Delhi District Court
1. Ba Security Agents Employees Union vs . on 1 April, 2019
IN THE COURT OF MS SHAIL JAIN,
PRESIDING OFFICER, INUDSTRIAL TRIBUNAL02,
DWARKA COURTS, NEW DELHI
CID no. 1186/2016.
Sh. Deepak Singh Manav,
Employee No. oDo776,
Resident of WZ417A, Basaidharapur,
N. Delhi110015.
.... Complainant
Versus
M/s Skygourment Catering Pvt. Ltd.,
through its Senior Human Asset Manager,
Indira Gandhi International Airport Complex,
Office:International Airport Approach Road,
New Delhi110037.
.................Respondent/workman
Date of Institution: 26.10.2010
Date of Award:01.04.2019
O R D E R :
1. The present complaint u/s 33A of the Industrial Disputes Act was filed by the workman/complainant on the ground that he was . 1/21 working with the Management/ M/s Skygourmet Catering Private Ltd. It is submitted by the workman that he was appointed by the management on 18.05.2009 and was getting monthly wages as Rs. 5278/. Initially the management issued an appointment letter fixing the terms of service for one year and thereafter his services were extended for three months more.
2. It is further submitted by the workman that since the Management has given the employment to him and to other workmen similarly placed, with the provision that their services would be terminated automatically after expiry of the fixed term which varies from three years to one year and the management intended to terminate their services using this illegal and unjustified clause, workmen challenged such termination provisions in their appointment letter by way of an Industrial Dispute No. 247/2010 filed at Industrial Tribunal no. II at Karkardooma courts, at that time (presently it is pending before Sh. Chander Gupta, Ld. POIT01, South West District, Dwarka courts, Delhi). It is further the submission of the workmen that during the pendency of ID number 247/2010, Management has terminated his services without giving him any notice or notice pay, in lieu of notice and has not further allowed the workman to join the services of the management, thereby violated the provisions of Section 33A of the ID Act, hence the present application has been filed by the workman u/s 33A of the ID Act claiming that management be directed to reinstate the workman/complainant with full back wages and continuity of service.
3. The respondent/management filed written statement with . 2/21 facts that the present complaint filed by the complainant/workman is misconceived, legally not maintainable and is liable to be dismissed. It is further alleged that the complainant was appointed on a fixed term of one year w.e.f. 18.05.2009 vide letter of appointment dt. 18.05.2009 and clause 1 of the letter of appointment clearly provided that "your fixed term employment of one year shall lapse and come to an automatic end on the completion of your fixed term employment of one year". It is further alleged that as per the term of contract, the contractual appointment of the workman was to expire on 17.05.2010 and workman was advised to appear before the Appraisal committee on 15.05.2010 for his recommendation. Further the complainant was informed vide letter dt. 18.05.2010 that the Appraisal Committee had rated his performance as unsatisfactory and had recommended further extension of three months to enable him to improve his performance and his contractual appointment was further extended for a period of three months from 18.05.2010 to 17.08.2010 and same would come to an automatic end on 17.08.2010. It is further alleged by the management that without prejudice to the legal objections, the employee appointed on fixed term has no right to continue in service beyond the period of fixed term contractual appointment. Further where the appointment is contractual and by efflux of time, the appointment comes to an automatic end, the Respondent have no right to continue in the job.
4. Further the workman/complainant was appointed on fixed term of one year vide letter dt. 18.05.2009 and the workman had . 3/21 accepted the terms and conditions of his employment which were duly read over and explained to him and after fully understanding its implication the workman had accepted the same. Further the services of the complainant have not been terminated for the reasons of any misconduct but have come to an automatic end in terms of his contract of employment. It is further alleged that the services of the complainant came to an automatic end by efflux of time as the termination of service was automatic w.e.f. 17.08.2010. It is further stated by the management that the Management was not required under law to give any notice or notice pay to the complainant as it was a case of automatic cessation of his tenure of work. . Further the automatic termination of the fixed term temporary contractual appointment of the complainant, in terms of contact of workman, does not fall within the mischief of Section 33 and section 33A of the Industrial Disputes Act, 1947 (herein after referred as ID Act).
