Delhi District Court
Lir No. 3783/16 Sunil Kumar Bagdi vs . M/S. Skygourmet Catering P. Ltd. Page ... on 18 February, 2022
IN THE COURT OF SHRI RAJ KUMAR
PRESIDING OFFICER : LABOUR COURT- III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
LIR No. 3783/2016 (Old No. 1384/2011)
CNR No. DLCT13-000829-2011
1. Sh. Sunil Kumar Bagdi
S/o Late Sh. Fakir Chand,
R/o K-11/539, Mahipalpur Extension,
Tarachand Colony, Mata Chowk,
Mahipalpur, New Delhi
And 13 Others as per Annexure -A
2. Sh. Sudhir Banik S/o Sh. Babul Banik
3. Sh. Satyender Singh S/o Sh. Kundan Singh
4. Sh. Sanjay Sokal S/o Sh. Bishan Lal
5. Sh. Pradeep Kumar S/o Sh. Ved Prakash
6. Sh. Deepak Kumar S/o Sh. Kamal Kishor
7. Sh. Dinesh Kumar S/o Sh. Balbir Singh
8. Sh. Nitin Yadav S/o Sh. Radhey Mohan Yadav
9. Sh. Rajesh Kumar S/o Sh. Ram Kumar
10. Sh. Harish Uniyal S/o Sh. Damodar Prasad
11. Sh. Shalender Singh S/o Sh. Inder Pal Singh
12. Sh. Nitesh Anand S/o Sh. Samay Singh
13. Sh. Mohan Roy S/o Sh. Janardhan Roy
14. Sh. Yogender Singh S/o Sh. Prempal Singh
Through Airport Employees Union (Regd.),
B.T. Ranadive Bhawan,
13-A, Rouse Avenue,
New Delhi - 110002.
... Workmen
Versus
The Management of
M/s. Skygourmet Catering Pvt. Ltd.
Through its General Manager,
Indira Gandhi International Airport Complex,
Office : International Airport Approach Road,
New Delhi - 110037.
... Management
LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 1/33
Date of Institution : 16.11.2011
Date of Arguments: 29.10.2021
Date of Judgment : 18.02.2022
JUDGMENT
1. This reference was sent by the Govt. of the National Capital Territory of Delhi vide Order No. F.24 (193)/11/SWD/Lab./3622-3625 Dated 07.06.2011 with the following terms:-
"Whether the services of Sh. Sunil Kumar Bagdi S/o Late Sh. Fakir Chand and 13 Ors. whose details are given at Annexure "A" have been illegally/and/or unjustifiably terminated by the Management, and if yes, to what relief are they entitled?"
2. The facts in brief, necessary for the disposal of the present claim filed by the workmen, as disclosed in the statement of claim are that the claimant Sh. Sunil Kumar Bagdi and thirteen others (whose names have been mentioned by the claimants in the annexure filed with the present statement of claim) were appointed by the management on a fixed term basis for three and a half years. It has been further stated that the claimant Sh. Sunil Kumar Bagdi was appointed on a fixed term basis for three and a half years and during this period on 01.04.2008 and 01.06.2009 he was given appreciation letters and his wages were also enhanced. It has been further stated that the last drawn monthly wages of Sh. Sunil Kumar Bagdi were Rs.7,500/-.
3. Similarly, it has been stated that Sh. Sudhir Banik was also LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 2/33 appointed for a fixed term basis of three and a half years and his last drawn monthly wages were Rs.6,800/-. It has been reiterated that during this period on 01.04.2008 and 01.06.2009 he was also given appreciation letters and his wages were also enhanced. To the same effect are the submissions of the workmen, in respect of the claimant Sh. Satyender Singh. It has been stated by the claimants that the last drawn monthly wages of Sh. Satender Singh were Rs.6,834/-. Similarly, it has been stated that Sh. Sanjay Sokal, Sh. Pradeep Kumar, Sh. Deepak Kumar, Sh. Dinesh Kumar, Sh. Nitin Yadav, Sh. Rajesh Kumar, Sh. Harish Uniyal, Sh. Shalender Singh, Sh. Nitesh Anand, Sh. Mohan Roy and Sh. Yogender Singh were appointed on a fixed term basis. As per the submissions of the claimants, the last drawn monthly wages of Sh. Satyender Singh were Rs.6,834/-, the last drawn monthly wages of Sh. Sanjay Sokal were Rs.6,733/-, the last drawn monthly wages of Sh. Pradeep Kumar were Rs.7,410/-, the last drawn monthly wages of Sh. Deepak Kumar were Rs.6,100/-, the last drawn monthly wages of Sh. Dinesh Kumar were Rs.7,560/-, the last drawn monthly wages of Sh. Nitin Yadav were Rs.7,500/-, the last monthly drawn wages of Sh. Rajesh Kumar were Rs.7,410/-, the last drawn monthly wages of Sh. Harish Uniyal were Rs.5,842/-, the last drawn monthly wages of Sh. Shalender Singh were Rs.6,100/-, the last drawn monthly wages of Sh. Nitesh Anand were Rs.7,410/-, the last drawn monthly wages of Sh. Mohan Roy were Rs.6,734/- and the last drawn monthly wages of Sh. Yogender Singh were Rs.7,410/-. The claimants have also stated that during their fixed term employment, the abovesaid claimants were also given appreciation letters and their wages were also enhanced.
LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 3/334. The claimants have further stated that the management is in Air catering business and the nature of the business of the management is permanent and perennial in nature. It has been further stated that the work being air catering, the job goes on 24 hours of a day, seven days of a week and 365 days of the year. It has been alleged that the management used this "fixed term appointment" method only to deprive the workmen of the protection given under section 25-N of the ID Act, 1947. It has been further alleged that three months notice pay in lieu of the notice and retrenchment compensation at the rate of 15 days wages for each and every completed year of service were not given by the management in violation of Section 25-N of the ID Act. It has been further alleged that the management with a view to meet the volatile nature of the business such as, sudden increase and decrease of the work orders, also engaged about 200 contractual workers through three contractors. It has been further stated that the other establishments, such as M/s. Taj Stats and M/s. Oberoi Flight Services, which are in the same business have never adopted unfair labour practices.
