Delhi District Court
Sh. Surender Kumar vs The Medical Superintendent on 16 April, 2013
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 68/09
Date of Institution of the case : 04.03.2006
Date on which reserved for Award : 23.03.2013
Date on which Award is passed : 16.04.2013
Unique ID no. 02402C00147392006
Sh. Surender Kumar, S/o Sh. Parmanand,
R/o E21, Main Road Dayalpur,
Delhi110094 .................Workman
Versus
1.The Medical Superintendent, M/s Shanti Mukand Hospital, 2, Institutional Area, Vikas Marg, Delhi110092
2. The Trustees of M/s Shanti Mukand Hospital, 2, Institutional Area, Vikas Marg, Delhi110092 ...............Management AWARD The workman Sh. Surender Kumar, raised an industrial dispute regarding the termination of his services by the management of M/s Shanti Mukand Hospital. Direct statement of claim was filed by the workman in the Court. In the statement of claim, it is stated by D.I.D. No. 68/09 Page 1 out of 34 the workman that the present Industrial Dispute was being raised by the workman under Section 2 A of the Industrial Disputes Act, 1947, against the illegal and malafide termination of his services by the management with effect from 12.04.2005; that the workman was employed by the management as an ECG Technician by the management on and with effect from 13.05.2004; that the workman was appointed by the competent authority after judging his suitability for employment as an ECG Technician; that though the work for which the workman was employed, that is of an ECG Technician, is of an perennial nature and essential to the day to day working of the hospital, however, with a view to escaping the rigour of law particularly the various enforecable beneficial labour legislations the management depicted the workman as a 'Trainee' on its records; that accordingly, the appointment of the workman was periodically renewed on records as a 'Trainee' after every three months; that therefore, the workman was allegedly renewed in alleged traineeship by the management vide letters dated 16.07.2004, 14.09.2004, 02.12.2004 and 11.01.2005; that during the course of his services, the workman discharged his duties to the full satisfaction of the management, which is clear from the fact that the management employed him continuously since the date of his initial appointment; that the action of the management in depicting the workman as a D.I.D. No. 68/09 Page 2 out of 34 Trainee on its records while extracting work of a regular nature from him was a device to deny regular status to the workman and amounts to unfair labour practice; that though on paper the workman was depicted as a 'Trainee' but the workman was paid regular salary of a ECG Technician at par and along with the other employees of the hospital; that the services of the workman were terminated by the management vide its letter dated 08.04.2005 under the guise of non renewal of contract/traineeship; that the termination of the services by the management amounted to 'retrenchment' and the contract of employment/traineeship was used by the management as a device to escape the applicability of the definition of 'retrenchment'; that prior to the termination of his services, the workman had completed more than 340 (three hundred and forty) days in service in the 12 months preceding the illegal termination/retrenchment of the services of the workman; that the work for which the workman was employed, that is, of an ECG Technician is still an essential part of the day to day working of the hospital and the management has employed a new worker Sh. Surajmal to do the work of ECG Technician once again depicting the said workman as a "Trainee" on its records; that although the termination of the services of the workman amounted to retrenchment, however, no retrenchment compensation or notice wages or notice was given to the workman prior to or at the time of D.I.D. No. 68/09 Page 3 out of 34 the retrenchment of his services; that also the rule of last come first go and last go first come was not followed by the management in as much as Sh. Surajmal has been appointed as an ECG Technician after the retrenchment of the services of the workman without offering re employment to the workman; that no seniority list was ever made or displayed by the management on any notice board prior to the termination of the services of the workman; that after the illegal termination/retrenchment of his services the workman approached the Shanti Mukand Hospital Worker's Union (Regd.) for redressal of his grievances and the union took up the workman's cause with the management at various occasions including a demand notice dated 23.11.2005 but the same were not considered by the management and the management did not reply to the same; that since the illegal and malafide termination of his services, the workman had been unable to secure an alternative employment despite his best efforts and is currently unemployed and on the verge of starvation. Hence, the workman has claimed reinstatement with full back wages, continuity of his services and all consequential benefits.
Notice of the filing of statement of claim was sent to the management who had appeared and contested the case of the workman by filing its written statement. In the written statement filed by the management, it has taken the preliminary objections that Sh.