5. After completion of the pleadings, following issues were framed by my Ld. Predecessor on 12.08.2011:
1. Whether management violated the proviso of Section 33 of Industrial Disputes Act? OPW
2. Whether complainant/workman is entitled to relief claimed? OPW.
3. Relief.
6. Thereafter matter was listed for WE. In support of the case of complainant, the workman has examined himself as CW1. The management in support of his case has examined Sh. V Ranga Rao as MW1.
. 4/217. Arguments heard from Ms. Poonam Dass , Ld. AR for the management and no oral arguments were advanced by Ld. AR for the workman. However, written submissions were filed by the Ld. AR for the workman.
8. I have considered the submissions made by the Ld. AR for the management, written submissions of Ld. AR for the workman, perused the record carefully and have carefully gone through the judgments relied upon by Ld. ARs for the parties. After considering the same my issue wise findings are as follows: Issue no. 1:
" Whether management violated the proviso of Section 33 of Industrial Disputes Act? OPW"
9. The contention of the workman/complainant in respect to the application, as filed by the management is two folds, firstly, that since the management has changed the service condition of the present workman/complainant by terminating his service during the pendency of an Industrial dispute no. 247/2010 raised by the workman for regularization of his services along with other workmen, hence, termination of service of present workman/complainant is a violation of Section 33 of ID Act and thus, the present complaint is legally maintainable in the present form. The second limb of argument on behalf of workman/complainant has been that the Management has violated the Model Standing orders by appointing the present complainant on a fixed term contract. As it is the contention of Ld. AR for workman that since the year 2007 "Fixed term employment" has . 5/21 been replaced with the term "Badli" , in the Model Standing Orders, despite that the present management continued to appoint the complainant/workman and other similarly situated workman on a fixed term contract, which in itself is illegal and against the "Model Sanding Orders" . Therefore, it is prayed by the Ld. AR for the workman that an Award be passed in favour of the complainant/workman and against the management/respondent directing the management to reinstate the complainant/workman with full back wages and continuity of service.
10. On behalf of management, Ms Poonam Dass had argued that the workman/complainant was appointed for a fixed period and after completion of his contractual period the services of workman/complainant came to an end by efflux of time and there is no change in service condition of the workman, therefore, the provisions of Section 33 have not been violated by the Management. Hence, the present complaint u/s 33 A of ID Act , as filed by the workman is not maintainable. As regards the arguments of Ld. AR for the workman in respect to violation of "Model Standing orders" by the management, it is submitted by the Ld. AR for the management that the management Sky Gourmet Pvt. Ltd. , has their own "Certified standing orders. As per the "Certified Standing orders" of the Management, the term used is the Fixed term employees who are appointed for a limited period of time, as mentioned in the appointment letter. It is, therefore, stated by the Ld. AR for the management that since admittedly in the appointment letter of the workman/complainant, limited period of employment has been mentioned, hence, he was appointed on the . 6/21 basis of contract of employment for a fixed period, and after the completion of term of contract of employment as per the appointment letter, he was relieved from his services as no other renewal of his employment was there. It is, therefore, submitted by Ld. AR for the management that as the workman/complainant was never terminated nor discharged nor his service conditions were changed rather his services have come to an end by efflux of time, as per the period of employment, hence, there is no violation of Section 33 of ID Act, thus, the present complaint is not maintainable The Management has relied upon following judgments:
1. BA Security Agents Employees Union Vs. Regional Labour Commissioner and ors, 2010 LLR 1083.
2. Mahender Singh Dhantwal Vs. Hindustan Motors Ltd. And ors. 1976 II LLJ 259 SC.
3. Management of Essopre Mills Ltd. vs. Presiding Officer, Labour Court and ors., 2008 III LLJ 614 SC.
4. Baljeet Singh Vs. Industrial Tribunal, Bathinda and ors, 2018 LLR 622, Punjab and Haryana High Court.
5. M C Raju Vs. Executive Director, , W.A. no.
2733 of 1982 dt. 27.07.1984 of Hon'ble High Court of Karnataka.
