Delhi District Court
Sh. Raj Kumar vs The on 18 April, 2022
IN THE COURT OF SHRI RAJ KUMAR
PRESIDING OFFICER : LABOUR COURT- III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
LIR No. 4213/2016 (Old No. 142/09)
CNR No. DLCT13-000365-2009
Sh. Raj Kumar
S/o Sh. Babu Ram Giri,
R/o E-1/174, Nand Nagari,
Delhi - 110 093.
Through Delhi Labour Union,
Agarwal Bhawan, G.T. Road,
Tis Hazari Courts,
Delhi - 110 054.
... Workman
Versus
The Managements of
1. University of Delhi
Through its Registrar,
Delhi - 110 007.
2. The School of Open Learning
Through its Executive Director,
University of Delhi,
Delhi - 110 007.
... Managements
Date of Institution : 23.07.2009
Date of Arguments: 05.02.2022
Date of Judgement : 18.04.2022
JUDGEMENT
1. The present claim under Section 10 (4A) of the Industrial Disputes (Delhi Amendment) Act, 2003 has been instituted by the workman on the ground that he joined the employment of the LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 1/27 management with effect from 15.02.1996 as Office Attendant on daily wage basis. It has been further stated that he was lastly posted with the Office of the Executive Director, School of Open Learning, University of Delhi (management no. 2 herein). It has been further stated that the workman is having a long tenure of service with the management and he was discharging his duties to the entire satisfaction of his superiors. It has been further stated that he was having unblemished and uninterrupted record of service to his credit.
2. The workman, in the statement of claim, has further pointed-out that prior to his joining, he was properly interviewed by the management and subsequently he was given employment on ad-hoc basis with effect from 17.09.1997. It has been further stated that he was being paid salary in the pay-scale applicable to him but he was not given various facilities like uniform, annual increment, GPF, bonus, medical reimbursement etc. which were being paid by the management to the other regular workmen. It has been further stated that the salary of the workman was directly credited by the management in his bank account.
3. It has been further stated that initially the management was giving two months break to the workman but after the year 2000 onwards, the management started giving him only one month break in the month of May of every year and one day break only in December every year. It has been further stated that all these breaks were being given by the management only with a view to circumvent the procedure of law and to avoid its legal liabilities.
4. The workman has alleged that on 29.05.2009 again a break LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 2/27 was given to him but thereafter, he was not taken up in the job by the management and as such the management terminated his services by way of not assigning duties to him after 29.05.2009, instead of regularizing the workman in the job. It has been further stated that the workman along with some of his co- employees sent a legal demand notice dated 09.07.2009 to the management requesting for regularization in services.
5. It has been further stated that after the receipt of the said notice, the management issued a letter to him for engaging him afresh on contract basis on a consolidated/fixed amount and that too at a much lesser salary. It has been alleged that the said letter is absolutely illegal and based on baseless terms.
6. It has been alleged that the workman has not committed any misconduct of any kind and no memo, show cause notice or charge-sheet has ever been served upon the workman, no domestic enquiry has been conducted by the management prior to his termination from the services. It has been further stated that the termination of the workman is in violation of the principles of natural justice and no seniority list was displayed by the management at the time of his aforesaid termination. It has been further stated that the workers which are juniors to the claimant have been retained in job by the management.
7. It has been further submitted that even otherwise, a settlement was arrived at in between the union of the workman and the management to the effect that a person who completes 730 days of work with the management will be regularized. It has been further stated that the Executive Council of the LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 3/27 management in its meeting dated 08.06.1991 decided and resolved that the employees/workmen who had been working as daily wager/ad-hoc/consolidated wages for more than 730 days would be absorbed in regular services. The workman has further stated that one dispute bearing ID No. 164/2000 was raised by one Sh. Shyam Lal and 10 others regarding the regularization of their services and after relying upon the said settlement, the Court of Sh. N.K. Gupta, the then Ld. Presiding Officer, Industrial Tribunal No. 1 had passed an award dated 14.05.2002 in favour of the workman and the said award was up-held even by the Hon'ble High Court of Delhi in WP (C) No. 2043/2003 vide orders dated 16.11.2005 but subject to certain modifications.
8. It has been further stated that as per the above said settlement, the management should have regularized the services of the workman but instead of regularizing his services, the management has terminated his services with effect from 29.05.2009. It has been further stated that the workman is totally unemployed since 29.05.2009.