D.I.D. No. 68/09 Page 4 out of 34 Surender Kumar was working as a Trainee; that it has been held by the Hon'ble Delhi High Court, New Delhi while upholding the award of the Industrial Tribunal No. 2, Delhi in case of M/s Otis Elevator Co. (India) Ltd. Vs. Presiding Officer I.T. II, 2003, LLR701 that a Trainee engaged by the employer for imparting training and to work in various departments will not be a workman under section 2 (s) of the Industrial Disputes Act, 1947; that this position has been further reiterated by the Hon'ble High Court in case of K.Karthik Ramachandran Vs. Presiding Officer Labour Court and Others 2006 LLR Page 223 and in view of the same, no adjudication proceedings appear necessary; that as the claimant was appointed for a fixed period from time to time and the provisions of retrenchment as envisaged under Section 25 F of the Industrial Disputes Act, 1947 are not attracted in view of specific provisions of Section 2 (oo) (bb) of the Industrial Disputes Act, 1947. On merits, it is stated that the claimant was kept as a Trainee from time to time and his services were terminated vide letter dated 08.04.2005 for nonrenewal of contract; that such termination does not come within the purview of the definition of retrenchment in view of Section 2 (oo) (bb) of the Industrial Disputes Act, 1947; that the claimant was appointed as a Trainee and it was specifically mentioned in the appointment letter that the appointment was purely temporarily period and did not D.I.D. No. 68/09 Page 5 out of 34 guarantee any employment in the hospital; that it is denied that the nonrenewal of contract of a Trainee amounted to retrenchment in view of specific provisions in the Industrial Disputes Act, 1947; that when the claimant is not a workman under section 2 (s) of the Industrial Disputes Act, the question of benefits under the aforesaid Act does not arise; that there was no bar to keep afresh hand after the expiry of the period of employment of the claimant; that it is denied that the claimant is unemployed; that the management had received the demand notice from the workman, contents of which are denied. All other allegations are denied. Hence, it is prayed that the statement of claim be dismissed.
In rejoinder to the written statement of the management, all the averments of the management are denied and that of statement of claim are reaffirmed by the workman.
On the pleadings of the parties, vide order dated 04.01.2007 the following issues were framed:
(i) Whether the claimant is not a workman U/s 2 (s) of the Industrial Disputes Act?
(ii) Whether the termination of the services of the claimant does not amount to retrenchment by virtue of Section 2 (oo) (bb) of the Industrial Disputes Act?
(iii) Whether the termination of the services of the workman D.I.D. No. 68/09 Page 6 out of 34 is illegal and if so, to what relief entitled?
No other issue arose or pressed and the case was adjourned for evidence of the workman.
In support of his case, workman appeared as WW1, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon the documents Exts.WW1/1 to WW1/9, in workman evidence, on record. In his affidavit by way of evidence Ex. WW1/A, he has reiterated the contents of his statement of claim.
After examining WW1, evidence on behalf workman has been closed, on record.
In support of its defence, the management has led the evidence of Dr. S.K. Anand, Addl. Medical Superintendent of the management as MW1, who has tendered his affidavit by way of evidence Ex. MW1/A as also relied upon documents Exts. WW1/1 to WW1/5, on record.
After part cross examination of the MW1 on behalf of the workman in management evidence, this witness has been substituted by the management with MW Dr. S.C. Mittal, Addl. Medical Superintendent of the management, on the moving of an appropriate application by the management in this regard vide the relevant order passed in this regard, on record, who has appeared in management evidence as MW2, tendered his affidavit by way of evidence Ex.
D.I.D. No. 68/09 Page 7 out of 34 MW2/A in management evidence, on record.
After examining MW2, evidence on behalf of the management has been closed, on record.
Final arguments have been heard. AR for the workman has filed written submissions as also relied upon citations viz. (2003) III LLJ 226 SC Trambak Rubber Industries Ltd. Vs. Nashik Workers Union and Others; CDJ 2013 DHC 220 Council for Advancement of People's Action & Rural Technology (Capart) Vs. Ramesh Chander; CDJ 2012 MHC 2337 The Management of Sundaram Fasteners Ltd. Vs. The Presiding Officer Labour Court Salem & Others; 2012 LAB. I.C. 3692 (Delhi High Court) New Delhi Municipal Council Vs. Parveen Chand Sharma; 2012 LAB. I.C. (Supreme Court) Ranbir Singh Vs. The Executive Engineer; 2012 LAB. I.C. 3804 (Gujarat High Court) Purshottam Farmers Cooperative Cotton Ginning and Processing Vs. Vasantbhai Bhulabhai Patel and 2012 LAB. I.C. 860 (Patna High Court) EngineerinChief, Path Nirman Bighag, Bihar & Anr. Vs. Surya Narayan Paswan & Anr.
AR for the management has also filed written submissions as also relied upon citations viz. 2003 LLR 701 (Delhi High Court) Otis Elevator Company (India) Ltd. Vs. Presiding Officer, Industrial TribunalIII and Anr.; 2006 LLR 223 (Delhi High Court) Karthik Ramchandran R. Vs. P.O. Labour Court and Anr.; 2006 LLR 1009 D.I.D. No. 68/09 Page 8 out of 34 (Supreme Court) Municipal Council Samrala Vs. Ms. Sukhwinder Kaur; 2006 LLR 68 (Supreme Court) Punjab State Electricity Board Vs. Sh. Darbara Singh and 2012 LLR 225 (Supreme Court) Gridco Limited and Anr. Vs. Shri Sadananda Doloi and Others.