11. In order to understand the scope of Section 33 A of the ID Act , it is necessary to reproduce the provisions of Section 33 and Section 33A of ID Act.
. 7/21"Section 33 of ID Act:
Condition of service, etc., to remain unchanged under certain circumstances during pendency of proceedings: (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before, (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute (or, where there are no such standing orders, in accordance with the term of the contract, whether express or implied, between him and the workman.
(a) alter, in regard to any matter not connected with the dispute, the condition of service applicable to that workman immediately before the commencement of such proceedings; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise , that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) (4) (5) . 8/21 Section 33A:
Special provision for adjudication as to whether conditions of service, etc, changed during pendency of proceedings Where an employer contravenes the provisions of Section 33 during the pendency of proceedings (before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal, National Tribunal) any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner.
(a) To such conciliation officer or board, and the conciliation officer, or board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and
(b) to such arbitrator, Labour court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of This Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.
12. From the bare reading of the provisions of Section 33 of ID Act, it is clear that the purpose of section 33 of the Act is to protect the workman during pendency of any Industrial dispute against victimization by the employer for raising such Industrial dispute and, therefore, it has been laid down by the legislature that during the pendency of any proceedings in respect to an Industrial dispute, no employer shall alter the conditions of service, applicable to any workmen to the prejudice of the workmen.
13. Section 33A of ID Act on the other hand enables the employee i.e. workman who has been aggrieved by such act of contraventions of provisions of Section 33 of ID Act by the Management . 9/21 or employer to make a complaint in writing to the Tribunal or Labour court and it has also been provided that such complaints shall be treated as a reference made u/s 10 of the ID Act.
14. From the provisions of Section 33 and section 33A of the ID Act, it is abundantly clear that section 33 prohibits the employer to alter the service conditions of the workman during pendency of any Industrial dispute, related to such Industrial dispute and in case any such term or condition is changed or altered by the employer, workman has been provided a right u/s 33 A, ID Act to make a complaint in this regard to the Labour Court or Industrial Tribunal where the matter is pending.
15. In order to apply these principles to the present facts for applicability of Section 33A of ID Act, it is necessary that there should be an alteration in terms of service conditions of workman during the pendency of earlier industrial dispute. In the present case, as per the case of the workman, he was working with the employer/management for a fixed period of time and his service contract was time to time renewed by the management. Finally on 18.08.2010 he was not allowed to resume duty, as per the claim of the workman. It is the contention of the workman that he was being penalized for raising the Industrial dispute for regularization of his services. Whereas the contention of Ld. AR for the management is that workman was appointed only for a fixed period of time, as the nature of business of management i.e. of Air Catering is such that it keeps on fluctuating from time to time depending upon various contracts entered into between . 10/21 the management and other parties. Hence, management cannot afford to have all its employees on permanent basis. It is also the case of the management that as per the limited requirement and necessity , management appoints certain number of employees on contractual basis. Present workman is one of them. Since the term of employment of the present workman came to an end on 17.08.2010 and his services were not required by the management beyond 18.08.2010, therefore, the workman/complainant ceased to be in service w.e.f. 17.08.2010, or that his contract was not renewed further.
16. Workman has contested the claim of the management on two grounds, firstly that appointing of person for fixed term contract is illegal as is against the modal standing orders and Secondly that it was a change in service condition of the workman as he has raised an industrial dispute for his regularization. On the other hand, the contention of management is that workman was appointed on fixed term contract basis as is provided in the Certified Standing Orders of the Management company, therefore, there is no violation of Model Standing orders, and second aspect of the argument of Ld. AR for the management has been that the workman/complainant was appointed for a limited period of time which come to an end on 17.08.2010 and, therefore, as his services were not required further by the management, hence his further contract was not renewed. Thus, it is claimed by the management that it is not a case of termination but it is a case of non renewal of contract of the workman.
