Delhi District Court
Ltd. & Anrs vs . S. C. Pandey 2006 Iii Ad (S.C.) 59 The ... on 11 August, 2008
1 ID NO. 238/2006
IN THE COURT OF SH. HARISH DUDANI: PRESIDING OFFICER, LABOUR
COURT NO. XVII, KARKARDOOMA COURTS, DELHI
ID NO. 238/2006
BETWEEN
The Workmen
1. Sh. Girja Prasad S/o Sh. Shyam Lal
2. Sh. Shiv Chander Mehto S/o Sh. Ram Keshwar Mehto
C/o R.K. Mahajan & Company,
C - 129, Lajpat Nagar, 2nd Floor,
New Delhi.
AND
The management of
M/s. Maharaja Agrasen College
(University of Delhi),
Pocket - IV, Mayur Vihar, Phase - I,
Delhi- 110091.
Date of institution of the case : 30.09.2002
Date of reserving the award : 29.07.2008
Date of announcement of award : 11.08.2008
AWARD
1. The National Capital Territory of Delhi, Delhi through its Secretary
(Labour) vide reference no. F.24(1466)/2002-Lab./17183-87 dt. 03.09.2002
referred the dispute for adjudication between the Management of M/s.
Maharaja Agrasen College and its workmen Sh. Girja Prasad S/o Sh. Shyam
Lal & Sh. Shiv Chander Mehto S/o Sh. Ram Keshwar Mehto in the following
terms of reference:-
"Whether the services of (1) Sh. Girja Prasad S/o Sh.
Shyam Lal (2) Sh. Shiv Chander Mehto S/o Sh. Ram
Keshwar Mehto have been terminated illegally and/or
Contd.......
2 ID NO. 238/2006
unjustifiably by the management, and if so, to what
sum of money as monetary relief alongwith
consequential benefit in terms of existing
laws/Government notifications and to what other
relief are they entitled and what directions are
necessary in this respect?"
2. Workmen have filed statement of claim stating therein that they have
been employed with the management as per particulars furnished below:
S.No. Name Nature of duties Date of Salary
joining
Girja Prasad Security Guard-cum-Peon 17.08.2000 Rs.2500/-
(Approx.)
1 Per Month
Shiv Chander Mehato Gardner 26.07.2000 Rs.2900/-
(Approx.)
2 Per Month
It is stated that the management was not providing the legal facilities to the
workmen and the workmen were orally demanding the same from the
management on which management got annoyed and terminated the services
of workmen on 26.09.2001 without issuing any notice or charge - sheet and
without payment of compensation and salary of the workmen for the months of
July, August and September 2001 was also not paid. The workmen made
efforts for reinstatement through Union but the management refused to
reinstate the workmen. The workmen filed claim before the Conciliation Officer
but no settlement was arrived due to non-cooperative attitude of the
management. The services of the workmen have been terminated in violation
of Section 25F, G and H of the I.D. Act, 1947. After termination of services of
workmen, the management has made fresh recruitments and has employed
Contd.......
3 ID NO. 238/2006
workmen for performing the duties which were assigned to the workmen. The
workmen are unemployed since the date of termination of their services. It is
prayed that an award be passed thereby reinstating workmen in services with
full back wages and continuity of services.
3. The notice of statement of claim was issued to the management. As
per order dated 29.08.2003, the management was served, but the
management failed to appear and my Ld. Predecessor was pleased to
management ex-parte and the case was fixed for ex-parte evidence of
workmen.
4. To prove their case workmen examined Sh. Girja Prasad as WW1, Sh.
Shiv Chander Mehto as WW2, Sh. O.P. Bhadula, Section Officer (Admn.) as
WW3, Sh. S.K. Jain, Section Officer (Acctts.) as WW4 and Dr. S. Bala Bawa
as WW5.
