Delhi District Court
8.1994 vs The P.O on 31 March, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
PRESIDING OFFICER : LABOUR COURT XVII:
ROOM NO. 46 KKD:DELHI
ID No.211/10/94.
Unique ID No.02402C0001951994.
(i) Syndicate Power Engineers,
Scope Complex, 7 Lodhi Road,
New Delhi3
(ii) M/s. Scope (Standing Conference of Public Enterprises)
R/o C8, 1st Floor, SCOPE Office Complex,
Lodhi Road, New Delhi3.
..............Managements
Versus
And its workman Sh. Dinesh Kumar,
R/o II/39, NCERT, Sri Aurobindo Marg,
New Delhi16.
.............Workman
DATE OF INSTITUTION : 04.08.1994.
DATE ON WHICH AWARD RESERVED : 25.03.2015.
DATE ON WHICH AWARD PASSED : 31.03.2015.
A W A R D :
1. Vide Order No. F.24(1594)94/Lab./3903843 dated
ID No.211/10/94. 1/23
01.08.1994, issued by Government of NCT of Delhi, a reference
was sent to this Court with the following terms:
"Whether the services of Shri Dinesh Kumar
have been terminated illegally and / or
unjustifiably by the management and it so, to
what relief is he entitled and what directions
are necessary in this respect?"
2. Claimant's case is that management No. 1 was his
employer but principal employer was management No. 2. M/s.
Syndicate Power Engineers had taken the licence under Contract
Labour (Regulation and Abolition) Act. Many other contractors
like management No. 1 had deputed more than 100 employees in
the SCOPE Building for the work of cleaning, fire brigade, Canteen
and helper etc. He joined management No. 2 as Helper on
01.06.1990. In order to deprive him of regularization and other
benefits, he was hired through contractor i.e. management No. 1.
The contract between both management is sham and camouflage
and it was entered in order to deny the legal rights to him. The
entire control of the claimant was with management No. 2.
Management No. 2 had filed written statement before the
Conciliation Officer in which it had admitted that it was having
ID No.211/10/94. 2/23
control over the claimant. The only duty of management No. 1 was
to disburse the wages of the workman after collecting the bills from
management No. 2. It was management No. 2 who used to give
instructions to the claimant as the plant and machinery belonged to
it. He used to render services to the satisfaction of the management
No. 2. Duties were discharged by him according to the guidelines
and directions given by management No. 2. On 06.12.1992, he had
gone to village Maujpur, Delhi to join the marriage of sister in law
of his elder brother. He could not join the duty from 07.12.1992 to
13.12.1992 as the curfew was imposed in Delhi due to demolition
of Babri Masjid. When he reached to the office of management
No. 2 on 14.12.1992, it refused to take him back on duty and he
was told that his services were terminated due to absence from
07.12.1992 to 13.12.1992. He sent a demand letter on 24.12.1992
but needful was not done. The workman has sought reinstatement
with continuity of service and full back wages alongwith other
benefits.
3. Management No. 1 is exparte vide order dated
24.03.1998 and by that time it had not filed written statement.
ID No.211/10/94. 3/23
4. Written statement of management No. 2 is that it had
never employed the claimant and so there was no relationship of
employer and employee. It is further mentioned that it is the
unambiguous admission of the workman himself that he was
employed by management No. 1.
5. Following issues were framed on 19.07.1999 and
28.07.2006:
1. Whether the reference has not been made by
appropriate government?
1A Whether the contract between the scope & the
respondent No. 2 Syndicate Power Engineers is
sham & Camouflage? If so, its effect?
1B Whether the workman was hired by respondent No. 2 through respondent No.1 just to defeat the legal rights of the workman? If so its effect?
2. Whether workman was employee of management No. 2?
3. Whether services of workman were terminated illegally and / or unjustifiably?
ID No.211/10/94. 4/23
4. Relief.
6. In order to substantiate his case, the workman examined himself as WW1 and Mr. S.R. Kumar as WW2. The management examined its Assistant Executive Engineer Mr. Anand Jain as MW1.
