Delhi District Court
The Secretary (Labour) vs A on 24 January, 2009
1 IN THE COURT OF SHRI SANJAY GARG : POLC : V : KARKARDOOMA :
DELHI.
I.D. No. 281/08 BETWEEN The Workmen, Sh. Surender Kumar & ors., c/o. Delhi Labour Union, Aggarwal Bhawan, G. T. Road, Tis Hazari, Delhi-54.
AND The Management of M/s. Delhi Agriculture Marketing Board, Institutional Area, Janak Puri, New Delhi.
DATE OF INSTITUTION : 20.10.2001 DATE OF ARGUMENTS : 14.1.2009 DATE OF AWARD : 24.1.2009 AWARD
The Secretary (Labour), Govt. of N.C.T. Of Delhi, has referred the Industrial Dispute for adjudication to this court vide Order No. F.24(1564)/2001/Lab./18328-32 dated 09.08.01. A corrigendum No. F.24(1564)/2001-Lab./27933-37 dated 18.12.01 was also received to the effect that name of the claimant Sh. Kuldeep Singh S/o. Sh. Sukhbir Singh is added in the schedule of terms of reference. The terms of reference are as follows :-
'Whether services of Sh. Surender Kumar and Kuldeep Singh have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Laws/Govt. notifications and to what other relief is he entitled and what directions are necessary in this respect?"
2. Briefly stated claim of the workmen is that they joined the management w.e.f.09.09.98 and 11.09.98 (Surender Kumar and Kudeep Singh respectively). As per the appointment letter, they were appointed 2 temporary on ad hoc basis. They had unblemished and uninterrupted record of service. Their services were terminated by the management vide letter no.F3(12)FMCM/Personal/113, dated 31.05.99 without disclosing any cogent reason. It is stated that they were drawing salary in the scale of Rs.3050-4590 with usual allowances admissible under the rules. They sent a demand notice dated 30.05.00 to the management by registered post but it was not replied and thereafter they raised an industrial dispute with the Conciliation Officer but because of the non-cooperative attitude of the management it resulted in failure. It is stated that their termination is illegal, unjustified and in violation of sections 25F, G & H of I.D. Act read with sections 76 to 78 of the Central Rules, 1957.
3. The management contested the claim and filed written statement taking preliminary objection that the claimants are not the workmen within the meaning of section 2 (j) of the I.D. Act as both the claimants were doing supervisory work. The management does not come under the purview of industry because it is not associated with any type of production, supply or distribution of goods. The other objection raised by the management is that the claimant was appointed for a particular period of 89 days and provision of section 2 (oo) (bb) of the I.D. Act is applicable to the facts of this case. On merits, it is stated that claimants were engaged on adhoc basis without following the procedure prescribed under the rules to meet the emergent requirement of manpower for the newly constituted Flower Market Committee, Mehrauli. It was clearly stipulated in their appointment letters that they will have no right to the post. Their engagement came to an end by flux of time on 17.6.99 and 19.6.99 respectively. It is stated that the work against which the claimants were working has been handed over to regular staff and no further appointment has been made by the management after disengagement of these persons.
34. Workman filed rejoinder to the written statement of the management reiterating their submissions in their statement of claim and denying the averments made by management in its written statement.
5. On the pleadings of the parties, following issues were framed on 14.11.07 :-
(1) Whether the claimants are not workman in view of preliminary objection no. 1 of W.S., if so its effect?
(2) Whether the management is not an industry as per Industrial Disputes Act, if so its effect?
(3) Whether the workmen are not entitled to any relief in view of preliminary objection no. 6, 11 & 17 of the W.S??
(4) As per terms of reference.
6. In evidence WW1 Sh. Surinder Kumar filed his affidavit Ex.WW1/A and relied upon the documents Ex.WW1/1 to WW1/7 and the documents mark 1 to mark 11. Ex.WW1/1 is the copy of the demand notice, WW1/2 is he copy of postal receipt, WW1/3 is the copy of AD card served upon the Secretary of the management, WW1/4 is the copy of employment register card, WW1/5 is the copy of sanction order dated 10.9.98, WW1/6 is the copy of letter regarding extension of daily wages and ad-hoc basis employees duties, WW1/7 is the copy of letter regarding engagement on adhoc basis. WW2 Sh. Kuldeep Singh filed his affidavit Ex.WW2/A and relied upon the documents Ex.WW2/1 to WW2/5 and also relied upon documents Ex.WW1/1 to WW1/7 and mark 1 to mark 11 filed by WW1. Ex.WW2/1 is the identity card of Kuldeep Singh, WW2/2 is the letter dated 9.9.98 regarding engagement on adhoc basis, WW2/3 is the application submitted by Kuldeep Singh to management for appointment as Sub-Inspector on temporary basis, WW2/4 is an other letter of the management dated 12.10.98 and WW2/5 is the letter dated 24.2.99 vide which workman was given order to report for duty at 6 a.m. 4 in the morning. The management examined MW1 Sh. O.N. Singh, its Deputy Secretary. In his affidavit Ex.MW1/A he relied upon documents Ex.MW1/1 to MW1/6. MW1/1 is the copy of the notification vide which the management was constituted, MW1/2 (there is no document with this exhibit number filed on record by the management), MW1/3 is the letter of the management dated 24.12.98 regarding engagement of the workmen on daily wage basis, MW1/4 is the letter dated 3.3.99 of the management extending employment of the workmen for 89 days, MW1/5 is the certified copy of the order of Delhi High Court in CWP No. 2790/99 and MW1/6 is the letter dated 31.5.99 bringing to end the employment of the workmen.