5. It has been further stated by the claimants that the workmen of the management establishment through their union raised an Industrial Dispute No. 247 of 2010 regarding the illegality of the "fixed term appointment" method but the said Industrial Dispute is still pending before the Ld. Industrial Tribunal. It has been further stated that an Industrial Dispute bearing No. 671 of 2010 regarding the enhancement of the wages was also raised by the workmen but the same is also pending disposal.
LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 4/336. It has been further stated that quite strangely, the management issued a notice dated 30.03.2011 along with the list of 158 workers saying that their fixed term appointments came to an end and interviews will be held for the further extension of their fixed term appointments. It has been further stated that on 29.04.2011, the management displayed a list of 144 workers extending their fixed term appointment for a further period of three years, i.e. till 31.03.2014, but terminated the services of fourteen workers who are the claimants herein.
7. The claimants have alleged that the fixed term appointment is void ab initio as the nature of the job is permanent and perennial in nature. It has been further alleged that the claimants had completed more than 240 days continuous service at the time of the termination of their services and as such, the provisions of Chapter V B of the ID Act, 1947 are applicable. It has been further alleged that no notice or notice pay in lieu of the notice and retrenchment compensation was given by the management in violation of Section 25-N of the ID Act. It has been further alleged that juniors to the claimants have been retained in services by the management. It has been further alleged that the management failed to take any permission from the Industrial Tribunal for the termination of the services of the claimants. It has been further alleged that the management terminated the services of the claimants malafidely as they have been actively pursing ID No. 247 of 2010 and ID No. 671 of 2010.
8. The claimants, in the statement of claim, have further alleged that the termination of their services is not in good faith LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 5/33 but is by way of victimization. It has been further alleged that the appointment letter was issued by the Director (HRD) of the Establishment but the termination letter was issued by the Senior Human Asset Manager of the management which is in violation of the settled principles of law. It has been further alleged that the management invented the new technique of forming of Appraisal Committee only to deprive the claimants of their legitimate claims, because there is no provision for the formation of the Appraisal Committee either in the appointment letter or in the Certified Standing Orders. It has been further stated that the Government made an amendment in "Industrial Employment Standing Orders Act, 1946" from October, 2007 deleting the word "fixed term employment". It has been alleged that the management cannot take the plea of "unsatisfactory performance" of the claimants, because most of the claimants were given appreciation letters during their tenure of service. It has been further stated that the claimants are unemployed since the date of their termination. It has been further stated that the claimants have already sent demand notices to the management seeking their reinstatement with full back wages.
9. On the basis of the abovesaid allegations, as contained in the statement of claim, it has been prayed that an appropriate award be passed in favour of the claimants holding the termination of the services of the claimants illegal and unjustified. It has been further prayed that the claimants be held entitled to reinstatement with full back wages, continuity of services and all other attendant/consequential benefits.
10. Written statement has been filed by the management LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 6/33 taking various preliminary objections such as that the claimant Sh. Sunil Kumar Bagdi and thirteen others, who are the party to the present reference were initially appointed on trial basis for a period of six months and on successful completion of their trial period, their appointment was for a fixed period of three years. It has been further stated that the appointment letters which were issued to the workmen clearly stipulate that the fixed term appointment of the workmen shall lapse and come to an automatic end on the completion of their fixed term contractual period of employment. It has been further stated that thus, the concerned workmen, have no right of employment beyond the period of their fixed term and as such, reference as well as the claim filed by the workmen merits out-right dismissal. It has been further stated that the appointments of the workmen were made in accordance with the Certified Standing Orders applicable to them.
11. On merits also, the management has reiterated its abovesaid stand and has stated that as per Clause No. 7 of the Appointment Letter issued to the workmen, the nature of business of the management/company is such that the same fluctuates with the volume of meals catered by the company and is dependent upon the continuation of contract with the Airlines which are time bound and terminable at short notice. It has been further stated that in view of the uncertain nature of business, the management/company cannot have a fixed workforce of permanent workmen and, as such, it is clearly understood and agreed too by the workmen that the fixed term appointment shall not vest any right in order to seek continuation or absorption in service of the company. It has been further stated that the LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 7/33 workmen are, thus, bound by their respective contracts of employment and are estopped from raising any dispute seeking continuation and/or absorption in regular services. It has been further stated that all the terms and conditions of their employment contained in their letters of appointment which were issued to the workmen were clearly understood and accepted.
12. It has been admitted by the management that the claimants were appointed on a fixed term basis but the management has taken the stand that the services of the workmen came to an end after the completion of their contractual terms of appointment. It has been further stated that though, the claimants were not entitled for gratuity, because they had not completed five years of their services but a sum of Rs.12,667/- was paid to the claimant Sh. Sunil Kumar Bagdi towards Gratuity in addition to his all other legal dues, a sum of Rs.10,288/- was paid to Sh. Sudhir Banik towards Gratuity in addition to his legal dues, a sum of Rs.10,618/- was paid to Sh. Satyender Singh towards Gratuity in addition to his legal dues, a sum of Rs.10,392/- was paid to Sh. Sanjay Sokal towards Gratuity in addition to his legal dues, a sum of Rs.5,899/- was paid to Sh. Pradeep Kumar towards Gratuity in addition to his legal dues, a sum of Rs. 9,357/- was paid to Sh. Deepak Kumar towards Gratuity in addition to his legal dues, a sum of Rs.11,126/- was paid to Sh. Dinesh Kumar towards Gratuity in addition to his legal dues, a sum of Rs. 11,756/- was paid to Sh. Nitin Yadav towards Gratuity in addition to his legal dues, a sum of Rs. 10,497/- was paid to Sh. Rajesh Kumar towards Gratuity in addition to his legal dues, a sum of Rs. 5,210/- was paid to Sh. Harish Uniyal towards Gratuity in addition to his legal dues, a sum of Rs.
LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 8/334,939/- was paid to Sh. Shailendra Singh towards Gratuity in addition to his legal dues, a sum of Rs. 4,747/- was paid to Sh. Nitesh Anand towards Gratuity in addition to his legal dues, a sum of Rs. 11,521/- was paid to Sh. Mohan Roy towards Gratuity in addition to his legal dues and a sum of Rs. 4,997/- was paid to Sh. Yogendra Singh towards Gratuity in addition to his legal dues. The management has also admitted the formation of the Performance Appraisal Committee.
13. The management has denied that the business of the company is of permanent and perennial in nature. The Application of Section 25-N of the ID Act has also been denied. It has been stated that the case of the claimants is a case of automatic termination in terms of the contract of employment and no notice pay is payable to the workmen. Similarly, it has been stated that retrenchment compensation at the rate of 15 days wages for each completed year of service is not applicable. The management has admitted the pendency of the ID No. 247 of 2010 and ID No. 671 of 2010. It has been further stated that the extension of the 142 workers has no relevance to the present case. It has been further stated that the automatic termination of the service on the expiry of fixed term employment does not amount to retrenchment and consequently, Chapter V B of the ID Act is not attracted. It has been denied that it was obligatory upon the management to seek the prior permission of the Government in respect of the claimants. The management has reiterated that the case of the claimants is a case of automatic termination of service by efflux of time.
14. The management has once again stated that the LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 9/33 management was not required to move an Application under section 33 (2) (b) of the ID Act, because the termination of the services of the workmen is not punitive. It has been further stated that the Appraisal Committee had been formulated only to ensure that no injustice was done to the workmen.
15. It has been further stated that at the time when the Certified Standing Orders were certified, there was a provision in the Model Standing Orders which permitted the management to engage the employees on fixed term basis. It has been further stated that the claimants are gainfully employed elsewhere. Rest of the contents of the claim petition have been denied and it has been prayed that the claim of the workmen be dismissed with costs.
16. Rejoinder has also been filed on record by the workmen reiterating and reaffirming the stand as taken by the workmen in their statement of claim and denying the contents of the written statement filed by the management.
17. Out of the pleadings of parties, the following issues were framed by the Ld. Predecessor of this court on 18.07.2012 :
i) As per terms of reference. ii) Whether the workmen were appointed on fixed term basis
and their services came to an end by lapse of time? OPM
iii) Relief.
18. Now, coming to the evidence, the workman Sh. Satyender Singh has examined himself as WW-1 and in his evidence by way of affidavit Ex.WW1/A on record, he has reiterated and LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 10/33 reaffirmed the stand as taken by the workmen in their statement of claim. He has filed on record the copy of his appointment letter dated 01.06.2007 as Ex.WW1/1, the copy of the performance linked incentive letter dated 01.06.2007 as Ex.WW1/2, the copy of the increment letter dated 01.04.2008 as Ex.WW3, the copy of the increment letter dated 01.06.2009 as Ex.WW1/4, the copy of the letter dated 13.04.2011 as Ex.WW1/5, the copy of the letter dated 29.04.2011 issued by the management as Ex.WW1/6 and the copy of the demand notice dated 12.05.2011 as Ex.WW1/7. (It has to be noted that the exhibit numbers which have been mentioned in the affidavit of WW-1, the exhibit numbers which have been mentioned in the examination-in-chief of WW-1 and the exhibit numbers which are actually marked on the documents do not match with each other).
19. In the cross-examination, the workman was asked a question that the appointment letter was issued to him correctly mentioned the basis of the appointment on a fixed term contract. The workman has answered that it was mentioned in the appointment letter that if he performs well within the first six months of his appointment, then he would be made permanent, else, he would be removed from his services.
20. WW-1 has admitted it to be correct that he was employed on trial basis for the first six months. He has admitted it to be correct that his appointment letter Ex.WW1/1 bears his signatures at point-X. He has again admitted it to be correct that he has received the letter dated 01.12.2010 Ex.WW1/M1 through which his fixed term appointment was extended till 31.03.2011.
LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 11/33He has again admitted it to be correct that the business of the management is to provide meals to various airlines and that the number of meals catered to the airlines keeps on increasing or decreasing.
21. The workman Sh. Rajesh Kumar has examined himself as WW-2 and his evidence by way of affidavit and cross- examination are on the same lines as that of WW-1. He has filed on record certain documents such as, the copy of his appointment letter dated 31.10.2007 and various other letters issued by the management and copy of his demand notice dated 12.05.2011 as Ex.WW2/1 to Ex.WW2/5. (It has to be noted that the exhibit numbers which have been mentioned in the affidavit of WW-1, the exhibit numbers which have been mentioned in the examination-in-chief of WW-1 and the exhibit numbers which are actually marked on the documents do not match with each other).
22. Similarly, Sh. Sanjay Sokal has examined himself as WW- 3, Sh. Yogender Singh has examined himself as WW-6, Sh. Pradeep Kumar has examined himself as WW-7, Sh. Dinesh Kumar has examined himself as WW-8, Sh. Nitesh Anand has examined himself as WW-10, Sh. Nitin Yadav has examined himself as WW-11, Sh. Sunil Kumar Bagdi has examined himself as WW-12 and Sh. Sudhir Banik has examined himself as WW-13.
23. The affidavits filed by the abovesaid workmen and their cross-examinations are also on the same lines as that of WW-1. Similar set of documents have also been placed on record by the LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 12/33 abovesaid workmen.
