Delhi District Court
Sh. Kumod Kumar vs M/S New Delhi Municipal Council on 21 October, 2009
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IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.50/08
Sh. Kumod Kumar Workman
S/o Sh. Shiv Prasad
( Beldar/ Khallasi)
represented by
Municipal Employees' Union,
Aggarwal Bhawan, GT Road,
Tis Hazari, Delhi 54.
Versus
M/s New Delhi Municipal Council Management
,Through its Secretary, Palika Kendra
New Delhi.
Date of institution 16.04.08
Arguments concluded on 13.10.09
Date of award 21.10.09
AWARD
1.Workman has raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal in the following terms:-
''Whether services of Sh. Kumod Kumar S/o Sh. Shiv Prasad, Beldar/ Khallasi, came to an end after completion of specific work and if no, to what relief is he entitled and whether Sh. Kumod Kumar is entitled to be appointed in NDMC on regular basis ?'' 2
2. In the statement of claim, it is alleged that workman joined the Management as Beldar/ Khallasi w.e.f. 9.6.05. It is alleged that though he was working against a regular post and work assigned to him was of permanent nature nevertheless he was being treated as monthly paid/ muster roll worker and was being paid fixed wages under Minimum Wages Act while his counterparts doing identical work were being treated as regular employees and were being paid salary in proper pay scale apart from other facilities such as uniform, EL, CL etc. Services of the workmen were allegedly terminated w.e.f. 31.10.05 without assigning any reason instead of regularizing his services.. It is alleged that workman had committed no misconduct, no memo or charge sheet was served upon him, no domestic inquiry was conducted against him, no opportunity of being heard was given to him, therefore, his termination is bad and he is entitled to reinstatement with full back wages. It is alleged that workman is entitled to regularization from initial date of his engagement inasmuch as he had been continuously working with the Management till date of his termination.
3. In the WS , case of the Management is that workman was engaged for a specific job on temporary basis as Mazdoor/ labourer and when the job was over, 3 his engagement automatically came to an end, therefore, question of termination of his service did not arise. It is alleged that workman was being on daily wages basis at the rate fixed by the appropriate Government and that since he was not regular employee of the Management, he was not entitled to facilities as were being given to regular or confirmed employees of the Management. It is alleged that workman is not entitled to any relief.
4. On the basis of pleadings of the parties, following issues were framed :-
(1) As per terms of the reference.
5. In order to prove his case, workman has filed his affidavit and affidavit of Vinay Kumar,General Secretary of the Union who have been examined and cross examined as WW--1 and WW--2 respectively. On the other hand, on behalf of the Management, affidavit of Sujraj Mal,A.E. has been filed who has been examined and cross examined as MW--1.
6. I have heard AR for the parties and have carefully gone through record of the case. My issuewise findings are as under :-
7. Findings on issue No 1 Issue No 1 is as per terms of reference. Terms of reference are whether services of Sh. Kumod Kumar S/o Sh. Shiv Prasad, Beldar/ Khallasi, came to an end after 4 completion of specific work and if no, to what relief is he entitled and whether Sh. Kumod Kumar is entitled to be appointed in NDMC on regular basis.
8. At the outset, I may mention that workman has examined WW--2 Vinay Kumar to prove espousal of his dispute. WW--2 in he affidavit has proved that he is General Secretary of the Union; workman is member of his union and had approached it for redressal of his grievance of illegal termination and regularization. Union is deposed to have passed resolution Ex WW1/5 espousing cause of the workman. No evidence to the contrary has been led by the Management. Therefore, in view of Ex WW1/5, I hold that cause of the workman has been duly espoused and present dispute qualifies to be industrial dispute as defined under Industrial Dispute Act.
9. WW--1 Kumod Kumar in his affidavit has deposed that joined the Management as Beldar/ Khallasi w.e.f. 9.6.05. It is deposed that though he was working against a regular post and work assigned to him was of permanent nature nevertheless he was being treated as monthly paid/ muster roll worker and was being paid fixed wages under Minimum Wages Act while his counterparts doing identical work were being treated as regular employees and were being paid salary in proper pay scale apart from other facilities such as uniform, EL, 5 CL etc. Services of the workmen are deposed to have been terminated w.e.f. 31.10.05 without assigning any reason instead of regularizing his services. It is deposed that workman had committed no misconduct, no memo or charge sheet was served upon him, no domestic inquiry was conducted against him, no opportunity of being heard was given to him, therefore, his termination is bad in bad and he is entitled to reinstatement with full back wages. It is deposed that workman is entitled to regularization from initial date of his engagement inasmuch as he had been continuously working with the Management till date of his termination. He has relied upon documents Ex WW1/1 to WW1/7.
10. In his cross examination, he has admitted that on he did not receive any appointment letter from the Management. He has also stated that he worked with the Management only for 60-62 days approximately. He has also stated that juniors to him are still working with the Management but he has no documentary proof in this regard nor he has named any juniors to him who is in service of the Management.
