated that managements no. 1 and 2 has no role in payment of salary/engagement of employees of management no. 3 and 4/contractor nor any role in policy of engagement of employees by managements no. 3 and 4/contractors.
3.2 It is further submitted by managements no. 1 and 2 that the work lady was deployed as Security Guard by management no. 3 at GGSSS, Nithari Village, Delhi and contract of department of education with management no. 3 was valid upto 31.07.2017. On expiration of the said contract, the said contract was given to management no. 4 i.e. Orion Security Private Limited w.e.f. 01.08.2017 to 31.07.2019 for a period of two years. It is further submitted that the work lady worked at GGSSS, Nithari Village, Delhi till 08.08.2017.
3.3 It is denied that the work lady has any claim qua management no. 1 and management no. 2. It is further stated that all legal benefits were to be provided to the work lady by LIR No.187/2019 Page 5 of 24 management no. 3 and management no. 4 and thus, management no. 1 and 2 are not responsible for any kind of payment to the work lady directly as the responsibility of any kind of financial payment or continuation of job was that of management no. 3 and 4, who were the principle employers of the work lady.
3.4 Management no. 3 (proceeded ex parte) submitted their written statement on 30.07.2019 wherein, it is stated in para no. 2 that the work lady was never terminated from employment and on 31.07.2017, management no.1 cancelled the contract of management no. 3. It is further submitted by management no. 3 that the contents of the claim of para 1 of the brief facts of the claim are admitted but, it is wrong to suggest that the work lady was made to work beyond eight hours, thus, it has been admitted by management no. 3 that the relationship of employer employee between the work lady and management no. 3 existed w.e.f. 20.04.2013 on the last drawn wages of Rs. 13,000/- per month. It has only been denied that she has made to work beyond eight hours. Remaining contents of the claim have been denied by management no. 3 stating that the said contents relate to management no. 4 and it was again reiterated that the work lady LIR No.187/2019 Page 6 of 24 was never terminated by management no. 3.
3.5 Management no. 4 is Orion Security Solution Private Limited. According to written statement filed by management no.4, the relationship of employer and employee between management no 4 and work lady has been completely denied. It is denied for want of knowledge that the work lady was deployed with management no. 2 on the pay role of management no. 3 with last drawn salary of Rs. 13,000/-. All other contents of the claim have been denied paragraph-wise and it has been specifically denied that the work lady was terminated by management no. 4 on 09.08.2017. It is stated that the work lady was never appointed by management no. 4 in the first place and hence, the question of termination does not arise at all. It is specifically denied that the demand notice dated 21.04.2018 and 03.05.2018 were received by management no. 4. Thus, the existence of employee - employer relationship between the work lady and management no. 4 has been completely denied by management no. 4.
REJOINDER
4. The work lady filed a joint rejoinder for written LIR No.187/2019 Page 7 of 24 statement filed by management no. 1 and 2 wherein, she has reiterated all her averments made in her claim and has denied the averments made in the written statements filed by management no. 1 and 2. She further stated that she was not informed by any of the managements as regards the change of contractor and no appointment etc. were issued to her.
4.1 It is pertinent to mention here that despite service since management no. 4 did not file any written statement, the right of management no.4 to file written statement was closed on 02.11.2019 and management no. 3 was proceeded ex-parte on the same day when issues were also framed. Thereafter, the written statement of management no. 4 was ordered to be taken on record subject to cost of Rs.25,000/- by the learned Predecessor of this court and as no cost was paid and as management no. 4 also stopped appearing, management no. 4 was also proceeded ex-parte on 06.03.2020 and it was ordered that written statement of management no. 4 shall not be read in the present matter.
ISSUE FRAMED
5. On the basis of the pleadings, the following issues LIR No.187/2019 Page 8 of 24 were framed by learned Predecessor on 02.11.2019:
1. Whether there existed any employer and employee relationship between workman and managements no. 1 and 2? OPW
2. As per terms of reference? OPW
3. Relief.
After the issues were framed the matter was listed for work lady's evidence.
