Delhi District Court
Sh. Uttam Singh vs The on 6 December, 2021
IN THE COURT OF SHRI RAJ KUMAR
PRESIDING OFFICER : LABOUR COURT- III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
LIR No. 986/2018
Sh. Uttam Singh
S/o Sh. Vijay Pal Singh
R/o 278/11, C-Block, Gokal Pur,
Delhi - 110094.
C/o Shops and Commercial Workers Union
(Regd., 780, Ballimaran, Chandni Chowk, Delhi-110006
(Sh. Nazim Hussain, General Secretary,
Moble No. 9871385091)
... Workman
Versus
The Management of
M/s. Lok Nayak Hospital
Jawahar Lal Nehru Marg,
New Delhi-110002
(Through its Medical Superintendent)
... Management
Date of Institution : 06.04.2018
Date of Arguments: 20.11.2021
Date of Judgment : 06.12.2021
JUDGMENT
1. At the out-set, it becomes pertinent to mention here that the present matter together with the other matters has been remanded back to this court vide orders dated 23.09.2019 passed in WP (C) No. 10318/2019 by the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi has remanded back the present matter for fresh adjudication by dealing with all the issues raised by the petitioners.
LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 1/372. Now, coming to the facts, this reference was sent by the Govt. of the National Capital Territory of Delhi vide Order No. F.24 (71)/18.Ref./CD/Lab./340 Dated 15.03.2018 with the following terms:-
"Whether the engagement of workman Sh. Uttam Singh S/o Sh. Vijay Pal Singh by the management through the contractors from time to time is sham/camouflage to conceal the employer employee relationship between the management and these workmen and if so, whether the services of these workmen have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this regard?"
3. The reference was sent jointly for 50 workers but only 46 of them filed the statement of claim separately.
4. The facts, succinctly as disclosed by the workman in the statement of claim, necessary for the disposal of the present dispute, are that he himself and the other workmen were employed by the management of Lok Nayak Hospital as Safai Kararcharies. It has been further stated that the workmen concerned have been serving the hospital management continuously without any break for the last so many years. It has been alleged that the hospital management has been adopting unfair labour practices of employing the workmen in various categories like Safai Karamcharies, Guards, Lift Operators, Generator Operators and other Class IV staff for the maintenance and up-keeping of the establishment by showing them engaged LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 2/37 through contractors with a view to deprive the workmen the benefits of permanency and evading its liability towards the workmen under the law.
5. It has been further stated that the workmen have been working under the complete control and supervision of the officers of the hospital management. It has been alleged that however, the management wanted to conceal the real employer- employee relationship in between the hospital management and the workmen concerned. It has been further stated that the contractors used to be changed from time-to-time but the workmen concerned continued to work at the same place. It has been alleged that the management, during the service tenure of the workmen concerned, engaged M/s. Balaji Enterprises, M/s. Security Solutions and Manpower Solutions and M/s. Suraksha Security Agency as sham contractors for putting veil on the employer-employee relationship.
6. It has been further stated that the workmen concerned had been working under the complete control and supervision of the Sister-in-charge of each department and Sanitary Officers of the management. It has been further stated that the attendance of the workmen concerned used to be marked in the report book of each department daily. It has been further stated that duties of the workmen were used to be supervised by the Sanitary Officers of the hospital management. It has been further stated that the workmen concerned used to be transferred/posted from one department to the other by the Sanitary Officers of the hospital/management and the salary of the workmen used to be prepared on the basis of the attendance sheets verified by the LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 3/37 Sister In-Charge.
7. It has been further stated that there was no difference in the nature of work, working hours and responsibilities of the workmen concerned despite the fact that the contractors kept on changing from time-to-time. It has been alleged that the workmen concerned were also deprived by the management of the benefits of ESI and even their Provident Fund Contribution was not sent regularly to the PF Department, though the same was being deducted continuously from their wages. It has been further alleged that the workmen concerned were never given wages slip to show the various deductions made from their wages. It has been further alleged that the management was not managing the statutory records of the workmen concerned such as the muster- roll register, wage register, over-time register and register of fines etc.
8. It has been further stated that such sham contractor M/s. Suraksha Security Agency left the management on 24.12.2016. It has been further stated that thereafter the workmen concerned were treated as a direct daily wages workmen since 24.12.2016. It has been further stated that 73 such workmen/safai karamcharies were continued in the service but their wages were not paid in time. It has been alleged that the wages up-to January 2017 were paid in April 2017.
9. It has been further stated that the workmen concerned demanded their wages but the management instead of paying their wages of past six months, terminated their services on 19.08.2017. It has been further stated that the workmen LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 4/37 concerned filed a complaint dated 22.08.2017 in the Labour Office, Pusa Road, New Delhi and the management reinstated 73 workmen. It has been further stated that however, their attendance was not marked. It has been further stated that in this way, the workmen concerned served the employer from 22.08.2017 till 20.09.2017.
10. It has been alleged that the hospital management terminated the service of the workmen concerned on 20.09.2017 without paying the wages for the period of 22.08.2017 to 20.09.2017. It has been further stated that the workmen concerned filed a complaint in the Office of the Deputy Labour Commissioner, Pusa Road, New Delhi on 20.09.2017. It has been further stated that the proceedings were held by the Labour Inspector but the management did not take the workmen back on job. It has been further stated that the workmen concerned also served a demand notice dated 30.11.2017. It has been alleged that the management replaced the workmen concerned with the fresh workmen employed through the fresh contractor M/s. Sulabh International. It has been further stated that the workmen concerned raised their industrial dispute by filing their statement of claim. It has been further stated that however, the management sent the salary of 27 days in the account of the workmen concerned pursuant to the conciliation proceedings.
11. It has been further stated that the workmen concerned served the management for more than 240 days in every year of their service and during the year immediately preceding the date of termination of their services with effect from the initial date of their respective engagement till the date of termination of their LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 5/37 services by the management i.e. till 20.09.2017. It has been further stated that the action of the management is in violation of the Article 14 & 21 of the Constitution of India and also in violation of Section 25 (F), 25 (G) and 25 (H) of the Industrial Disputes Act. It has been further stated that the workmen concerned are unemployed since the date of termination of their services by the management and as such the workmen seek reinstatement with the hospital management.
