Delhi District Court
Monish R. Tony vs Ms Hotel Corporation Of India Ltd on 23 April, 2024
IN THE COURT OF MS RITU SINGH,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER LABOUR COURT - IV,
ROUSE AVENUE COURTS, NEW DELHI
LIR No. 5080/16
DLCT13-003240-2014
Workman:
Sh. Monish R. Tony S/o Late Sh. N.D. Tony,
R/o 318, DDA Janta Flat, Hastal, Uttam Nagar,
New Delhi -110059. ............Workman
vs.
M/s Hotel Corporation of India Ltd.
Through its Managing Director,
At Transport Annexe Building, Air India Complex,
Old Airport, Santacruz East, Mumbai-40020.
2. M/s Chefair Flight Catering,
through its Dy. General Sr. Assistant Manager-Operations
Centaur
Hotel, Indira Gandhi International Airport,
Gurgaon Road, New Delhi-110037. ..........Management
Date of Institution : 01.07.2014
Date of Argument : 04.04.2024
Date of Award : 23.04.2024
Decision : Reference Dismissed
AWARD
1. Vide this Award, this Court shall decide the
Industrial Dispute which was referred by Deputy Labour
Commissioner (District South-West, Delhi) on a complaint filed
by the workman against the Management, vide reference no.
LIR No. 5080/16
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Page No. 1 /30
F.24(190)/14/SWD/Lab./3853-3856 dated 15.05.2014, u/s 10(1)
(c) and 12 (5) of The Industrial Disputes Act, 1947, wherein the
following reference was to be answered :-
"Whether the services of Sh. Monish R. Tony S/o Late
Sh. N.D. Tony have been terminated illegally and /or
unjustifiably by the management and if so, to what
relief is he entitled?".
THE CLAIM OF THE WORKMAN
2. The workman Sh. Monish R. Tony has filed the
present claim petition under Industrial Disputes Act, seeking
reinstatement in service with full back wages and continuity of
service and other consequential reliefs from the management on
the ground that the management has illegally terminated his
services on 08.03.2013, without assigning any reasons and
without paying his wages for the period from 16.12.2012 to
07.03.2013.
3. The workman Sh. Monish R. Tony has stated in his
statement of claim that he was appointed on compassionate
grounds in the year 1992, after demise of his father late Sh. N. D.
Tony in 1986, who had been working as permanent and regular
employee of the management and at that time, workman was
minor and so he was appointed by the management after he
attained the age of majority in the year 1992. The workman has
contended that he was entitled to be appointed as a regular
employee of the management, against the regular post of his
father but management illegally and with malafide intention had
assigned him duties as a daily wager and he was discharging his
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duty as 'Handyman' to the entire satisfaction of his superior and
he had unblemished, impeccable and uninterrupted record of
service and he was paid only daily wages, instead of wages of
regular employee. It is stated that after conducting his interview
on 26.12.1995, management had given him the status of
temporary employee and had also assured him to give him status
of permanent employee and during his service, no complaint of
any type was raised by the management. It is stated that he along
with four other employees had filed a writ petition no. 1925/98
titled as Rajesh & Ors vs UOI & Ors before Hon'ble High Court
of Delhi for necessary directions to regularize them and for grant
of equal pay for equal work and vide order dated 12.07.2011,
Hon'ble High Court of Delhi had disposed off the writ petition
no. 1925/98, in terms of similar writ petition no. 2003/98 titled as
Kiran Bala vs UOI, by holding that identical issues have already
been decided and while deciding the writ petition no. 1925/98,
Hon'ble High Court of Delhi had given liberty to the petitioners
(including the present workman) to approach appropriate forum
for any relief. It is stated that after decision on the said writ
petition, all of a sudden the services of the workman has been
orally terminated on 08.03.2013, without assigning any reasons
and without paying his wages for the period from 16.12.2012 to
07.03.2013 and without notice pay and without following due
process of law. It is stated in the statement of claim that other
employees namely Sh. Rajesh Atwal, Sh. Devender Kumar, Sh.
Asafali, Ilias, Naresh, Rajbir and Smt. Kanta, who were junior to
him, were still working with the management and Sh. Raj Kumar,
Sh. Sanjay and Sh. Babu Lal and Smt. Seema have been given
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regular appointment. It is stated in the statement of claim that
workman had worked for more than 240 days with the
management and had acquired the status of a permanent
employee, after completing 90 days of continuous employment
as provided in the Model Standing Orders under the Industrial
Employment (Standing Orders) Act 1946.
4. Workman has stated in statement of claim that he
had sent the demand notice to the management on 03.09.2013,
claiming reinstatement in service with consequential benefits and
wages and that the notice was duly served upon the management
and that he had been regularly reporting to the management to
give him duty, but management has not allowed him to join and
perform his duty and feeling aggrieved, workman has approached
the Union and filed the present case.
VERSION OF MANAGEMENT IN ITS REPLY
5. Notice of the statement of claim of the workman was
issued to the management and pursuant to the service of the
notice, the management had appeared before the Court and filed
its written statement/reply.