9. On the basis of the above said allegations as contained in the claim, the workman has prayed that an appropriate award be passed in his favour holding his termination to be illegal. It has been further prayed that the workman be held entitled to reinstatement in services with continuity of services and full back wages.
10. Both the managements i.e. the University of Delhi (management no. 1) and the School of Open Learning LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 4/27 (management no. 2) have filed on record their separate written statements but the stand of both the managements is more or less the same. The managements in their written statements have stated that both the managements i.e., the management no. 1 and the management no. 2 are two distinct and separate managements and as such the present proceedings against both the managements are not maintainable. The management no. 1 has further stated that it is neither a necessary nor a proper party in the present matter and as such the present proceedings against the management no. 1 are not maintainable.
11. The managements have further stated in their respective written statements that the workman has got no right in the services as he was admittedly engaged on purely ad-hoc basis for a specific duration on account of exigencies of work and as such the workman cannot claim any right either for reinstatement or for regularization. It has been further stated that after the expiry of the period for which the workman was appointed, all the relationship comes to an end permanently. It has been further stated that the workman was appointed on ad-hoc basis only for a period of six months at a Group-D Post with the management no. 2 and after some break, he was offered fresh engagements for further period of six months on ad-hoc basis. It has been further stated that the terms and conditions of the ad-hoc engagement of the workman clearly stipulate that hiring of the workman would not entitle him to have any claim on regularization in services.
12. It has been further stated that the engagement of the workman was not made against any permanent vacancy or against any sanctioned post. It has been further stated that under LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 5/27 the provisions of the Delhi University Act, any appointment to the non-teaching staff (including Group-D employees) can only be made against a sanctioned post and that too by a duly constituted selection committee after advertising the said vacancy and by following the due procedure as laid down in the rules and regulations of the Delhi University Act. It has been further stated that on account of rush which generally occurs at the time of admissions and examinations, the management engages the workmen on ad-hoc basis to meet the specific requirements of the management no. 2.
13. It has been further stated that the 6th Pay Commission has recommended that no candidate who does not possess the minimum qualification of Matric can be recruited in the school. It has been further stated that the six months period of the workman expired in 2009 and thereafter, the management no. 2 was not in a position to offer further engagement on ad-hoc basis to the workmen who were not fulfilling the eligibility criteria. It has been further stated that the Governing Body discussed with the management regarding the engagement of 22 Non-Matric Group-D ad-hoc staff as these workmen could not have been engaged being Non-Matric workmen on ad-hoc basis in view of the recommendations of the 6th Pay Commission. It has been further stated that the Governing Body took a sympathetic view and offered to engage these 22 people on contractual basis as per the terms and conditions of the Contractual Staff of Delhi University only with a view to help these ad-hoc employees as a special case so that they were not rendered jobless.
14. It has been further stated that there was no question of the LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 6/27 reinstatement of the workman in the present case as he was neither eligible nor he has any right in services. It has been further stated that mere working for a long duration would not make the workman entitle for reinstatement/regularization/compensation.
15. It has been further stated that there is no vested right in any workman to claim regularization after completion of 730 days of work as alleged by the workman in the claim petition. It has been further stated that automatic regularization after working for 730 days is not in conformity with a catena of judgements passed by the Hon'ble Supreme Court of India. It has been denied that there is any such settlement in between the union and the management to the effect that a person who put in 730 days of work will be regularized. It has been further stated that any orders passed in mediation proceedings for any particular case are not binding upon the management. It has been denied that the workman was properly interviewed prior to his job. It has been further stated that the duration of six months period of ad-hoc engagement of the workman expired on 29.05.2009 and after that, since the workman did not meet the eligibility qualification as laid down by the 6 th Pay Commission, the management was not in a position to further engage the workman. It has been denied that any juniors of the workman have been retained in services. It has been further stated that the question of termination of services of the workman on 29.05.2009 does not arise because the relationship of workman with the management came to an end on 29.05.2009 by efflux of time. It has been denied that the present case is covered by the case of ID No. 164/2000 referred to by the workman in his LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 7/27 statement of claim. Rest of the contents of the statement of claim have been denied by the management and it has been prayed that the claim filed by the workman may be dismissed with exemplary costs being devoid of any merits and ill-founded.
16. Separate rejoinders have been filed by the workman to the separate written statements filed by the managements reiterating and reaffirming the stand as taken by the workman in his statement of claim and denying the contents of the written statements filed by the managements.
