Delhi District Court
Vide Order No. ... vs Raj Singh on 5 October, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
ID No.74/10/97
Unique ID No.02402C0006841997.
M/s. All India Institute of Medical Sciences,
through its Director, Ansari Nagar,
New Delhi.
............. Management
Versus
Its workmen,
Sh. Raj Kumar,
R/o F130/6, Gautam Nagar,
New Delhi59 and
Shri Aman Gupta,
R/o I468, Ansari Nagar, New Delhi.
..............Workmen
DATE OF INSTITUTION : 19.04.1997.
DATE ON WHICH AWARD RESERVED : 23.09.2015.
DATE ON WHICH AWARD PASSED : 05.10.2015.
A W A R D :
1. Vide Order No. F.24(6222)/96Lab./773338 dated
18.03.97, issued by Government of NCT of Delhi, a reference was
sent to this Court with the following terms:
ID No. 74/10/97 1/22
"Whether the services of S/Sh. Raj Kumar and Sh.
Aman Gupta have been terminated illegally and/or
unjustifiably by the management, and if so, to what
relief are they entitled and what directions are
necessary in this respect?"
2. Statement of claim has been filed by two persons,
namely, Raj Kumar and Aman Gupta on the facts that they were
appointed as LDCs in Examination Section on 31.10.1990 and
15.10.1989 respectively for which they were being paid Rs.58.70 and
Rs.51.60 per day. They worked with the management continuously
for 04 years. In the first year, they were given artificial breaks. The
management had a section, namely, Academic Section to conduct
examination for various medical courses. That section was bifurcated
and a separate examination centre was formed. Instead of
regularizing their services of four years, their services were
terminated unreasonably without chargesheet, domestic enquiry,
notice and retrenchment compensation. They had worked with the
management for 240 days in every calender year. Nature of their job
was perennial one. They approached the Hon'ble High Court of
Delhi for regularization, but the writ petition was withdrawn. Even
after their termination of services, the management is appointing
ID No. 74/10/97 2/22
LDCs regularly. They sent a demand notice to the management vide
letter dated 28.02.1995 for reinstatement, but it fell on the deaf ears.
3. Written statement is to the effect that the claimants were
appointed on casual basis only for the purpose of conducting
examination during examination period. They had not completed 240
days in any calender year. The management is not an industry. The
reference should have been made by Central government because the
management is creation of Central Statute. Both claimants were
engaged on daily wages without following the rules meant for regular
appointment. They were paid the wages on the rates prescribed at
that time by the Government of NCT of Delhi. As they were casual
workers, their services were dispensed with when the purpose was
accomplished.
4. Following issues were framed on 23.08.2006:
(1) Whether the Management is not an "Industry under the
Industrial Dispute Act?
(2) Whether the reference has not been made by the
Appropriate Government?
(3) Whether the workmen were employed on daily wages?
(4) As per terms of reference.
ID No. 74/10/97 3/22
(5) Relief.
5. Claimant Aman Gupta did not contest the case as he did
not appear for evidence.
6. Claimant Raj Kumar tendered his affidavit in evidence
as Ex. WW1/A mentioning all the facts which he had stated in the
statement of claim. He relied upon documents from Ex.CW1/1 to
Ex.CW1/4. Ex. CW1/1 is the identity card issued by Academic
Section of the management having validity from 31.10.1990 to
31.12.1991. Ex.CW1/3 is the demand notice. Ex. CW1/4 is
representation to the Director of the management.
7. The management examined two witnesses. MW1 Mr.
Kulvinder Singh is Assistant in Examination Section of the
management. He deposed that claimant has filed false and frivolous
case against the management just to extract some money. The
management is the creation of statute namely AIIMS Act, 1956
passed by Parliament called AIIMS Act, 1956. The management is
hospital and research institute and hence it is not an industry. It is
governed by Central Government and hence the appropriate
ID No. 74/10/97 4/22
government for reference is the Central Government and not the
Government of NCT of Delhi. He further deposed that the nature of
work assigned to the claimant was of casual for which he was paid
wages as per rules. He was appointed only for examination work
during examination period and when that period was over, his
services were terminated. He had not worked for 240 days in any
calender year. In his appointment, rules for the appointment of
regular employees were not followed. The claimant had not
submitted any demand notice, representation or letter which he is
claiming.