5. The plea of the workmen is that the workman Sh. Girja Prasad was
employed with the management w.e.f. 17.08.2000 as Security Guard-cum-
Peon and the workman Sh. Shiv Chander Mehto was employed with the
management w.e.f. 26.07.2000 as Gardner and the management was not
providing the statutory facilities to the workmen and the workmen were
demanding the same from the management on which management got
annoyed and terminated their services on 26.09.2001. To prove the case the
workman Sh. Girja Prasad examined himself as WW1 and he adduced
evidence by way of affidavits Ex. WW1/1 and Ex. WW1/B and the workman
Sh. Shiv Chander Mehto examined himself as WW2 and he adduced evidence
by way of affidavits Ex. WW2/1, Ex. WW2/B and Ex. WW2/C.
Contd.......
4 ID NO. 238/2006
6. In para 1 of affidavit Ex. WW1/1 the workman Sh. Girja Prasad has
stated that he was appointed w.e.f. 17.08.2000 as Security Guard - cum -
Peon on a monthly salary varying from Rs.2500/- to Rs.3100/- depending on
the working days in a month as the daily rate was Rs.112/- per day. In para 1
of affidavit Ex. WW2/1 the workman Sh. Shiv Chander Mehto has stated that
he was appointed w.e.f. 26.07.2000 as Gardner on an approximate monthly
salary of Rs.2900/- which used to vary from time to time and depending on
days of working. The workman Sh. Girja Prasad has stated in para 3 of his
affidavit Ex. WW1/B the number of days for which he has worked with the
management from August 2000 to September 2001. In order to prove their
employment with the management for 240 days in a year, the workmen have
relied on certificate dt. 17.09.2004 issued in the name of the workman Sh.
Girja Prasad Ex. WW1/D and the certificate dt. 24.02.2005 issued in the name
of the workman Sh. Shiv Chander Mehto Ex. WW2/D. Ex. WW1/D reads as
under:
"Ref. No. ____________
September 17, 2004
TO WHOMSOEVER IT MAY CONCERN
This is to certify that Mr. Girja Prasad worked in the college on daily-
wages basis from 17th August 2000 to 27th September 2001.
Sd/-
(Dr. S. Bala Bawa)
Officer on Special Duty"
Contd.......
5 ID NO. 238/2006
Ex. WW2/D reads as under:
"Ref. No.MAC/2004 - 05/1031
February 24, 2005
TO WHOM IT MAY CONCERN
This is to certify that Mr. Shiv Chander Mehto worked in the College on
Daily-Wage basis from 26.07.2000 to 26.09.2001.
Sd/-
(Dr. Vijay Laxmi Pandit)
Officer on Special Duty"
7. As per the case of workmen themselves as they were appointed by the
management on daily wage basis and the workman Sh. Girja Prasad has
worked with the management from 17.08.2000 to 26.09.2001 on daily wage
basis and the workman Sh. Shiv Chander Mehto has worked with the
management from 26.07.2000 to 26.09.2001 on daily wage basis. The
workmen have summoned officials from the management i.e Sh. O.P.
Bhadula, Section Officer (Admn.) as WW3, Sh. S.K. Jain, Section Officer
(Acctts.) as WW4 and both of them have not stated in their statements that the
workmen have not worked with the management continuously for 240 days.
WW3 Sh. O.P. Bhadula and WW4 Sh. S.K. Jain have specifically stated that
the workmen were working on daily wage basis. The workmen have not
proved that they were appointed by the management as regular employees on
permanent basis. The workmen have proved that they have worked
continuously for a period of 240 days in a preceding one year with the
management on daily wage basis.
Contd.......
6 ID NO. 238/2006
8. In Branch Manager, MP State Agro Industries Development Cropn.
Ltd. & Anrs vs. S. C. Pandey 2006 III AD (S.C.) 59 the Respondent was
temporarily appointed as a typist by the Branch Manger of the Appellant w.e.f. 16.09.1985 and his services were terminated by order dt. 18.07.1987 on the ground that his services were no longer required and the Respondent filed an application before the Labour Court wherein an interim order was passed not to remove him from services and in view of the said interim order he was allowed to continue in service. In Para 16 the Hon'ble Court observed as :
The Industrial Courts and High Court inter alia proceeded on the basis that the respondent having completed 240 days of service during the preceding 12 months, he should have been regularized in service. Section 25-B of the Industrial Disputes Act was also invoked on that premise. The Labour Court, however, wrongly equated classification with regularization. The term 'regularization' does not connote permanence.