6. Management in its written statement, has taken
preliminary objections that Govt of NCT of Delhi is not the
appropriate Government to make the present reference as Chefair
Flight Catering, is a unit of Hotel Corporation of India Ltd which
itself is a wholly owned and subsidiary company of Air India Ltd
and accordingly, controlled by Ministry of Civil Aviation, Govt.
of India and that the workman has wrongly raised the dispute
before the Govt of NCT of Delhi which is beyond the
jurisdiction, hence present reference no. F.24 (190) /14 / SWD /
LIR No. 5080/16
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Lab./3853-3856 dated 15.05.2014 is not maintainable, due to
lack of territorial jurisdiction. Management has contended in its
reply that workman was engaged temporarily and extension was
granted from time to time as per requirement/ exigencies
involved and the nature of job of workman was purely temporary
and casual and the dispute of his disengagement from service is
neither retrenchment from service nor an industrial dispute as
provided u/s 2A of the Industrial Disputes Act 1947 and the
present claim is liable to be rejected. It is stated that workman
has filed a writ petition (Civil) no. 1925/98 of Hon'ble High
Court of Delhi against the management and it was was observed
therein vide order dated 12.07.2011 that identical issue has been
decided on 18.5.2010 in Kiran Bala vs Union of India W. P. (C )
No. 2003 of 1998, in which Hon'ble Court had observed that in
wake of a catena of judgments of the Hon'ble Supreme Court of
India, a Court/Tribunal cannot direct regularization of temporary
appointees de hors the rules nor can it direct continuation of
service of temporary employee. Management has specifically
denied in its reply, each and every averment made in statement of
claim and denied that any wages of the workman for the period
from 16.12.2012 to 07.03.2013 is due and same is beyond the
scope of reference.
7. Rejoinder to the written statement of the
management was filed by the workman, wherein he has reiterated
his averments mentioned in his statement of claim while denying
the contentions of management in the written statement.
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ISSUES
8. Vide order dated 06.05.2016, the following issues
were framed in view of pleadings of the parties and the
reference:-
(i) Whether the reference of the Industrial Disputes
has been made by the appropriate Government?
OPW
(ii) Whether the workman left job of his own? OPM
(iii) Whether the management illegally and
unjustifiably terminated services of the workman?
OPW
(iv) Relief.
EVIDENCE OF WORKMAN
9. In order to prove the case, the workman appeared as
witness WW1 and filed his evidence affidavit Ex. WW-1/X
wherein he reiterated the contents of statement of claim on
solemn affirmation. Besides this, he had also placed on record the
documents, that is, Ex.W1 to Ex. W9 and documents Ex.
WW1/A to Ex. WW1/E, which are:-
(I) Ex.W1 Letter dated 10.06.2013 written by the workman to the
management.
(ii) Ex.W2 Letter dated 21.01.2013 of workman sent to management
regarding Regularized Appointment on compassionate grounds.
(iii) Ex.W3 Office Memorandum dated 15.02.96
(iii) Ex. W4 Legal Notice dated 03.09.2013.
(vi) Ex. W5 Reply dated 11.10.2013 of management
(v) Ex. W6 I-card of the workman
(vi) Ex. W7 Letter dated 01.06.2000 written by the Chefair
Flight Catering to the union of workman.
(vii) Ex. W8 Letter dated 11.12.2012 written by workman to CFCD.
(viii) Ex. W9 Cutting of Publication regarding requirement of Sr.
Assistant Sr. Assistant Manager
(ix) Ex.WW1/A Letter dated 12.03.2013 written by the workman
to the management regarding sanction of approval for the
services of Handyman Temp on compassionate grounds
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(X) Ex. WW1/B Letter dated 21.01.2013 written by the workman
to the management regularized appointment on compassionate
ground.
(xi) Ex. WW1/C Letter dated 21.01.2013 written by the workman to
the management regularized appointment on compassionate
ground.
(xii) Ex. WW1/D Letter (un-dated) written by the workman to the
management regarding regularized appointment on
compassionate ground.
(xiii) Ex. WW1/E : Letter dated 05.03.2013 written by the workman
to management i.e. reminder for regularized appointment on
compassionate ground.
The workman was cross-examined by AR for the
management.
10. Thereafter, workman's evidence was closed and matter
was thereafter listed for management evidence.
EVIDENCE OF MANAGEMENT
11. The management has examined Sh. Arvind Kumar Shahi
as MW1 who filed his affidavit by way of evidence as
Ex.M1W1/A, reiterating the factual contents of the written
statement of management on solemn affirmation. MW1 also
placed on record the following documents:
(I) Ex.MW1 : Appointment letter dated 14.11.2012;
(II) Ex. MW2: Chefair letter dated 21.07.1999 issued to workman.
(III) Ex. MW3: Chefair letter dated 21.08.1998 issued to workman.
(IV) Ex. MW4: Chefair letter dated 24.04.1998 issued to workman.
(V) Ex.MW5: Chefair letter dated 11.03.1998 issued to workman.