17. In order to prove their contentions, in respect to the fixed . 11/21 term contract and whether it is violation of the Model Standing orders. Ld. AR for the workman has stated that since Fixed Term employment was removed from the Model Standing Orders, in the year, 2007 by the Government and, therefore, anyone still employing a person on Fixed Term Contract basis is violating the provisions of Model Standing orders. On the other hand, Ld. AR for the management has placed on record their certified standing orders which specifically describe the classification of employee in Chapter II, Rule 5 of the rules, which is as follows: Classification of workmen:
For the purposes of these Standing Orders, workmen are classified as under: A. Permanent B. Probationer C. Temporary D. Casual/Occasional workmen E. Part time F. Badli or substitute, & G. Fixed term employment Term, Fixed term employment, has been defined as : A "fixed term employment' workman is a workman who has been engaged on the basis of contract of employment for a fixed period. However, his working hours, wages allowance and other benefits shall not be less than that of a permanent workman. He shall also be eligible for all statutory benefits available to a permanent workman proportionately according to the period of service rendered by him even though his period of employment does not extend to the qualifying period of employment required in the statute.. 12/21
17. From the reading of classification of employee, as per Certified Standing Orders of the Management company, it is clear that the "Fixed term employement" means and include a person who is appointed for a fixed period of time mentioned in the appointment letter.
It has been admitted by the workman/complainant that initially he was appointed as a Team Member "C" (Operations), w.e.f. 18.05.2009. Further he was issued one more letter after completition of one year extending his service for three months i.e. from 18.05.2010 to 17.08.2010 and same would come to an automatic end on 17.08.2010 and it is admitted that the complainant/workman had worked with the management till 17.08.2010. Thereafter, admittedly the contract of employment of workman has not been extended by the management and his service came to an end on 17.08.2010. Since it is admitted on the part of the workman that his service tenure was for contractual period as per the appointment letter given to him, unless extended otherwise. Therefore, it can be presumed that on 17.08.2010 when obviously his service contract was not extended by the management, thus, his tenure of service had come to an end by efflux of time and not by any change of service condition, as per appointment letter issued by the management.
18. Ld. AR for the workman has not raised this point in pleadings that the workman was appointed on Fixed Term Contract service which was illegal being in contravention of the Model Standing orders and since the workman had acted upon employment contract and worked for all the periods so appointed, as admitted by both the . 13/21 parties, now it cannot be claimed by the workman that his service orders were illegal. This argument of Ld. AR for the workman cannot be accepted.
19. Further, Ld. AR for Management had submitted that even if the Model Standing Orders have removed the term fixed term employment from these orders in 2007, term continued in certified standing orders of Management, duly approved and certified by the Competent authority and therefore, the Certified Standing Orders will have precedence over Model Standing Orders. On this point, management had relied upon case M C Raju Vs. Executive Engineer, W.A. no. 2733 of 1982 dt. 27.07.1984 of Hon'ble High Court of Karnataka.