12. On the basis of the above said allegations as contained in the statement of claim, the workmen prayed that it be held that the contractors employed by the management were sham, camouflage and practice of the management of employing sham contractors amounted to unfair labour practice. It has been further prayed that the workmen concerned be treated as the direct workmen under the hospital management. It has been further prayed that it be held that the services of the workmen concerned have been terminated by the management illegally and unjustifiably. It has been prayed that the relief of reinstatement in service with continuity of service and full back wages be granted to the workmen.
13. Reply/written statement has been filed by the management taking various preliminary objections such as the reference is wrong and illegal, without jurisdiction and bad in law. The main contention of the management is that there was no relationship of employer and employee in between the parties to the present claim. It has been further stated that the workman was working as tender contract employee under the independent contractors who were appointed by the management by invitation to bid through a LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 6/37 competitive tender process. It has been further stated that the workmen were deployed by the private agency/contractor and hence the management was not empowered to terminate the services of the workman. It has been further stated that the present claim is bad for misjoinder and non-joinder of the private contractors under whom the workmen were working.
14. On merits, it has been stated that the hospital had engaged the private sanitation agency through open tendering for smooth functioning of the sanitation services. It has been further stated that there was no role of the hospital administration in the engagement of the workers and in support of this contention, the hospital/management has cited Clause 2, Clause 7, Clause 13 etc. of the General Conditions of the Contract.
15. It has been further stated that the workmen used to be paid their salary by the contractors and the contractors had the power to remove/dismiss the workmen from services. It has been further stated that the entire supervision and control was of the contractors and not of the management. It has been further stated that the management used to mark the presence of the workmen only with a view to sanction the bills of the contractors raised by the contractors for the services provided by the workmen. It has been further stated that it was the contractor who used to credit the salary of the worker in the accounts and even the ESI and PF contribution was to be deducted by the contractors.
16. It has been further stated that initially the term of contractor namely M/s. Suraksha Security Agency was for two years i.e. from 21.07.2014 to 20.07.2016 which was extendable LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 7/37 for one year. It has been further stated that the contractor had given one month notice in June 2016 for discontinuation of the services but the same was not accepted by the management. It has been further stated that the contract was extended for six more months up-to 20.01.2017 as three months notice was mandatory for discontinuation of services. It has been further stated that the contractor complied with the above said extension and discontinued the services with effect from 22.12.2016. It has been further stated that thereafter, because of the discontinuation of the services by the contractor, the management moved a proposal to the Secretary (H & FW) on 24.12.2016 to engage 73 Safai Karamcharies with effect from 24.12.2016 and 26.12.2016 respectively of the outgoing agency M/s. Suraksha Security Agency on daily wage basis for 240 days in compliance of the cabinet decision no. 2323 dated 22.03.2016 or till the finalization of cluster tender whichever was earlier. The said cabinet decision is as under :
"The cabinet noted with concern the delay occurring every month in releasing wages to the workers engaged by the Govt. Departments/Organizations directly or outsourced from private firms/agencies. It was noticed that in several cases either the contractor/outsourced agency has not raised any bill or in some cases where the bill has been raised, payment has not been released by the departments or where payments have been released, the workers have not been paid by the contractor. After deliberations, the following decisions were taken by the Cabinet :-
(1) It shall be the personal responsibility of each HOD/Secretary to ensure that all contract employees, whether employed directly by GNCTD or working with a contractor whose services have been hired by GNCTD, are paid their wages for previous month latest by 15th of every month. (2) Each HOD/Secretary shall certify that all employees have been paid wages. The certificate should reach Chief Secretary by 4 PM on 20th day of each month.LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 8/37
(3) The Chief Secretary shall submit a report by 11 AM on 22 nd day of each month to the Chief Minister.
(4) Those HODs/Secretaries, who fail to ensure that payment has been made to all employees for the previous month, shall make themselves liable for imposition of penalty equal to deduction of pay upto 10% of their basic salary for that month. An officer shall be head before such penalty is imposed.
(5) In order to ensure that all employees get their salaries in time, HODs/Secretaries should use all powers at their disposal to ensure the same. If contractor fails to comply despite repeated attempts, HOD/Secretary shall be at liberty to cancel the contract.
(6) (a) If the contract is cancelled, immediate steps as warranted should be taken in that case to invite fresh tenders/bids and a new contractor/firm finalized.
(b) For work already rendered by a workers(s), the Department may make payment of the due amount of wages to the worker(s) directly and adjust it against bills that would otherwise be due to the contractor.
(c) In the interim and till a new contractor is selected, the Department shall take all the concerned willing workers into its fold as daily wages workers. This be done for a maximum period of 89 days in one go and only by way of interim measure.
(7) If the contract is cancelled, the said firm/company and all those firms/companies in which the partners/Directors of the said firm/company are partners/Directors, shall be blacklisted from getting any work in GNCTD for a period of 3 years. Any amount due to them, including security, shall be forfeited.
(8) To ensure that there is no delay in processing bills, the departments do not need to send the periodic bills to Finance Department for approval. The bills should be settled at their end only.
(9) (a) The Labour Department shall issue a comprehensive circular on the above mentioned subject.
(b) In addition, the Finance Department will take steps to empanel agencies which can supply workers to meet the requirements of different Departments. Department(s) shall be at LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 9/37 liberty to engage requisite work force from such empanelled agencies".
It has been further stated that prior to their engagement for 240 days on daily wage basis, all the 73 Safai Karamcharies had submitted an undertaking to the hospital in the following terms :
"I am willing to join as daily wages sanitation workers (un-skilled) @ Rs.374/- per day in Lok Nayak Hospital. I will not claim any lien against the post".