My findings issuewise are as under: Issue No. 1.
It is seen from the record that the workman has appeared in his workman evidence as WW1, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon documents Exts. WW1/1 to WW1/9, on record. In his affidavit by way of evidence Ex. WW1/A, he has reiterated the contents of his statement of claim to the effect that he was the workman in the above noted matter and as such being personally aware of the facts and circumstances of this case, he was competent to swear the affidavit Ex. WW1/A; that he was employed by the management as an ECG Technician on and with effect from 13.05.2004; that he was appointed by the competent authority after judging his suitability for employment as an ECG Technician as he had applied for appointment as a regular employee; that his services, that is of an ECG Technician, is of an perennial nature and essential to the day to day working of the hospital, however, with a view to escaping the rigour of law particularly the various enforceable beneficial labour legislations the management depicted him as a D.I.D. No. 68/09 Page 9 out of 34 'Trainee' on its records; that although he was governed by all the terms and conditions of service that the other regular employees of the management were subjected to; that accordingly, his appointment was periodically renewed on records as a 'Trainee' after every three months; that therefore, on records, he was allegedly renewed in alleged traineeship by the management vide letters dated 16.05.2004, 14.09.2004, 02.12.2004 and 11.01.2004; that during the course of his services, he discharged his duties to the full satisfaction of the management, which is clear from the fact that the management employed him continuously since the date of his initial appointment; that the action of the management in depicting him as a Trainee on its records while extracting work of a regular nature from him was a device to deny regular status to the workman and amounts to unfair labour practice; that though on paper he was depicted as a 'Trainee' but he was paid regular salary of a ECG Technician at par and along with the other employees of the hospital; that in totality he had worked for the management continuously for a period of approximately about one year and had worked for more than 340 days (three hundred and forty) days in service in the 12 months preceding the illegal termination/retrenchment of his services; that his services were terminated by the management vide its letter dated 08.04.2005 under the guise of nonrenewal of contract/traineeship; that the action D.I.D. No. 68/09 Page 10 out of 34 of the management in depicting him as a Trainee on its records was malafide and amounts to unfair labour practice; that the job of an ECG Technician continued with the management even after the retrenchment of his services the management has appointed a fresh hand by the name of one Sh. Suraj Mal who again is being depicted as a Trainee by the management in its records; that in this way the management is playing a fraud upon the labour laws by extracting work of a regular nature from its employees but at the same time depicting them as 'trainees' on its records as a device to escape the applicability of the definition of 'retrenchment' by exploiting the weak bargaining power of poor workmen and the prevailing unemployment in the county; that prior to the termination of services of the workman, he had completed more than 340 days (three hundred and forty) days in service in the 12 months preceding the illegal termination/retrenchment of his services; that the workman for which the workman was employed, that is, of an ECG Technician is still an essential part of the day to day working of the hospital and the management has employed a new worker Sh. Surajmal to do the work of ECG Technician once again depicting the said workman as a "Trainee" on its records; that although the termination of the services of the workman amounted to retrenchment, however, no retrenchment compensation or notice wages or notice was given to the workman D.I.D. No. 68/09 Page 11 out of 34 prior to or at the time of the retrenchment of his services or any time thereafter; that also the rule of last come first go and last go first come was not followed by the management in as much as Sh. Surajmal has been appointed as an ECG Technician after the retrenchment of the services of the workman without offering reemployment to the workman; that no seniority list was ever made or displayed by the management on any notice board prior to the termination of the services of the workman; that after the illegal termination/retrenchment of his services the workman approached the Shanti Mukand Hospital Worker's Union (Regd.) for redressal of his grievances and the union took up his cause with the management at various occasions including a demand notice dated 23.11.2005 but the same were not considered by the management and the management did not reply to the same; that since the illegal and malafide termination of his services, he had been unable to secure an alternative employment despite his best efforts and is currently unemployed and on the verge of starvation. Hence, the workman has claimed reinstatement with full back wages, continuity of his services and all consequential benefits.
Ex. WW1/1 being photocopy of letter dated 13.05.2004 of the management to the workman in respect of his engagement as a 'Trainee' purely on temporary basis for a period of two months w.e.f.