17. The Ld. Predecessor of this court, out of the pleadings of the parties, framed the following issues on 13.10.2009 :
1. Whether termination of the claimant by the management is illegal?
2. Relief.
18. Now, coming to the evidence, the workman Sh. Raj Kumar has examined himself as WW-1 and in his evidence by way of affidavit Ex.WW1/A on record, he has reiterated and reaffirmed the stand as taken by him in his statement of claim. He has filed on record the copy of legal demand notice dated 09.07.2009 as Ex.WW1/1, photocopies of postal receipts thereof as Ex.WW1/2 and Ex.WW1/3, copy of the award dated 14.05.2002 passed by Sh. N.K. Gupta, Ld. Presiding Officer, Industrial Tribunal No. 1 in ID No. 164/2000 as Ex.WW1/4, copy of the orders dated 16.11.2005 passed by the Hon'ble High Court of Delhi in WP (C) No. 2043/2003 as Ex.WW1/5, copy of the memorandum dated 15.02.1996 as Ex.WW1/6, copy of the memorandum dated 17.09.1997 as Ex.WW1/7, copy of the memorandum dated LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 8/27 11.12.2008 as Ex.WW1/8 and copy of the memorandum dated 10.07.2009 as Ex.WW1/8.
19. The management no. 1 did not lead any evidence in the present matter and the evidence on behalf of the management no. 1 was closed by the statement of Ld. AR of the management no. 1 on 18.09.2012.
20. The management no. 2 has examined its Section Officer Sh. M.S. Bisht as MW-1 and in his evidence by way of affidavit Ex.MW1/A on record, he has reiterated and reaffirmed the stand as taken by the managements in their respective written statements. He has relied upon the joining report dated 29.12.2006 as Ex.WW1/M1, joining report dated 14.01.2000 as Ex.WW1/M2, joining report dated 02.08.1999 as Ex.WW1/M3, joining report dated 06.01.1999 as Ex.WW1/M4, joining report dated 13.12.2000 as Ex.WW1/M5, joining report dated 24.07.2001 as Ex.WW1/M6, joining report dated 05.08.2002 as Ex.WW1/M7, joining report dated 17.01.2002 as Ex.WW1/M8, joining report dated 29.01.2003 as Ex.WW1/M9, joining report dated 12.07.2004 as Ex.WW1/M10, joining report dated 21.01.2004 as Ex.WW1/M11, joining report dated 04.08.2003 as Ex.WW1/M12, joining report dated 04.08.2003 as Ex.WW1/M13, joining report dated 06.01.2005 as Ex.WW1/M14, joining report dated 04.07.2005 as Ex.WW1/M15, joining report dated 03.07.2006 as Ex.WW1/M16, joining report dated 28.12.2005 as Ex.WW1/M17, joining report dated 12.12.2007 as Ex.WW1/M18, joining report dated 09.07.2007 as Ex.WW1/M19, joining report dated 17.06.2008 as LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 9/27 Ex.WW1/M20 which have already been exhibited during the cross-examination of the workman. MW-1 has further filed on record recommendations of 6th Pay Commission as Ex.MW1/1 and copy of memorandum dated 10.07.2009 as Ex.MW1/2.
21. Perusal of the orders dated 10.07.2014 reveals that MW-1 Sh. M.S. Bisht retired and thereafter, the evidence by way of affidavit of Sh. Vinod Joshi, the Section Officer of the management no. 2 was filed as MW-1. In his evidence by way of affidavit Ex.MW1/A on record, he has again reiterated and reaffirmed the stand as taken by the managements in their written statements. He has relied upon the documents which have been exhibited as Ex.WW1/M1 to Ex.WW1/M20, Ex.MW1/1 and Ex.MW1/2 by Sh. M.S. Bisht.
22. This witness has been cross-examined in detail by the workman and his detailed cross-examination is contained in the file of the case titled as Deepak Sharma Vs. University of Delhi bearing LIR No. 4247/2016.
23. The management no. 2 has further examined its Assistant Registrar Sh. Raja Ram as MW-2 and this witness in his evidence by way of affidavit Ex.MW2/A on record, has reiterated and reaffirmed the stand as taken by the managements in their respective written statements.
24. This witness has been cross-examined in detail by the workman.
25. The detailed cross-examinations of the above said LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 10/27 witnesses shall be discussed during the later part of this judgement.