(VI) Ex.MW6: Chefair letter dated 01.09.1997 issued to workman
(VII) Ex.MW7: Chefair letter dated 10.07.1997 issued to workman
(VII) Ex.MW8: Chefair letter dated 05.11.1996 issued to workman
(VIII) Ex.MW9: Chefair letter dated 10.07.1997 issued to workman
(IX) Ex.MW10: Chefair letter dated 05.11.1996 issued to workman
(IX) Ex.MW11: Chefair letter dated 08.11.1997 issued to workman
(X) Ex.MW12: Chefair letter dated 05.08.1996 issued to workman
(XI) Ex.MW10: Chefair letter dated 19.06.1996 issued to workman
12. This witness was cross-examined by AR for the
workman and management evidence was closed.
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13. Thereafter, matter was listed for final arguments.
This Court has heard the detailed final arguments addressed by
AR for both the sides and gone through the record and
documents on record.
ARGUMENTS OF WORKMAN:-
14. Ld. AR for the workman has argued that workman
Sh. Monish R. Tony was initially appointed on compassionate
grounds in 1992 after the demise of his father in 1986 who was
permanent and regular employee of the management and that
workman Monish R. Tony was given status of temporary
employee on 26.12.1995, but the management had not
regularized his services despite vacancies and even after given
promotions to juniors of the workman and that the services of the
workman was terminated orally after 08.3.2013 and he was not
given further by the management after 07.03.2013 and that
management has discriminated against the workman and that
management had not issued any further reply or appointment to
the workman despite repeated requests made by him. Ld. AR for
the workman has contended that the services of the workman
have been illegally terminated without compliance of mandatory
statutory requirement under Industrial Disputes Act and has
prayed for reinstatement in services with full back wages for the
workman.
ARGUMENTS OF MANAGEMENT:-
15. On the other hand, Ld. AR for the management had
argued on behalf of management that there is no violation of
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Section 25F and G of the Industrial Disputes Act 1947 in the
present case as the provisions relating to 'retrensechement' are
not attracted in the present case as the workman Monish R. Tony
was not a permanent employee of the management as he was
fixed term contractual employee of the management who was
employed with the management for fixed term in terms of
temporary appointment letter dated 14.11.2012 for fixed period
from 11.11.2012 till 20.12.2012 and contract of appointment
lapsed on 20.12.2012 as per the conditions of his fixed term
appointment. He has contended that appointment of the
workman with the management was Fixed Term Appointment
and discharge of workman in terms of said fixed term
appointment on its non-renewal by management did not
constitute retrenchment but was only determination of service
due to non- renewal of the service contract and his services have
been dispensed with as per term of fixed term appointment and
workman has no right on the post or to claim reinstatement.
16. The issue-wise finds of this Court are as under:-
Issue no. 1
(I) Whether the reference of the industrial dispute has been
made by the appropriate Government?OPW
17. During the proceedings of the present case,
arguments were heard by Ld. Predecessor of this Court on aspect
as to whether the aforesaid Issue no. 1 shall be treated as
preliminary issue or not and after detailed arguments from both
the parties, Ld. Predecessor of this Court vide order dated
09.12.2016, had while referring to section 10 (4) of ID Act, had
observed that:-
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"This Court shall confine its adjudication to these
matters or incidental matter thereto, and as to whether the
reference has been made appropriately or not, apparently
does not fall within the purview of this Court."
It was further observed by Ld. Predecessor of this
Court vide order dated 09.12.2016 that:-
"the aforesaid issue need not be treated as preliminary
issue and had disposed off the aforesaid issue by holding
that this Court has to dispose off the reference as
received."
18. Therefore, in view of the specific observation of Ld.
Predecessor of this Court vide order dated 09.12.2016, issue no. 1
already stands considered and disposed off.
Issue no. 2.
(ii) Whether the workman left job of his own? OPM
19. The onus to prove this issue was on management.
20. So far as the abandonment of job is concerned, it
means voluntary and absolute relinquishment of job. The failure
to perform duties must be with actual or imputed intention, on
the part of the employee to abandon and relinquish the job.
Temporary absence is not ordinarily sufficient to constitute an
abandonment of office. In Buckingham Co. Vs. Venkatiah & Ors.
(1964) 4 SCR 265, the Hon'ble Supreme Court has held that
under Common Law an inference that an employee has
abandoned or relinquished service is not easily drawn unless
from the length of absence and from other surrounding
circumstances, an inference to that effect can be legitimately
drawn and it can be assumed that the employee intended to
abandon service. Abandonment or relinquishment of service is
always a question of intention, and normally, such an intention
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cannot be attributed to an employee without adequate evidence
in that behalf. Thus, whether there has been a voluntary
abandonment of service or not is a question of fact which has to
be determined in the light of the surrounding circumstances of
each case.
21. In the landmark case of G.T. Lad & Ors. Vs
Chemicals & Fibres of India Ltd. decided on 6 th December, 1978,
1979 AIR 582 it was held that :
"Question no.1 : In the Act, we do not find any
definition of the expression 'abandonment of service'. In
the absence of any clue as to the meaning of the said
expression, we have to depend on meaning assigned to
it in the dictionary of English language. In the
unabridged edition of the Random House Dictionary,
the word 'abandon' has been explained as meaning 'to
leave completely and finally; forsake utterly; to
relinquish, renounce; to give up all concern in
something'. According to the Dictionary of English Law
by Earl Jowitt (1959 edition) 'abandonment' means
'relinquishment of an interest or claim. According to
Blacks Law Dictionary 'abandonment' when used in
relation to an office means 'voluntary relinquishment. It
must be total and under such circumstances as clearly
to indicate an absolute relinquishment. The failure to
perform the duties pertaining to the office must be with
actual or imputed intention, on the part of the officer to
abandon and relinquish the office. The intention may be
inferred from the acts and conduct of the party, and is a
question of fact. Temporary absence is not ordinarily
sufficient to constitute an abandonment of office'.