17. It has been further stated that the workmen were paid their wages only after receipt of approval of the competent authority, because it was not feasible to make the payments earlier to the approval of the matter. It has been further stated that all the 73 daily wage Safai Karamcharies were made their final payment. It has been further stated that in the middle of July 2017, the hospital administration had submitted a proposal to Secretary (H & FW) to engage these 73 Safai Karamcharies through M/s. Sulabh International which was already providing Safai Karamcharies to the hospital. It has been further stated that in the interest of patient care and out-going agency workers, Medical Director had verbally permitted the workers to continue with their services after giving a few days break, in anticipation that approval of the competent authority would be received in the file of outsourcing of Safai Karamcharies from M/s. Sulabh International. It has been further stated that in the meanwhile the workers/safai karamcharies filed a representation in the Labour Office (Central) and thereafter their services were discontinued with effect from 19.09.2017, because the management was not in a position to engage them orally for a period of 240 days without LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 10/37 the approval of the competent authority. It has been further stated that the Hon'ble Lieutenant Governor had approved the proposal to engage 73 workers through M/s. Sulabh International and the said agency had given verbal offers to all the workers but only 23 Safai Karamcharies had joined their services despite grant of sufficient time.
18. The management has further stated that from 22.08.2017 to 19.09.2017 the workmen had worked with M/s. Sulabh International and wages were paid to them by that agency and not by the management. The management has denied the breach of any provisions of the Industrial Dispute Act, 1947. The management has further stated that there was no victimization and unfair labour practice as alleged by the workmen. Rest of the contents of the claim petition have been denied and it has been prayed that the present claim petition be dismissed.
19. Out of the pleadings of parties, the following issues were framed by the Ld. Predecessor of this court on 14.05.2018 :
i) Whether there was relationship of employer and employee between management and claimant? OPW.
ii) As per terms of reference. iii) Relief.
20. Now, coming to the evidence, the claimant/workman has filed his evidence by way of affidavit as Ex.WW1/A reiterating and reaffirming the stand as taken by the workman in the statement of claim. He has filed on record the complaint dated 22.08.2017 addressed to the Chief Minister, Govt. of NCT of Delhi with copy thereof to the various authorities as Ex.WW1/1, LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 11/37 the letter dated 30.08.2017 written by MO I/C BMWM, Sanitation and HK addressed to NODAL Office (PLG.), Lok Nayak Hospital as Ex.WW1/2, the letter dated 29.08.2017 written by Assistant Director (PLG) and addressed to NODAL Office (PLG.), Lok Nayak Hospital as Ex.WW1/3, the notice issued by the Inspecting Officer, Labour Department, Government of NCT of Delhi in response to the aforesaid complaint of the workman as Ex.WW1/4, the complaint dated
20.09.2017 addressed to the Deputy Labour Commissioner, Pusa Road, Delhi-12 as Ex.WW1/5, the report of Labour Inspector, Central District, Pusa as Ex.WW1/6, the demand notice dated 29.11.2017 sent through Union to the Medical Superintendent as Ex.WW1/7, the postal receipt dated 30.11.2017 vide which demand notice was sent as Ex.WW1/8, the statement of claim filed before the Conciliation Officer as Ex.WW1/9, the reply of the management filed before the Conciliation Officer (running into 5 pages) as Ex.WW1/10, workman's bank statement as Ex.WW1/11 and the copy of the cheque issued by the management for the salary of the workman as Ex.WW1/12.
21. On the other hand, the management has also examined Sh. Rajendra Singh Tolia, Deputy Medical Superintendent, Lok Nayak Hospital, Govt. of NCT of Delhi as MW-1. He has filed on record his evidence by way of affidavit as Ex.MW1/A. He has filed on record the copy of agreement as Ex.MW1/1, the copy of agreement/contract as Ex.MW1/2, the copy of the agreement/contract as Ex.MW1/3, the copy of the agreement/contract as Ex.MW1/4, the cabinet decision dated 22.03.2016 vide no. 2323 as Ex.MW1/5, the undertaking of Mr. Uttam Singh as Ex.MW1/6, the approval of the Hon'ble LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 12/37 Lieutenant Governor for engagement of 73 workers from M/s. Sulabh International as Ex.MW1/7, the sanction order dated 09.09.2017 towards payment of daily wages to 73 workers as Ex.MW1/8, the approval from LG as Ex.MW1/9, the award of contract for supply of 82 nursing orderlies and renewal of contract for the period of 01.05.2010 to 30.04.2011 (20 pages colly) as Ex.MW1/10, the copy of agreement between management and service provider namely M/s. Security Solutions and Manpower Services (9 pages colly) as Ex.MW1/11 and the authority letter in his favour by Medical Director Mr. J.C. Passey, for deposition in this case and remaining 45 cases as Ex.MW1/12.
22. Issue No. 1 :
Issue no. 1 pertains to the relationship of employer and employee in between the management and the claimant and the onus to prove this issue has been put upon the workman.
23. Before adverting to the above said issue on merits, it becomes pertinent to mention here that the Hon'ble High Court of Delhi vide orders dated 23.09.2019 passed in WP (C) Petition No. 10318/2019 has remanded back the present matter together with other matters on the ground that the initial date of appointment of the claimant with the management was much prior to the date of engagement of the present contractor but the Labour Court failed to consider the above said submission of the claimant. It has been further held in the above said orders of the Hon'ble High Court of Delhi that the Labour Court also failed to consider that the contractors continued to change from time to time, but the petitioners continued working at the LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 13/37 hospital/management which amounts to unfair labour practice. It has been further held in the above said orders that the Labour Court also failed to consider that the hospital/management was malafidely calling the petitioner, the employee of the contractor but the contract between the contractor and the hospital was merely a ploy to deprive the claimant of the statutory benefits. It has been further observed that the Labour Court also failed to consider that one set of contractual workmen cannot be replaced by another set of contractual workmen and this submission has not been considered by the Labour Court. The Hon'ble High of Delhi has further held that it has not expressed any opinion on the merits of the contentions raised by the claimant and it shall be open for the Labour Court to deal with these claims on their own merits and while doing so, the Labour Court shall also consider the affect of the decisions relied upon by the petitioners/claimants.
24. Written final arguments had already been filed by both the parties prior to the disposal of the present matter vide orders dated 30.08.2018 passed by the Ld. Predecessor of this court. However, after remanding back of the present matter together with the other matters vide orders dated 23.09.2019 passed by the Hon'ble High Court of Delhi, the Ld. AR of the workman/claimant has filed on record additional final arguments in writing together with certain judgments.