26. The workman and the management no. 2 have filed on record their written final arguments in the matter titled as Deepak Sharma Vs University of Delhi bearing LIR No. 4247/2016. The management no. 1, however, has not filed on record any written final arguments. I have carefully gone through the entire material available on record including the written final arguments filed on record by the parties.
27. My issue-wise findings on the issues framed by the Ld. Predecessor of this court on 13.10.2009 are as under :
Issue No. 1 :
28. In the written final arguments filed on record by the workman it has been argued that the workman has worked continuously as per Section 25-B of the ID Act as has been admitted by MW-1 and MW-2 in their respective cross- examinations and as such there is violation of Section 25-F of the ID Act by the management. It has been further argued that juniors to the workman have been retained in service but the workman has been thrown out of the services by the management in violation of Section 25-G and H of the ID Act. It has been further argued that no seniority list was prepared or displayed by the management as is apparent from the cross- examination of MW-1 and MW-2. It has been further argued that prior to termination of the services of the workman, no permission was sought for by the managements from the Govt. of NCT of Delhi and as such there is violation of Section 25-N of the ID Act. It has been further argued that the management has LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 11/27 also violated the principle of equal pay for equal work and the right to life of the workman has also been violated by the management. It has been further argued that workman is entitled to reinstatement with full back wages and continuity of services and the Labour Court is empowered to grant the relief as prayed for by the workman in the statement of claim. The workman in the written final arguments has relied upon the judgements titled as SBI Vs. N. Sundara Money cited as (1976) 1 SCC 822; titled as Hindustan Steel Pvt. Ltd. Vs. Orissa cited as (1976) 4 SCC 222; titled as Santosh Gupta Vs. State Bank of Patiala cited as (1980) 3 SCC 340; titled as Surender Kumar Verma Vs. CGIT cited as (1980) 4 SCC 443; titled as Mohan Lal Vs. Bharat Electronics cited as (1981) 3 SCC 225; titled as Anoop Sharma Vs. Executive Engineer cited as (2010) 5 SCC 497; titled as MCD Vs. Ram Milan cited as (2016) ILLJ 144 Del; titled as Ajaypal Singh Vs. Haryana Warehousing Corporation cited as (2015) 6 SCC 321; titled as Devender Singh Vs. Municipal Council cited as (2011) 11 SCC 584; titled as Delhi Cantonment Board Vs. CGIT cited as 129 (2006) DLT 610; titled as Harjinder Singh Vs. Punjab State Warehousing cited as (2010) 3 SCC 192; titled as Jasmer Singh Vs. State of Haryana cited as (2015) 4 SCC 458; titled as Samishta Dube Vs. City Board cited as (1999) 3 SCC 14; titled as Gaffar & Ors. Vs. Union of India cited as 1983 (31) BLJR 282; titled as Olga Tellis Vs. BMC cited as (1985) 3 SCC 545; titled as Bidi Leaves Merchant Association Vs. State of Bombay cited as AIR 1962 SC 486; titled as MSRTC Vs. Cateribe Rajya P. Karamchari Sanghatana cited as (2009) 8 SCC 556; titled as Hindustan Tin Works Vs. Employees of Hindustan Tin Works Pvt. Ltd. cited as (1979) 2 SC 80; titled as Sudarshan LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 12/27 Rajput Vs. U.P. State Road Transport Corporation cited as (2015) 2 SCC 317; titled as Tapash Kumar Paul Vs. BSNL and Anr. cited as AIR 2015 SCC 257; titled as Raj Kumar Dixit Vs. Vijay Kumar Gauri Shankar cited as (2015) 9 SCC 345; titled as DTC Vs. Ram Kumar cited as (1982) ILLJ 191 Del; titled as KCP Employees Association Vs. KCP cited as (1978) 2 SCC 42.