7. Heard arguments of Sh. O.P. Aggarwal, Ld. AR for the workman and Sh. Hanu Bhaskar, Ld. AR for management. Perused the record. My findings on the above issues is as follows :-
ISSUE NO. 38. Before dealing with issue No. 1 and 2, this issue is taken first as findings on this issue are likely to dispose the matter finally.
9. As per the workman they joined the services of the management on 9.9.98 and 11.9.98 respectively and they were illegally terminated by the management on 17.6.99. On the other hand case of the management is that both these workmen were taken in employment on contractual basis and their employment came to an end by efflux of time.
10. It is admitted case of the workmen that they were initially inducted into service for 89 days on temporary basis and fresh engagements were given to them for the period of 89 days only. As per workmen after 17.6.99 they were terminated, whereas as per the management their term came to an 5 end on 17.6.99 and 19.6.99 respectively by efflux of time and no extension was given to them to continue in the service. Though both the workmen has submitted in their statement of claim and affidavits filed in their evidence that they worked continuously from their initial date of appointment till their last working day but during their cross-examination both has admitted that they were kept on temporary post and initially engaged for 89 days and whenever fresh engagement was given it used to be for 89 days only. The documents filed by management witness also throws light on the nature of appointment given to the workmen during their service career. Ex.MW1/3 is the letter dated 24.11.98 vide which workman were engaged on daily wage basis for a period of 89 days after giving one week break. Copies of the letters dated 9.9.98 sent to workmen regarding their initial engagement on adhoc basis are also filed on record by the management. Ex.MW1/4(colly) is letter dated 3.3.99 written by Secretary Chaman Singh of Pushp Mandi Samiti, Mehrauli, New Delhi to Secretary Agricultural Marketing Board seeking extension of appointment of 9 workmen, including these two workmen further for 89 days. Ex.MW1/4 (Colly) is a letter dated 24.3.99 from Deputy Secretary of the management conveying approval of competent authority to Secretary Flower Market Committee, Mehrauli, Delhi for re-engagement of all the 9 employees on existing post after giving one week break for a period of 89 days. Ex.MW1/6 is the letter dated 31.5.99 of Flower Market Committee, Mehrauli to the Secretary Delhi Agricultural Marketing Board intimating the termination of service of 9 adhoc workers including these two workmen from 17.6.99 and 19.6.99 respectively. It is important to mention here that on most of the letters discussed above it is specifically found mentioned that these appointments shall not confer any right to claim any regular appointments on these posts or any other post in a Flower Market Committee or any other Market Committee in the Board.
11. The Ld. AR for workman has contended that these workmen had 6 rendered around 9 months of continuous service with the management and adopting unfair labour practices management showed them as adhoc appointees despite the availability of regular jobs and instead of regularising them in service illegally terminated them. It is argued that since workmen had rendered more than 240 days of continuous service with the management, their termination by the management is illegal. In support of his contentions, he relies upon decision of the Apex Court in Civil Appeal No. 4445/06, the case titled Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam. The Ld. AR for workman contended that facts of this case are similar to the facts of the present case and on the strength of findings given by Apex Court in this case workmen are entitled to regularisation and reinstatement.
12. The facts of New India Assurance (Supra) are distinguishable from the facts of the present case. The law is settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of decision. The reliance is placed upon (2003) 2 SCC 111, the case titled Bhav Nagar University Vs. Palitana Sugar Mills Pvt. Ltd.
13. In this New India Assurance (Supra) case workers were appointed as sweeper-cum-water carrier on 2.1.86 and their services were terminated w.e.f. 15.3.89. The plea of the management was that they are not workmen within the meaning of section 2(s) as they were in part time employment. It was observed by the Apex Court that there is no distinction in section 2 (s) and 25F regarding part time and full time employees. The workmen employed on a part time basis but under the control and supervision of an employer is a workman under section 2(s) of the Act and is entitled to claim protection of section 25 F. As already mentioned the facts of this case are clearly distinguishable from the facts of the present case.