D.I.D. No. 68/09 Page 12 out of 34 13.05.2004 to 12.07.2004 on monthly stipend of Rs. 3,044/ with the further proviso that the offer is purely on temporary basis and does not guarantee any job in the hospital beyond above mentioned period; Ex. WW1/2 being photocopy of a letter dated 16.07.2004 of the management to the workman in continuation of Ex. WW1/1 to the effect that his Traineeship is extended for a period of two months i.e. from 13.07.2004 to 12.09.2004 AN on the existing terms and conditions; Ex. WW1/3 being photocopy of a letter dated 14.09.2004 from the management to the workman in continuation of Ex. WW1/2 to the effect that his Traineeship is extended for a period of three months on the existing terms and conditions i.e. till 12.12.2004 with the further stipulation that he will report to Ms. Nidhi Dave for two week's training between 0900 hrs and 1700 hrs w.e.f. 14.09.2004 and thereafter he will be placed on night shift duty as per roster which will be decided on completion of his training; Ex. WW1/4 being copy of a letter dated 02.12.2004 of the management to the workman in continuation of Ex. WW1/3 to the effect that his Traineeship has been extended for a period of one month i.e. from 13.12.2004 to 12.01.2005 AN, the other terms and conditions remaining the same as contained in the management's letter dated 13.05.2004 (Ex. WW1/1); Ex. WW1/5 being copy of a letter dated 11.01.2005 of the management to the workman in continuation of Ex. WW1/4 to the D.I.D. No. 68/09 Page 13 out of 34 effect that his Traineeship has been extended for a period of three months i.e. from 13.01.2005 to 12.04.2005 AN, the other terms and conditions remaining the same as contained in the management's letter dated 13.05.2004 (Ex. WW1/1); Ex. WW1/6 being photocopies of salary sheets of the management for the months of December 2004, January 2005, February 2005, March 2005 and April 2005; Ex. WW1/7 being photocopy of a letter dated 08.04.2005 of the management to the workman to the effect that his services were no more required in the management/hospital w.e.f. 12.04.2005 FN; Ex. WW1/8 being again photocopy of a letter dated 08.04.2005 of the management to the workman to the effect that his services were no more required in the management/hospital w.e.f. 12.04.2005 FN and Ex. WW1/9 being photocopy of demand notice dated 23.11.2005 of the workman to the management through union.
This witness has been cross examined at length on behalf of the management in workman evidence in which he has deposed that he knew little bit English; that the affidavit filed by him relates termination of his services; that it was correct that he was appointed as a trainee for fixed period from time to time and as detailed in the appointment letters submitted by him; that it was correct that his services were terminated w.e.f. 12.04.2005 after completion of fixed period; that it was correct that in all the appointment letters issued to D.I.D. No. 68/09 Page 14 out of 34 him from time to time, it was specifically mentioned that he was appointed as a trainee; that he was not aware if the trainee does not come within the definition of 'workman' as defined u/s 2 (s) of the I.D.Act; that he was married and had one child; that his monthly expenditure was Rs. 2,000/ to 3,000/ per month; that his monthly expenditure was borne by his brother and father; that he tried to find out a job for the last three years but could not get; that he went to several hospitals but could not get the job; that however, he had no documentary proof that he approached the hospitals; that he did not have any documentary proof in support of his contention that he was unemployed for the last three years; that he got himself registered in the employment exchange before his employment but no such document was available with him now; that it was incorrect to suggest that his claim was false or that he had deposed falsely.
Thereafter, workman evidence has been closed on record. In management evidence, the management has led the evidence of MW Dr. S.K. Anand, Additional Medical Superintendent of the management/hospital, who had appeared as MW1 in management evidence, tendered his affidavit by way of evidence Ex. MW1/A as also relied upon documents Exts. WW1/1 to WW1/5, on record. However, the management has been unable to produce the said witness in his further cross examination on behalf of the D.I.D. No. 68/09 Page 15 out of 34 workman in management evidence, which stood deferred, on record, on account of the said management witness having left the job of the management and on the moving of an appropriate application on behalf of the management for substitution of its management witness in management evidence, the same has been allowed vide the relevant order passed in this regard, on record and the management allowed to file the affidavit by way of evidence of substituted MW Dr.S.C. Mittal, Additional Medical Superintendent of the management/hospital in management evidence, who has appeared in the management evidence as MW2, tendered his affidavit by way of evidence Ex. MW2/A in the same.