25. In the written final arguments, filed on record by the workman/claimant it has been argued that the contractors kept on changing but the claimants kept on working with the same management. It has been further argued that his salary was paid LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 14/37 by the management and ESI and PF were also deducted by the management. It has been further argued that the attendance used to be marked by the management and the entire supervision and control over his working was also that of the management. It has been further argued that the contracts in between the management and the contractor were merely sham documents and this court is fully empowered to lift the veil. It has been further argued that after the change of the contractor, no compensation has been paid to the workman either by the contractor or by the management u/s 25 FF of the ID Act 1947. It has been further argued that the claimant was absorbed in the service by the subsequent contractor and this process went on till 24.12.2016 when the claimant was appointed as daily wager by the management initially for 89 days and thereafter extension was granted. It has been further argued that neither the contractor nor the management ever paid any termination compensation to the claimant. It has been further argued that the relationship of employer and employee has been admitted by the management after the period from 24.12.2016 to 20.08.2017. It has been further argued that from 22.08.2016 to 20.09.2017, the claimant has worked with the management but he was wrongly shown as the employee of M/s. Sulabh International. It has been further argued that Section 21 (4) of the Contract Labour (Regulations & Abolition) Act 1970 and the definition of wages as contained in The Payment of Wages Act includes the compensation payable for termination of service but the same has not been paid at all.
26. In the additional written final arguments, filed on record by the workman/claimant after remanding back of this matter, it has been argued that the workmen concerned were employed against LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 15/37 the vacant posts and this fact is admitted by MW-1 in his cross- examination. It has been further argued that the work against which the workmen concerned were employed is admittedly and undisputedly permanent and perennial in nature. It has been further argued that the work against which the workman was employed from its very nature is an integral part of the establishment as permanent post of Safai Karamcharies exists and this fact is admitted by the witness of the management in his cross-examination. It has been further argued that there is a hidden policy of the Government that Class IV posts shall not be filled permanently by employing permanent employees and only the contract labour would be employed but this amount to unfair labour practice. It has been further argued that the ultimate decision whether to continue the workmen in service or not was with the hospital/management as is evident from the facts of the present matter. It has been further argued that the entire contract labour system made by the management is merely a perfect paper arrangement to defeat the rights of the workmen. It has been further argued that even if it is held that the contractor labour system was genuine and not sham, the termination of the services of the workmen would still be illegal and unjustified being in violation of proposition that a set of contract, temporary or ad- hoc workmen cannot be replaced by another set of such workmen as has been laid down by the Hon'ble Supreme Court in the case of State Vs. Haryana Vs. Piara Singh and others (1992) 4 SCC 118 and followed by Hon'ble Delhi Court in the case of Anil Lamba V/s. Government of N.C.T. Delhi, MANU/DE/0598/2017 and W.P.(C) No. 6891/2019 titled as Hemant Kumar and others V/s. ESIC and others.
LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 16/3727. The workman in the written final arguments has relied upon the authorities titled as Secretary, Haryana State Electricity Board V/s. Sh. Suresh and other, cited as 1999 LLR 433; H.D. Singh V/s. Reserve Bank of India 1986 SC 132; Kapurthala Central Co-Operative Bank Limited V/s. POLC Jhallandar 1984 (I) SLR 435; Chief Administrator, HUDA V/s. POIT 194 LLR 454; Central Bank of India V/s. S. Satyam and others 1996 (4) SLR 695; Samistha Dubey V/s. City Board Etwah 1999 SCC (L & S); MCD V/s. Narender Kumar (2008) I LLJ 572 DHC; Sports Authority of India V/s. Sports Authority Kamgar Union 2005 LLR 541 DHC; GTB Hospital V/s. Balbir Singh and others 1997 LLR 628; Harjinder Singh V/s. Punjab State Warehousing Corporation (2010) SCR, 591; University of Delhi Vs. Tilak Ram in W.P (C) No. 2297/2003 decided on 06.02.2009 MANU/DE/1386/2009; Rattan Singh V/s. Union of India 1998 SCC (L&S) 770, S.M. Nilajkar V/s. Telecom District Manager, Karnataka 2003 LLR 470; The Management of Horticulture Department of Delhi Administration V/s. Trilok Chand 2000 LLR 130; R.M. Yellati V/s. Executive Engineer (2006) 1 SCC 106; L. Robert D'Souza V/s. Executive Engineer Southern Railway and another 1982 SCC (L & S) 124; Hari Nandan Prasad & others V/s. Employer I/R to Management of FCI and Ors. in Civil Appeal Nos. 2417- 2418/2014 (Arising out of S.L.P. (Civil) Nos. 29634- 29635/2008) decided on 17.02.2014 MANU/SC/0103/2014; American Express International Banking Corporation V/s. The Management of American Express International Banking Corporation 1985 I (LLJ) 339; Sh. Devinder Singh V/s. Municipal Council AIR 2011 SC 2352; Deep Chandra LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 17/37 V/s. State of U.P. (2001) 105 SCC 606; State of Haryana V/s. Piara Singh & Ors. (1992) 4 SCC 118; Anil Lamba V/s. Govt. of N.C.T. Delhi MANU/DE/0598/2017 and Orders in the case of Hemant Kumar and others in W.P. (C) No. 6891/2019 & CM APPL. 28659/2019, 31783/2019 decided on 02.09.2019 by Hon'ble High Court.
28. The workman in the written final arguments has also relied upon the authorities titled as Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and Ors. cited as AIR 1978 SC 1410; Steel Authority of India Ltd. & Ors. Etc. Etc. Vs. National Union Water Front Workers & Ors. (Appeal (Civil) No. 6009-6010 of 2001 decided on 30.08.2001 by Hon'ble Supreme Court of India) and Vijay Bahadur Pal & Ors. V/s. Central Warehousing Corporation & Ors. (W.P. (C) No. 482/2021 decided on 17.05.2021 by Hon'ble High Court of Delhi).