7.From the connotations reproduced above it clearly
follows that to constitute abandonment, there must be
total or complete giving up of duties so as to indicate
an intention not to resume the same.
22. The Hon'ble Supreme Court in D.K. Yadav Vs.
J.M.A. Industries Ltd. (1993) 3 SCC 259 has held that even
where the standing orders of the employer provide for dismissing
the workman from service for unexplained absence, the same has
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to be read with the principles of natural justice and without
conducting domestic inquiry and without giving an opportunity
of being heard, termination of service on the said ground cannot
be effected. The same view was reiterated in Lakshmi Precision
Screws Ltd. Vs. Ram Bahagat AIR 2002 SC 2914. In V.C.
Banaras Hindu University Vs. Shrikant AIR 2006 SC 2304 it was
held that although laying down a provision providing for deemed
abandonment from service may be permissible in law, it is not
disputed that an action taken thereunder must be fair and
reasonable so as to satisfy the requirements of Article 14 of
Constitution of India; if the action is found to be illogical in
nature, the same cannot be sustained.
23. In M/s Fateh Chand Vs. Presiding Officer Labour
Court & Anr. 2012 LLR 468 Delhi, the Hon'ble High Court of
Delhi observed that the management has to bring on record
sufficient material to show that the employee has abandoned the
service and abandonment cannot be attributed to the employee
without there beingÂsufficient evidence. On failure to report for
duty, the management has to call upon the employee and if he
refuses to report, then an enquiry is required to be ordered
against him and accordingly action taken. In the absence of
anything placed on record by the petitioner management, no
presumption against the workman can be drawn. It was held to be
a case of violation of Section 25F of the Act.
24. In MCD Vs. Sukhbir Singh 1994 ILR 332, in case of
abandonment of service, it was held that the management was
duty bound to conduct an inquiry. Reference in this regard may
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also be made to Shakuntala Export House (P) Ltd. Vs. P.O.
Labour Court X & Anr. 117 (2005) DLT 479.
25. In the case of Shiv Dayal Soin and Sons Vs., The
Presiding Officer, Labour Court in LPA 801/2002 decided on
20.12.2007, the Division Bench of the Hon'ble Delhi High Court
has held in para 11 thereof which is as follows :
"However, it is pertinent to note that a mere accusation
that the Workers had abandoned their jobs is not enough
to accept the said imputation, degree of proof required to
establish abandonment of service, is rather strict and the
management in this case has failed miserably to discharge
the said burden of proof."
26. In Shiv Dayal Soin and Sons (Supra) also relied
upon in Buckingham and Carnatic Co. Vs. Venkatiah AIR 1964
SC 1272 it was observed :
"abandoning or relinquishment of service is always a
question of intention, and normally, such an intention
cannot be attributed to an employee without adequate
evidence in that behalf and thus whether there has been a
voluntary abandonment of service or not is a question of
fact which has to be determined in the light of the
surrounding circumstances of each case."
27. In the present case, the management has pleaded that
workman had left the services of the management, on his own as
he did not want to resume his services with the management on
casual basis. On the other hand, the claim of the workman is that
he was orally terminated from his services on 08.03.2013, by the
management without assigning any reasons for his termination
and without any prior notice.
28. In order to discharge its onus of proving that the
workman had voluntarily left the services of management,
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management had examined Sh. Arvind Kumar Shahi, Senior
Assistant Manager of the management as MW1, who has
tendered his evidence affidavit by way of affidavit Ex. MW1/A,
wherein he has stated on oath, that workman was initially
employed by management on daily wages on compassionate
ground in 1992 and subsequently workman was given temporary
status by the management company and he was engaged from
time to time on purely casual basis for duration of 40 days and
that workman was never a permanent employee of the
management company. MW1 has further stated on oath in its
evidence affidavit Ex. MW1/A that the workman had voluntarily
left the services of the management as he did not want to resume
his services on casual basis and that Writ Petition No. writ
petition no. 1925/98 titled as Rajesh & Ors vs UOI & Ors before
Hon'ble High Court of Delhi for regularization of his services,
was dismissed by Hon'ble High Court of Delhi on 12.07.2011 as
workman was not able to show any right to compassionate
appointment under any rule. It is important to note that the reply
as well as evidence affidavit Ex. MW1/A of management witness
is conspicuously silent regarding the exact date on which the
workman had allegedly left the services of the management.
29. On the other hand, the workman, during his cross-
examination by Ld. AR for the management, had denied the
suggestion that he had abandoned his services with management
by remaining absent from his job without any prior intimation
and he had further denied the suggestion that management has no
liability to pay salary to him for the period from 16.12.2012 to
07.03.2013, due to his absence from the duty.