24. The management has examined its Senior Manager Mr. V. Ranga Rao as MW-1 and in his evidence by way of affidavit Ex.MW1/1 on record, he has reiterated and reaffirmed the stand as taken by the management in the written statement. MW-1 has filed on record the copy of service certificate dated 19.05.2011 issued to Mr. Yogendra Singh as Ex.MW1/1, the copy of letter dated 03.05.2011 issued to Mr. Yogendra Singh along with postal receipt as Ex.MW1/2, the copy of letter dated 29.04.2011 issued to Mr. Yogendra Singh along with postal receipt as Ex.MW1/3, the copy of staff performance assessment in respect of Mr. Yogendra Singh as Ex.MW1/4, the copy of UPC receipt as Ex.MW1/5, the copy of staff performance assessment dated 27.08.2010 in respect of Mr. Yogendra Singh as Ex.MW1/6, the copy of letter dated 26.08.2010 issued to Mr. Yogendra Singh as Ex.MW1/7, the copy of letter dated 03.05.2011 issued to Mr. Satyendra Singh as Ex.MW1/8 and the copy of postal receipt as Ex.MW1/9. The copy of letter dated 29.04.2011 issued to Mr. Satyendra Singh as Ex.MW1/10 and the copy of postal receipt as as Ex.MW1/11. The copy of staff performance assessment dated 18.04.2011 in respect of Mr. Satyendra Singh as Ex.MW1/12, the copy of letter dated 13.04.2011 issued to Mr. Satyendra Singh as Ex.MW1/13 and the copy of receipt as Ex.MW1/14. The copy of the UPC receipt as Ex.MW1/15. The copy of service certificate dated 08.05.2012 issued to Mr. Harish Uniyal as Ex.MW1/16, the copy of no objection certificate dated 08.05.2012 issued to Mr. Harish Uniyal as Ex.MW1/17, the copy of resignation letter dated 30.04.2012 tendered by Mr. Harish Uniyal as Ex.MW1/18, the copy of letter dated 03.05.2011 LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 13/33 issued to Mr. Harish Uniyal as Ex.MW1/19, the copy of letter dated 03.05.2011 issued to Mr. Harish Uniyal as Ex.MW1/20 and the copy of postal receipt as Ex.MW1/21, the copy of undelivered envelope concerning Mr. Harish Uniyal as Ex.MW1/22, the copy of letter dated 29.04.2011 issued to Mr. Harish Uniyal as Ex.MW1/23 and the copy of postal receipt as Ex.MW1/24, the copy of staff performance assessment dated 23.04.2010 in respect of Mr. Harish Uniyal as Ex.MW1/25, the copy of undelivered envelope concerning Mr. Harish Uniyal as Ex.MW1/26, the copy of letter dated 14.04.2011 issued to Mr. Harish Uniyal as Ex.MW1/27, the copy of letter dated 25.03.2010 issued to Mr. Harish Uniyal as Ex.MW1/28, the copy of staff performance assessment dated 24.03.2010 in respect of Mr. Harish Uniyal as Ex.MW1/29, the copy of letter dated 24.03.2010 issued to Mr. Harish Uniyal as Ex.MW1/30, the copy of fixed term appointment letter dated 25.03.2009 issued to Mr. Harish Uniyal as Ex.MW1/31, the copy of letter dated 03.05.2011 issued to Mr. Mohan Roy along with copy of postal receipt as Ex.MW1/32, the copy of letter dated 29.04.2011 issued to Mr. Mohan Roy as Ex.MW1/33 and the copy of postal receipt as Ex.MW1/34, the copy of staff performance assessment dated 18.04.2011 pertaining to Mr. Mohan Roy as Ex.MW1/35, the copy of letter dated 13.04.2011 issued to Mr. Mohan Roy as Ex.MW1/36 and the copy of postal receipt as Ex.MW1/37, the copy of UPC as Ex.MW1/38, the copy of letter dated 01.11.2010 issued to Mr. Mohan Roy as Ex.MW1/39, the copy of letter dated 31.07.2010 issued to Mr. Mohan Roy as Ex.MW1/40, the copy of fixed term appointment letter dated 01.02.2007 issued to Mr. Mohan Roy as Ex.MW1/41, the copy of letter dated 03.05.2011 issued to Mr. Sanjay Sokal as Ex.MW1/42 and the LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 14/33 copy of postal receipt as Ex.MW1/43, the copy of letter dated 29.04.2011 issued to Mr. Sanjay Sokal as Ex.MW1/44 and the copy of postal receipt as Ex.MW1/45, the copy of staff performance assessment dated 18.04.2011 pertaining to Mr. Sanjay Sokal as Ex.MW1/46, the copy of letter dated 13.04.2011 issued to Mr. Sanjay Sokal as Ex.MW1/47 and the copy of postal receipt as Ex.MW1/48, the copy of UPC receipt as Ex.MW1/49, the copy of staff performance assessment dated 30.12.2010 pertaining to Mr. Sanjay Sokal as Ex.MW1/50, the letter dated 30.12.2010 issued to Mr. Sanjay Sokal as Ex.MW1/51, the copy of letter dated 03.05.2011 issued to Mr. Nitesh Anand as Ex.MW1/52 and the copy of postal receipt as Ex.MW1/53, the copy of letter dated 29.04.2011 issued to Mr. Nitesh Anand as Ex.MW1/54 and the copy of postal receipt as Ex.MW1/55, the copy of staff performance assessment dated 20.04.2011 pertaining to Mr. Nitesh Anand as Ex.MW1/56, the copy of UPC receipt as Ex.MW1/57, the copy of letter dated 01.10.2010 issued to Mr. Nitesh Anand as Ex.MW1/58, the copy of letter dated 01.10.2010 issued to Mr. Nitesh Anand as Ex.MW1/59, the copy of letter dated 03.05.2011 issued to Mr. Sunil Kumar Bagdi as Ex.MW1/60 and the copy of postal receipt as Ex.MW1/61, the copy of letter dated 29.04.2011 issued to Mr. Sunil Kumar Bagdi as Ex.MW1/62 and the copy of postal receipt as Ex.MW1/63, the copy of the staff performance assessment dated 18.04.2011 pertaining to Mr. Sunil Kumar Bagdi as Ex.MW1/64, the copy of letter dated 13.04.2011 issued to Mr. Sunil Kumar Bagdi as Ex.MW1/65 and the copy of postal receipt as Ex.MW1/66, the copy of undelivered envelope concerning Mr. Sunil Kumar Bagdi as Ex.MW1/67, the copy of letter dated 06.01.2011 issued to Mr. Sunil Kumar Bagdi as Ex.MW1/68 and the copy of postal LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 15/33 receipt as Ex.MW1/69, the copy of letter dated 06.01.2011 issued to Mr. Sunil