29. Whereas, on the other hand, the management in the written final arguments has argued that the claimant has admitted in the statement of claim and in his evidence by way of affidavit, the contractors namely Balaji Enterprises, Security Solutions, Manpower Solutions and M/s. Suraksha Security Agency. The management has relied upon various contracts i.e. Ex.MW1/1, Ex.MW1/2, Ex.MW1/3 and Ex.MW1/4, the Cabinet Decision dated 22.03.2016 Ex.MW1/5, the undertaking of the claimant in the form of Ex.MW1/6, the approval of the Hon'ble Lieutenant Governor for engagement of 73 workers from M/s. Sulabh International in the form of Ex.MW1/7, the Sanction Order dated 09.09.2017 towards payment of daily wages to 73 workers in the LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 18/37 form of Ex.MW1/8, the approval from the Hon'ble Lieutenant Governor in the form of Ex.MW1/9, the Award of the Contract for supply of 82 Nursing Orderlies and renewal of contract for the period 01.05.2010 to 30.04.2011 in the form of Ex.MW1/10 and copy of the Agreement between the management and M/s Security Solutions and Manpower Services in the form of Ex.MW1/11 to show that it was the contractor, who used to give salary to the claimant and who used to deduct ESI and PF contribution. It has been further argued that the entire supervision and control was also that of the contractor. It has been further argued that the management only used to clear the bills raised by the contractor for providing menforce and while clearing the bills, the management used to tally the attendance-sheet of the contractor qua the workers with the attendance-sheet prepared by the management. It has been further argued that Section 25 FF of the ID Act comes into picture only when ownership of management of an undertaking is transferred but in the case in hand there was never any change in the ownership or the management of any contractor and rather the contractor himself was changed from time to time. It has been further argued that the contractor was not any company and rather it was a proprietorship firm. It has been further argued that the last contractor was Suraksha Security Agency and the subsequent contractor did not step in the shoes of the earlier contractor. It has been further argued that for the period from 22.07.2017 to 20.09.2017, the claimant has not worked with the management as its employee, though he had worked in its premises. It has been further argued that the file for getting the sanction from the Hon'ble Lieutenant Governor to employ him through M/s. Sulabh International up-to 31.12.2017 was moved by the LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 19/37 management in July, 2017 and the Hon'ble Lieutenant Governor extended the contract of M/s. Sulabh International up-to 31.12.2017. It has been further argued that the issue of engagement of the claimant through M/s. Sulabh International was left in the discretion of the Health Secretary, who granted the permission on 17.11.2017 to engage the claimant and 72 other workers through M/s. Sulabh International up-to 31.12.2017. It has been further argued that the claimant had joined the M/s. Sulabh International but he, simultaneously filed the case against the management and then M/s. Sulabh International terminated his services on 20.09.2017. It has been further argued that the salary from 22.08.2017 to 20.09.2017 was credited in the account of the claimant by M/s. Sulabh International and as such the termination of his service on 20.09.2017 was not by the management but by M/s. Sulabh International.
30. It is true that the Labour Court is empowered to lift the veil, in case, the contract in between the contractor and the principal employer is a sham contract to conceal the real employer-employee relationship as has been held in a number of judgments such as Balwant Rai Saluja Vs. Air India Ltd. 2014 (3) LLN 568 (SC); Short v. J & W Henderson Ltd, 1946 (62 TLR 427; Ram Singh V. Union Territory, Chandigarh, 2004 (1) LLN 511 (SC), 2004 (1) SCC 126; General Manager (OSD), Bengal Nagpur Cotton Mills Vs. Bharat Lal, 2011 (1) LLN 368; International Airport Authority of India Vs. International Air Cargo Workers' Union, 2009 (3) LLN 489 (SC); International Airport Authority of India case (supra), as quoted in General Manager (OSR); Bengal Nagpur Cotton Mills Vs. Bharat Lal, 2011 (1) LLN 368; National Aluminium LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 20/37 Co. Ltd. Vs. Ananta Kishore Rout and Ors, 2014 (6) SCC 756 and Dhrangdhra Chemical Works Ltd. vs.State of Saurashtra, AIR 1957 SC 274.
31. As stated herein above, the onus to prove the relationship of employer-employee squarely lies upon the claimant/workman. As such the vital question to be considered by this court is as to whether the claimant/workman has been able to discharge the above said onus or not.
32. Now, adverting to the cross-examination of WW-1, he states that he used to work with the management. He further states that he had never worked with any contractor and so he cannot be supposed to know how the management used to change contractors frequently. He further states that he is not aware if he has correctly or wrongly mentioned in para 6 of his affidavit that contractor used to be changed from time to time and the management during his service, engaged M/s. Balaji Enterprises, M/s. Security Solutions, M/s. Man Power Solutions and M/s. Suraksha Security Agency.
33. He further states that he worked in the premises of the management under the supervision of the management from July, 2014 to 19th September, 2017. He further states that he has not filed attendance register, salary slip, I-card and any other document to show that he had worked with the management under its supervision during the above said period.
34. He further states that he does not know the difference in between a regular and a contractual employee. He further states LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 21/37 that he had not complained to any officer of the management that the management was not issuing him wage slips. He further states that he does not know who used to deduct PF from his salary/wages. He further states that he was paid wages in cash for 5-6 months and thereafter, it was credited in his account. He further states that he did not complain to the higher officers of the management that the management was not maintaining muster roll, attendance register, over time register and fine register. He further states that he did not mention in para 12 of his affidavit that the contractor M/s. Suraksha Security Agency left the management on 24.12.2016. He further states that he used to work with the management and that is why he has mentioned in para 12 that he may be treated as direct daily wager since 24.12.2016. He further states that he has filed evidence by way of affidavit after understanding all the facts as those were explained by his counsel in Hindi. WW-1 further states that he worked in the premises of the management with effect from July, 2014 to 19-09.2017.