The first witness was declared hostile and perhaps, due
to that reason, the management examined another Assistant, namely,
Mr. S.L. Chamoli as MW2 whose evidence is not better than the
testimony of MW1. All the contents are same.
Issue No. 1.
8. Whether AIIMS is or is not an industry, has been finally
decided by Hon'ble High of Delhi in A.I.I.M.S. Vs. Raj Singh, 2009
(1)LLJ499 holding that AIIMS is an industry. The same view was
taken by the Hon'ble High Court in AIIMS Vs. Uddal & Ors., 2014
ID No. 74/10/97 5/22
(142) DRJ 569.
In view of above citations, it is held that AIIMS is an
industry for the purpose of Industrial Dispute Act, 1947.
Issue No. 2.
9. None appeared for the management to argue the case but
the management has placed on record the All India Institute of
Medical Sciences Act, 1956 in which it is mentioned that the Bill was
passed for improving professional competence among medical
practitioners for which it was necessary to place a high standard of
medical education, both post graduate and undergraduate, before all
medical colleges and other allied institutions in the country.
Similarly, for the permission of medical research, it was necessary
that the country should attain self sufficiency in postgraduate and
medical education. These objectives were hardly capable of
realisation unless facilities of a very high order for both under
graduate and postgraduate medical education and research were
provided by a central authority in one place. Plea has been taken in
written statement that the AIIMS came into existence by the Act no.
25 of 1956 passed by Central Government by the notification of the
ID No. 74/10/97 6/22
Central Government in the official Gazette. It is being run by the
Central Government and so only the Central Government does have
power to send reference and not the Government of NCT of Delhi.
10. Kanhaiyalal Vs. Union of India, (2007) to LLJ 1022,
(Delhi) is direct judgment on this issue. In that case, the labour court
declined to go into the merits of the case on the ground that the
petitioner was employed with Rajghat Samadhi committee. It was
functioning under the authority of Central Government and therefore,
the appropriate authority, who could make reference in relation to an
industrial dispute raised by him was the Central Government whereas
the reference was made by the secretary (labour), Government of
NCT of Delhi. The Hon'ble High Court set aside the order of labour
court in view of rule 2(f) of the industrial disputes (central) rules,
1957 holding that it was clear from the said rule that if an industrial
dispute for which the appropriate is the Central Government, has
arisen in a Union Territory reference to the Central Government or
the Government of India shall be read as reference to the
Administrator of the Territory while reference to the Chief Labour
Commissioner (Central), Regional Labour Commissioner (Central)
and Assistant Labour Commissioner (Central) shall be read as
ID No. 74/10/97 7/22
reference to appropriate Government appointed in this behalf by
Administrator of the Territory. Therefore, to say, that the Secretary
(Labour), Government of NCT of Delhi was not competent to refer
the dispute would be ignoring the statutory provision. To the same
effect is MCD Vs. Mahavir & Ors. Civil Writ Petition No. 2785/
2000 decided by the High Court of Delhi on 07.03.2002.
In view of above discussion, it is held that Government
of NCT of Delhi is quite competent to send reference. This issue is
decided in favour of the claimant and against management.
Issue No. 4.
11. The management has taken plea in written statement
that claimant has not completed 240 days in any calender year and
hence his case is not covered under Section 25F of the I.D. Act. He
was appointed on daily wages and due to that reason his case was not
falling within the ambit of retrenchment.
On the other hand, Ld. ARW argued that claimant was
initially appointed on 31.10.1990. He was given some artificial
breaks in the first year, but after elapse of first year, he continued
working with the management upto 1994. He had worked for four
ID No. 74/10/97 8/22
years with the management. His working with the management for
that period has been admitted by MW1 saying that documents Ex.
MW1/W1 have been issued by the management. He further
submitted that MW1 and MW2 do not have personal knowledge of
the case. They have deposed on the basis of record which they
claimed was not available with the management.