In his affidavit by way of evidence Ex. MW2/A he has reiterated the contents of the written statement of the management to the effect that the allegation of the claimant regarding wrongful termination of his service was false and denied; that during his cross examination in this Hon'ble Court on 15.07.08, the workman has admitted that he was appointed for fixed period from time to time and his services were terminated on 08.04.2005; that he also admitted that it was specifically written in the appointment letter that he was appointed as a trainee; that the copies of the appointment letters are Exts. WW1/1 to WW1/5; that the claimant was under training for about one year and his services were terminated after expiry of the D.I.D. No. 68/09 Page 16 out of 34 fixed period vide their letter dated 08.04.05 Ex. WW1/7; that the Hon'ble Delhi High Court in its judgment in case of Otis Elevators Company India Ltd. Vs. Presiding Officer, I.T.II, 2003 LLR 701 has held that the trainee employed by the employer will not be a workman under Section 2 (s) of the Industrial Disputes Act, 1947; that this position has been further reiterated by the Delhi High Court in case of K. Karthik Ramachandran Vs. Presiding Offcer Labour Court & Ors 2006 LLR page 23; that in view of the facts the claimant was appointed for a fixed period from time to time as a trainee and his services were terminated after expiry of the period vide their letter dated 08.04.2005, the provisions of section 25 F of the Industrial Disputes Act, 1947 are not applicable due to specific provision of Section 2 (oo) (bb) of the aforesaid Act and the allegations of the claimant that nonrenewal of contract of trainees amounting to retrenchment is baseless; that the claimant in his cross examination failed to give name of any establishment where he tried for job for last three years and also did not produce any documents regarding his registration with Employment Exchange and also could not adduce any documentary evidence regarding his unemployment for the last three years; that the claimant raised the dispute after one year of termination of his services in the year 2006; that he also did not come to court for cross examination for more than one year and took D.I.D. No. 68/09 Page 17 out of 34 several adjournments.
This witness has been cross examined at length on behalf of the workman in management evidence, in which he has deposed that he had joined the services of the management on 20.04.2010; that the Shanti Mukund Hospital was being run by a Trust; that he had no authorization from the Trust of the hospital to appear as a witness; that it was incorrect to suggest that he had no authority to appear as a witness in this case; that it was incorrect to suggest that the hospital maintains a register of old ECGs taken; that the same is maintained by the staff of the hospital; that he did not know whether the name of the ECG Technician was appearing in any other record connected with the ECG; that they mention the designation of the workman in the attendance register maintained by the hospital; that it was difficult for the management to produce the attendance register for the year 20042005; that it was incorrect to suggest that the management was not intentionally producing this record since in the attendance register the designation of the workman was shown as ECG Technician; that he did not have knowledge if prior to keeping any trainee or apprentice, permission is required to be taken under Apprenticeship Act; that the hospital runs in three shifts; that it was incorrect to suggest that ECG work is undertaken in all the three shifts; that in each shift only one ECG Technician is available and handling the D.I.D. No. 68/09 Page 18 out of 34 ECG Machine; that he did not know whether any ECG Technician was put on duty along with the workman Sh. Surender Kumar; that he did not know whether Sh.Suraj Mal was appointed as ECG Technician after the services of the claimant/workman were terminated; that he did not know the exact number of ECG Technicians and trainees under the employment of the management presently; that same was his answer with respect to the period of 200405; that it was incorrect to suggest that the claimant/workman was designated as trainee to deprive him of his benefits as a regular employee; that it was correct to suggest that only one person was required to operate the ECG Machine; that they did not keep the ECG record for long; that it was incorrect to suggest that he had filed a false affidavit or that he was deposing falsely.
Thereafter, management evidence has been closed, on record.
It is seen from the record that though the workman has alleged in his statement of claim as also vide his affidavit by way of evidence Ex.WW1/A that he had been appointed as an ECG Technician by the management w.e.f.13.05.2004 and was working as such with the management with effect from the said date till the date of alleged termination of his services on the part of the management i.e. 12.04.2005 on his having applied for appointment with the management in this regard as a regular employee, however, no D.I.D. No. 68/09 Page 19 out of 34 document/material in this respect has been placed/proved, on record on the part of the workman in the shape of any application on his part applying for the said job with the management on a regular basis or even any appointment letter or any other letter issued by the management to him in this regard, on record.
It is further seen from the record that though it has been alleged by the workman in his statement of claim as also by way of his affidavit by way of evidence Ex. WW1/A that he was working as an ECG Technician with the management, however, no nature of duties or any regular duty hours assigned on the part of the management to him for the purpose of his discharging the said alleged duties in the shape of nominal roll /muster roll/ duty roster/attendance record of the management in this regard has been proved on the part of the workman, on record, nor any application moved on his part qua the management in this regard viz. for production of the attendance record of the management in his respect in this regard in support of his said allegation/contention against the management, the onus of proving of which was admittedly upon the workman since it is settled law that the onus of proving of a fact is upon the party which alleges it as held by the Hon'ble High Court of Delhi vide citation 2006 LLR 851 Delhi High Court; Automobile Association of Upper India Vs. P.O. Labour Court II & Anr. wherein it has been held:
D.I.D. No. 68/09 Page 20 out of 34 "It is well settled that the primary burden of proof to establish a plea rests on a person so claiming. In this behalf reference can be appropriately made to the judicial pronouncement in III (2001) SLT 561: (2001) 9 SCC 713 (715), State of Gujarat & Ors. V. Pratamsingh Narsinh Parmar, III (2004) SLT 180: 2004 LLR 351 (Para 49), Nilgiri Coop. Marketing Society Ltd. v. State of Tamil Nadu; 2001 LLR 148, Dhyan Singh V. Raman Lal; 1996 Lab. I.C. 202, Swapan v.