29. Whereas, on the other hand, the management no. 2 in the written final arguments has argued that the workman was engaged on purely ad-hoc basis only for a specific duration on account of exigencies of work and as such the workman has got no right in the services. It has been further argued that the engagement on ad-hoc basis does not create any permanent relation in between the workman and the management. It has been further argued that the ad-hoc engagement issued to the workman clearly stipulates that the period of hiring of the workman is for not exceeding six months and as such the present hiring would not entitle the workman to have any claim on regularization in service. It has been further argued that the terms and conditions of the engagement/appointment were accepted by the workman at the time of joining the services with the management. It has been further argued that the workman never challenged or objected to fresh engagement for six months on ad-hoc basis. It has been further argued that the engagement of the workman was not made against any permanent vacancy or against any sanctioned post. It has been further argued that the management no. 2 school cannot make any regular appointments in any post unless the post is sanctioned and approved by the UGC. It has been further argued that regular appointment can be LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 13/27 made only after advertisement of the post and that also by following the rules of recruitment and eligibility as laid down in the statute. It has been further argued that the workman/claimant and the other similarly placed workman were not possessing the minimum qualification of Matric as per the recommendations of the 6th Pay Commission and as such their tenure was not extended by the management after the expiry of the period of six months in May 2009. The management has relied upon the cross- examination of WW-1 and has argued that the claim of the workman is misconceived and the same has to be rejected. The management has relied upon the judgements titled as Hotel Imperial, New Delhi and Ors. Vs. Hotel Worker's Union cited as AIR 1959 SC 1342; titled as Delhi Cloth & General Mills Vs. Rameshwar Dayal cited as AIR 1961 SC 689; titled as Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava cited as 1992 Legal Eagle(SC) 455; titled as C.S. Azad Krishi Evem Prodyogiki Vishwa Vs. United Trades Congress & Anr. cited as 2007 Legal Eagle(SC) 1423 ; titled as General Manager, Telecom Vs. A. Srinivasa Rao & Ors. cited as MANU/SC/1367/1997 and titled as Secretary, State of Karnataka and Others Vs. Umadevi and others cited as 2006 (4) Scale 197.
30. Going by the pleadings of the parties, the evidence led by the parties and the written final arguments which have been placed on record by the parties, the vital question to be considered by this court is as to whether the management no. 2 terminated the services of the workman on 29.05.2009 illegally and unlawfully in violation of Section 25-F, 25-G, 25-H and 25- N of the ID Act as is the submission of the workman or as to LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 14/27 whether the services of the workman came to an end by efflux of time as the workman was appointed on ad-hoc basis for a specific period of time for a specific purpose only as has been argued by the management no. 2.
31. The workman himself has placed on record various copies of the memorandums dated 15.02.1996, 17.09.1997, 11.12.2008 and 10.07.2009 in the form of Ex.WW1/6 to Ex.WW1/9. In fact, above said memorandums are the engagement letters/appointment letters of the workman which were issued by the management no. 2 in favour of the workman. The above said appointment letters/engagement letters are more or less on the same terms and conditions. As such, I would like to discuss only one of the above said engagement letters/appointment letters. Ex.WW1/8 i.e., the letter dated 11.12.2008 is one such appointment letter. The said appointment letter reads as under :
SCHOOL OF OPEN LEARNING 5 CAVALRY LINES UNIVERSITY OF DELHI DELHI - 110007 Endt.No./SOL/EST/08/4031 Dated :- 11/12/08 MEMORANDUM Mr. Raj Kumar, is hereby informed that he has been appointed as Office Attendant on purely ad-hoc basis in the School in the scale of Rs.2550-55-2660-60-3200 plus usual allowances with effect from the date of his joining, subject to the following conditions:-
i) The appointment is purely on ad-hoc basis and will be for a period not exceeding six months, but is liable to be LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 15/27 terminated at any time without notice and without assigning any reason.
ii) He will receive pay in the Office Attendant scale of pay of Rs.2550-55-2660-60-3200 and such allowance as admissible under the rules in force in the University.
iii) The ad-hoc appointment will not have any claim in future appointment.
iv) He will have no claim for antedating of increment when he is selected for regular appointment and this will be a condition precedent to the acceptance of the ad-
hoc appointment.
v) All the other usual conditions of ad-hoc appointment will apply in his case.
vi) If the above conditions are acceptable, he is required to join the duty latest by 29/12/2008 failing which the offer of appointment stands as cancelled.
Executive Director Mr. Raj Kumar ____________ ____________ ____________
32. A perusal of the above said engagement/appointment letter Ex.WW1/8 on record categorically reveals that the appointment of the workman was for a specific period of six months only and that too on purely ad-hoc basis. The said appointment letter further stipulates that the appointment of the workman was liable to be terminated at any time without notice and without assigning any reason. Clause No. 3 of the said appointment letter further stipulates that the ad-hoc appointment was not to have any claim in future appointment.
LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 16/2733. I am of the opinion that the above said appointment letter is of vital importance to determine the controversy involved in the present matter and to determine the nature of the employment of the workman with the management no. 2.
