Delhi District Court
Shri Dal Bahadur Thapa vs The on 2 April, 2019
1
IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
CID No. 2088/16
Shri Dal Bahadur Thapa
son of Sh Charumani
r/o RZF1/349, Gali No. 3
Mahavir Enclave, Palam, New Delhi.
.......... Workman
Versus
The Management of M/s Taj Sats Catering Ltd
IGI Airport Complex, New Delhi110037.
........Management
Date of Institution: 18/11/2014.
Date of Award: 02/04/2019
AWARD
1) Present complaint u/s 33 A of Industrial Dispute Act has been filed
by the complainant against the management on the ground that
complainant had joined the employment of the management as driver
since June, 2005 and his last drawn wages was Rs.8,000/ per month,
which is lesser than the permanent driver of the management. The
management engaged the workman for the work against the post of
driver which was permanent and perennial in nature of work but the
1Out of 19
2
management issued an artificial appointment letter to the workman
appointing him on temporary basis for a fixed period of 32 weeks from
16/02/2006 to 27/09/2006 on monthly salary of Rs.4500/ per month
which was lesser than the wages of other permanent drivers of the
company. The contract of the workman was extended for further two
year after giving him an artificial break in service for about five days.
Thereafter, contract of the workman was extended for further two years
commencing from 3/10/2006 to 2008 and thereafter for another two
years. On 3/10/2010, management had reappointed him for another
two years with a consolidated salary of Rs.25,000/ per month besides
other benefits. The workman along with some other employees had
made a representation to the management to issue him permanent
appointment letter but the management had not taken any action in this
regard. As the management had not taken any action against the
representation of the workman for regularization, an Industrial Dispute
bearing No. 69/12 has been filed against the management by the
workman. On 18/12/2012 when workman reported for duty,
management had not allowed him to join the duty. After the illegal
termination of the services of the workman, he had filed an industrial
case before the conciliation officer, however, management had not
reinstated the workman. The action of the management is illegal,
wrongful and malafide. Hence the present complaint has been filed by
the complainant.
2) Written statement has been filed by the management.
Management has taken the preliminary objections that complaint filed
by the workman is misconceived. It has been further submitted by the
2Out of 19
3
management that complainant was appointed on fixed term temporary
contract basis. His fixed term appointment came to an end on 2 nd
October, 2012. The automatic termination of the fixed term temporary
contractual appointment of the complainant in terms of his contract
employment does not fall within the purview of section 33 or section
33A of Industrial Dispute Act. Thereafter, dispute raised by the
complainant was referred by the Govt of Delhi and said case is pending
before the Ld Labour Court. The complainant, had already raised an
industrial dispute challenging the termination from services, hence the
present complaint, as filed, is not maintainable. Rest of the allegations
as made out by the complainant has been denied by the management.
With these submissions, it has been prayed by the management that
the complaint as filed by the complainant workman be dismissed.
3) In rejoinder, the workman had denied the allegations as made out
by the management in the WS and reaffirmed the contents of the
complaint.
4) Out of the pleadings of the parties following issues were
framed by my Ld Predecessor:
1.Whether any valid Industrial Dispute is pending ?OPW
2. Whether the complaint is maintainable? OPW
3. Whether the management has contravened the provision of section 33 A of ID Act?OPW
4. Relief.
5) On 02/12/2005, issue no. 3 was modified to the following effect:
"Whether the management has contravened the provision of 3Out of 19 4 section 33 of ID Act"
6) Thereafter matter was listed for WE. On 02/12/2015, affidavit of WW1 Dal Bahadur Thapa was tendered and crossexamination was partly recorded. During the pendency of the case for WE, an application was filed by the management on the ground that the Award has been passed against the workman by the Ld. POLC in a reference u/s 10(1) of ID Act declaring that termination of workman was not illegal and was as per contract, and thereby management has sought the dismissal of the present complaint. This application was duly replied by the workman and arguments were heard on the application. Vide order dt. 30.08.2018 this Tribunal was of the opinion that since an issue in respect to the maintainability of the complaint has already been framed by my Ld. Predecessor, this issue can be decided without the evidence and hence issue no.2 "Whether the complaint is maintainable"
was treated as preliminary issue and arguments on the preliminary issue as well as application filed by the management for dismissal of the complaint were heard together.