714. The contentions raised by Ld. AR for management is that both the workmen were adhoc appointees and they were appointed for a particular period and they ceased to be the employees of the management on account of non-renewal of their contract of employment by the management. The Ld. AR submitted that the case of the workmen comes u/s. 2(oo) (bb) of the I.D. Act and they are not entitled to the relief claimed. Section 2(oo)(bb) runs as follows :-
'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 disciplinary action but does not include -
{(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}
15. As already noted it stands admitted by both the workmen that they were kept on a temporary post and initially engaged for a period of 89 days and whenever fresh engagement was done the same was for a period of 89 days only. It is also admitted case of the workmen that they did not receive any further extension, vide letter dated 31.5.99. The letters Ex.MW1/3, MW1/4 and MW1/6 shows that the contract of service entered between workmen and management used to be for specific duration of 89 days. Vide letter Ex.MW1/6 further renewal of contract between workmen and management was not done and their service period came to an end on 17.6.99 and 19.6.99 respectively.
16. The Ld. AR for workman has further contended that decision of Delhi High Court in CWP No. 649/03 in case titled Delhi Agricultural Marketing Board Vs. Satya Pal Singh Dabas & another is under similar 8 circumstances and favouring them. Vide this Civil Writ Petition, management had challenged the findings of the Labour Court holding it to be an industry as per provisions of Industrial Disputes Act. But this petition was dismissed as management failed to give any explanation for its absence before the Labour Court. It was observed by the High Court that the petitioner cannot be permitted to urge the pleas on merits which could have been met by its presence in the Labour Court. This order is of no help to the workmen under the facts and circumstances of this case.
17. On the other hand, Ld. AR for management has relied upon two judgments of Delhi High Court in CWP No. 2790/99, the case titled Hari Kishan Vs. Govt. of NCT of Delhi, decided on 8.1.01 and CWP No. 3705/99 and 3737/99, the case titled Ajay Kumar & others Vs. Govt. of NCT of Delhi & others decided on 14.2.2000. The facts of these two cases are exactly similar to the facts of the present case. Both these writ petitions were dismissed on almost similar grounds, like the appointments on daily wage basis was apparently not appointments on regular basis, the management being a statutory body is bound to adhere to the rules for making appointments and without undergoing selection process in accordance with these rules the petitioners cannot claim any regularisation. It is further observed that those who entered through back door can be shown exit through back door.
18. In the statutory bodies like management the relevant rules and procedure laid down for recruitment has to be compulsorily followed. The reliance is placed upon 2006 (4) SCC 7, the case titled Secretary State of of Karnatka Vs. Uma Devi. The relevant paras of the judgment are as follows :
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and 9 since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right.......................................................................
"But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed.10
The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily ages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at 11 the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 pf the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
19. The management is an instrumentality of the Government of NCT Of Delhi. For selection for the post of Sub-Inspector on which both the workmen were working, as per the rules and regulations, a selection process is followed by government through Delhi Subordinate Staff Selection Board. In view of the observations made by the Apex Court in Uma Devi (Supra) case the procedure prescribed for regular recruitment cannot allowed to be by-passed.
20. The other contention raised by LD. AR for workman is that some other sub-inspectors junior to the workman were regularised subsequently by the management. It is argued that Manjit Sharma was appointed in the same mandi by the management after cessation of service of these workmen, firstly on daily wages then on ad-hoc basis and subsequently he was confirmed as Sub -Inspector on 1.3.2006. However, MW-1 during his cross-examination has denied the appointment of Manjit Sharma by the management in the flower market committee, Mehrauli after cessation of the service of the workman. MW-1 has stated that Manjit Sharma was appointed in some other mandi and he was confirmed as per policy. MW-1 denied the suggestion that 12 services of workman were terminated to accommodate some favourites of the management. How said Manjit Sharma was inducted into service initially and subsequently confirmed and whether his confirmation is as per the permitted rules and regulations or contrary to the rules is not relevant for the purpose of this case. Moreover no evidence is brought on record by the workmen to establish that their case is similar to said Manjit Sharma.
21. In view of the aforesaid discussion, the workmen are held not entitled to any relief claimed. This issue is accordingly decided in favour of the management and against the workmen.
ISSUE NO. 1 & 222. In view of the findings on issue No. 3, it shall not be worthwhile to give findings on these two issues. Accordingly, no findings are given on these issues.
ISSUE NO.4
23. In view of the findings on issue No.3, the workmen are held not entitled to any relief as claimed by them. Reference is answered accordingly.
A copy of this award be sent to the appropriate government for its publication.
File be consigned to record room.
Date: 24.1.2009 ( SANJAY GARG )
PRESIDING OFFICER
LABOUR COURT-V
DELHI.
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