34. To my mind, the above said appointment letter Ex.WW1/8 itself sets at rest the controversy involved in the present matter because the above said appointment letter stipulates that the appointment of the workman with the management no. 2 was for a specific period of six months, purely on ad-hoc basis and the same was liable to be terminated at any time without notice and without assigning any reason. As stated hereinabove, Clause No. 3 of Ex.WW1/8 further specifically stipulates that the workman will not have any claim in the future appointment. Ex.WW1/8 has been placed on record by none other but by the workman himself. To my mind, the workman is bound by the terms and conditions as contained in Ex.WW1/8 and as such, in the opinion of this court, the only irresistible conclusion is that the workman cannot have any claim for a permanent post.
35. In the cross-examination, WW-2 states that I am 10th class failed. He further states that he came to know about the post in the department from the newspaper. He further states that he does not remember the date and month of advertisement published in newspaper. He further states that it was published in Hindustan Times in English. He further states that he does not have the said newspaper nor he has filed the same. He further states that Ex.WW1/6 is his first appointment letter. He further states that Ex.WW1/7 is his next appointment letter. He further states that he knows the terms as stated in the appointment letter LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 17/27 Ex.WW1/7. He further states that he is not aware that he was appointed for the period of six months. He further states that he is aware that he was appointed on ad-hoc basis. WW-1 admits it to be correct that he was issued fresh appointment letter after the period of six months. By way of volunteer, he states that he was given a break of one day in a year throughout his service. He further states that he has made objection regarding this to his Director. He further states that however, he has given written representation or objection relating to these appointments on ad- hoc basis for the prescribed period but he has not placed the same on record. He further states that he used to sign a joining letter every time for fresh appointment letter which was issued to him. He further states that Ex.WW1/M1 to Ex.WW1/M20 are the letters given by him to the management at the time of joining of fresh appointment which bears his signatures at point A. He further states that he was satisfied with his fresh joining after the period of six months. He further states that he was not given uniform, GPF, Bonus, medical reimbursement, annual increment etc. He further states that however, he was not given these benefits as he was working on ad-hoc basis and was not working on regular basis. He further states that he has not made any written complaint or objection or protested against the fact that these facilities were not given to him. He further states that he is not aware about 'Sanctioned post'. He further states that he cannot say whether his appointment was not against any sanctioned post. He further states that he is not aware about the recommendations of the VIth Pay Commission. He further states that he is not aware that no Government post can be filled without having passed Xth as per the VIth Pay Commission. He further states that he is not aware about the fact that because he LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 18/27 was not eligible to be appointed on any post after the recommendations of VIth Pay Commission, he was offered the employment on contract basis by the management no. 2 which he had refused to accept. He further states that he is not aware if any other people similarly placed like him accepted the offer of contract employment offered by the management no. 2. He further states that he is not aware that those people who were having the qualification continued with the management no. 2. He admits it to be correct that the management no. 2 has not terminated his services. He further states that he made one representation to Mr. Pokhrial for regularization of his services in the year 2006. He further states that he was not issued any termination letter by the management.
36. It has to be seen that in the cross-examination, WW-1 has categorically admitted it to be correct that he is aware about the terms of his appointment letter Ex.WW1/7. As stated hereinabove, all the appointment letters which have been placed on record by the workman in the form of Ex.WW1/6 to Ex.WW1/8 are on the same lines. The terms and conditions as contained in the above said appointment letters as well as in the joining reports Ex.WW1/M1 to Ex.WW1/M20 are more or less the same. Needless to mention that in the appointment letter Ex.WW1/8, it has been stated that his appointment was only on ad-hoc basis. He has again admitted it to be correct that his appointment was for a period not exceeding six months. WW-1 further states that after a certain gap after expiry of the six months, he was issued another appointment letter. He has again admitted it to be correct that he used to receive fresh appointment letters either after the period of six months. He has LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 19/27 again admitted it to be correct that he was issued various appointment letters, purely on ad-hoc basis. He has again admitted to be correct that Ex.WW1/M1 to Ex.WW1/M20 are the various joining letters issued to him by the management at the time of joining of fresh appointment which bears his signatures at point-A. He again states that he was satisfied with the offer of appointment given to him by the management no. 2 after various time periods. He again admits it to be correct that he had been giving fresh joining reports on every occasion when he was issued a fresh appointment letter.