11. Arguments heard from Ms. Poonam Dass , Ld. AR for the management and Ld. AR for the workman/complainant.
12. The contention of the workman/complainant in respect to the application, as filed by the management is two folds, firstly, that since the management has changed the service condition of the present workman/complainant by terminating his service during the pendency of an Industrial dispute no. 69/2012 raised by the workman for regularization of his services along with other workmen, hence, termination of service of present workman/complainant is violation of Section 33 of ID Act and thus, the present complaint is legally maintainable in the present form. The second limb of argument on behalf of workman/complainant has been that the 4Out of 19 5 Management Taj Sats Catering Ltd. has violated the Model Standing orders by appointing the present complainant on a fixed term contract. It was argued by the Ld. AR for the workman that since the year 2007 "Fixed term employment" has been replaced with the term "Badli" , in the Model Standing Orders, despite that the present management continued to appoint the complainant/workman and other similarly situated workman on a fixed term contract, which in itself is illegal and against the "Model Sanding Orders" . Therefore, it is prayed by the Ld. AR for the workman that the application filed by the management be dismissed and preliminary issue be decided in favour of the workman.
13. On behalf of management, Ms Poonam Dass had argued that the workman/complainant was appointed for a fixed period and after completion of his contractual period, the services of workman/complainant came to an end by efflux of time and there is no change in service condition of the workman, therefore, the provisions of Section 33 have not been violated by the Management. Hence, the present complaint u/s 33 A of ID Act, as filed by the workman is not maintainable. As regards the arguments of Ld. AR for the workman in respect to violation of "Model Standing orders" by the management, it is submitted by the Ld. AR for the management that the management Taj Sats Catering Ltd. , has their own "Certified standing orders " and as per their certified standing orders, there is no such category of employment called a "Fixed term employment". This term has been used by the workman/complainant himself in his complaint. As per the "Certified Standing orders" of the Management, the term used is the Temporary employees who are appointed for a limited period of time, as mentioned in the appointment letter. It is, therefore, stated by the Ld. AR for the management that since admittedly in the appointment letter of the workman/complainant, limited period of employment has been mentioned, 5Out of 19 6 hence, he was appointed as a "temporary workman" and after the completion of term of contract of employment as per the appointment letter, he was relieved from his services as no other renewal of his employment was there. It is, therefore, submitted by Ld. AR for the management that as the workman/complainant was never terminated nor discharged nor his service conditions were changed rather his services have come to an end by efflux of time, as per the period of employment, hence, there is no violation of Section 33 of ID Act, thus, the present complaint is not maintainable. It is further submitted by the Ld. AR for the management that vide order dt. 28.02.2018, Ld. POLC Sh. Lokesh Kumar Sharma, has answered the reference in negative in LIR no. 4094/16, which was preferred by present complainant against his alleged termination of services. Ld. POLC has dismissed the claim of the workman that his services was terminated illegally and has held that his services had come to an end due to efflux of time. Therefore, it was again prayed by the Ld. AR for the management that the present complaint, as such is not maintainable as there is no violation of Section 33 of the ID Act and once the Award has been passed in favour of the management stating that the termination of the workman was not illegal or unjustified, the present complaint is not maintainable and thus should be dismissed. The Management has relied upon following judgments:
1. BA Security Agents Employees Union Vs. Regional Labour Commissioner and ors, 2010 LLR 1083.
2. Mahender Singh Dhantwal Vs. Hindustan Motors Ltd. And ors. 1976 II LLJ 259 SC.
3. Management of Essopre Mills Ltd. vs. Presiding Officer, Labour Court and ors., 2008 III LLJ 614 SC.
14. I have considered the submissions of Ld. ARs for the parties, 6Out of 19 7 perused the record carefully and have carefully gone through the judgments relied upon by Ld. ARs for the parties.