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30. Now in present case, even if it is presumed for the
sake of arguments that the workman himself had stopped coming
to the office of the management from then it was the duty of
management to ask him to join duty because it is settled law that
if a workman/workman fails to report for duty, the management
is bound to call upon him to join duty. It has been held by
Hon'ble Delhi High Court in M/s Fateh Chand Vs. Presiding
Officer, Labour Court & Hari Om Sharma Vs. M/s G.R. Sons
Anr., 2012 (3) SCT 724 as follows :
"It is also no more res integra that even in a case of
unauthorized absenteeism or to prove abandonment of
service on the part of the workman the management
must place on record necessary material to prove that
enough efforts were made by it to call upon the
workman to resume back hi duty and the workman has
shown his clear reluctance for the same."
31. But in the instant case, no such material, that is, any
show cause notice or memo issued to the workman by the
management, asking him to join his duty with the management,
has been placed on record by management in its evidence and
even it is not the case of management that it had ever asked the
workman to join duty, at any point during the period of his
alleged absenteeism. It is not the case of management that it had
issued any notice during the said period to the workman to join
duty.
32. In the instant case, there is nothing in the
surrounding circumstances or the conduct of the workman
indicating or suggesting an intention on his part to abandon
service, which in view of the ratio of UOI Vs. Gopal Chandra
Misra (1978) 2SCC 301, can be legitimately said to mean to
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detach, unfasten, undo or untie the binding knot or link which
holds workman to the service of management and the obligations
and privileges that go with it and there is nothing on record to
suggest voluntary abandonment of services of management by
workman.
33. In view of the aforesaid discussions and in the given
facts and circumstances of the present case, since management
has failed to establish by leading cogent and reliable
documentary evidence to prove that workman had voluntarily
abandoned the services of the management, therefore, this Court
is of the considered view that there is nothing on record to
support the inference that the workman had voluntarily left the
services of the management, on his own. Accordingly, this issue
is decided against the management and in favour of the
workman.
Issue no. 3.
3. Whether the management illegally and
unjustifiably terminated services of workman?OPW
34. The onus to prove this issue was on the workman.
35. The version of the workman is that he was initially
appointed by management as "Handyman" on daily wage basis in
1992, on compassionate basis, after demise of his father in 1986,
who was a regular and permanent employee of management. The
workman has further stated that after his initial appointment as
daily wager, the management conducted his interview on
26.12.1995 and thereafter, the management had given status of
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temporary employee to him and that management had assured
him to give status of permanent employee. Since he was not
regularized, therefore, he along with four other 'Handyman' had
filed a Writ Petition bearing no 1925/98 titled as Rajesh & Ors vs
Union of India & Ors for their regularization and direction for
'equal pay for equal work' and said Writ petition was dismissed
by Hon'ble High Court of Delhi on 12.07.2011. It has been
contended by workman that all of sudden, services of the
workman was orally terminated by management on 08.03.2013
without assigning any reason and without payment of his wages
from 16.12.12 till 07.03.2013.
36. The management, on the other hand has admitted
that workman was temporarily engaged by management as
Handyman from time to time, on temporary basis for specific
duration of 40 days to meet specific requirement of manpower of
the management and that each time, workman was issued
temporary appointment letters by the management which
contained terms and conditions of his services and these
appointment letters were duly accepted by him. The
management, Chefair Flight Catering is a Unit of Hotel
Corporation India Limited which in turn is subsidiary company
of Air India Ltd and that the management recruits/appoints
regular employee against vacant posts after following due
process of appointment and recruitments are made by
management as per applicable service rules on pay scale of the
Management. The management has stated in its reply that Hotel
Corporation of India Ltd has no scheme to make appointment on
regular basis of an employee who had been appointed on
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compassionate ground and the management has asserted that
workman was not terminated from services by management and
instead workman had left services of his own will.
37. During the proceedings of the present case, on
11.02.2016 admission-denial of documents of both parties was
conducted before the Court and admitted documents were
exhibited by Ld. Predecessor this Court. Perusal of record shows
that during aforesaid admission-denial of documents, workman
had admitted Temporary Appointment Letter dated 14.11.2012
issued by management to him and aforesaid letter dated
14.11.2012 was exhibited as Ex. M1 by Ld. Predecessor of Court.
Besides, during admission-denial of documents of the
management by the workman, the workman had also admitted
Temporary Appointment Letters dated 24.04.1998, 11.03.1999,
01.09.1997, 10.07.1997, 05.11.1996, 08.01.1997. 05.08.1996,
19.06.1996, issued by management to him and these letters have
also been exhibited as Ex. M4, Ex. M5, Ex. M6, Ex. M7, Ex. M8,
Ex. M9, Ex. M10 and Ex. M11, respectively by Ld. Presiding
Officer of this Court.
38. Further, the workman, during his cross-examination
by Ld. AR for the management, has admitted that he was issued
an appointment letter by management at time of his initial
appointment and he has relied on the same temporary
appointment letter dated 19.06.1996 as Ex.WW1/12, in his
evidence affidavit.
39. The version of the management witness MW1 Sh.
Arvind Kumar Shahi has remained consistent during his
testimony as deposed by him in his evidence affidavit Ex.