Kumar Bagdi as Ex.MW1/70, the copy of staff performance assessment dated 05.01.2011 pertaining to Mr. Sunil Kumar Bagdi as Ex.MW1/71, the copy of letter dated 03.01.2010 issued to Mr. Sunil Kumar Bagdi as Ex.MW1/72, the copy of letter dated 03.05.2011 issued to Mr. Deepak Kumar as Ex.MW1/73 and the copy of postal receipt as Ex.MW1/74, the copy of letter dated 29.04.2011 issued to Mr. Deepak Kumar as Ex.MW1/75 and the copy of postal receipt as Ex.MW1/76, the copy of staff performance assessment dated 22.04.2011 pertaining to Mr. Deepak Kumar as Ex.MW1/77, the copy of letter dated 29.04.2011 issued to Mr. Deepak Kumar as Ex.MW1/78 and the copy of UPC receipt as Mark A, the copy of letter dated 22.01.2011 issued to Mr. Deepak Kumar as Ex.MW1/79, the copy of letter dated 23.01.2011 issued to Mr. Deepak Kumar as Ex.MW1/80, the copy of fixed term appointment letter dated 23.07.2007 issued to Mr. Deepak Kumar as Ex.MW1/81, the copy of letter dated 03.05.2011 issued to Mr. Nitin Yadav as Ex.MW1/82 and the copy of postal receipt as Ex.MW1/83, the copy of letter dated 29.04.2011 issued to Mr. Nitin Yadav as Ex.MW1/84 and the copy of postal receipt as Ex.MW1/85, the copy of staff performance assessment dated 20.04.2011 pertaining to Mr. Nitin Yadav as Ex.MW1/86, the copy of letter dated 15.04.2011 issued to Mr. Nitin Yadav as Ex.MW1/87 and the copy of postal receipt as Ex.MW1/88, the copy of letter dated 03.05.2011 issued to Mr. Sudhir Banik as Ex.MW1/89 and the copy of postal receipt as Ex.MW1/90, the copy of letter dated 29.04.2011 issued to Mr. Sudhir Banik as Ex.MW1/91 and the copy of postal receipt as Ex.MW1/92, the copy of staff performance assessment dated 22.04.2010 LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 16/33 pertaining to Mr. Sudhir Banik as Ex.MW1/93, the copy of letter dated 19.04.2011 issued to Mr. Sudhir Banik as Ex.MW1/94 and the copy of UPC receipt as Mark B, the copy of letter dated 15.01.2011 issued to Mr. Sudhir Banik as Ex.MW1/95, the copy of letter dated 15.01.2011 issued to Mr. Sudhir Banik as Ex.MW1/96, the copy of fixed term appointment letter dated 15.07.2007 issued to Mr. Sudhir Banik as Ex.MW1/97, the copy of letter dated 03.05.2011 issued to Mr. Shailendra Singh as Ex.MW1/98 and the copy of postal receipt as Ex.MW1/99, the copy of letter dated 29.04.2011 issued to Mr. Shailendra Singh as Ex.MW1/100 and the copy of postal receipt as Ex.MW1/101, the copy of staff performance assessment dated 19.04.2011 pertaining to Mr. Shailendra Singh as Ex.MW1/102, the copy of undelivered envelope concerning Mr. Shailendra Singh as Ex.MW1/103, the copy of letter dated 14.04.2011 issued to Mr. Shailendra Singh as Ex.MW1/104, the copy of letter dated 04.05.2010 issued to Mr. Shailendra Singh as Ex.MW1/105, the copy of staff performance assessment dated 03.05.2010 pertaining to Mr. Shailendra Singh as Ex.MW1/106, the copy of letter dated 01.05.2010 issued to Mr. Shailendra Singh as Ex.MW1/107, the copy of fixed term appointment letter dated 04.05.2009 issued to Mr. Shailendra Singh as Ex.MW1/108, the copy of letter dated 03.05.2011 issued to Mr. Dinesh Kumar as Ex.MW1/109 and the copy of postal receipt as Ex.MW1/110, the copy of letter dated 29.04.2011 issued to Mr. Dinesh Kumar as Ex.MW1/111 and the copy of postal receipt as Ex.MW1/112, the copy of staff performance assessment dated 20.04.2011 pertaining to Mr. Dinesh Kumar as Ex.MW1/113, the copy of letter dated 15.04.2011 issued to Mr. Dinesh Kumar as Ex.MW1/114 and the copy of postal receipt as Ex.MW1/115, the LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 17/33 copy of letter dated 03.05.2011 issued to Mr. Rajesh Kumar as Ex.MW1/116 and the copy of postal receipt as Ex.MW1/117, the copy of letter dated 29.04.2011 issued to Mr. Rajesh Kumar as Ex.MW1/118 and the copy of postal receipt as Ex.MW1/119, the copy of staff performance assessment dated 23.04.2010 pertaining to Mr. Rajesh Kumar as Ex.MW1/120, the copy of letter dated 15.04.2011 issued to Mr. Rajesh Kumar as Ex.MW1/121, the copy of certified standing orders as applicable in the establishment of management as Ex.MW1/122, the copy of service certificate dated 19.05.2011 issued to Mr. Pradeep Kumar as Ex.MW1/123, the copy of letter dated 03.05.2011 issued to Mr. Pradeep Kumar informing him that his contractual term appointment had come to an automatic end on 30.04.2011 as Ex.MW1/124, the copy of performance appraisal dated 29.04.2011 done by the Performance Evaluation Committee in respect of Mr. Pradeep Kumar as Ex.MW1/125, the copy of letter dated 14.04.2011 issued to Mr. Pradeep Kumar advising him to be present before the Performance Appraisal Committee on 20.04.2011 as Ex.MW1/126, the copy of letter dated 17.05.2011 issued to Mr. Pradeep Kumar advising him to be present before the Performance Appraisal Committee on 18.05.2010 as Ex.MW1/127, the copy of list of fixed term employees subsequently confirmed by the management as permanent employees at different period of time prior to 01.04.2014 as Ex.MW1/128, the copy of list of fixed term employees confirmed by the management as permanent employees with effect from 01.04.2014 as Ex.MW1/129 and the copy of balance sheets of the company for the period 2005-2006 to 2011-2012 are Mark C. LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 18/33
25. On 23.08.2017, MW-1 has further filed on record the copy of Resolution passed by Board of Directors of management authorizing him to represent in this case as well as other cases of management as Ex.MW1/130.