35. The claimant/workman (WW-1) has categorically, in clear cut and unequivocal terms, has admitted that he was not issued any appointment letter by the management. WW-1 has further admitted that he was not interviewed by the management before his appointment. WW-1 further states that he used to get his salary/wages in cash from Sh. Bijender and subsequently, it used to be credited in his bank account. He further states that by SS Office, he means Sanitary Officer. He further states that it used to be credited in his bank account. He further states that he did not use to get salary by signing on any register upon which there might be revenue stamp. WW-1 admits it to be correct that he has LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 22/37 not filed any document to show that he was paid salary by the management. He further states that he never tried to know who used to deposit salary in his account. WW-1 further states that it was Sanitary Officer Sh. Bijender with whom the attendance register used to be and he used to mark attendance in that register. WW-1 admits that he has not filed any document to show that the officers of the management used to mark his presence. He further states that it was Sanitary office who paid him salary from the date of his appointment till the last date of working. By way of volunteer, he states that it used to be credited in his account. He further states that he has not placed on record any document to show that salary used to be credited in his account by any SS office/hospital.
36. WW-1 further states that he is not aware of any agreement in between the contractor and the management. WW-1 admits it to be correct that he worked in the premises of the management. He further states that he is not aware of the names of the contractors with whom he worked in the premises of the management. WW-1 further admits that the management is a Government hospital. He further states that he is aware of the fact that now a days, the work in the Government hospital is done through the contractors. He further states that he is not aware of the procedure of the employment of regular employees in Government hospitals. He further admits that he has mentioned the names of some contractors in his statement of claim and in his evidence by way of affidavit. He further states that but his deposition that he is not aware of their names is correct one.
37. He further states that his work was supervised and work LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 23/37 and material was supplied by SS Office and due to that reason, he is saying that the agreement in between the management and contractors are sham. He further states that the contractors were there in the hospital but he had no connection with them. He further states that he does not know how did he come to know that there was an agreement in between the management and the contractors. He further states that he is not aware that salary used to be credited in his account by the contractors.
38. WW-1 admits the document already exhibited as Ex.WW1/5, mentioning from point A to A1 that some employees were working in the premises of the management for the last eight years through contractors.
39. WW-1 further states that he cannot say that as per his bank statement Ex.WW1/11 (colly.), vide entries dated 28.05.2015 etc., the salary was credited in his bank account by contractors namely M/s. Suraksha Security Agency etc. WW-1 further states that he had not complained against the management as to why the name of the contractor was appearing as a payment maker in his bank statement. He further states that he does not know who was the highest officer of the management. WW-1 further states that by SS office, he means Sanitary Office. WW-1 admits it to be correct that the duty of the Sanitary Officer was to see whether there was cleanliness by the employees of the contractor, whether they were present physically, adequately and that they should not misbehave with the patients or the doctors. He further states that he never tried to know about his employer. By way of volunteer, he states that he is semi illiterate and due to that reason, he did not try to know that fact.
LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 24/3740. He further states that he was not issued any identity card by the management. He further states that during his tenure, he had not asked the management in writing to issue him identity card which used to be issued to regular employees. WW-1 further states that he had asked orally for the identity card. WW-1 admits that he was not getting benefits of regular employees. He further states that he was not a regular employee of the management.
41. WW-1 further states that he had worked in the premises of the management till 19th September, 2017. He further states that he was not issued any appointment letter by the management after December, 2016. He further states that he does not know any contractor. WW-1 admits that it is mentioned from point A to A1 in the document Ex.WW1/1 that the contractor had left the contract without intimation on 23.12.2016. He further states that his statement to the effect that he did not know the contractor is correct. He further states that he does not know about the contractor namely Suraksha Security Agency. He further states that he is not aware that contract in between the management and the Suraksha Security Agency was for 2 years expiring on 20.07.2016 and it was extended for one more year. He further states that he is not aware that the contractor had given one month notice in June, 2016 to the management that he was not going to provide menforce after one month. He further states that he is not aware that the management had not accepted that notice and the contract was extended for six months till 20.01.2017. He further states that he is not aware that despite emergent situation, the contractor did not provide menforce after December, 2016.
42. WW-1 further states that he is not aware of any cabinet LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 25/37 decision dated 22.03.2016, vide which all the Government hospitals of Delhi were authorized to employ persons on daily wages for 89 days in case of emergent situation arising due to non-providing of menforce by the contractors. WW-1 admits it to be correct that the management had engaged him on daily wages after stopping of providing of menforce by the contractor and he worked in that capacity from 24.12.2016 to 20.08.2017 without one day break of completion of every 89 days. He further admits that he has received wages for that period from the management.
43. WW-1 has admitted his signatures at point A on the document which is the undertaking for work on daily wages exhibited as Ex.WW1/M1. He further states that the management had not issued him any identity card meant for permanent employees, from 24.12.2016 to 20.08.2017. He further states that he was also not issued any appointment letter. He further states that he is not aware that the management had sent the file to the Health Secretary that the persons like him who were appointed for total 240 days in all and for 89 days separately, their services were to be clubbed with M/s. Sulabh International, who was earlier and still working with the management. He further states that he is not aware that LG had accepted the request of the management that the services of those workers be clubbed with Sulabh International and the file was received by the management on 23.11.2017. He further states that he is not aware that only 23 workers had joined Sulabh International on their asking.
44. WW-1 admits it that it is Sulabh International, who is providing menforce to the management now a days. He further LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 26/37 states that he is aware that when contract period of a contractor expires, the management enters into contract with another contractor for providing menforce. He further states that he is not aware as to why any of the contractors have not been impleaded as parties in the present matter. WW-1 admits it to be correct that he was not harassed by Sh. Bijender and Sh. Rajesh or any other officer of the management till he worked in the premises of the hospital.
45. From the cross-examination of WW-1, to my mind, it is evidently clear that the cross-examination of WW-1 is not only evasive but the same is also in contradiction to his evidence by way of affidavit and to his statement of claim also. In the cross- examination, WW-1 claims that he worked with the management but he does not know as to whether the contents of para no. 6 of his affidavit are right or wrong. The workman claims that he had filed his evidence by way of affidavit after understanding all the facts but he is not aware about the contents of his affidavit. He claims that he worked in the premises of the management with effect from July 2014 to September, 2017 under the supervision of the management but he has not filed any attendance register, salary slip, I-card or any other document to show that he had worked with the management under its supervision during the above said period.