15. Before filing the present complaint, the workman/complainant herein has already raised an industrial dispute in respect to his termination, the same was referred by the Government of NCT u/s 10 of ID Act to the court of Ld. POLC in following terms : " Whether the services of Sh. Dal Bahadur son of Sh. Charu Mani has been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled?"
16. Thus, it is clear that by way of ID no. 4094/16 , workman herein has challenged his termination to be illegal or unjustified by the management in the year, 2013. Thereafter in the year, 2014 present complaint u/s 33A of ID Act was filed by the workman/complainant on the same facts and circumstances.
7) In order to understand the scope of Section 33 A of the ID Act , it is necessary to reproduce the provisions of Section 33 and Section 33A of ID Act.
"Section 33 of ID Act:
" Condition of service, etc., to remain unchanged under certain circumstances during pendency of proceedings: (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before, (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings;
7Out of 19 8 or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute (or, where there are no such standing orders, in accordance with the term of the contract, whether express or implied, between him and the workman.
(a) alter, in regard to any matter not connected with the dispute, the condition of service applicable to that workman immediately before the commencement of such proceedings; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise , that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) (4) (5) Section 33A:
Special provision for adjudication as to whether conditions of service, etc, changed during pendency of proceedings Where an employer contravenes the provisions of Section 33 during the pendency of proceedings (before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal, National Tribunal) any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner.
(a) To such conciliation officer or board, and the 8Out of 19 9 conciliation officer, or board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and
(b) to such arbitrator, Labour court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of This Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.
18. From the bare reading of the provisions of Section 33 of ID Act, it is clear that the purpose of section 33 of the Act is to protect the workman during pendency of any Industrial dispute against victimization by the employer for raising such Industrial dispute and, therefore, it has been laid down by the legislature that during the pendency of any proceedings in respect to an Industrial dispute, no employer shall alter the conditions of service, applicable to any workmen to the prejudice of the workmen.
19. Section 33A of Industrial Disputes Act, on the other hand enables the employee i.e. workman who has been aggrieved by such act of contraventions of provisions of Section 33 of ID Act by the Management or employer to make a complaint in writing to the Tribunal or Labour court and it has also been provided that such complaints shall be treated as a reference made u/s 10 of the ID Act.
20. From the provisions of Section 33 and section 33A of the ID Act, it is abundantly clear that section 33 prohibits the employer to alter the service conditions of the workman during pendency of any Industrial dispute, related to such Industrial dispute and in case any such term or condition is changed or altered by the employer, workman has been provided a right u/s 33 A, ID Act to make a complaint in this regard to the Labour Court or 9Out of 19 10 Industrial Tribunal where the matter is pending . In order to apply these principles to the present facts for applicability of Section 33A of ID Act, it is necessary that there should be an alteration in terms of service conditions of workman during the pendency of earlier industrial dispute. In the present case, as per the case of the workman, he was working with the employer/management for a fixed period of time and his service contract was time to time renewed by the management. Finally on 03/10/2012 he was not allowed to resume duty , as per the claim of the workman. It is the contention of the workman that he was being penalized for raising the Industrial dispute for regularization of his services. Whereas the contention of Ld. AR for the management is that workman was appointed only for a fixed period of time, as the nature of business of management i.e. of Air Catering is such that it keeps on fluctuating from time to time depending upon various contracts entered into between the management and other parties. Hence, management cannot afford to have all its employees on permanent basis. It is also the case of the management that as per the limited requirement and necessity , management appoints certain number of employees on contractual basis. Present workman is one of them. Since the term of employment of the present workman came to an end on 02.10.2012 and his services were not required by the management beyond 02.10.2012, therefore, the workman/complainant ceased to be in service w.e.f. 03.10.2013, or that his contract was not renewed further.
