Health Family Welfare Department & Anr vs Sh Saheb Singh Gahlawat And 28 Ors on 31 May, 2022

[Cites 4, Cited by 0]

Delhi High Court - Orders

Health Family Welfare Department & Anr vs Sh Saheb Singh Gahlawat And 28 Ors on 31 May, 2022

1. The present writ petition has been filed challenging the impugned award dated 30.09.2020 passed by the Presiding Officer, Industrial Tribunal- I, Rouse Avenue District Courts, New Delhi in I.D.No.151/16 (Old No.51/12) titled as S/Sh.Saheb Singh Gahlawat & 28 Ors. as represented by Hospital Employees Union vs. M/s Dr.Baba Saheb Ambedkar Hospital. In the said award workman had raised industrial dispute through Union. The Govt. of NCT of Delhi on failure of conciliation proceedings referred the dispute to the Tribunal for adjudication. The terms of reference was as under:

"Whether demand of the workmen Sh.Saheb Singh Gahlawat S/o Sh.Karan Singh and 28 others (As per Annexure- A) for regularization of their services on their respective posts from their services on their respective posts from their respective initial date of joining along with consequential benefits is Signature Not Verified Digitally Signed By:PALLAVI VERMA Signing Date:02.06.2022 11:06:46 justified; and if so, what directions are necessary in this respect?"

2. The statement of claim was filed. The case of the workmen was that though they were given appointment on alleged temporary basis, but they were discharging their duties continuously and uninterruptedly on a job of permanent nature and that as such non-regularization of service of the workmen on their respective posts with effect from their respective initial date of joining is solely illegal, bad, unjust and malafide for the reasons mentioned in the claim petition.

3. The plea of the petitioner is that in the year 2000, Dr.Baba Saheb Ambedkar Hospital, which was under Directorate of Health Services, the posts of various categories were filled up by the Directorate of Health Services purely on contract basis for 89 days or till regular incumbent is appointed whichever is earlier. The posts were duly notified to DSSSB for regular appointment. The plea was that these short term appointment shall not confer any right of preference for regular appointment and in case the regular candidate join, the contract appointment shall automatically stand terminated. The workmen were taken on short term contract basis for 89 days and the contract was extended after one day break after every 89 days. It has been stated that Medical Superintendent had no authority to regularise these employees. Learned Labour Court recorded the evidence of the workmen and they were duly cross examined but the management did not lead any evidence.

4. Learned Labour Court inter alia held that as the management has not led any evidence, the onus of proving that the claimants/workmen were not regular employees has not been discharged. The reference was answered in Signature Not Verified Digitally Signed By:PALLAVI VERMA Signing Date:02.06.2022 11:06:46 favour of the workmen/claimants inter alia holding that the workmen have been able to make out the case of regularisation of their service with the management on the relevant posts of OT Technicians, OT Assistants, Lab Technician, Lab Assistants, Junior Radiographers, ECG Technicians, Audio Metry Assistant, CSSD Technician and Staff Nurse respectively as mentioned in their respect vide Annexure -A in their Terms of Reference with retrospective effect from the initial date of their joining with the management.

5. The Labour Court has held that the workmen, namely, Sh.Ravinder Kumar Joshi, Sh.Anil Kumar Yohannan, Ms.Divya Goel, Sh.Ravi Edwin, Sh.Jaimon Joseph and Sh.Mohan Lal, having not appeared in workmen evidence, were held to be not entitled to any relief.

6. Predominantly, the plea of the petitioners is that the learned Tribunal could not have passed any order directing regularization in contravention to the order passed by the Hon'ble Supreme Court i.e. (i) State of Karnataka vs. Uma Devi 2006 (4) SCC1, (ii) U.P.Power Corporation Ltd. & Anr. vs. Bijli Mazdoor Sangh & Ors. 2007 (5) SCC 755, (iii) Hari Nandan Prasad & Anr. vs. Employer I//R to Management of Food Corporation of India & Anr. 2014 (7) SCC 190, (iv) Regional Manager SBI vs. Mahatma Mishra 2006 (13) SCC 727, (v) Dr.Pramod Kumar Dhailwal vs. GNCTD 215 (221) DLT 110, (vi) Mrs. Seema Bansal vs. University of Delhi WPC No.1771/2003 decided on 14.03.2017, (vii) Official Liquidator vs. Dayanand 2008 (10) SCC 1, (viii) Union of India vs. Sheela Rani 2007 (15) SCC 230, (ix) Secretary to Government School Education Department, Chennai vs. R.Govindaswamy and Ors. 2014 (4) SCC 769, (x) State of Rajasthan & Ors. vs. Daya Lal & Ors. 2011 (2) SCC 429 and (xi) Upendra Singh vs. State of Signature Not Verified Digitally Signed By:PALLAVI VERMA Signing Date:02.06.2022 11:06:46 Bihar & Others 2018 (3) SCC 680.

7. Learned counsel for the petitioner has submitted that in respect of the similarly placed employees vide order dated 11.10.2020 one time regularization policy through relaxation in age to the contractual Nursing and Paramedical employees working under Health and Family Welfare, GNCTD at the time of regular appointment on direct recruitment basis was allowed. It has been submitted that thereafter vide order dated 01.07.2021 (Annexure-M) the Hon'ble LG was pleased to approve the extension of the engagement of services of all Contractual Nursing/Paramedical employees of Health and Family Welfare Department for another one year with effect from 01.07.2021 to 30.06.2022 or till they avail One Time Regularization Policy dated 11.10.2020 issued by the Health and Family Welfare Deparment, whichever was earlier subject to the condition that such extension would be applicable only to such nursing and paramedical staff who were eligible for one time regularization policy as per order dated 11.10.2020.

8. Learned counsel for the respondent states that the present writ petition is liable to be dismissed in limine on the ground of delay and laches and notice may not be issued as there is a categorical finding of fact by the learned Labour Court and this court having writ jurisdiction cannot re- appreciate the evidence. It has further been submitted that the management did not lead any evidence before the trial court and even did not cross- examine all the witnesses. It has further been submitted that OM relied upon by the petitioner as Annexure K dated 07.10.2020, Annexure-L dated 11.10.2020 and Annexure-M dated 01.07.2021 are subsequent to the award passed by the learned Labour Court.

Signature Not Verified Digitally Signed By:PALLAVI VERMA Signing Date:02.06.2022 11:06:46

9. I consider that this case requires consideration.

10. Ms.Meghna De, learned counsel accepts notice on behalf of the respondent and seeks time to file counter affidavit. Let counter affidavit be filed within six weeks with copy to the other side. Rejoinder thereto, if any, be filed within four weeks thereafter.

11. List the matter before the Registrar on 07th September, 2022 for completion of pleadings.

CM APPL. 23143/2022 (stay)

12. Issue notice. Ms.Meghna De, counsel for the respondent/non- applicant accepts notice.

13. Learned counsel for the respondent submits that there is a total amount of around Rs.6 crores as per the Award. However, learned counsel for the petitioner submits that this amount may not be correct as the workmen are already getting minimum of the pay-scale and allowances. Let a computation chart be filed by both the parties on the next date.

14. Till the next date of hearing, the operation of the impugned order dated 30.09.2020 passed in I.D.No.151/16 (Old No.51/12) is stayed.

15. List before the Court on 26th July, 2022.

DINESH KUMAR SHARMA, J MAY 31, 2022 rb Signature Not Verified Digitally Signed By:PALLAVI VERMA Signing Date:02.06.2022 11:06:46

Unlock Advanced Research with PRISMAI

Delhi High Court - Orders