LIR No. 5080/16
Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 18 /30
MW1/A that appointment of the workman with the management
was only for specific durations, as mentioned in the temporary
appointment letters issued to the workman by the management
from time to time and in support of his oral testimony, he has
relied on temporary appointment letters which are Ex.M1 to Ex.
M11, which have also been admitted by the workman at the
initial stage of admission-denial of documents.
40. It is relevant to note that it has already been held that
appointments made on basis of engagement letters are
contractual appointments as opined by Hon'ble High Court of
Delhi in Haryana Roadways vs Yunus Khan (WP (C ) 8394/2004
decided on 21.03.2023) and relevant extract of the aforesaid
judgment is re-produced herein:-
"The engagement letters, specifically express that the
respondent/workman is appointed for a specific duration.
The fact that the respondent was appointed on different posts i.e. peon, seasonal water carrier, helper at different time is indicative of the fact that his service was requirement and demand based. Further, the contention raised by the Respondent/workman that the Petitioner/Management deliberately created artificial breaks in between his appointment does not appear to this Court. On perusing the Lower Court Record, the engagement letters brought on record by the respective parties clearly show that there existed considerable gaps in between the subsequent appointments. Further, the MW2 has categorically deposed that the Respondent was appointed on the leave vacancies and suspension vacancies. In such circumstances, it is safe for this Court to conclude that the learned Labour Court failed to give adequate attention to the engagement letters and erred in evaluating the nature employment. It is clear as daylight that the employment of the Respondent was purely contractual, and need based in nature."
41. In this regard, it is also relevant to refer to the judgment of Rasmilaben R. Thakker vs Induext/C Industrial LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 19 /30Extension Cottage, (decided on 05.08.2022 in R/Special Civil Application No. 12240 of 2008 by Hon'ble Gujarat High Court) wherein it was held that:
"I found that the learned Labour Court has given detailed reason while recoding in the impuged judgment and award passed by the learned Labour Court. It is also pertinent to note that as per letter produced at Exh.20, the petitioner is appointed for one year on fixed salary of Rs. 2,800/- per month vide letter dated 01.04.1998, and therefore, such appointment is made for a period of one year and it is a contractual appointment, the signature, which is put on the said document at Exh. 20 by the present petitioner, is not disputed by petitioner workman. It is also found from the record that signature of consent letter at Exh. 21 is proved though it is disputed by the petiitoner in cross-examination, and therefore, when the petitioner has accpeted the terms for the appointment on the contract basis then now, she cannot agitate that the respondent institution had to consider her for continuation in service on the basis of document which is executed for the purpose of contractual appointment......"
".......it is admitted position that the petitioner herself has signed the consent letter at Exh.21, which is admittedly for the contractual appointment for a period of one year only and when there is specific agreement between the parties for contractual appointment and when there is specific condition provided in such and the petitioner is appointed for the limited period, then the petitioner cannot claim for any benefit by contending that the respondent establishment of public authority has committed breach of Section 25(F) or any other provisions of I.D Act and more particularly, when there is specific condition prescribed in that letter at Exh.20 and also consent given at Exh.21 documents. Considering overall facts and circumstance of the present case and after considering the reasons given by the learned Labour Court in the impugned judgment and award, I found that the learned Labour Court has not committed any error in giving the reason while deciding the Reference and has rightly rejected the Reference of the present petitioner as the petitioner workman is not entitled to get any relief as prayed in the said Reference. I also found that Section (oo)(bb) of the I.D.Act is applicable in the facts of the present case and no breach of the provision of Section 25(F) of the I.D Act is found LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.Page No. 20 /30
in the present case. Moreover, I found that there is no illegality or infirmity committed."
42. Applying the analogy of the aforesaid judicial precedent to the instant case, since the workman has admitted temporary appointment letters Ex. M4 to Ex. M11, therefore, his admission clearly shows that management had temporarily appointed to him by way of these temporary appointment letters Ex. M4 to Ex. M11 and he had accepted temporary appointment in management by accepting the aforesaid letters, after putting his signatures on the acceptance letter appended at the bottom of these temporary appointment letters, thus signifying his consent. Evidently, perusal of these temporary appointment letter Ex. M4 to Ex. M11 of workman, leaves no element of doubt that services of workman with management was contractual, temporary and for specific duration mentioned in these appointment letters.
43. It is also relevant to note that that these Temporary Appointment Letters which are Ex M4 to Ex. M11, contained specific terms and conditions of his employment with the management and as per clause (2) of these letters Ex.M4 to Ex. M11, the services of workman could be terminated by the management at any time, without assigning any reason and without any prior intimation. Evidently, workman had accepted the terms and conditions of aforesaid temporary appointment letters Ex M4 to Ex. M11, by putting his signatures on acceptance letters, appended to above-said appointment letters, at bottom and therefore, he cannot be allowed to take U-turn now and challenge his contractual and temporary appointments, in LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 21 /30light of the aforesaid judgment of Rasmilaben R. Thakker vs Induext/C Industrial Extension Cottage (Supra).
44. Further, the management has contended that the workman has no right on his post as it was a contractual temporary appointment and therefore, it is not 'retrenchment' as defined in Industrial Disputes Act and therefore, workman cannot seek reinstatement as his services were terminated due to lapse of contractual appointment.