21. Workman has contested the claim of the management on two grounds, firstly that appointing of person for fixed term contract is illegal as is against the modal standing orders and Secondly that it was a change in service condition of the workman as he has raised an industrial dispute for his regularization. On the other hand, the contention of management is that workman was not appointed on fixed term contract basis as there is no such 10Out of 19 11 category of employees on fixed term contract, therefore, there is no violation of Model Standing orders and second aspect of the argument of Ld. AR for the management has been that the workman/complainant was appointed for a limited period of time which came to an end on 02.10.2012 and, therefore, as his service were not required further by the management, hence his further contract was not renewed. Thus, it is claimed by the management that it is not a case of termination but it is a case of non renewal of contract of the workman.
22. In order to prove their contentions, in respect to the fixed term contract and whether it is violation of the Model Standing orders. Ld. AR for the workman has placed on record the amendment made in Model Standing Orders in 2007, whereby Fixed Term employment was removed from the Model Standing Orders, in the year, 2007 by the Government and, therefore, it is submitted that anyone still employing a person on Fixed Term Contract basis is in violation of the Model Standing orders. On the other hand, Ld. AR for the management has placed on record their certified standing orders which specifically describe the classification of an employee in clause 2 of the rules, which is as follows: Classification of employees:
Employees shall be classified as:
A. Permanent B. Probationer C. Relief Employee/Reliever D. Temporary E. Casual F. Apprentice G. Trainee (A) Permanent: 11Out of 19 12 (B) Probationer: (C) Relief Employee/Reliever: (D) Temporary:
Temporary employee' will include:
i) A person who is appointed for a limited period of time mentioned in the Appointment letter
ii) A person employed in connection with increase in work which is of a seasonal or temporary character."
23. From the reading of classification of employee, as per Certified Standing Orders of the Management company, it is clear that the "Temporary employee" means and include a person who is appointed for a limited period of time mentioned in the appointment letter. It has been admitted by the workman/complainant that initially he was appointed as a driver on 16/02/2006 till 27.09.2006. Thereafter he was again appointed as a driver on temporary basis from 3.10.2006 up to 02/10/2008. Further he was appointed from 03/10/2008 up to 3/10/2010 and after completion of this period he was again reappointed from 3/10/2010 vide which the contractual employment of workman was extended for a period of two years commencing from 3.10.2010. Thereafter, admittedly the contract of employment of workman has not been extended by the management and his services came to an end on 2.10.2012. It is admitted on the part of the workman that his service tenure was for contractual period as per the appointment letter given to him, unless extended otherwise. Therefore, it can be presumed that on 2.10.2012 when obviously his service contract was not extended by the management, thus, his tenure of service had come to an end by efflux of time and not by any change of service condition, as per appointment letter issued by the management.
12Out of 19 13
24. Except during the course of the argument, Ld. AR for the workman has not raised the point in his pleadings that the workman was appointed on Fixed Term Contract service which was illegal being in contravention of the Model Standing orders and since the workman had acted upon employment contract and worked for all the periods so appointed, as admitted by both the parties, now it cannot be claimed by the workman that his service orders were illegal. This argument of Ld. AR for the workman cannot be accepted.
25. The question here is that what will be the effect of amendment of "Model Standing Order" after the certified standing orders have already made and certified for the management. This issue has been dealt with by the Hon'ble High Court of Judicature, Karnataka in case of M C Raju Vs. Executive Director , in this case Hon'ble High Court of Karnataka was dealing with the effect of amendment in Model Standing Orders on the Certified standing orders of a business establishment. In this case Hon'ble High Court of Karnataka has considered various provisions of Industrial employment (standing orders) Act, 1946 which deals with the provisions of Model Standing orders to be framed by the Government and Certified Standing orders which apply to the business establishment. After considering the issue of effect of amendment in Model Standing Orders on the Certified Standing orders of business establishment, Hon'ble High Court of Karnataka , has observed that : "The language of S.12A makes it clear that the Model Standing Orders shall be deemed to be applicable until the Standing Orders are made as contemplated by the Act. The reference to the Standing Orders, as finally certified under the Act in S.12A, is obviously to the first standing orders made for the establishment after the Act came into force. It, therefore, follows that if the Model standing Orders 13Out of 19 14 are amended subsequent to the coming into operation of the first Standing Orders in respect of the particular establishment, the same do not automatically become applicable to the establishment concerned. Steps have to be taken to amend the existing Standing Orders in accordance with S.10 of the Act. Until such steps are taken to amend the existing Standing Orders to bring them in conformity with the amended Model Standing Orders, the amended Model Standing Orders will not be applicable to the establishment".