46. The contradictions are writ large on the face of it, in the cross-examination of WW-1. It has to be seen that in the cross- examination, WW-1 claims that he used to get his salary from Sh. Bijender and his salary used to be credited in his bank account but in the same cross-examination, he categorically admits that LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 27/37 he has not filed any document to show that he was paid salary by the management. In the very next line, WW-1 states that he never tried to know as to who used to deposit his salary in his account. WW-1 further states that he has not placed on record any document to show that his salary used to be credited in his account by the Sanitary Superintendent's office of the management/hospital. Similarly, on the aspect of attendance also, WW-1 admits it to be correct that he has not filed any document to show that the officers of the management used to mark his presence. I have no hesitation to hold that on the aspect of the payment of salary and on the aspect of the attendance, the testimony of WW-1 is not reliable and trustworthy at all.
47. I am of the opinion that the above said cross-examination of WW-1 is sufficient in itself to demolish the entire stand of the claimant/workman as contained in his statement of claim. In clear cut and unequivocal terms, WW-1 admits that he was not issued any appointment letter by the management. He further admits that he was not interviewed prior to his appointment by the management. He is aware that the management is a Government hospital. He has not filed on record any document to show that his salary was being paid by the management.
48. I am of the considered opinion that from the cross- examination of WW-1, it is apparently clear that his testimony is not only evasive but he has also not denied the case of the management specifically. WW-1 states that he has not placed on record any document to show that his salary used to be credited in his account by SS office/hospital. He is not aware that his salary used to be credited in his account by the contractors. As LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 28/37 such, I am of the opinion that in his cross-examination, WW-1 has admitted the entire stand of the management.
49. WW-1 in the cross-examination states that his work was supervised and the work material was supplied by SS office and due to this reason, he is saying that the agreement in between the management and the contractor was sham. From the cross- examination of WW-1, to my mind, it is explicitly clear that nothing has been placed on record by the claimant to show that either his salary was being paid by the management or that his attendance used to be marked by the management and as such, his entire assertion for calling the contract in between the contractor and the management vanishes.
50. To my mind, from the cross-examination of WW-1, it is sufficiently clear that the Sanitary Officer of the management or the Sister Incharge of the concerned department were merely supervising the work done by the workman but the workman was merely a worker of the contractor and not that of the management.
51. WW-1 in the cross-examination categorically admits that it was the duty of the Sanitary Officer to see as to whether there was cleanliness by the employees of the contractor, whether they were present physically and adequately and that they should not misbehave either with the patients or the doctors.
52. Further, it has to been seen that the workman/claimant has categorically admitted that he was not getting any benefits of regular employees as he was not a regular employee of the LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 29/37 management. He has again admitted that he was not issued any identity card by the management despite the fact that the management used to issue identity cards to its regular employees.
53. He is not aware of any cabinet decision dated 22.03.2016 by which all the Government hospitals of Delhi were authorized to employ persons on daily wages for 89 days, in case of emergent situation arising due to non-providing of menforce by the contractors. He categorically admits that the management had engaged him on daily wages after stopping of providing of menforce by the contractor and he worked in that capacity from 24.12.2016 to 20.08.2017 without one day break of completion of every 89 days. WW-1 admits that he has received the wages for the period 24.12.2016 to 20.08.2017. As such, to my mind, on the aspect of his appointment on daily wages through the medium of contractors, the workman has admitted the claim of the management to the effect that the workman was an employee of the contractor and not that of the management.
54. WW-1 further categorically admits that he was not issued any appointment letter even for the period from 24.12.2016 to 20.08.2017. He again admits that he was not issued any appointment letter by the management after December, 2016. He again admits that it was Sulabh International who was providing menforce to the management now a days. He has shown his ignorance about the fact that the management had sent the file to the Health Secretary that the persons like him who were appointed for a total period of 240 days in all and for 89 days separately, his services were to be clubbed with M/s. Sulabh International who was earlier and still working with the LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 30/37 management. He has further shown his ignorance about the fact that the LG had accepted the request of the management to the effect that the services of those workers were to be clubbed with Sulabh International and the file was received by the management on 23.11.2017.
55. The workman has himself exhibited a document Ex.WW1/5 which is a complaint to the Dy. Labour Commissioner, Pusa Road. In the said complaint, it has been categorically mentioned, as has been admitted by WW-1 in his cross-examination, that some employees were working in the premises of the management for last eight years through contractors. In the said complaint also, it has not been claimed at all that the workman was an employee of the management and not that of the contractor.
56. None other but WW-1 himself has admitted his signatures on the document Ex.WW1/M1 which is an undertaking for work on daily wage basis. In the said document, the workman has categorically undertaken that he would work on daily wage basis and that he would not claim any lien against the post.
57. From the above said cross-examination of WW-1 and from the terms of the contracts, to my mind, it is apparently clear that from the initial date of appointment till 20.12.2016, the claimant was merely an employee of the contractor and not of the management and that the agreements with the contractors executed in between the contractor and the management were not sham or camouflage.
LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 31/3758. Further, with effect from 24.12.2016 to 22.08.2017, the claimant was employed by the management as a daily wager for 89 days with one day intermittent break. Though the workman/claimant states that he is not aware of any cabinet decision dated 22.03.2016 but he categorically admits that the management had engaged him on daily wages after stoppage of providing of menforce by the contractor and he worked in that capacity from 24.12.2016 to 20.08.2017 with one day break of his completion of every 89 days. He again admits that he has received his wages for that period from the management.
59. I am of the opinion that it has also been rightly argued by the management that Section 25 FF of the ID Act 1947 is not applicable in the facts and circumstances of the present matter because by engaging a new contractor, the ownership of the management of the undertaking was not transferred. I am of the opinion that it has been rightly argued that there was change of the whole of the undertaking because all the contractors were the proprietorship firms headed by the different persons.