45. The definition of the 'retrenchment' is conclusive and it has been defined to mean the termination of the services of a workman by the employer for any reason, whatsoever, except the four exceptions carved out therein. As per Section 2 (oo) of the I. D. Act, termination of 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 does not amount to retrenchment. This is well settled position of law has been reiterated by various High Courts and Hon'ble Supreme Court in catena of cases. The definition of "Retrenchment" was introduced in the Industrial Disputes Act by the Act 43 of 1953 with effect from 24.10.1953. Originally, there were only two exception to the definition of retrenchment, i.e. 2(oo)(a) and 2(oo)(b). By the Amending Act 49 of 1984, two additional exceptions were introduced to the definition of retrenchment by inserting 2(oo)(bb) & 2 (oo) (c) with effect from 18.08.1984.
46. Retrenchment is defined under Section 2 (oo) of the I. D. Act, which reads as follows:
"retrenchment' means the termination by the employer of the services of the workman for any reason whatsoever, LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.Page No. 22 /30
otherwise than as a punishment inflicted by way of disciplinary action but does not include
(a) voluntarily retrenchment of the workman;or
(b) retrenchment of the workman on reaching the age of superannuation if the contract of the employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the services of the workman as a result of the on-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.
47. Section 25F of the Industrial Disputes Act provides conditions precedent to retrenchment of any workman from any establishment/industry and it stipulates that the aforesaid section shall be attracted only if the workman has been 'in continuous service' for not less then one year under the employer. Section 25B of Industrial Disputes Act defines 'continuous services' by laying down that workman (other than workman employed below ground in a Mine) shall be deemed to be in continuous services under the employer, if he has actually worked under the employer for not less then 240 days during the period of 12 calendar months preceding the date of reference.
48. The preconditions for attracting these provisions are that there has to be 'retrenchment'. This legal position has been reiterated by the Hon'ble Supreme Court in Haryana State Agriculture Marketing Board Vs. Subhash Chand & Anr reported as 2006(2) SCC 794:-
"11. The question as to whether Chapter V A of the Act will apply or not would dependent on the issue as to whether on 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 LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.Page No. 23 /30
in clauses (bb) of Section applicability of Chapter V A thereof would not arise.
49. In the present case, the workman has admitted the temporary appointment letter dated 14.11.2012, Ex. M1 which provides for his temporary appointment with the management period from 11.11.2012 to 20.12.2012 and the admission of the workman implies that he had accepted the terms and conditions of the aforesaid temporary appointment with the management for the period specified therein. Upon perusal of the aforesaid temporary appointment letter dated 14.11.2012 Ex M1, it is evident that the workman was appointed by management for fixed tenure from 11.11.2012 till 20.12.2012. Further, perusal of letter dated 10.06.2013, Ex.W1 sent by the workman to the Vice President of the management suggests that the management was not approving the continuation/renewal of the services of the workman with the management.
50. Thus, from cumulative reading of all the above said documentary evidences adduced in testimony by the parties, it appears that after the temporary contractual appointment of the workman with the management, as per temporary appointment letter Ex M1 had lapsed on 20.12.2012 due to efflux of time, there was no subsequent renewal of the contract of the appointment of the workman by the management, due to which, the services of the workman were dispensed with and therefore, termination of services of the workman due to non-renewal of his contract by the management, falls within the ambit of statutory exception to 'retrenchment' recognized u/s 2(oo)(bb) of Industrial Disputes Act, which provides that 'termination of the LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 24 /30services of the workman as a result of non-renewal of contract of employment between the employer and the employee on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. Moreover, there is contractual stipulation in the temporary appointment letter Ex. M1, that services of the workman could be terminated by the management at any time without assigning any reasons and without any prior notice and as such the termination of the workman as per the aforesaid terms of contractual employment shall not bring such termination within the statutory definition of retrenchment u/s 2(oo) of the Industrial Disputes Act.
51. Therefore, termination of the workman due to non- renewal of his contract of employment by the management as well as in accordance with the terms of contractual stipulations contained in his contractual appointment letter Ex. M1 is well covered within the exception to 'retrenchment' as provided under section 2(oo)(bb) of Industrial Disputes Act. Reliance in this regard is placed on the judgment of State of Rajasthan vs Rameshwar Lal Gahlot AIR 1996 Supreme Court 1001, wherein it was held that:-
"The controversy now stands concluded by a judgment of this Court reported in M. Venugopal vs Divisional Manager, LIC., (1994)2 SCC 323. Therein this Court had held that once an appointment is for a fixed period. Section 25 F does not apply as it is covered by clause (bb) of Section 2(oo) of the Act. It is contended by the respondent that since the order of the learned single judge was not challenged, the termination became final. Consequently, the appellant would be liable to pay back wages on reinstatement. In our considered view, the opinion expressed by learned single Juge as well as Division Bench are incorrect in law. When the appointment is for a fixed period, unless there is finding that power under clause (bb) of Section 2 (oo) was LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.Page No. 25 /30
misused or vitiated by its mala fide exercise, it cannot be held that the termination is illegal. In its absence, the employer could terminate the services in terms of the letter of appointment unless it is a colourable exercise of power. Unfortunately, neither the learned single Judge nor the Division Bench recorded any finding in this behalf. Therefore, where the termination is in terms of letter of appointment saved by clause (bb), neither reinstatement or fresh appointment could be made."