9. In in Branch Manager, MP State Agro Industries Development Cropn. Ltd. & Anrs vs. S. C. Pandey (Supra) in Para 24 the Hon'ble Court held as:
However, it has not been contended that the services of the respondent were not governed by the provisions of the Industrial Disputes Act. He worked form 19.09.1985 to 19.05.1987. He must have, thus, completed 240 days of service. The termination of his services without complying with the provisions of Section 25F of the Industrial Disputes Act was, thus, illegal. He, however, had unjustly been directed to continue in service by reason of an interim order. He has been continuing in service pursuant thereto.
Contd.......7 ID NO. 238/2006
10. In Coal India Ltd. v. Presiding Officer, Labour Court No. 3 & Others, 2001 LLR 460 our own Hon'ble High Court held that the workman who has worked for more than a year, his service cannot be terminated without complying mandatory provisions of Section 25F of Industrial Disputes Act, 1947 providing for notice pay and retrenchment compensation.
11. As per aforesaid discussions the workmen have proved that the workman Sh. Girja Prasad has worked with the management from 17.08.2000 to 26.09.2001 on daily wage basis and workman Sh. Shiv Chander Mehto has worked with the management from 26.07.2000 to 26.09.2001 on daily wage basis and that they have worked continuously for 240 days in a year with the management. Therefore before terminating the services of workmen the management was required to follow the conditions as prescribed by Section 25F of the Industrial Disputes Act and non-compliance of Section 25F of Industrial Disputes Act in terminating the services of workmen has rendered termination of their services as illegal. Reliance in this regard can be placed on Commissioner, Edapadi Municipality, Edapadi, Salem vs. P. O. Labour Court, Salem & Anr. 2004-IV-LLJ (suppl) NOC-313 and Indian Overseas Bank vs. Industrial Tribunal, Alapuszha & Anr. 2002-III-LLJ-984.
12. The next question which is to be decided, is regarding the relief which is to be given to the workmen pursuant to illegal termination of their services.
13. In Kendriya Vidyalaya Sanghathan and Anr. vs. S. C. Sharma 2005-
LLR-275 it was held that "for entitlement of back wages on reinstatement of a employee, the employee has to show that he was not gainfully employed and Contd....
8 ID NO. 238/2006the initial burden is on him. Thereafter, if the workman places materials in that regard, the employer can bring on record materials to rebut the claim".
14. In U.P. State Brassware Corpn. Ltd. & Anr. vs. Udai Narain Pandey 2006-LLR-214, it was held that "no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed since it depends upon the facts and circumstances of each case, as such it will not be correct to contend that it is automatic hence should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of the Industrial Disputes Act."
15. In case titled as Thankur Singh Rawat and others v. Jagjit Industries Ltd. 2006-I LLJ 775 our own Hon'ble High Court held that if there is any pleading of workman remaining unemployed from termination of his services till passing of award and neither any evidence is let in to prove such employment. The claim of the workman for back wages shall not be sustainable.
16. In decision dt. 10.2.2006 in LPA No. 1647/05 titled as "M/s Lords Homeopathic Laboratories Pvt. Ltd. v. Ms. Lissy Unnikunju & ors. our own Hon'ble High Court relied on decision in Employers, Management of Central P & D Inst. Ltd. v. Union of India AIR 2005 SC 633. where the Hon'ble Supreme Court observed that it is not always mandatory to order reinstatement after holding the termination illegal, and instead compensation can be granted.
Contd......