11. MW--1 Suraj Mal in his affidavit has deposed that workman was employed for performing specific job on temporary basis and on completion of the job, his engagement came to an end. It is deposed that 6 Management has not terminated his services. It is deposed that workman has not even completed work for 240 days, nor he was appointed against any permanent or regular nature of job. It is deposed that during employment of the workman, he was being paid at fixed rate as notified by the appropriate Government from time to time. .
12. It has been argued by AR for the workman that he was employed by Management as Beldar on 9.6.05; the work against which he was employed was of regular and perennial nature. It is argued that services of the workman were dispensed with by the Management on 31.10.05 without assigning any reason, therefore, even if he has not completed 240 days of continuous service, termination of his service contrary to provisions of section 25G and H would amount to retrenchment within the meaning of section 2(oo) unless Management proves that its case falls within section 2(oo)(bb). It is also argued that juniors to the workman have been retained in service whereas services of the workman were dispensed with, therefore, he is entitled for regularization from the date of his initial appointment.
13. On the other hand, it has been argued on behalf of the Management that workman was employed on casual basis as and when work had arisen. It is argued 7 that since work on which workman was employed was of casual nature, he did not work continuously for 240 days and worked only from 9.6.05 to 31.10.05, therefore, he is not entitled for benefits of section 25F. It is argued that workman himself stopped coming to work, therefore, he can not be allowed to invoke provisions of section 25G and H are not applicable when workman had been employed on casual basis and cessation of his employment would not amount to retrenchment in view of Uma Devi's case and Ajay Kumar Sharma vs Presiding Officer, Labour Court No VI, and another 2007 I-LLJ 262.
14. In his cross examination, WW--1 Kumod Kumar has admitted that he was engaged by the Management on 9.6.05 and that on 31.10.05 when he went to the Management to report for duty, he was asked to go back as his work was over. He has even admitted that he had worked with the Management for 60-62 days approximately. On the other hand, MW--1 Surajmal has stated that workman was engaged as a labourer for performing specific job and on completion of his job, his employment automatically came to an end. In his cross examination, he is specific that workman himself had left the job. No suggestion has been put to him disputing this averment. Nothing has been placed on record on behalf of the workman that after 31.10.05 any letter was 8 written to the Management by him complaining that his services had been wrongly terminated. It clearly shows that workman himself stopped reporting for duty and that amounts to abandonment on his part.
15. Even if it be taken for the sake of argument that services of the workman have been discontinued, to his own admission, he had worked only for 60-62 days with the Management from 9.6.05 to 31.10.05. According to Ex MW1/1 issued by Executive Engineer of the Management, workman had worked for 124 days. However, case of the workman is that even if he had worked for a single day, termination of his service in violation of section 25G and H would amount to retrenchment.
16. AR for the workman has relied upon authorities reported as Sh. Gaffar and others vs UOI 1984 Lab. I.C. 645; Kamlesh Singh vs Presiding Officer and another 1987 SCC ( Lab) 75; Samishta Dube vs City Board, Etawah & Anr. 1999 II AD ( SC) 257; Management of MCD vs Shyam Lal and Others 1994 LLR 850; MCD vs Sh. Khacheru through Municipal Employees Union and another 1993 LLR 5, MCD vs Ajay Kumar 117 ( 2005) DLT 614; NDMC vs Rajender 117 ( 2005) DLT 424; Raj Rani vs Guru Tej Bahadur Hospital 139 ( 2007) DLT 701; Rameshwar Dayal vs Presiding Officer, Labour Court No 9 VI, Delhi & Anr. 140 9 2007) DLT 453; MCD vs Narender Kumar and another 144 ( 2007) DLT 493; Balram Dass ( deceased) through LRs and others vs UOI through Director General of Works, CPWD 150 ( 2008) DLT 161 and Govt of NCT of Delhi vs Shri Balbir Singh and others 1997 LLR 628.
17. Main thrust of authorities relied upon by AR for the workman is on the point that when Management has deviated from rule of ''last come first go'', it is violation of section 25G and H and workman is entitled to reinstatement with back wages.
18. In his cross examination, list of casual/ seasonal/ daily wager/ Beldars and Malies working with Management and engaged by it in the year 2005 have been proved as Ex WW2/1. However, name of the workman does not find mention in the said list. Workman has relied upon this list with a view to highlight that Management had employed casual workers even after 31.10.09 in preference to workman which is violation of section 25H and thus workman is entitled to reinstatement. However, in Samishta Dube vs City Board, Etawah and another ( supra), it has been held that rule of 'first come, last go' could be deviated from by an employer in cases of lack of efficiency or lack of 10 confidence etc. This authority goes against the workman inasmuch it has been held by me that workman himself stopped reporting for duty w.e.f. 31.10.05 which amounted to abandonment on his part, therefore, in view of this authority, Management can not held liable for violating provisions of section 25G and H.
19. The workman in his cross examination has not specified the persons juniors to him were retained by the Management nor he has placed on record any documentary proof in this regard, when he himself abandoned the job and has not specified as to who were juniors who were retained by the Management, provisions of section 25G and H were not applicable in that situation.
20. Retrenchment has been defined in section 2(oo) '' retrenchment'' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include ( bb) termination of service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein.