12. Identity card Ex.CW1/1 is of the claimant in which his
designation is mentioned as LDC in Academic Section of the
management. Validity of the identity card was from 31.10.1990 to
31.12.1991.
MW1 deposed in cross examination that whatever had
been stated in his affidavit in evidence was based upon the record of
the management. He further deposed that even after seeing the
record, he was unable to tell when the claimant had joined the
management as a casual worker. He claimed that the management
used to preserve record of a casual worker only for a year or two. He
did not place on record any proof to show that the claimant was
employed as a casual worker with the management in the year 1991.
He further deposed that he had seen the claimant in the Academic
Section / Examination Section. He further deposed that he was not in
ID No. 74/10/97 9/22
a position to say for how many continuous days in a year, the
claimant had worked with the management from 1991 to 1994. So, it
has been admitted by MW1 that claimant used to work in the
Examination Section. Even after going through the record, the MW1
could not state any particular date on which he was appointed.
13. MW1 was confronted with some documents collectively
Ex. MW1/W1 running into 44 pages. He identified the signatures of
Assistant Registrar Mr. B.S. Bhatia and Assistant Administrative
Officer Mr. J.D. Joshi by whom those documents have been signed.
In cross examination dated 19.12.2008, MW1 deposed that Mr. B.S.
Bhatia was Assistant Registrar during his tenure of service. In the
same way, Mr. J.D. Joshi was Assistant Administrative Officer. As
MW1 had worked with B.S. Bhatia and Mr. J.D. Joshi, he was the
competent witness to identify their signatures on documents Ex.
MW1/W1.
MW1 was declared hostile on the request of
management. Reason of declaring him hostile has not been
mentioned by the then POLC. A witness is declared hostile when he
is not coming out with the truth. On that day, there was nothing on
the file to suggest that MW1 was suppressing truth. The management
ID No. 74/10/97 10/22
had requested the then POLC to declare him hostile because he had
admitted the signatures of Mr. J.D. Joshi and B.S. Bhatia on Ex.
MW1/W1. As it has been held that both these officers had worked
with him and he was very much competent to identify their
signatures, there was no occasion for declaring him hostile. When he
was cross examined by the management after declaring him hostile,
he merely denied the signatures of those officers on Ex. MW1/W1.
That cross examination is of no consequence because MW1 was the
competent person to identify signatures of Sh. B.S. Bhatia and Sh.
J.D. Joshi.
14. As per Ex. MW1/W1, Mr. Raj Kumar had worked with
the management for 31 days in the month of December, 1991, for 30
days in the month of January, 1992, for 29 days in the month of
February, 1992, for 24 from 01.03.1992 to 24.03.1992, for 30 days
in the month of April, 1992, for 31 days in the month of May, 1992,
for 30 days in the month of June, 1992, for 31 days in the month of
August, 1992, for 06 days in the month of October, 1992, for 30 days
in the month of November, 1992, for 31 days in the month of
December, 1992, for 31 days in the month of January, 1993, for 27
days in the month of February, 1993, for 31 days in the month of
ID No. 74/10/97 11/22
March, 1993, for 30 days in the month of April, 1993, for 31 days
in the month of May, 1993, for 30 days in the month of June, 1993,
for 31 days in the month of July, 1993, for 31 days in the month of
August, 1993, for 13 days in the month of September, 1993, for 31
days in the month of October, 1993, for 29 days in the month of
November, 1993, for 29 days in the month of November, 1993, for
29 days in the month of December, 1993 and for 19 days in the
month of February, 1994. These documents have been signed by
Mr. B.S. Bhatia and Mr. J.D. Joshi. As per statement showing the
names of faculty / staff members of the management, Mr. B.S.
Bhatia and J.D. Joshi were working with the management. In order
to disprove those documents, the management should have examined
Mr. B.S. Bhatia and Mr. J.D. Joshi to show that the documents in
question were not bearing their signatures, but it deliberately
withheld them. So, adverse inference is drawn against the
management.
Plea of the management is that it used to maintain the
service record of the daily wager only for 1 - 2 years. It did not place
on record any order / letter to that effect. It did not file any letter vide
which the documents in question were destroyed by the management.