37. The above said cross-examination, to my mind, clearly reveals that the workman was absolutely aware about the nature of his appointment with the management no. 2. He has categorically admitted that his appointment was purely on ad-hoc basis for a specific period of six months. He has again categorically admitted it to be correct that he had given various fresh joining reports in the form of Ex.WW1/M1 to Ex.WW1/M20, whenever, he was issued fresh appointment letters by the management. He has admitted it to be correct that he was satisfied with the offers of appointment given to him by the management no. 2. To my mind, the cross-examination of WW-1 demolishes the entire stand of the workman as contained in his claim petition. I have no hesitation to hold that the cross- examination of WW-1 does not leave even an iota of doubt in the mind of the court to the effect that the workman cannot claim any right of continuity in his services.
38. Though, the workman, in the cross-examination states that he is not aware about the recommendations of the VIth Pay LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 20/27 Commission but he has not denied specifically that the other people similarly placed like him accepted the offer of contract employment offered by the management no. 2 after the recommendations of the VIth Pay Commission. He has not specifically denied that the people similarly placed like him continued with the management no. 2 because they were having the requisite qualifications. As such, to my mind, the workman has tacitly admitted the recommendations of the VIth Pay Commission and the stand of the management to the effect that after the VIth Pay Commission, a person who was not a Matriculate could not be continued in services. Needless to mention that the workman has categorically admitted in the cross-examination that he is not 10th passed.
39. Furthermore, the testimony of WW-1, to my mind, reinforces the stand of the management to the effect that the appointment of the workman with the management no. 2 came to an end by efflux of time and as such, there was no occasion for the management to terminate the services of the claimant. The workman in the cross-examination has admitted it to be correct that the management no. 2 had not terminated his services and that no termination letter was received by him.
40. Furthermore, it has to be seen that though the claimant claims in the cross-examination that he had come to know about the vacancy with the management from the newspaper Hindustan Times but he has not placed on record any such advertisement.
41. As stated herein above, to my mind, the workman was employed by the management no. 2 only for a specific period LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 21/27 and only for a purpose purely on ad-hoc basis and that the employment of the workman with the management no. 2 came to an end by efflux of time in the year 2009. I have no hesitation to hold that the workman cannot claim any continuity of services or the right to remain in the services of the management.
42. While holding so, I am fortified by the observations of the Hon'ble Supreme Court of India and that of the Hon'ble High Courts in the following authorities :
The Hon'ble Supreme Court of India in the matter titled as Yogesh Mahajan Vs. Director, All India Institute of Medical Sciences cited as 2018 LLR 366 SC, in Para No. 6 there has held as under:
"6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that, in fact, due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner."
43. Similarly, the Hon'ble High Court of Delhi in the case titled as Ram Kishore Vs. M/s. American Express Banking Corporation in WP (C) No. 3387-88/2006 decided on 27.08.2009 has held in Para No. 5 thereof as under :
"5. I have given my anxious consideration to the above rival arguments advanced by the counsel for the parties but I could not persuade myself to agree with the LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 22/27 submission made by the counsel appearing on behalf of the petitioners. It is an admitted case of the petitioners that they were appointed with respondent No. 1 for a fixed term of three years. However, their case is that their appointment for a fixed term of three years was a camouflage and amounts to unfair labour practice. As to what amounts to an unfair labour practice is provided in Fifth Schedule annexed with the Industrial Disputes Act, 1947 and Clause 10 of the said Schedule relied upon by learned counsel appearing on behalf of the petitioners, provides that to employ a workman as Badli or casuals or temporary and continue them for years with an object to deprive them the benefit of permanent post amounts to an unfair labour practice. It may be noted that the petitioners were neither appointed as Badli nor in their capacity as casuals or temporary. Their appointment was for a fixed term of three years. The petitioners had accepted the terms and conditions of their appointment which clearly stipulates that their appointment was for a fixed term of three years. Their grievance in the dispute raised by them before the Central Government was for non-extension of the period of their employment. This does not fall within the scope of unfair labour practice as provided in the Fifth Schedule to the Industrial Disputes Act, 1947 particularly Clause 10 relied upon by the counsel appearing on behalf of the petitioners."
44. The abovesaid judgement dated 27.08.2009 was challenged by the workmen in LPA No. 511/2009 but the Hon'ble High Court of Delhi dismissed the abovesaid LPA titled as Ram Kishore Vs. American Express Bank Corporation on 18.12.2009 holding therein in Paras No. 8, 10, 13, 14 and 15 thereof as under :
"8. We have considered the submissions of learned counsel for the parties. It must be noted at the outset that it is not in dispute that the Appellant was appointed only on a contractual basis. The contention on behalf of the Appellant that the contract was camouflage since the work was of a perennial nature is really not supported by any material placed on record. However, the fact remains that the contract of the Appellant was not renewed. Also, LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 23/27 it is not as if the Appellant was employed as contract labour in which case a different set of factors would have to be considered."