60. Now, coming to the period of employment with effect from 22.08.2017 to 20.09.2017, it is crystal clear that proposal Ex.MW1/7 was sent to the Hon'ble Lieutenant Governor by the management/hospital. The Hon'ble Lieutenant Governor extended the services of M/s. Sulabh International till 31.12.2017 and the Principal Health Secretary was advised to monitor and ensure that the tender for awarding sanitation services was finalized well before 31.12.2017. From Ex.MW1/9, it is apparently clear that the Special Secretary Sh. S.N. Mishra granted the permission to the management on 20.11.2017 to LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 32/37 engage 73 Safai Karamcharies from M/s. Sulabh International till 31.12.2017 or till finalization of the ongoing tender for sanitation services whichever was earlier. The Sanction Order Ex.MW1/8 shows that the salary was paid to the claimant from 22.08.2017 to 19.09.2017 by M/s. Sulabh International and not by the management. To my mind, the management has been able to prove by way of cogent and reliable evidence that the salary from 22.08.2017 to 19.09.2017 was paid to him by M/s. Sulabh International and not by the management.
61. Ld. AR on behalf of the workman has heavily relied upon the judgment passed by the Hon'ble Supreme Court in SLP No. 1853 of 1978 decided on 28.07.1978 titled as Hussainbhai Vs. The Alath Factory Thezhilali Union, Kozhikode and Ors. AIR 1978 SC 1410. In Para 5 and 6 of the aforesaid judgment of Hon'ble Supreme Court of India it has been held as under :-
5....The true test may, with brevity, be indicated once again Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though Sniped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42 and 43A of the Constitution. The court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the may a of legal appearances".LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 33/37
6...."If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefits and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real-life bond. The story may vary but the interference defies ingenuity. The liability cannot be shaken off".
62. As has been discussed hereinabove, in the cross- examination, WW-1 has categorically admitted that he was never issued any appointment letter or any identity card by the management which happens to be a Government hospital at any point of time. I am of the opinion that from the cross-examination of WW-1 it is apparently clear that the management has no economic control over the claimant and rather the contractor had the control over the workman in every capacity. Accordingly, to my mind, the facts involved in the above said judgment relied upon by the workman/claimant are different from the facts involved in the present matter. Similarly, to my mind, the other judgments relied upon the by the workman/claimant are differentiable on factual aspects of the matter.
63. In the light of the above said discussion, I am of the opinion that the workman has utterly failed to prove the relationship of employer and employee in between him and the management. I have no hesitation to hold that the workman has utterly failed to prove any kind of relationship in between him and the management except the fact that he was working from the premises belonging to the management/hospital. As such to my mind, it cannot be said that the contracts in between the contractor and the management were merely a tool to deprive the LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 34/37 claimant of the statutory benefits. I am also of the opinion that right from the date of his initial appointment, till the date of termination of his services by the contractor, the workman has always been the employee of the contractor except for a brief period with effect from 24.12.2016 to 20.08.2017 during which the workman has categorically admitted that he was employed with the management on daily wage basis.
64. Last but not least, the Ld., AR for the workman has argued that the workman was employed against a vacant post and there is a hidden policy of the Government that Class IV posts were not to be filled and only contract labour were to be employed. Ld. AR on behalf of the workman has heavily relied upon the cross- examination of MW-1 on this aspect of the matter.
65. It is true that MW-1 Sh. Rajendra Singh Tolia, Deputy Medical Superintendent of Lok Nayak Hospital in the cross- examination has admitted that 73 employees including 46 claimants were employed by the management against posts which fell vacant due to retirement of regular employees but by way of volunteer, MW-1 categorically states that the Government does not allow them to fill-up the vacancy through permanent employees and that is why, they outsource the services.
66. Now, if the said cross-examination of MW-1 is gone through, it becomes apparently clear that the same pertains to a policy matter of the Government and it is in the domain of the Government to frame a specific policy which cannot be directed by the court. It has to be seen that the Hon'ble Supreme Court of India in the authority cited as Union of India & Ors. Vs. Ilmo LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 35/37 Devi & Anr. Civil Appeal No. 5689/21 cited as LLR 2021 SC 561 has categorically held that "Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review, the court cannot issue mandamus and/or issue mandatory directions to do so".
67. The Hon'ble Supreme Court of India, in the said judgment, has further held that Framing of any scheme is no function of the court and is the sole prerogative of the Govt. Even the creation and/or sanction of the posts is also the prerogative of the Govt. and the High Court, in the exercise of the power under article 226 of the Constitution of India, cannot issue Mandamus and/or direct to create and sanction the posts.
68. Issue No.1, therefore, is decided against the claimant/workman and in favour of the management.
69. Issue No.2 is comprising of two parts, the first part is as to whether the contracts/agreements in between the contractors and the management were sham and the second part is about termination. The first part has already been answered under Issue No. 1.
70. So far as the second part is concerned, the same pertains to the aspect as to whether the services of the claimant/workman have been terminated illegally and/or unjustifiably by the management.
71. As stated hereinabove, the claimant has utterly failed to LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 36/37 show any relationship of employer and employee in between him and the management. So far as the contractors, such as M/s. Balaji Enterprises, Security Solution, Manpower Solution, M/s. Surkasha Security Agency and M/s. Sulabh International are concerned, it has to be seen that they have not been added as a party in the present claim petition by the workman at all. The workman i.e. WW-1 in his cross-examination has stated that he is not aware as to why, any of the contractors have not been impleaded by him as a party in the present matter. To my mind, the services of the workman were terminated with effect from 20.09.2017 by M/s. Sulabh International and not by the management. As such I am of the opinion that the workman has squarely failed to prove that his services have been terminated illegally and/or unjustifiably by the management. Issue No.2 is decided accordingly against the workman.
72. Issue No. 3 : In view of my findings upon Issues No. 1 and 2, I am of the opinion that the workman is not entitled to any relief. The statement of claim filed by the workman is dismissed. Parties are left to bear their own costs. The reference is answered accordingly.
73. A 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 the Judicial File be consigned to Record Room as per rules.
ANNOUNCED IN OPEN COURT
on 6th Day of December, 2021 RAJ Digitally signed by
RAJ KUMAR
KUMAR Date: 2021.12.08
11:43:52 +0530
(Raj Kumar)
Presiding Officer, Labour Court-III
Rouse Avenue Courts, New Delhi
LIR No. 986/2018 Uttam Singh Vs. M/s. Lok Nayak Hospital Page 37/37