WORK LADY'S EVIDENCE
6. The work lady appeared in the witness box as a sole witness and filed her evidence by way of affidavit. In this affidavit the averments of the claim, as mentioned above, were reiterated and she relied upon the following documents:
i) Proforma of Identification as Ex. WW1/1 (OSR);
ii) ESIC card as Ex. WW1/2 (OSR);
iii) Copy of attendance register for the month of November, 2014 as Ex.WW1/3 (OSR);
iv) Copy of attendance register for the month of December, 2014 as Ex.WW1/4 (OSR);
v) Copy of attendance register from January, 2015 till December, LIR No.187/2019 Page 9 of 24 2015 as Ex.WW1/5 to Ex. WW1/15 (OSR);
vi) Copy of attendance register from January, 2016 till December, 2016 as Ex.WW1/16 to Ex. WW1/26 (OSR);
vii) Copy of attendance register from January, 2017 till August, 2017 as Ex.WW1/27 to Ex. WW1/34 (OSR);
viii) Complaint dated 10.10.2017 sent to Chief Minister Office as Ex. WW1/35;
ix) Written complaint dated 15.11.2017 addressed Chief Minister of Delhi and its postal receipt as Ex. WW1/36 and Ex. WW1/37;
x) Office copy of demand notice dated 21.04.2018 and its postal receipts as Ex. WW1/38 to Ex. WW1/42 (colly);
xi) Reply of management no.2 to demand notice as Ex. WW1/43;
xii) Copy of claim dated 09.05.2018 filed before Labour Department as Ex. WW1/44;
xiii) Reply of management no.1 dated 17.09.2018 given before Labour office as Ex. WW1/45 and reply of management no.2 dated 17.09.2018 as Ex. WW1/46;
xiv) Licence issued on 03.10.2011 by Licencing officer, North East, Delhi as Mark A;
xv) Licence dated 08.09.2016 issued by Government of India as Mark B. LIR No.187/2019 Page 10 of 24 6.1 The work lady was cross-examined at length by learned AR for managements no. 1 and 2 wherein, she broadly stood firm on her testimony and she admitted that she has not filed any interview letter, appointment letter or any publication notice of vacancy of Lady Security Guard, salary slip etc. issued on behalf of management no. 1 and 2. She denied the suggestion that no employee and employer relationship existed between her and managements no. 1 and 2. She admitted that she was the employee of contractor/Advances Securities Private Limited i.e. management no. 3 w.e.f. 20.04.2013 till 31.07.2017 and further an employee of contractor/management no. 4 Orion Securities Private Limited w.e.f. 01.08.2017 till 08.08.2017. She denied the suggestion that she was being paid salary by management no. 3 and 4 and not by management no. 1 and 2. She denied the suggestion that she has been gainfully employed w.e.f. 09.08.2017 i.e. her date of termination.
6.2 Thereafter, the cross-examination of the work lady was deferred for cross-examination by management no. 4, however, vide order dated 08.07.2023, the right of management no.
LIR No.187/2019 Page 11 of 244 to cross-examine the work lady was closed and management no. 3 was already ex-parte, hence, no cross-examination was conducted by management no. 3. Thereafter, the work lady closed her evidence and matter was posted for evidence on behalf of managements no. 1 and 2.
MANAGEMENTS' EVIDENCE:
7. MW1 namely Sh. Ved Prakash Singh, Deputy Director of Education, Govt. of NCT, Q- Block, Mangol Puri, Delhi, appeared in the witness box as first witness of management no.1 & 2 and he tendered his evidence by way of affidavit Ex MW1/A bearing his signatures at point A & B and relied upon the documents Ex. MW1/1 to Ex. MW1/5 collectively.
7.1 This witness was cross examined at length by AR of the work lady wherein, he admitted that the work lady worked as a security guard with management no.2 school continuously from 20.04.2013 to 08.08.2017. Voluntarily, he said that she was employed through a contractor. He denied the suggestion that the work of a security guard in the school is of permanent nature.
Voluntarily, he said that it is contractual in nature and the contract LIR No.187/2019 Page 12 of 24 was issued by Directorate of Education, Delhi Government for hiring contractual workers was not for a fixed period. He stated that the contract to management no.3 i.e. Advance Security was upto 31.07.2017 and the overall control and supervision of the workman was the responsibility of the contractor but the principal used to ensure her attendance verification. He stated that the whether the work lady joined her duty after the dispute falls within the domain of contractor.
7.2 No other witness was examined by management no.1 & 2 and managements' evidence qua the management no.1 & 2 was closed on 12.03.2024 and matter was posted for final arguments.
ARGUMENTS
8. The AR of the work lady and the AR of the management no.1 & 2 only advanced detailed arguments which were heard by this court at length. All the relevant documents on record were considered.
LIR No.187/2019 Page 13 of 24ISSUE WISE FINDINGS
9. The issue-wise findings on the basis of arguments advanced and the material on record are discussed in detail in the sub paragraphs which follow as under:-
Issue no.1:-Whether there existed any employer and employee relationship between workman and managements no. 1 and 2? OPW 9.1 As discussed above, there are four managements in this matter. Out of the four managements, only management no.1 & 2 have represented themselves effectively. Management no.1 is the Deputy Director of Education, DDE, Govt. of Delhi. Even though, the work lady has alleged that there existed an employer and employee relationship between the work lady and management no.1 & 2 (management no.2 being the GGSSS, Nithari Village), she has not been able to show as to how she was primarily employed either by management no.1 or management no. 2. Both management no.1 & 2 have denied the employment of the work lady by them and have admitted to taking services of management no.3 and management no.4 for deployment of security guards with LIR No.187/2019 Page 14 of 24 management no.2. Primarily, the work lady has relied upon the documents Ex. WW1/1 which is the performa of identification and Ex. WW1/2 which is the ESIC card, both original seen and returned. A perusal of both the documents show that Ex. WW1/1 is a performa for identification of guards of duty provided by Advance Security, which is management no.3. The said ID card has been signed by the Proprietor of Advance Security Private Ltd. and allegedly by the principal of management no.2 also. A perusal of the said document further reveals that even the photographs of the work lady has been attested by the Proprietor of management no.3.