26. Both the parties have filed on record their written final arguments. I have gone through the entire material available on record including the final arguments filed on record by both the parties. I have also heard the final arguments addressed by both the parties.
27. My findings on the issues framed herein-above are as under :
Issues No. 1 and 2 :
Issue No. 1 pertains to the terms of the reference. The reference clearly states that whether the services of the workmen have been terminated illegally and unjustifiably by the management and if yes, to what relief are the workmen entitled. Issue No. 2 states that whether the workmen were appointed on fixed term basis and their services came to an end by lapse of time. Onus to prove the Issue No. 2 has been put upon the management. Both these issues are inter-linked and over-lap each other and as such, both these issues are being taken up together for disposal.
28. In the written final arguments filed on record by the workmen, it has been argued that the management is in the catering business and the said business is always prospering and the same has never seen any downward trend. It has been further argued that the Government made an amendment in the LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 19/33 "Industrial Employment Standing Orders Act, 1946" from October 2007 deleting the word Fixed Term Employment. It has been further argued that the claimants are not educated and as such they were not able to read and understand their appointment letters which were in English language. It has been further argued that the management is guilty of breaching Section 25-N of the ID Act, because no retrenchment compensation was ever given by the management to the workmen. It has been further argued that the workmen raised ID No. 247/2010 regarding the illegality of fixed term appointment but the said matter is still pending disposal. It has been further argued that the workmen also raised ID No. 671/2010 for enhancement of their wages and the said matter is still pending disposal. It has been further argued that the management issued the notice dated 30.03.2011 to conduct interview for extending the fixed term employment of 158 workmen but on 29.04.2011, the management extended the fixed term employment of 144 workers and the services of 14 claimants were terminated illegally and unauthorizedly. It has been further argued that the claimants were given increments in recognition of good performance of their work. It has been further argued that the claimants, who have been retained in service were much junior. It has been further argued that the workmen, who have been retained in services by the management are much junior to the claimants. It has been further argued that no Application under Section 33 (2) (b) was moved by the management for approval before terminating the services of the claimants. It has been further argued that the claimants have been victimized by the management as they have been involved in the union activities. It has been further argued that MW-1 in the cross-examination has admitted that the business of LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 20/33 the management has been prospering. The claimants have also relied upon the profit and loss account balance-sheet of the management and have argued that the business of the management have been increasing day-by-day. It has been further argued that if the services of the claimants were to be terminated on expiry of the fixed term, then there is no question of Appraisal Committee to judge the work of the claimants. The claimants have relied upon the judgments titled as Dharma Nand & Anr. vs. Union of India & Ors cited as AIR 2005 SC 1410; titled as Nar Singh Pal vs. Union of India & Ors. cited as (2000) 3 SCC 588; titled as District Programme Coordinator Mahila Samkhija and Anr. vs. Abdul Kareem & Anr. cited as AIR 2009 SC 512; titled as State of Rajasthan & Ors. vs. Rameshwar Lal Gehlot cited as AIR 1996 SC 1001; titled as Air India Corporation, Bombay vs. V.A. Rebellow & Anr. cited as (1972) I SCC 814; titled as Delhi Transport Corporation vs. Sunil Kumar cited as ILR (2010) V Delhi 196; titled as AIR India vs. Union of India & Ors. cited as 43 (1991) DLT 17; titled as Sudarshan Rajpoot vs. U.P. SRTC cited as 2015 (2) SCC 317; titled as Oil And Natural Gas Corporation Ltd. vs. Petroleum Coal Labour Union & Ors. cited as (2015) 6 SCC 494; titled as Jaipur Zila Sehkari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma & Ors. cited as AIR 2002 SC 643; titled as Tamil Nadu Terminated Full Time Temporary LIC Employees Association vs. Life Insurance Corporation of India & Ors. cited as 2015 (3) SCALE and titled as Maharashtra State Road Transport Corporation & Anr. vs. Casteribe Rajya Parivahan Karamchari Sangathana cited as (2009) 8 SCC;
LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 21/3329. Whereas, in the written final arguments filed on record by the management, it has been argued that all the workmen were appointed on fixed term contract and in their appointment letters it was categorically mentioned that the appointment of the workmen will come to an end on the completion of their fixed term employment. It has been further argued that the management had got its Standing Orders Certified and copy of the Certified Standing Orders has been exhibited as Ex.MW1/122. It has been further argued that the termination of the employment of workmen as a result of non-renewal of contract of employment or termination of such contract in terms of stipulation contained therein does not constitute retrenchment as defined in Section 2 (oo) of the ID Act. It has been further argued that all the workmen/claimants were given their statutory benefits as per the Provisions of the Certified Standing Orders and even Gratuity was paid to them, even though, they had not completed five years continuous service as required under Payment of Gratuity Act. It has been further argued that the Performance Appraisal Committee was formulated by the management only to ensure that no injustice was done to the workers. It has been further argued that the provisions pertaining to the fixed term employment of the workmen from the Certified Standing Orders of the management were deleted by the Certifying Officer