7. WW1 deposed that he was recruited by management No. 2 through management No. 1 as helper on 01.06.1990 and he used to mark his attendance in the register maintained by management No. 2 and was doing the job of perennial nature. He was shown to have been engaged through management No.1 in order to deny him the regularization though the entire control over him was being maintained by management No. 2. He was issued gate passes Ex.WW1/F by management No. 2 and he relied upon the management report Ex.WW1/G also. All his grievances were redressed by the officials of management No. 2 when he moved applications Ex. WW1/G(a) to Ex. WW1/G(f) regarding salary, DA and other facilities. The officials of management No. 2 directly used to ask him to attend the complaints Ex. WW1/H to Ex. WW1/H16. He further deposed that management No. 1 had ID No.211/10/94. 5/23 submitted in the written statement filed before the Conciliation Officer that its only duty was to supply labour to management No. 2 and that also shows that the entire control over him was of management No. 2. He used to render services to the satisfaction of management No. 2. He used to discharge duties as per their guidelines and directions. Regarding his absence from 07.12.1992 to 13.12.1993 he deposed that he had gone to Village Maujpur, Delhi on 06.12.1992 to attend marriage ceremony of a relative. The Barat reached there late, the marriage ceremony could not end on time and that is why he had to stay in that village. He relied upon the marriage Invitation Card as Ex. WW1/1. He left the village Maujpur on 07.12.1992 but was stopped enroute because entire Delhi was under the grip of curfew pursuant to the demolition of Babri Masjid at Ayodhya on 06.12.1992. He relied upon the paper cuttings as Ex. WW1/J1 to J4. Ultimately the curfew was relaxed on 14.12.1992 and when he approached the office of management No. 2, he was asked to explain in writing the reasons of absence from duty. He had given intimation regarding his absence to one Mr. R.B. Sharma, Pump Operator on 06.12.1992 itself.
ID No.211/10/94. 6/23
WW2 S.R. Kumar deposed that he was working in the Fire Pump Room of SCOPE Complex since 1988 and the claimant was his Helper. His attendance was being recorded in the Pump Room itself but it was monitored by Engineering Incharge, Scope. Leaves were also sanctioned by the said Incharge. He further deposed that salary was being paid by a contractor T. Mittra of Syndicate Power Engineers in the presence of Engineering Incharge Scope. The duties were given to them by Engineering Incharge of management No. 2. He further deposed that they were appointed by management No. 1 and were also paid salary by the management No. 1. The used to work for the satisfaction of management No. 2 and not for the satisfaction of management No.
1. He corroborated Ex. WW1 by deposing that there was a curfew in Delhi on 06.12.1992 on account of demolishion of Babri Masjid. Whenever, any employee was on leave, he used to inform the Engineering Incharge of the Scope. Also there was a Pump Operator by the name of R.B. Sharma at that time. In case, they were unable to contact the Incharge Engineering Scope, they used to communicate to Sh. R.B. Sharma. He came to know that claimant had communicated to Pump Operator R.B. Sharma on 07.12.1992 that he was unable to join the duty due to curfew. ID No.211/10/94. 7/23
8. MW1 Anand Jain deposed that he was working as Assistant Executive Engineer (Civil) with management No. 2. In 1992, he was working as Junior Engineer with the same management. He further deposed that Scope is an Apex Body of Public Sector Enterprises and is one of the occupants / owners of Scope Complex, 7 Lodhi Road, New Delhi. In that capacity, it is the Coordinator of Maintenance Management Committee of SCOPE Complex on behalf of all other constituents / owners for maintenance of common services in SCOPE Complex as per the existing arrangement which was not permanent one. He further deposed that Fire Fighting System was one of the maintenance works in SCOPE Complex. All the machineries and systems installed in SCOPE Complex belonged to its all constituents / owners. He further deposed that workman was never employed by management No. 2 on 01.06.1990. Rather he was appointed by management No. 1 who was its contractor of Fire Fighting System in the SCOPE Complex from 1990 to 1995. The workman did not contact the management No. 2 on 14.12.1992 or subsequent thereto.
ID No.211/10/94. 8/23 Issue No. 2
9. Ld. ARW submitted that the Government of NCT of Delhi is the appropriate Government to send reference to the Labour Court even against management No. 2. On the other hand, Ld. ARM submitted that Government of NCT of Delhi is lacking that power. ARW heavily relied upon :
(a) Apparel Export Promotion Council Vs. The P.O., Indul.
Tribunal No. 1 and Ors., Civil Writ Petition 3544/99 decided by the Hon'ble High Court of Delhi on 16.05.2002.
(b) Sports Authority of India Vs. Sports Authority of India, Kamgar Union and Ors.,Writ Petition Civil 6010/2002 decided by the Hon'ble High Court of Delhi on 25.11.2004.
(c) Indian Tourism Development Corporation Vs. Delhi Administration and Ors. Civil Writ Petition 713 and 1742 of 1981 decided by the Hon'ble High Court of Delhi on 29.0.1982.