9 ID NO. 238/2006
17. The workmen Sh. Girja Prasad and Sh. Shiv Chander Mehto examined themselves as WW1 and WW2 respectively. In para 9 of the statement of claim & in para 9 of affidavits Ex. WW1/1 & Ex. WW2/1 workmen Sh. Girja Prasad and Sh. Shiv Chander Mehto have stated that they are unemployed since the date of termination of their services. Although, in the affidavits Ex. WW1/1 and Ex. WW2/1 the workmen have stated that they are unemployed since the date of termination of their services, but the workmen have not proved that if they are unemployed since the date of termination of their services then how they are sustaining themselves and their families. The workmen have also not proved as to what efforts were made by them to secure an alternate job after disengagement from the management. The workmen have also not proved that after disengagement from the management they had applied to other managements for job and that they could not succeed in getting an alternate employment from the said other managements. The workmen have also not submitted the details of any other management to which they had submitted applications and appeared for interview for job after disengagement from the management. The workmen i.e WW1 Sh. Girja Prasad and WW2 Sh. Shiv Chander Mehto have also not proved as to what steps were taken by them to mitigate the days of their hardship.
18. In North East Karnataka Road Transport Corporation v. M. Nagangouda, 2007 LLR 340, it was held that gainful employment of a workman during interregnum will also include either self-employment or earning some amount from agricultural pursuits to maintain himself.
Contd.....
10 ID NO. 238/2006
19. As per evidence adduced by workmen they were appointed by the management on daily wage basis and they have worked with the management for a short period of about one year only. The workmen have not proved that they were appointed against any sanctioned post or a by regular mode of appointment to be followed for appointment in the Government services. In the circumstances, no order of reinstatement of workmen is being passed.
20. In Branch Manager, M. P. State Agro Industries Development Corpn. Ltd. & Anr. vs. S. C. Pandey-2006-III AD-SC-59 the Hon'ble Supreme Court observed as under:-
The question raised in this appeal is now covered by a decision of this court in M. P. Housing Board & Anr. v. Manoj Srivastava [Civil Appeal arising out of SLP (Civil) No. 27360/04 disposed of this date] wherein this Court clearly opined that: (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) Only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularized in service; (4) If an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reasons thereof.
21. In Municipal Council, Sujanpur vs. Surinder Kumar -2006-LLR-662 it was held that:
17.For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration/tenure of work, the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration.
18.It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a Contd.......11 ID NO. 238/2006
'State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. [See M.V. Bijlani v. Union of India & Ors., (2006) 4 SCALE 147:
State of Punjab v. Jagdip Singh & Ors., 1964 (4) SCR 964 and Secretary, State of Karnataka v. Uma Devi, 2006(4) SCAE 197].
19.If a post is not a sanctioned one, again appointment therein would be illegal. In M. P. Housing Board & Anr. v. Manoj Shrivastava, (2006) 2 SCC 702, this Court stated the law in the following wards:-
"A person with a view to obtain the status of a "permanent employee" must be appointed in terms of the statutory rules. It is not the case of the respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating in the field. The Labour Court unfortunately did not advert to the said question and proceeded to pass its award on the premise that as the respondent had worked for more than six months satisfactorily in terms of clause 2(vi) of the Standard Standing Orders, he acquired the right of becoming permanent. For arriving at the said conclusion the Labour Contd.......12 ID NO. 238/2006
Court relied only upon the oral statement made by the respondent.
It is one thing to say that a person was appointed on an ad hoc basis or as a daily- wager but it is another thing to say that he is appointed in a sanctioned post which was lying vacant upon following the due procedure prescribed therefor.
It has not been found by the Labour Court that the respondent was appointed by the appellant herein, which is "State" within the meaning of Article 12 of the Constitution, upon compliance with the constitutional requirements as also the provisions of the 1972 Act or the Rules and Regulations framed thereunder."