"10. As far as the present case is concerned, there is no factual dispute that the Appellant was appointed as a Cleaner on a contract basis for a fixed period of three years. The contract was not renewed resulting in the termination of his services at the end of the contract period. In our considered view, the provisions of Clause (bb) of Section 2 (oo) of the ID Act stand attracted and the termination of the services of the Appellant, as a result of non-renewal of the contract of employment on its expiry, does not amount to retrenchment under Section 2 (oo) of the ID Act."
"13. A perusal of the judgement of the Supreme Court in Punjab State Electricity Board shows that Section 2 (oo) of the ID Act would clearly apply to cases where the termination of services was brought about the expiry of the period of contract. It was pointed out in the said decision that the criteria that would apply to determine if the engagement of contract labour was a sham or a device to camouflage a continuous employment would not apply to a case where the appointment is on a contract basis, in Escorts Ltd also it was held that termination of the services at the expiry of a fixed period of appointment did not attract Section 25-F and Section 25-G of the ID Act."
"14. In our considered view, as far as the present case is concerned, the Government was justified in coming to the conclusion that the dispute arising out of the termination of services of the Appellant as a result of the expiry of the period of contract under which he was appointed, was not required to be referred for adjudication by the Industrial Tribunal."
"15. We concur with both the reasoning and the conclusion arrived at by the Learned Single Judge in the impugned judgement. Consequently, the appeal is dismissed with no order as to costs."
45. It has to be further seen that the Hon'ble Apex Court in LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 24/27 the judgement titled as Director, Institute of Management Development, U.P. vs. Smt. Pushpa Srivastava cited as 1992 (3) SCR 712, has held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the tend of the concerned calendar year as issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end.
46. It has to be further seen that a three judge bench of the Hon'ble Supreme Court, in the judgement titled as A Umarani vs. Registrar, Cooperative Societies & Ors. cited as (2004) (7) SCC 112, made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. It was further held that regularization was not and could not be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization furthermore cannot give permanence to an employee whose LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 25/27 services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.
47. In the written final arguments, the workman has relied upon the cross-examination of MW-1 and MW-2 as well. It is true that MW-1 in the cross-examination has admitted that the workman worked continuously for certain periods which is apparent even from the joining reports Ex.WW1/M1 to Ex.WW1/M20 but the question is as to whether, the mere working of the claimant for a longer period entitles the workman for permanency in the post. To my mind, the answer is in the negative.
48. It is true that as per the admissions of MW-1 or MW-2, the workman worked with the management no. 2 for the above said period but as has been held in the above said authorities, to my mind, mere long tenure of service cannot confer any right on the workman to remain in the permanent employment of the management as has been held in the above said judgements.
49. It is also true that MW-1 has admitted in the cross- examination that no notice or notice pay in lieu of the notice was either offered or paid to the workman, but to my mind, the case of the workman is not covered under the category of retrenchment. In the light of the above said authorities, I have no hesitation to hold that the provisions of Section 25-F, G, H and N of the ID Act are not attracted in the facts and circumstances of the present case and rather the case of the workman is squarely covered under Section 2 (oo) (bb) of the ID Act as there was no LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 26/27 termination of the services of the workman by the management and rather the services of the workman came to an end by efflux of time.
50. In the light of the above said discussion, I have no hesitation to hold that the workman has failed to prove Issue No. 1 in his favour. Accordingly, the Issue No. 1 is decided against the workman. Consequently, the workman is not entitled for any relief. Issue No. 2 is also decided against the workman and in favour of the management. The claim of the workman is hereby dismissed. Reference is answered accordingly.
51. A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and the Judicial File be consigned to Record Room as per rules.
ANNOUNCED IN OPEN COURT
on 18th day of April, 2022 Digitally signed
RAJ by RAJ KUMAR
KUMAR Date: 2022.04.22
09:45:34 +0530
(Raj Kumar)
Presiding Officer, Labour Court-III
Rouse Avenue Courts, New Delhi.
LIR No. 4213/16 Raj Kumar Vs. University of Delhi Page 27/27