First Labour Court, West Bengal; and 1973 Lab. I.C. 398 N.C., John v. TTS & CE Workers Union. Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the Court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same."
It has further been held vide the above mentioned D.I.D. No. 68/09 Page 21 out of 34 citation that :
"Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he/she can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his/her employment to be produced.
In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the D.I.D. No. 68/09 Page 22 out of 34 management and in favour of the workman".
It is further seen from the record that though it has been alleged on the part of the workman in his statement of claim as also by way of affidavit by way of evidence Ex. WW1/A that he was drawing a salary as an ECG Technician with the management, however, no document in this regard has been placed/proved on the part of the workman in his workman evidence, on record, or even by way of cross examination of the relevant management witness in the management evidence, on record.
It is seen from the record that Ex. WW1/6 Colly which are the copies of salary sheets of the management for the months of December 2004, January 2005, February 2005, March 2005 and April, 2005 also mention the workman as a Trainee TMT and not as an ECG Technician, as alleged by him, showing a fixed monthly stipend of Rs.3,123/ in his respect with no allowances or increase whatsoever and only with the statutory deduction towards Provident Fund in his respect in the same.
It is further seen from the record that though it has been alleged on the part of the workman that he is a workman as defined under section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date) qua the management, however, no material in this regard in the shape of an appointment letter in respect of his alleged D.I.D. No. 68/09 Page 23 out of 34 employment as an ECG Technician with the management, muster roll, duty roster or even attendance record of the workman in respect of his alleged employment with the management, as above said, has been placed or proved on the part of the workman in the instant proceedings, on record, in support of his said allegation against the management, as also observed hereinabove.
It is further seen from the record that even no credentials/eligibility/qualification on the part of the workman for being appointed to the post alleged viz. that of an ECG Technician with the management, as alleged, has even been pleaded or alleged on the part of the workman in his statement of claim or in his affidavit by way of evidence Ex. WW1/A, on record, or even copy of any application on his part to the management for appointment to the said post, even alleged/placed, on record, on his part in support of his said allegation against the management, what of having been proved on his part against the management in his evidence, on record. On the contrary, it is seen from the record that the workman is relying upon letters dated 13.05.2004, 16.07.2004, 14.09.2004, 02.12.2004, 11.01.2005 and 08.04.2005 Exts. WW1/1 to WW1/5 and Ex. WW1/7 respectively, in which it has been clearly mentioned that the engagement of the workman with the management is in the nature of a 'Trainee' purely on temporary basis for the periods as mentioned in D.I.D. No. 68/09 Page 24 out of 34 the same on a monthly stipend of Rs. 3,044/ with the further proviso in Ex. WW1/1, which is the initial letter of commencement of relationship between the parties that the offer is purely on temporary basis and thus does not guarantee any job in the hospital beyond the mentioned period, which had been duly accepted by the workman without any demur, having been proved on his part in this regard, on record and accordingly, it cannot be said that the nature of engagement of the workman with the management vide the above mentioned letters Exts WW1/1 to WW1/5 and Ex. WW1/7, on record, is anything but that of a 'Trainee', which finding on the part of this court qua the relationship between the parties subject matter of the instant issue is fortified by the admission of the workman WW1 in his cross examination on behalf of the management in workman evidence when he states it was correct that he was appointed as a trainee for fixed period from time to time and as detailed in the appointment letter submitted by him; it was correct that his services were terminated w.e.f 12.04.2005 after completion of fixed period; it was correct that in all the appointment letters issued to him from time to time it was specifically mentioned that he was appointed as a Trainee, which letters viz. Exts. WW1/1 to WW1/5 and Ex. WW1/7 it is seen from the record are also relied upon by the management in support of its contention that the workman had not been appointed on D.I.D. No. 68/09 Page 25 out of 34 any Contract of service with the management as alleged by him but as a 'Trainee' purely on temporary basis for periods as mentioned in the subject letters with the unambiguous stipulation that his said engagement was purely on temporary basis and did not guarantee any job in the hospital beyond mentioned period.
I find from the record that this has been the consistent stand of the management qua the engagement of the workman with it vide its above said letters relied upon by both the workman and the management Exts. WW1/1 to WW1/5 and Ex.WW1/7 in workman evidence, on record, i.e. right from the stage of the filing of its written statement in opposition to the statement of claim of the workman in the instant proceedings, on record.