17. In case M.C. Raju Vs. Executive Director, it has been held that in this case before the Hon'ble High Court of Karnataka Division Bench, the issue was exactly the same which is in the present case. In the case of M C Raju , the workman was terminated at the age of 55 years and he claimed that as there is an amendment to the Model Standing Order making the superannuation age as 58 , he was entitled to be superannuated only at the age of 58 and not at the age of
55. it was contended by the management therein that since the "Certified Standing orders" of the management provids the age of workman as 55 and not 58, therefore, the "Certified Standing Orders"
would prevail till they are amended. Hon'ble High Court of Karnataka Division bench considered the matter in detail and observed that unless the "Certified Standing Order" are amended as per the "Model Standing Order" the earlier would continue to apply and involved the right of . 14/21 service of workman. Hon'ble High Court of Karnataka has observed and held that :
" What is expressly provided in S.12A of the Act is that the prescribed Model Standing Orders shall be deemed to be adopted by the establishment commencing from the date on which the Act becomes applicable to the Industrial Establishment and ending with the date on which the Standing Orders as finally certified under the Act come into operation under S.7. The transitory period during which the Model Standing Orders shall be deemed to be applicable to the establishment has been provided with precision. That period is the one between the date on which the Act becomes applicable to the establishment and the date on which the Standing Orders as finally certified under the Act come into Operation under S.7. The expression 'commencing from the date on which the Act becomes applicable is significant. It does not speak of the date on which any amendment to the Act or Rules come into force. If the contention of Sri Krishnaiah is accepted S.12A will get attracted on every occasion when the Act is amended. But what is provided by S.12A is a fixed date for commencement of the transitory period during which the Model Standing Orders shall be deemed to be applicable, which is the date on which the principal Act came into force. The other termini of the transitory period is the date on which the Standing Orders as finally certified under the Act come into operation under S.7. Here again, the reference is to the final standing Orders and not to the amendment to the Standing Orders already in operation in the establishment. The contention urged by Sri Krishnaiah, in our opinion, leads to absurd results if the Model Standing Orders become applicable with effect from the date of commencement of the Act as it would be giving retrospective effect to the . 15/21 amended Model standing Orders when the amendment to the Act itself making provision in that behalf did not provide for giving any retrospective operation. The language of S.12A makes it clear that the Model Standing Orders shall be deemed to be applicable until the Standing orders are made as contemplated by the Act. The reference to the Standing Orders, as finally certified under the Act in Section 12A, is obviously to the first standing orders made for the establishment after the Act came into force. It therefore follows that if the Model Standing Orders are amended subsequent to the coming into operation of the first Standing Orders in respect of the particular establishment, the same do not automatically become applicable to the establishment concerned. Steps have to be taken to amend the existing Standing Orders in accordance with S. 10 of the Act. Until such steps are taken to amend the existing Orders to bring them in conformity with the amended Model Standing orders, the amended Model Standing Orders will not be applicable to the establishment."
19. The other limb of argument of Ld. AR for the workman is that his service conditions were violated by terminating his services. Once workman has himself admitted in his complaint that his service contract was renewed from 17.05.2010 for three month and thereafter there was no renewal letter, issued to him, this clearly shows that the service of the workman had come to an end when the contract had completed or expired on 17.08.2010. Therefore, there is no substance in the argument of Ld. AR for the workman that any service condition of the workman has been altered by the management or that the management has terminated the services of the workman during the . 16/21 pendency of the Industrial dispute. Pendency of Industrial dispute for regularization of the worker was separate from the completion of the term of contract of employment of the workman. Just because an Industrial dispute was pending between Management and workman, Management cannot be forced to continue with the employment of a contractual worker even after completion of contract. There are various judgments which have already held that discharging of service of the workman due to expiry of the duration of their contract does not violate the provisions of Section 33 of I.D. Act. I will discuss the judgments, while considering the authorities relied upon by Ld. AR for the parties.
20. Ld. AR for workman has neither advanced oral arguments nor relied upon any judgment on the point of fixed term contract. On the other hand, Management has relied upon BA Security Agents Employees Union Vs. Regional Labour Commissioner and ors, 2010 LLR 1083, this is a case, which squarely applies to the facts in hand. In this case Hon'ble High Court has considered the judgment of Division bench of the Hon'ble High Court in CWA (P) 1305.1991 titled Delhi Pradesh Rajdhani Mazdoor Union (Regd.) Vs. DDA (unreported). In that case Hon'ble Division Bench of Hon'ble High Court of Delhi has held that :
"The DDA in terminating the services in terms of the contract had not in any manner varied the terms of service of the members of the petitioner union in that case and therefore there was no question of seeking any express permission in writing of the authority before which the proceedings were pending because the services got extinguished by efflux of time on the expiry of their contract. It was further held that if the DDA had tried to terminate the services before the . 17/21 contract was over then the workmen would have been protected under section 33."