vide orders dated 31.08.2012 and the said orders became effective only with effect from 31.08.2012. It has been further argued that no prior permission was required before terminating the services of the workmen as they were not retrenched from their services. It has been further argued that this is a bonafide case of termination of services of workmen in terms of contract of employment and the same is not actuated by LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 22/33 any motive of malafides. It has been further argued that WW-3, WW-5, WW-6 and WW-9 have not stepped into the witness box and therefore, their claims are liable to be dismissed on this ground alone. It has been further argued that the workmen concerned have admitted in their cross-examination that after their termination, they are gainfully engaged. It has been further argued that all the business operations of the management at Delhi where the workmen concerned were employed on fixed term basis have already ceased/closed with effect from 31.01.2021 on account of the termination of the License Agreement by Delhi International Airport Limited. The management has relied upon the judgments titled as Yogesh Mahajan vs. Prof. R.C. Deka, Director, All India Institute of Medical Sciences cited as 2018 LLR 366 SC; titled as Shri Ram Kishan & Anr. vs. The Management of M/s. American Express Banking Corporation & Anr. in W.P. (C) No. 3387- 88-2006 decided on 27.08.2009; titled as Ram Kishan vs. Management of American Express Banking Corporation & Anr. in LPA NO. 511 of 2009 decided on 18.12.2009; titled as Harmohinder Singh vs. Kharga Canteen, Ambala Cantt. in Appeal (Civil) No. 4024 of 2001 decided on 09.07.2001 cited as LLR 2001 SC ; titled as Birla VXL Ltd and State of Punjab & Ors. cited as 1999 I LLJ 220 SC; titled as Municipal Corporation, Ludhiana And Ram Pal cited as 2006 II LLJ 235 SC; titled as Kishore Chandra Samal vs. The Divisional Manager, Orissa State Cashew Development Corporation Ltd., Dhenkanal cited as 2006 LLR 65 SC; titled as Escorts Limited vs. Presiding Officer and Anr. cited as 1997 LLR 699 SC; titled as Punjab State Electricity Board vs. Darbara Singh cited as 2006 I LLR 289 SC; titled as Bharat Petroleum LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 23/33 Corporation Ltd. vs. Maharashtra General, Kamgar Union & Ors. cited as AIR 1999 SC 401; titled as Sudhir Chandra Sarkar vs. Tata Iron and Steel Co. Ltd. and Ors. cited as MANU/SC/0208/1984; titled as Mahendra Singh Dhantwal vs. Hindustan Motors Ltd. and Ors. cited as MANU/SC/0301/1976 and titled as AIR India Corporation vs. V.A. Rebellow & Anr. cited as 1972 (I) SCC 81.
30. The short controversy, which is involved in the present matter, is as to whether the services of the workmen were terminated illegally and unjustifiably by way of victimization as is the claim of the claimants or as to whether the services of the workmen came to an end on completion of their fixed term employment because of lapse of time as per the stipulations contained in the fixed term contracts as is the stand of the management.
31. It has to be seen that none of the workmen, who has examined themselves have denied that they were employed by the management on fixed term contract basis as per the terms and conditions of their appointment letters. All the workmen in their cross-examinations have categorically admitted that they were employed on trial basis for a period of six months but they have taken the stand that they were liable to be made permanent in case, they performed well within the first six months. All the workmen have admitted in clear cut and unequivocal terms their signatures on their appointment letters.
32. As such the vital document which can throw light on the nature of employment of the workmen with the management is LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 24/33 the appointment letter of the workman. To my mind, the appointment letters of the workmen gain utmost importance in the facts and circumstances of the present matter, because the same are the admitted documents from both the sides.
33. As stated hereinabove, the appointment letters have been categorically admitted by the workmen, though, they have taken the stand that they were not able to understand their appointment letters, the same being in English language. However, the abovesaid submission of the workmen that they were not able to comprehend and understand their appointment letters is falsified, if the cross-examination of the workmen is carefully gone through. As stated hereinabove, the workmen have categorically admitted that they were appointed on a trial basis for a period of six months only and that their appointment letters were bearing their signatures.
34. Now, I would like to discuss the terms and conditions of the appointment letters of the workmen. One of such letters is Ex.WW1/1 which has been addressed to Sh. Sanjay Sokal, one of the claimants. It becomes pertinent to mention here that the appointment letter of the workman Sh. Satyender Singh has also been exhibited as Ex.WW1/1. However, the appointment letters of all the workmen are similar in nature and contains almost the same stipulations. Clause No. 1, 2 and 7 of Ex.WW1/1 read as under :
1. To begin with, your appointment shall be for a period of six months on trial basis. In case the Management finds that your performance during the trial period which is akin to probation is not satisfactory or up to the required standard, yours services shall stand terminated on the completion of your trial period of service of six months.LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 25/33
2. In case you are retained in service on your successful completion of trial period of six months, your appointment in service shall be for a fixed period of three years with effect from the date of the completion of your trial period of service. Your fixed term employment of three years shall lapse and come to an automatic end on the completion of your fixed term contractual employment of three years.
7. The nature of business of the company is such that the same fluctuates with the volume of meals catered by the company and is dependent upon the continuation of the contract with the airlines which are time bound and terminable at a short notice.