It has been further held that :
" Thus, it becomes clear that it was not the intention of the legislature that the Model Standing Orders should become effective and come into operation immediately as and when they are amended. If the intention of the legislature was that they should be deemed to come into operation, as soon as the amendment came into operation, there would not have been a bar as contemplated in Subs.(1) of S.10. This is an additional reason which suggests that the legislature did not contemplate that the amendment to the Model Standing Orders should become operative as soon as the amendment comes into operation. We have, therefore, no hesitation in taking the view that as and when the Model Standing Orders are amended, the only way to give effect to the amendment is by resorting to the procedure of amendment contemplated by S.10 of the Act and that until the existing Certified Standing Orders are suitably amended, the amended Model Standing Orders cannot be deemed to be applicable to the concerned establishment".
27. In view of this, I am of the opinion that the arguments of Ld. AR for the workman that Certified Standing Orders of the Management herein were in contravention of Model standing orders and hence not applicable, 14Out of 19 15 cannot be accepted, as once Certified Standing Orders having been made by the Management and have been duly certified, the same will remain in effect till the amendment in Model Standing Orders is incorporated by the Management in their own Certified Standing Orders, by way of amendment.
28. The other limb of argument of Ld. AR for the workman is that his service conditions were violated by terminating his services. Once workman has himself admitted in his complaint that his service contract was renewed from 3.10.2010 for two years and thereafter there was no renewal letter, issued to him, this clearly shows that the service of the workman had come to an end when the contract had completed or expired on 2.10.2012. Therefore, there is no substance in the argument of Ld. AR for the workman that any service condition of the workman has been altered by the management or that the management has terminated the services of the workman during the pendency of the Industrial dispute. Pendency of Industrial dispute for regularization of the worker was separate from the completion of the term of contract of employment of the workman. Just because an Industrial dispute was pending between Management and workman, Management cannot be forced to continue with the employment of a contractual worker even after completion of contract. There are various judgments which have already held that discharging of service of the workman due to expiry of the duration of their contract does not violate the provisions of Section 33 of I.D. Act. I will discuss the judgments, while considering the authorities relied upon by Ld. AR for the parties.
29. Management has relied upon BA Security Agents Employees Union Vs. Regional Labour Commissioner and ors, 2010 LLR 1083, this is a case, which squarely applies to the facts in hand. In this case Hon'ble High Court of Delhi has considered the judgment of Division bench of the Hon'ble High Court in CWA (P) 1305.1991 titled Delhi Pradesh Rajdhani 15Out of 19 16 Mazdoor Union (Regd.) Vs. DDA (unreported). In that case Hon'ble Division Bench of Hon'ble High Court of Delhi has held that :
"The DDA in terminating the services in terms of the contract had not in any manner varied the terms of service of the members of the petitioner union in that case and therefore there was no question of seeking any express permission in writing of the authority before which the proceedings were pending because the services got extinguished by efflux of time on the expiry of their contract. It was further held that if the DDA had tried to terminate the services before the contract was over then the workmen would have been protected under section 33."
31. In view of the judgment of the Division bench in Delhi Pradesh Rajdhani Mazdoor Union (stated above), Hon'ble High Court of Delhi in B A Security Agents Employees Union has held that terminating the services in terms of contract does not very the terms of service , therefore, section 33 would not be applicable.