21. In view of the judgment of the Division bench in Delhi Pradesh Rajdhani Mazdoor Union (stated above), Hon'ble High Court of Delhi in B A Security Agents Employees Union has held that terminating the services in terms of contract does not very the terms of service , therefore, section 33 would not be applicable.
22. The second judgment Mahender Singh Dhantwal Vs. Hindustan Motors Ltd. And ors. 1976 II LLJ 259 SC, is also relied upon by the Ld. AR for the management. However, I am of the opinion that this judgment is not applicable to the present facts in hand as the issue before the Hon'ble Supreme Court in Mahender Singh's case was that "Whether the termination of the workman was on account of misconduct of employee or not and it was not in respect to a fixed term contract. Hence, the facts of both the cases can be differentiated. Similarly , Management of Essopre Mills Ltd. vs. Presiding Officer, Labour Court and ors., 2008 III LLJ 614 SC, does not apply to the facts of present case as the case before the Hon'ble Supreme Court was in respect to the strike of the workman which is not the case here.
23. Therefore, in view of my above discussion, I am of the opinion that the workman/complainant herein was appointed for a limited period of contract and the contract has come to an end on 17.08.2010, this fact has not been disputed by the workman. After 17.08.2010 management had not renewed the service contract of the . 18/21 workman, hence, his service has come to an end due to expiry of his contract by efflux of time and he has not been dismissed or retrenched by the management.
24. In the written arguments submitted by Ld. AR for the workman, it has been stated that workman has not been given ret renchment compensation u/sec 25F of the I D Act. It is also important here to consider the provisions of section 2 (oo) (bb) of the I.D. Act wherein it is clearly mentioned that the term "retrenchment" would not include the termination of service which results due to non renewal of contract of employment on expiry of the contract period. Therefore, it is clear that neither the workman was terminated nor he was retrenched in any manner as his service contract had come to an end and was not further renewed by the management, therefore, there is no violation of Section 33 of ID Act by the management and hence provisions of Section 33A of ID Act does not apply to the facts of present case. The complaint is thus not maintainable u/s 33A of ID Act as there is no violation of Section 33 of ID Act by the management.
25. My view also gets support from the recent judgment of Hon'ble Punjab and Haryana High Court in Baljeet Singh Vs. Industrial Tribunal, Bathinda and ors. , 2018 LLR 622, wherein it was held that :
" Crux of the matter in the present petition is whether petitioner was appointed on regular basis or contract basis? Undisputedly, petitioner was appointed on contract basis which is tenure appointment as well as tenure period has been complete. Petitioner has no legal right . 19/21 to hold the post so also question of holding of inquiry or issuance of charge sheet are not attracted in the present case with reference to Section 2 (oo) of (b) of the ID Act.
26. In view of my above discussion, various judgments considered, it is clear that workman/complainant had been employed only on contractual basis and after completion of his contract, it was not further renewed hence his services came to an end, on expiry of his employment contract, and there was no violation of Section 33 ID Act, committed by Management. The service of workman had come to an end by efflux of time and not due to change in service conditions of the workman. Hence, there is no violation of Section 33 I D Act by the management. The issue no.1 is decided in favour of the management and against the workman.
Issue no.2:
"Whether complainant/workman is entitled to relief claimed?OPW
27. Since the issue no.1 has been decided against the workman to the effect that the service contract of the workman has come to an end by efflux of time and there is no violation of Section 33 I D Act committed by the Management, hence, workman in the present case is not entitled to any relief.
Issue no.3.
"Relief"
28. Since issue no.1 and 2 are decided in favour of the management and against the workman/complainant, the workman is . 20/21 not entitled for any relief. The complaint of the complainant is dismissed.
29. The copy of the award be sent to the Government of NCT of Delhi for publication of the award. File be consigned to Record Room.
30. File be consigned to the Record Room.
Announced in the open Court on (SHAIL JAIN) this 1st April, 2019. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally signed SHAIL by SHAIL JAIN
Date:
2019.04.03
JAIN 15:31:33
+0530
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