21. MW--1 Suraj Mal has specifically deposed that workman used to be employed as and when job occurred 11 and which came to an end on completion of the job. He has also specified in his cross examination that workman was doing work of digging and filling. It is a work duration of which varied from to time which had arisen at a particular period.
22. Section 25F provides that '' No workman employed in any industry who has been in continuous service for not less than one year. Term one year has been defined under section 25B. To apply section 25B, one is required to put in continuous service of 240 days in a calender year. To the admission of the workman, he had worked for 60-62 days, though according to Management he worked for 124 days during the period 9.6.05 to 31.10.05, therefore, provisions of section 25F were not attracted nor the cessation of his employment comes within the meaning of section 25F.
23. Section 25G provides that '' where any workman in an industrial establishment who is to be retrenched, in the absence of any agreement between the employer and the workman in that behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. Section 25H deals with re-employment of retrenched workman.
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24. In the present case, terms of reference are not whether retrenchment of the workman is illegal or unjustified or contrary to provisions of Industrial Dispute Act. Reference made to this tribunal is ''whether services of Sh. Kumod Kumar S/o Sh. Shiv Prasad, Beldar/ Khallasi, came to an end after completion of specific work and if no, to what relief is he entitled and whether Sh. Kumod Kumar is entitled to be appointed in NDMC on regular basis''. It has been categorically stated by MW--1 that workman was employed against a specific job and on completion of job assigned to the workman, his employment came to an end. Therefore, after completion of casual job on which he was employed came to an end, his services automatically came to an end.
25. In Secretary, State of Karnataka vs Umadevi and others AIR 2006 SC 1806 which is larger and constitutional bench authority, it has been held that unless the appointment is in terms of relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual/ casual appointment, the appointment comes to an end at the end of the contract/ work, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is 13 discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It was also held that employment of daily wager/ contractual/ casual workers confers no right of permanent employees. Secondly, it was held that contractual employee working on less than wages than regular employees is also not illegal because when they are employed, they know that they were being employed as daily wager purely on temporary basis. It was also held that permanent absorption of daily wager can not be claimed as a matter of right and set of persons can not be preferred over vast majority depriving them of their opportunity to compete for public employment. It was also observed that temporary employees appointed in violation of constitutional scheme do not have an enforceable legal right to be permanently absorbed nor the court is competent to direct Government to make them permanent. It was further held that Govt. should 14 frame one time policy for regularization of the workmen who had been working since long. Similar observations were also made in UP Power Corporation vs. Bijli Mazdoor Sangh and others 2007 (5) SCC 755.
26. In Surender Kumar Gyani vs State of Rajasthan and another AIR 1993 SC 115, it has been held that termination of services of daily wagers/ casual workers, not recruited against a specified vacancy and in accordance with recruitment rules and regulations, was not illegal or unjustified and compliance of section 25F was also not necessary. In Himanshu Kumar Vidyarthi and others vs State of Bihar and others AIR 1997 SC 3657, it has been held that termination of services of the daily wagers does not amount to retrenchment.
27. In Ajay Kumar Sharma vs Presiding Officer ( Supra), it has been held that engagement of daily wages or casual basis would come to an end when it was discontinued. It was also observed that merely because a temporary or casual worker was continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed in regular service or made permanent.
28. In view of factual position as discussed above, workman was engaged on a specific job i.e. digging and 15 filling and he was employed as and when work arose and after completion of the work, his employment came to an end, therefore, discontinuance of his employment neither amounted to retrenchment within the meaning of section 2(oo) inasmuch his case is covered by provision of section 2 (oo)(bb). It also stands proved on record that he himself abandoned his job and did not report for duty which amounted to abandonment of his service. Therefore, when he himself had abandoned his services, he can not claim benefit of his own wrong. He never reported for duty after 31.10.05 nor did he write any letter to the Management in this regard after 31.10.05, therefore, he can not complain that his juniors had been retained in job and he has not been re-employed.
29. In Director, Institute of Management Development, UP vs Smt Pushpa Srivastava 1992 (3) SCR 712 and Himachal Pradesh vs Suresh Kumar Verma 1996 (1) SCR 972, it has been held that if a person was appointed on daily wage basis, he was not appointed to a post according to rules governing service of employees of State or its instrumentalities and when on termination of project employing them coming to an end, they could not be directed to be re-engaged or appointed against existing vacancies. These authorities have been upheld in Uma Devi's case ( supra). In the present case, workman was 16 employed on daily wage basis. Appointment of a person as daily wager pre-supposes existence of an implied contract which begins with employment of workman on a particular day and comes to an end at the end of the day. Therefore, workman does not have right to a post so as to attract provisions of section 25F,G & H of the I.D. Act. Authorities relied upon by AR for the workman are not attracted to the facts of the present case.
30. In view of reasons given above, I hold that workman was employed on casual basis against a specific job and his service came to an after completion of specific work. I also hold that workman is not entitled to any relief. This issue is accordingly decided in favour of Management and against the workman.
31. Relief:- In view of my findings on issue No 1, I hold that workman was employed on casual basis against a specific job and his service came to an after completion of specific work. I also hold that workman is not entitled to any relief. Reference is answered in these terms. Award is accordingly passed. Same be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 21.10.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.
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