22. In Management of Delhi Transport Corporation vs. Suraj Bhan & Ors. 2006-LLR-1269 our own Hon'ble High Court held that:
10. It is apparent that Retainer-crew-conductor is not a regularly employed employee as per the recruitment rules and they are hand picked by the management. In Secretary, State of Karnataka & Others v. Uma Devi (3) & Others, 2006 IV AD (SC) 328: 2006 4 SCC 1, Supreme Court observed that the persons who get employed without following of a regular procedure, through back-door or on daily wages, have been approaching the courts and seeking directions to make them permanent in their posts, to prevent regular recruitment to the post concerned. A class of employment which can only be called 'litigious Contd.......13 ID NO. 238/2006
employment', has risen like a phoenix, seriously impairing the constitutional scheme. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain
- not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person, who has temporarily or casually got employment should be directed to be continued temporarily.
23. In Delhi Jal Board vs. Workman of the erstwhile Delhi Water Supply and Sewage Disposal Undertaking 2006 III AD (DELHI) 683 in Para 28 our own Hon'ble High Court held that:
In view of the above observations of the Supreme Court it has to be held that the rules of recruitment cannot be relaxed and the court cannot direct regularization of temporary or ad hoc appointees de hors the rules. The same view has been taken by two recent Division Bench decision of the Court in Revinder Kumar vs. Director, AIIMS, LPA 2566/2005 decided on 7th December 2005 and in Delhi Tapedic Unmulan Samiti vs. Babita Rani, LPA No. 2554/2005 decided on 16.1.2006.
24. In Pramod Kumar and another v. Presiding Officer and another 2007-I-LLJ-158 in Para 10 and 11 our own Hon'ble High Court observed that:
10. In the case of Haryana Tourism Corpn. Ltd. vs. Fakir Chand and Ors., AIR 2003 SC 4465: 2003 (8) SCC 248: 2004-I-LLJ-265, Supreme Court directed payment of compensation of Rs. 70,000/-, instead of Contd.......14 ID NO. 238/2006
reinstatement with 25% back wages taking into consideration factors like (a) workers were daily wagers, (b) workers were not recruited through employment exchange or regular mode of selection,
(c) services of the workers were terminated long back, and (d) considering nature of work, the workers must have done similar work at least intermittently.
11.In a number of matters, this Court has also examined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of reinstatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma v. Nehru Yuva Kendra Sangathan, 2002-II-LLJ-401 (Del) and K.H. Pandhi v. Presiding Officer, Addl. Labour Court & Anr., 2004-II- LLJ-877 (Del), and Pal Singh v. NTPC Ltd. 2002-IV- LLJ (Suppl)-1482 (NOC):2002 (96) DLT 877.
25. In the present case the workmen have failed to prove that they were appointed by the management upon compliance with the constitutional requirements as also in terms of the statutory rules to be followed for appointment to the aforesaid post. Admittedly, the workman Sh. Girja Prasad has worked with the management from 17.08.2000 to 26.09.2001 as Security Guard - cum - Peon i.e approximately for a period of 13 months only and Sh. Shiv Chander Mehto has worked with the management from 26.07.2000 to 26.09.2001 as Gardner i.e approximately for a period of 14 months only. Taking into consideration that the workmen were not recruited through Employment Exchange or regular mode of selection and the services of the workmen were terminated long back i.e. on 26.09.2001 and considering the nature of work, the workmen might have done similar work at least Contd.......
15 ID NO. 238/2006intermittently. In the circumstances, it would be appropriate if the workmen are paid notice pay and retrenchment compensation in terms of Section 25F of the I. D. Act. Both the workmen shall also be entitled to a sum of Rs.10,000/- (Rupees Ten Thousand Only) each as compensation from the management to compensate them for thrusting unemployment upon them by the management and thereby causing financial loss to them. Reference stands answered accordingly. Copies of the award be sent to appropriate Govt. for publication as per law. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT.
TODAY i.e ON 11.08.2008.
(HARISH DUDANI) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS DELHI 16 ID NO. 238/2006 11.08.2008 Pr. None.
Award dictated and announced separately.
Copies of award be sent to appropriate Govt. for publication in accordance with law. File be consigned to record room.
POLC/11.08.2008