52. Reliance is also placed on judgment in Director, Institute of Management Development U. P., Appellant vs Smt Pushpa Srivastava, Respondent; 1992 (65) FLR that:-
"Where the appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on adhoc basis for more than a year"
53. Further, in Municipal Council Samrala vs Raj Kumar (Civil Appeal Nos. 229-300 of 2006, disposed of on 6 th January 2006), wherein in the offer of appointment it was specifically averred that 'his services will be availed till it is considered as fit and proper and necessary. After that his services will be dispensed with', which was accepted by the employee by affirming an affidavit to the effect that he would not have any objection, if Municipal Corporation disposed with his services and thereby acknowledged, its right to that effect, it was observed that:
"Clause (oo)(bb) of section 2 contain an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of the non-renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stimulation contained in that behalf..."LIR No. 5080/16
Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 26 /30The question as to whether Chapter VA of the Act will apply or not would 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 is as per exception contained in clauses (bb) of section 2 (oo) of the Act, it is not a 'retrenchment' the question of applicability of Chapter VA thereof would not arise.
54. It would not be out of place to mention herein that it was opined by Hon'ble High Court of Delhi in Kiran Bala & Ors vs Union of India & Ors (WP (C ) 2003/1998 decided on 18.05.2010 in its order dated 18.05.2010), wherein the similar relief had been claimed by the temporary employees against the same management and its parent company/institution, that "the instruction of Government of India on which the petitioners therein placed reliance were not applicable to the present management without being incorporated in rules of services and that the rules of AIR India and HCIL are not shown to contain any provisions for compassionate appointment". Reliance in aforesaid judgment was placed on the judgment delivered in Umesh Kumar Nagpal Vs. State of Haryana (1994) 4 SCC 138, wherein it was held that the provisions for compassionate appointment have necessarily to be made by the rules or by the executive instructions issued by the Government or the public authority concerned; employment cannot be offered by an individual functionary on an adhoc basis.
55. In Indian Drugs and Pharmaceuticals Pvt. Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Pvt. Ltd. (2007) 1 SCC 408, wherein the respondents (employees) were appointed on purely casual and daily wage basis for reasons that they were LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 27 /30dependents of employees dying in harness. Subsequently, the Labour Union started pressing for regularization of such employees and the Hon'ble Supreme Court, held that such persons had no right to the posts and rules of recruitment cannot be relaxed and the Court/Tribunal cannot direct regularization of temporary appointees dehors the rules nor can it direct continuation of service of temporary employee.
56. Further, in the judgment of IG (Karmik) & ors. Vs. Prahlad Mani Tripathi (2007) 6 SCC 162 it was held that the appointment on compassionate ground is given only for meeting immediate hardship faced by family of the deceased due to death of bread earner; when appointment is made on compassionate ground it should be kept confined only the purpose it seeks to achieve.
57. It is, thus, clear that the nature of services of the workman was totally temporary and for specific period as mentioned in his temporary appointment letters and as such he was on fixed term basis and he was discharged on completion of the period and therefore, it would not fall within the definition of 'retrenchment' in view of the exception of Section 2(oo)(bb) of the ID Act. Further more, it is reiterated that his initial appointment was only on compassionate grounds which was made without provision of any rule and was only a temporary measure. It has been held by the Hon'ble Apex Court in Indian Drugs and Pharmaceuticals Limited (Supra) that the Court/Tribunal cannot direct continuation of service of a temporary employee. Thus, the workman cannot as a matter of LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 28 /30right seek his reinstatement, without approaching management through proper rules of recruitment.
58. In view of the aforesaid discussions and observations, this Court is of the considered opinion that there is nothing on record to hold that the workman has been terminated from his services, illegally or unjustifiably by the management. Accordingly, the present issue is decided against the workman and in favour of the management.
(IV) Relief.
59. In case at hand, since this Court has already observed in issue no. 3 herein above that there is nothing on record to suggest that workman has been illegally or unjustifiably terminated by the management and even otherwise, the workman had never applied for regular appointment in the management, through the process of the management and merely because he has served for a long period from time to time on temporary basis would not give him any right to be reinstated, in view of the judgment in Indian Drugs and Pharmaceuticals Limited (Supra).
60. The present statement of claim filed by the workman is accordingly dismissed. Reference is answered accordingly.
61. Signed copy of the award be sent to the Office of the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules.
62. Judicial file be consigned to Record Room after compliance of necessary legal formalities. The award be also uploaded on server.
63. Copy of this award be sent to the Deputy Labour Commissioner Government of NCT of Delhi of Distt/Area LIR No. 5080/16 Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 29 /30concerned for publication as per rules and judicial file be consigned to Record Rooms as per rules.
RITU Digitally signed by RITU
SINGH
SINGH Date: 2024.04.23
13:39:46 +0530
Announced in the Open Court (RITU SINGH)
rd
on 23 April 2024 Addl. District & Sessions Judge,
Presiding Officer Labour Court - IV,
Rouse Avenue Courts, New Delhi
LIR No. 5080/16
Monish R. Tony Vs. Hotel Corporation of India & Anr.
Page No. 30 /30