I further find that the provisions of citations viz. 2003 IV AD (Delhi) 431 Management of Otis Elevator Company (India) Limited Vs. Presiding Officer Industrial Tribunal III and another as also 2006 (109) FLR 100 K.Karthik Ramachanderan Vs. Presiding Officer Labour Court and Another cited by the management in support of its submissions on the instant issue are squarely applicable to the facts of the instant case. I further find that the citations cited by the claimant/workman are not applicable to the facts of the instant case.
In view of my above observations and findings, I find that the claimant has not been able to discharge the onus, which was upon D.I.D. No. 68/09 Page 26 out of 34 him to prove the instant issue viz. 'Whether the claimant is a workman as defined under section 2 (s) of the Industrial Disputes Act, 1947 (as amended upto date)'. The instant issue is accordingly, decided against the workman and in favour of the management.
Issue no. 2.
It is seen from the record that vide Exts. WW1/1 to WW1/5 and Ex. WW1/7 relied upon by both the workman and the management in their respective evidences, on record, the engagement of the claimant/workman with the management was for fixed periods/terms of engagement as a 'Trainee' with the management, as mentioned therein, i.e. initially for a period of two months w.e.f. 13.05.2004 to 12.07.2004 on a monthly stipend of Rs. 3,044/ vide Ex. WW1/1, which has subsequently been extended for a period of two months i.e. w.e.f 13.07.2004 to 12.09.2004 on the existing terms and conditions vide Ex. WW1/2 and then further extended for a period of three months on the existing terms i.e. w.e.f. 13.09.2004 till 12.12.2004 vide Ex. WW1/3 and then for a period of one month w.e.f. 13.12.2004 to 12.01.2005 and then w.e.f. 13.01.2004 to 12.04.2005 vide Exts. WW1/4 and WW1/5 respectively, on which date viz. 12.04.2005 the engagement of the workman with the management has been brought to an end vide letter dated 08.04.2005 Ex. WW1/7 of the management to the workman, which fixed periods/ D.I.D. No. 68/09 Page 27 out of 34 terms of engagement of the workman with the management it is seen from the record are to the knowledge and consent of the claimant/workman, in view of the same viz. workman exhibits WW1/1 to WW1/5 having been proved by the claimant/workman in his workman evidence, on record, in support of his alleged claim, without having proved any letter/communication from him to the management during the pendency of the said engagement of the claimant/workman with the management i.e. with effect from 13.05.2004 to 12.04.2005 in contravention/objection/protest to the contents of the same viz. Exts. WW1/1 to WW1/5 in workman evidence, on record, the very first objection to the contents/dictates/stipulation of the letters Exts. WW1/1 to WW1/5 and Ex. WW1/7 governing the terms and conditions of the relationship/engagement between the parties, as above said, I find from the record coming from the workman against the management vide demand notice dated 23.11.2005 allegedly sent by the workman to the management through union in respect of his claim of being a workman of the management on the appointment/post alleged, which I find is inordinately and unexplainably delayed on the part of the claimant/workman qua the management in respect of his grievances against the management vide his instant statement of claim with effect from the date of the alleged illegal termination of his services on the D.I.D. No. 68/09 Page 28 out of 34 part of the management viz. 12.04.2005 with no complaint whatsoever on the part of the workman to any competent authority against the management in respect of his instant grievances, in the meanwhile having been proved on his part in the instant proceedings, on record, apart from any complaint during the period of his engagement with the management, as above, as already observed hereinabove, in order for the possibility of his instant claim against the management being an afterthought on his part, as alleged by the management, to be entirely ruled out, in the peculiarity of the facts and circumstances of the instant case.