Similarly, as per the ESIC card, the current employer details state the name of the employer to be Advance Services Private Ltd. and it nowhere mentions that the employment to the work lady was provided either by management no.1 or management no.2. In order to further prove her employment with management no.1 & 2, the work lady has relied upon the documents i.e. Ex. WW1/3, Ex. WW1/4, Ex WW1/5, Ex. WW1/6, Ex WW1/7, Ex. WW1/10, Ex. WW1/11, Ex. WW1/23, Ex. WW1/29, Ex. WW1/34, which are the attendance registers (original seen and returned) vide which, it can be presumed that the work lady marked her attendance with the school i.e. management no.2 w.e.f. November, 2014 till January, LIR No.187/2019 Page 15 of 24 2017 and was thus, continuously attending to her duties from 2014 to 2017. Even though, the attendance register was being maintained by the management no.2, the same does not prove that the management no.1 or management no.2 were the principal employers of the work lady. In fact, it has been stated and admitted by the work lady in her cross examination that she was the employee of Contractor/Advance Security, Management no.3 w.e.f. 24.04.2013 till 31.07.2017 and further an employee of Orion Security Ltd. (management no.4) w.e.f. 01.08.2017 till 08.08.2017. Thus, it is her own admission that she was an employee of management no.3 and subsequently, with management no.4. Even though, she has reiterated that there existed an employer and employee relationship between her and management no.1 & 2 however, she has not been able to show by way of any of her documents that management no.1 & 2 were her principal employers. It is apparent from the entire record of the case that the services of the work lady were hired on a contractual basis by the management no.1 & 2 through management no.3 & 4 and thus, it cannot be said that there existed an employer and employee relationship between the management no.1 & 2 and the work lady. Hence, this issue is decided against the work lady and in favour of LIR No.187/2019 Page 16 of 24 the management no.1 & 2.
9.2 Coming now to the relationship between the work lady and management no.3 & 4. Management no.3 filed a written statement wherein, management no.3 has clearly admitted the employment of work lady w.e.f. 20.04.2013 till 31.07.2017. There is a clear cut admission that the work lady drew last drawn wages @ Rs.13,000/- per month. Thus, it has been admitted by the management No.3 that the work lady worked continuously for a period of 240 days prior to her alleged termination by the management no.3, with management no.3. Even though, it is denied by the management no.3 that the work lady was illegally terminated however, it has nowhere been stated either in the written statement or by any other evidence, which was never led by the management no.3 that she was not illegally terminated. The only fact submitted in the written statement by the management no.3 is that their contract with management no.1 got over and thus, they never terminated the services of the work lady.
9.3 Corroborating the said fact, the management no.1 & 2 have filed various documents which is Ex. MW1/1 which is a LIR No.187/2019 Page 17 of 24 circular issued by Govt. of NCT of Delhi, Directorate of Education for deployment of Security Guards in offices, schools, swimming pools stadia of department of education. The said circular finds the mention of the name of management no.3 at serial no.2. The said contract mentions the terms and conditions which are to be followed with regard to the employees of the agencies contracted by the Directorate of Education. The said contract clearly mentions that the security personal provided shall be the employees of the contractor and all the liabilities will be paid by the contractor such as ESI, PF, Workman's Compensation Act etc. Further, corroborating the fact that the work lady was a primary employee of management no.3 is the point-wise reply of management no.2/Govt. Girls Sr. Secondary School vide Ex. MW1/2 wherein, it has been stated that the work lady was deputed with management no.2 as a lady security guard by management no.3 and her working hours were from 6:00 AM to 2:00 PM, which is eight working hours. As per the reply/point no.5, the contract of DOE with Advance Security i.e. Management no.3 was upto 31.07.2017 and w.e.f. 01.08.2017. Management no.4 was provided contract for a period of two years and the management no.2 is not a party to the contract between Department of Education and the new agency. It LIR No.187/2019 Page 18 of 24 has been stated in the said reply that the work lady worked in the school till 08.08.2017 and the payment for the period 01.08.2017 to 08.08.2017 was provided by the new agency, as per the agreed rates. (Whether this admission of employment of the work lady by the management no.4 w.e.f. 01.08.2017 to 08.08.2017 can be taken into consideration qua the management no.4 or not shall be discussed at a later stage).