In view of the uncertain nature of the business, the company cannot have a fixed workforce of the permanent workmen and, as such, it is clearly understood and agreed to by you that this fixed term appointment shall not vest any right in you to seek continuation or absorption in service of the company on the expiry of your fixed term employment of three years.
35. A perusal of the said appointment letter Ex.WW1/1 categorically reveals that all the workmen were appointed on a fixed term basis for a period of three years with effect from the date of completion of the trial period of services which was six months and on completion of the fixed term employment of three years, the service contract had to come to an end automatically. As such I have no hesitation to hold it has been rightly argued by the management that as per the appointment letters, no right was vested in the workmen to seek continuation or absorption in the services of the management on the expiry of their fixed term employment. To my mind, it has been rightly argued by the management that the workmen had no right much less than any legal right to continue in employment after their fixed term contractual employment was terminated by the management in terms of their contract of employment. While holding so, I am fortified by the observations of 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.
LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 26/33In Para No. 6 of the abovesaid judgment the Hon'ble Supreme Court 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 begin 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."
36. 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 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 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 LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 27/33 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 elied upon by the counsel appearing on behalf of the petitioners."
37. The abovesaid judgment 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 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, 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."LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 28/33
"13. A perusal of the judgment 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 judgment. Consequently, the appeal is dismissed with no order as to costs."
38. Going by the ratio of the abovesaid judgments, I am of the opinion that the workmen are bound by the terms and conditions of their contract of employment and are estopped from raising any dispute seeking continuation or absorption in regular services.
39. The next contention of the workmen is in respect of the Standing Orders which have been framed in pursuance to the Industrial Employment (Standing Orders Act), 1946. It has to be seen that there is no dispute with respect to the fact that the management had got its Standing Orders Certified and the same are on record in the form of Ex.MW1/122. To my mind, it has LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 29/33 been rightly argued by the management that Certified Standing Orders are statutorily imposed terms and conditions of service of the workmen. It has to be seen that in the authority titled as Rajasthan State Road Transport Corporation Vs. Bal Mukand Bairwa titled as (2009) 4 SCC 299: (2009) 3 LLJ 177, a three Judge Bench of the Hon'ble Supreme Court of India has held as under :
"Section 3 of the 1946 Act obligates every industrial establishment to frame Standing Orders in respect of matters set out in the Schedule appended thereto and submit the same to the certified officer who shall certify the same upon arriving at its satisfaction that they have been framed in accordance of the 1946 Act. Upon such certification, the Standing Orders become binding upon the employer and employees."
40. The next submission of the claimants is that fixed term appointment was deleted from the Certified Standing Orders by the Certifying Officer. During the course of arguments, it has not been denied by the management that the Certifying Officer passed the orders dated 31.08.2012 deleting the provisions pertaining to fixed term employment and the effect of the abovesaid orders was only prospective but not retrospective. Needless to mention that the claimants were appointed in the year 2007 or in the year 2009 i.e. in any case prior to the year 2012 when there was no deletion of the fixed term employment from the Certified Standing Orders.
41. The next contention of the claimants is that no prior permission was sought for by the management under Section 33 (2) (b) of the ID Act before terminating the services of the claimants and that Provisions of Section 25-N of the ID Act have LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 30/33 been violated by the management.
42. I am of the opinion that the abovesaid submission of the claimants does not hold much water, once it is held that the services of the claimants came to an end automatically because of lapse of time as they were appointed on fixed term contract basis. To my mind, the termination of the services of the workmen cannot be called retrenchment by any stretch of imagination and as such, there is no violation of Section 25-N of the ID Act. I am also of the opinion that the provisions of Section 33 (2) (b) of the ID Act are not applicable to the case of the claimants.
43. The next submission of the claimants is in respect of the formation of the Appraisal Committee by the management. I am of the opinion that formation or non-formation of the Appraisal Committee by the management is of no use to the case of the claimants as the services of the claimants came to an end automatically on completion of their fixed term employment.
44. Last but not the least, the claimants have argued that MW- 1, the sole witness examined by the management has admitted that the number of flights increased from time-to-time and the claimants were victimized as their employment was not extended and that they were not regularized.
45. In this regard, first of all, it has to be seen that as per the submissions of the management, the business operations of the management at Delhi have already been closed with effect from 31.01.2021 on account of the termination of the license LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 31/33 agreement by Delhi International Airport Limited. Otherwise also, if the cross-examination of MW-1 is carefully gone through, to my mind, the same is in consonance with the stand of the management as contained in the written statement. MW-1 has denied that on completion of the probation period of six months, the workmen were to be absorbed permanently. MW-1 has admitted it to be correct that the management has terminated the services of the claimants as their term as mentioned in their fixed term contract has come to an end. MW-1 has further stated that there is no question of taking the permission from the court before termination of the services of the workmen as their fixed term employment has come to an end. As such, I am of the opinion that the abovesaid submission of the claimants that the business of the management was prospering and that they were not absorbed in permanent services despite the flourishing business cannot come to the aid of the case of the claimants.
46. In the light of the abovesaid discussion, I am of the opinion that the management has been able to prove that the workmen were appointed on fixed term basis and their services came to an end by lapse of time. Issue No. 2 is, therefore, decided in favour of the management and against the claimants. Consequently, this court is of the opinion that the services of the claimants were not terminated illegally and unjustifiably by the management. The claim of the claimants is hereby dismissed. Reference is answered accordingly.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 32/33 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 February, 2022 RAJ Digitally signed by RAJ KUMAR Date: KUMAR 2022.02.25 14:59:00 +0530 (Raj Kumar) Presiding Officer, Labour Court-III Rouse Avenue Courts, New Delhi. LIR No. 3783/16 Sunil Kumar Bagdi Vs. M/s. Skygourmet Catering P. Ltd. Page 33/33