32. The second judgment Mahender Singh Dhantwal Vs. Hindustan Motors Ltd. And ors. 1976 II LLJ 259 SC, is also relied upon by the Ld. AR for the management. However, I am of the opinion that this judgment is not applicable to the present facts in hand as the issue before the Hon'ble Supreme Court in Mahender Singh's case was that "Whether the termination of the workman was on account of misconduct of employee or not and it was not in respect to a fixed term contract. Hence, the facts of both the cases can be differentiated. Similarly , Management of Essopre Mills Ltd. vs. Presiding Officer, Labour Court and ors., 2008 III LLJ 614 SC, does not apply to the facts of present case as the case before the Hon'ble Supreme Court was in respect to the strike of the workman which is 16Out of 19 17 not the case here.
33. Therefore, in view of my above discussion, I am of the opinion that the workman/complainant herein was appointed for a limited period of contract and the contract has come to an end on 2.10.2012, this fact has not been disputed by the workman. After 3.10.2012 management had not renewed the service contract of the workman, hence, his services has come to an end due to expiry of his contract by efflux of time and he has not been dismissed or retrenched by the management. It is also important here to consider the provisions of section 2 (oo) (bb) of the I.D. Act wherein it is clearly mentioned that the term "retrenchment" would not include the termination of service which results due to non renewal of contract of employment on expiry of the contract period. Therefore, it is clear that neither the workman was terminated nor he was retrenched in any manner as his service contract had come to an end and was not further renewed by the management, therefore, there is no violation of Section 33 of ID Act by the management and hence provisions of Section 33A of ID Act does not apply to the facts of present case. The complaint is thus not maintainable u/s 33A of ID Act as there is no violation of Section 33 of ID Act by the management.
34. My view also gets support from the recent judgment of Hon'ble Punjab and Haryana High Court in Baljeet Singh Vs. Industrial Tribunal, Bathinda and ors. , 2018 LLR 622, wherein it was held that :
"Undisputedly the petitioner was appointed on contract basis. He has no legal right to hold the post after the fixed period of employment is over."
35. Further from the Award passed by Ld. POLC Sh. Lokesh Kumar Sharma in LIR no. 4094/16, between the same parties , on the same facts, it is clear that Ld. POLC has already held that complainant/workman was appointed only for a fixed period and in this way his case is not covered u/s 17Out of 19 18 33 of ID Act, 1947, as the services of the workman was never terminated by the management , and the same has come to an end due to efflux of time and hence, it was not retrenchment. Therefore, Ld. POLC has answered the reference to the effect that the services of the workman were not terminated illegally or unjustifiably by the management.
36. In view of my above discussion, various judgments considered and as per the judgment of POLC Sh. Lokesh Kumar Sharma in LIR no. 4094/16 , it is clear that workman/complainant had been employed only on contractual basis and after completion of his contract, it was not further renewed hence his services came to an end, on expiry of his employment contract, and there was no violation of Section 33 ID Act, committed by Management. Hence, the application of the management and the preliminary issue , both are decided in favour of the management . The service of workman had come to an end by efflux of time and not due to change in service conditions of the workman. The application of the management and the preliminary issue " Whether the complaint is maintainable", both are allowed in favour of management to the effect that the complaint filed by the workman/complainant is not maintainable and hence dismissed.
37. The copy of the award be sent to the Government of NCT of Delhi for publication of the award. File be consigned to Record Room.
38. File be consigned to the Record Room.
Announced in the open Court on (SHAIL JAIN) this 2nd April, 2019. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally signed 18Out of 19 SHAIL by SHAIL JAIN
Date:
JAIN 2019.04.03
14:20:16
+0530
19
ID no. : 2088/16
Dal Bahadur vs Taj Sats Catering
02.04.2019
Present: None.
Vide my separate order announced in open court, complaint u/s 33 A of Industrial Dispute Act is dismissed.
The copy of the award be sent to the Government of NCT of Delhi for publication of the award. File be consigned to Record Room.
(SHAIL JAIN ) POIT2/SWD/02.04.2019 19Out of 19