9.4 At this stage, this court is considering the evidence provided by the work lady qua the management no.3 with regard to her employment by the management no.3. In this regard, management no.1 & 2 have further filed Ex. MW1/5 collectively, issued by Ministry of Labour & Employment to management no.3 i.e. M/s Advance Securities Pvt. Ltd. which is qua the Contract Labour Act, Issue of Licence. Thus, a Licence was granted to the management no.3 by Ministry of Labour & Employment for provision of security guards to the government department.
9.5 Thus, from the above-mentioned documents relied upon by the work lady and considering the admission made by management no.3 which admitted the employment of the work LIR No.187/2019 Page 19 of 24 lady for the period as alleged by the work lady at the last drawn wages of Rs.13,000/- per month, it is held that there existed a relationship of employer and employee between the work lady and management no.3. In addition to the oral testimony of the work lady, her submissions are corroborated by the documents placed on record by the management no.1 & 2 and by the clear cut admission of management no.3, who chose to proceed ex-parte and never appeared or chose to cross examine the work lady with regard to the submissions made by her.
9.6 Now coming to whether there existed a relationship of employer and employee between the work lady and management no.4, it is clear that apart from mere averments that she was employed by management no.4 after the termination of contract of management no.3 by Directorate of Education, there is nothing on record to suggest that there existed a relationship of employer and employee between the work lady and management no.4. Management no.4 filed a written statement which was ordered not to be read as a part of proceedings. Even if, we consider the other submissions made by the management no.1 & 2 qua the documents placed on record by them, it is settled law that their admissions LIR No.187/2019 Page 20 of 24 against the other party cannot be taken to prove the existence of employer and employee relationship between the work lady and management no.4. The work lady has nowhere been able to show that she was either issued any ESIC card or identity card or was given salary by the management no.4 or was on the roles of management no.4. The reply submitted by the management no.2 which is Ex. MW1/2 is not sufficient to prove the employer and employee relationship between the work lady and management no.4 from 01.08.2017 to 08.08.2017. Even if, arguendo, it is supposed that the work lady was employed by the management no.4, it has not been proved that she worked continuously for a period of 240 days prior to her termination by the management no.4 for entitling her to claim any benefits from management no.4. Thus, the work lady is not entitled to claim any benefits/compensation etc. from management no.4.
9.7 Issue no.2:- As per terms of reference? OPW For the purposes of clarifications, the terms of reference reads as under:-
"Whether the employer-employee relationship exists between workman Smt. Sakirun Nisha w/o Mohd. Juber Ahmed and the management and if so LIR No.187/2019 Page 21 of 24 with whom and whether services of said workman have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is she entitled and what directions are necessary in this respect ?"
9.8 Admittedly, management no.3 qua which the relationship of the work lady has been proved, never issued any show cause notice to the work lady as regards her termination. Management no.3 merely stated that its contract got over with management no.1 and did not say anything further. It did not conduct any enquiry against the work lady. It did not give her any service or retrenchment compensation, neither did it compensate the work lady in any other manner. In such circumstances, as the relationship of employer and employee between the work lady and management no.3 is established and the management no.3 has failed to establish any resignation tendered to it by the work lady, it is held that the service of work lady were terminated unlawfully and/or illegally by the management no.3. Accordingly, this issue is decided in favour of the work lady and against the management no.3.
LIR No.187/2019 Page 22 of 24Issue no.3:- Relief
10. Coming now to the relief to which the work lady is entitled, no judgments or citations as such have been filed by either of the parties in the case. However, keeping in mind the facts of the case and applicable law and the fact that the case is pending for almost five years, this court is of the view that ends of justice would be better met by granting lump sum compensation to the work lady instead of reinstatement. This court has come to this conclusion because in any case the contract of employment as per management no.3 and as per management no.1 is over between them and it is not clear as to how the work lady would be reinstated and with whom. Thus, to avoid confusion and taking into account the length of service of the work lady and nature of her duties including her last drawn salary, duration of this trial, I award a lum sum compensation of Rs.1,50,000/- in favour of the work lady and against the management no.3 which includes litigation expenses. Management no.3 is directed to pay the said amount within a period of one month from the date of publication of this award. In case of non payment, interest @ 8% per annum from the date it becomes due, till the time it is realised shall be paid by the management no.3 to the work lady. Reference stands answered and LIR No.187/2019 Page 23 of 24 disposed off accordingly.
11. A attested copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
Pronounced in open court on 12.09.2024 (CHETNA SINGH) PRESIDING OFFICER: LABOUR COURT-06 ROUSE AVENUE DISTRICT COURT NEW DELHI.
Digitally signed by CHETNA SINGHCHETNA Date:
SINGH 2024.09.19
15:18:03
+0530
LIR No.187/2019
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