After placing on record photocopies of those documents duly
ID No. 74/10/97 12/22
admitted by MW1, the onus had shifted upon the management to
prove that those documents have not been issued by it. The
management failed to prove that fact.
15. The management did not specify in written statement the
date on which the claimant was employed and the period for which
he remained employed. On the other hand, specific periods have
been mentioned by the claimant in statement of claim. So, reply of
the management is utterly vague. In a similar situated case
A.I.I.M.S. Vs. Uddal & Ors (Supra), following was held by the
Hon'ble High Court of Delhi:
"21. Clearly the reply filed by the petitioner is utterly vague
and bereft of details. A specific averment is made by the workmen
about the date of their employment, date of their termination and that
they have worked for 240 days in each completed year of service.
The written statement of the petitioner simply accepts that they were
employed in AIIMS but failed to give the period of employment. In
view of the legal position as stated above, the Labour Court cannot
be faulted in making adverse inference against the petitioner.
22. There is also no merit in the contention of the learned
ID No. 74/10/97 13/22
counsel for the petitioner that the respondents failed to discharge the
onus on them to prove that they have worked for 240 days is on the respondents."
Above citation squarely covers the case of the claimant. In view of above discussion, it is held that the claimant had worked for 240 days with the management in the preceding years. It is not the case of the management that it issued notice or notice pay or retrenchment compensation to him. On the other hand it has been deposed by WW1 that his services were orally terminated unreasonably. So, the management has violated the provisions of Section 25F of I.D. Act, 1947 by terminating his services in that manner. This issues is decided in favour of the claimant and against management.
Issue No. 3.
16. It is the case of the claimant himself in para NO. 2 of the statement of claim that h e was being paid Rs.58.7 per day. He is heavily relying upon the documents Ex. MW1/W1. In all those documents, it is mentioned that he was a daily wager. So, it is held that claimant was working as a daily wager with the management. This issue is decided accordingly.
ID No. 74/10/97 14/22
Issue No. 5.
17. Even if the services of a workman have been terminated in violation to Section 25F of I.D. Act, it would not lead to automatic reinstatement and 100% back wages.
18. It is settled law that even in case of illegal termination reinstatement is not automatic. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, ID No. 74/10/97 15/22 conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman"
19. In Municipal Council, Sujanpur Vs. Surinder Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically".ID No. 74/10/97 16/22
20. In Vinod Kumar & others vs Salwan Public School & others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case.
12. Further, the Supreme Court in the following judgments held as under:
(a) In the matter reported as Jaipur Development Authority v. Ramsahai, (2006) 11 SCC 684, the court has stated:
"However, even assuming that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again ID No. 74/10/97 17/22 has held that the jurisdiction under Section 11 A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief ID No. 74/10/97 18/22 of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil ID No. 74/10/97 19/22 Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11 A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the ID No. 74/10/97 20/22 termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
21. In Vice Chancellor Lucknow University Vs. Akhilesh Kumar Khare, CA No. 57/11 decided by the Apex Court on 08.09.15, the workers were daily wagers. The Apex Court held that the relief by way of of back wages was not automatic. It further held that compensation instead of reinstatement may meet the ends of justice.
In State of M.P. Vs. Mohan Lal, CA No. 6650/15 decided by the Apex Court on 28.08.15, the worker was a daily wager Chokidar. He approached the authorities under I.A. Act more than 14 years after. The Apex Court awarded him compensation of Rs.2,00,000/ instead of directing reinstatement as he was a daily ID No. 74/10/97 21/22 wager.
22. In the case in hand, the claimant Raj Kumar was also a daily wager. Taking into account his being daily wager and length of service, a lumpsum compensation of Rs.1,00,000/ (Rupees One Lakh Only) is granted to him. The management is directed to pay the said amount to the workman Raj Kumar within a month from the date of publication of this award failing which it shall be liable to pay interest @ 12 per cent per annum from today till realization.
Since claimant Aman Gupta did not contest the case and he did not appear for evidence, he is not entitled to any relief. Reference is answered accordingly. Award is passed accordingly.
23. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 05.10.2015. POLCXVII/KKD, DELHI. ID No. 74/10/97 22/22