In view of my above observations and findings, I find that the management has been able to prove that the engagement of the claimant with it vide Exts. WW1/1 to WW1/5 and Ex. WW1/7 was for a fixed term/period, which had been terminated on the part of the management on the expiry of such fixed period/term of engagement vide Exts. WW1/1 to WW1/5 and Ex. WW1/7, on record, which cannot be said to be retrenchment of the services of the workman with the management as defined under section 2 (oo) of the Industrial Disputes Act, 1947 (as amended upto date) as follows: "2. Definitions - In this Act, unless there is anything repugnant in the subject or context xxx xxx xxx xxx D.I.D. No. 68/09 Page 29 out of 34 (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of a disciplinary action, but does not include
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
(c) termination of the service of a workman on the ground of continued ill health;] necessitating the invocation of the provisions of Section 25 D.I.D. No. 68/09 Page 30 out of 34 F and G of the Industrial Disputes Act, 1947 (as amended upto date) qua him/in his respect on the part of the management as alleged by him, being under the provisions of proviso (bb) to Section 2 (oo) of the Industrial Disputes Act, 1947 ( as amended upto date), as above (AIR 2006 SC 387 Punjab Electricity Board Vs. Darbara Singh; AIR 2006 SC 2905 Municipal Council Samrala Vs. Sukhvinder Kaur; (2006) 3 SCC 81 Municipal Council Samrala Vs. Raj Kumar; AIR 2006 SC 1263 The Haryana State Agricultural Marketing Board Vs. Subhash Chand and Anr.; 138 (2007) DLT 609 Sh. Surjeet Kumar Vs. Presiding Officer and Others; AIR 2007 SC 288 Bhogpur Coop Sugar Mills Ltd. Vs. Harmesh Kumar and 2006 (111) FLR 908 State of Rajasthan Vs. Sarjeet Singh and Anr. refers), vide The Haryana State Agricultural Marketing Board Vs. Subhash Chand and Anr., followed in State of Rajasthan Vs. Sarjeet Singh and Anr. (supra) , it has been held that "The question as to whether Chapter VA of the Act will apply or not would be dependent on the issue as to whether an order of retrenchment comes within the purview of Section 2 (oo) (bb) of the Act or not. If the termination of service in view of the exception contained in Clauses (bb) of Section 2 (oo) of the Act is not a 'retrenchment' , the question of applicability of Chapter VA thereof would not arise"
D.I.D. No. 68/09 Page 31 out of 34 as also it has been held vide Bhogpur Coop Sugar Mills Ltd. Vs. Harmesh Kumar (supra) that "7. However, categorywise seniority is required to be maintained when different categories of workmen are appointed so as to apply the principle of 'lastcomefirstgo'. A seniority list is also required to be maintained so as to enable the employer to offer services to the retrenched employees maintaining the order of seniority. The said provisions, however, would have no application in a case where Section 2 (oo) (bb) of the Act is attracted".
In view of my above observations and findings, the instant issue is accordingly, decided in favour of the management and against the workman.
Issue no. 3 In view of my findings on issue no. 2, as hereinabove, to the effect that the termination of the services of the workman on the part of the management on 12.04.2005 does not amount to/come under the definition of 'retrenchment' as defined under section 2 (oo) of the Industrial Disputes Act, 1947 (as amended upto date), being under the provisions of proviso (bb) to Section 2 (oo) of the Industrial Disputes Act, 1947 (as amended upto date) viz. "termination of the service of the workman as a result of the nonrenewal of the D.I.D. No. 68/09 Page 32 out of 34 contract of employment between the employer and the workman concerned on its expiry ...............", thereby not attracting the provisions of Sections 25 F and G of the Industrial Disputes Act, 1947 (as amended upto date) to the same, the termination of the services of the workman on the part of the management on the date alleged cannot be held to be illegal ( 2007 LLR 38 Jharkhand High Court (DB), Steel Authority of India Limited Vs. Workmen, Steel Authority of India Limited, Bokaro Steel Plant, Steel City as also Punjab Electricity Board Vs. Darbara Singh, Municipal Council Samrala Vs. Sukhvinder Kaur, Municipal Council Samrala Vs. Raj Kumar, The Haryana State Agricultural Marketing Board Vs. Subhash Chand and Anr., Sh. Surjeet Kumar Vs. Presiding Officer and Others, Bhogpur Coop Sugar Mills Ltd. Vs. Harmesh Kumar and State of Rajasthan Vs. Sarjeet Singh and Anr. (supra) refers). The instant issue is accordingly, decided against the workman and in favour of the management.
I further find no force in the arguments on behalf of the workman that termination of the contract of employment/engagement of the workman with the management vide Exts. WW1/1 to WW1/5 and Ex. WW1/7 is illegal/bad in law on the part of the management qua the claimant/workman by virtue of subsequently the services of one Sh. Suraj Mal having been appointed on the part of the D.I.D. No. 68/09 Page 33 out of 34 management as an ECG Technician with it, in view of the settled position in law that provisions of Section 25 H of the Industrial Disputes Act, 1947 (as amended upto date) are not applicable to the appointment of the claimant with the management for a fixed period and termination of his services on the part of the management in terms of his contract of employment, as above held (2007 LLR 98 Supreme Court, Regional Manager SBI Vs. Mahatama Mishra as also The Haryana State Agricultural Marketing Board Vs. Subhash Chand and Anr., State of Rajasthan Vs. Sarjeet Singh and Anr., Bhogpur Co op Sugar Mills Ltd. Vs. Harmesh Kumar (supra) refers).
In view of my above findings, the workman is held to be not entitled to any relief.
The award is passed accordingly. The Ahlmad is directed to send six copies of this award to the appropriate Government. The file be consigned to the Record Room.
Announced in the open court on 16.04.2013 (Chandra Gupta) Presiding Officer Labour CourtX Karkardooma Courts, Delhi.
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