Management No. 2 was the petitioner in Writ Petition No. 11782/2004, decided by the Hon'ble High Court of Delhi on 10.11.2006 in the case tilted as Standing Conference of Public Enterprises Vs. Government of NCT of Delhi, Delhi & Anr. In that case, the Hon'ble High Court came to the conclusion that ID No.211/10/94. 9/23 appropriate Government for sending reference against the Scope was the Central Government and not the Government of NCT of Delhi. Following portion of the said judgment is highly relevant: "6. While answering issue No. 1, whether the reference has been made by the appropriate government or not, the Tribunal observed that no evidence has been led that the management was an industry being carried on by or under the authority of the Central Government. It further observed that since the Delhi was a Union Territory, a Union Territory is administered by the President of India under Article 239 of the Constitution of India. In case of the Union Territory, the Central Government and the State Government merge into each other and it is immaterial whether an order of reference is made by one or the other. The Tribunal rejected the contention of the petitioner that Delhi Government was not an appropriate Government. I consider that this finding of the Tribunal is contrary to the facts and law. The Delhi is no longer a Union Territory and it is a State now for many years. It was a State when the reference was made. There is no merger of Central Government and the Delhi Government either in case of labour matters. The reasons given by the Tribunal for ID No.211/10/94. 10/23 upholding that the reference being made by the Delhi Government, was in order, do not stand the scrutiny of law. In writ petition (Civil) No. 2486 of 1997, in a case under LCRA Act, regarding issuance of a notification under Section 10 of CLRA Act, this Court gave directions to Delhi Government to refer the matter to Labour Advisory Board. The Labour Advisory Board sought legal opinion and the Ministry of Labour, Government of India, vide letter dated 11.02.2000, confirmed that the appropriate government in respect of the petitioner under Contract Labour (Regulations & Abolition ) Act, & ID Act was the Central Government and the matter of issuance of notification shall be considered by the Central Government. This letter was brought to the notice of the Court. This letter shows that the petitioner, a society, registered under the Societies Act at the behest of Central Government was constituted to look after, internally and externally, the public sector undertakings, was working under the authority of the Central Government. Had it been not so, the Central Government would not have written to Delhi Government about it being the appropriate Government. The petitioner society was constituted by the Central ID No.211/10/94. 11/23 Government to assist the public sector undertakings in their development, effective management and achievements. The public sector undertakings were spread all over India. The Tribunal ignored the letter, observing that this letter was not binding on the Tribunal. I consider that the letter was a clear evidence and proof of the fact that the business of the petitioner was being conducted under the authority of Central Government and Tribunal's order is perverse as it ignored material evidence and gave decision of issue on no evidence, conjectures and surmises. In Steel Authority of India Ltd. and others Vs. National Waterfront Workers' Union and Others 2001 (5) Scale 626, the Supreme Court held"
"There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to Central Government though they may be 'State' within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of Central Government would not be itself amount to having the authority of the Central Government to carry on that particular industry. Therefore, it will be incorrect to say that in relation to any establishment of a Central Government ID No.211/10/94. 12/23 Company / undertaking, the appropriate Government will be the Central Government. To hold that the Central Government is "the appropriate Government" in relation to an establishment, the court must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the "appropriate Government" under the CLRA Act and the I.D. Act provided the industry in question is carried on by Central Government company / an undertaking under the authority of the Central Government. Such an authority may be conferred, either by a Statute or by virtue of relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central government, is conferred on the Government company / any undertaking by the Statute under which it is created, no further question arises. But if it is not so, the question that arises is whether there is any conferment of authority of the Government company / any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts ID No.211/10/94. 13/23 and in the circumstances of each case."
(para 39).
6. The letter written by the Central Government to the Advisory Board of Delhi Government that it was th e appropriate government, was sufficient evidence to show that the petitioner's business was being carried on under the authority of the Central Government. In fact, the petitioner was a creation of the Central Government in order to help the Central Government, for development of the public sector undertakings, it had to work under the directions and guidelines of Central Government only. The appropriate government in case of the petitioner, therefore, had to be the Central Government and the reference made by the Delhi Government was illegal and beyond jurisdiction.
The citations relied upon by the workman are of the years 1982, 2004 and 2001. The citation relied upon by management No. 2 is of the year 2006 i.e. subsequent to the citations of the claimant. So this Court is going by law relied upon by the management No. 2 in which Hon'ble High of Delhi has held that Government of NCT of Delhi was not the appropriate ID No.211/10/94. 14/23 government in sending the reference against management No. 2. Hence, this issue is decided in favour of the management No. 2 and against the workman.
Issue No. 2.
10. Ld. ARW argued that the claimant was employed by management No. 2 through management No. 1 in order to deprive him of legal benefits provided under the I.D. Act. He further submitted that he used to do his duties as per direction of management No. 2. It was management No. 1 which used to ask him to attend to duty. He used to attend the complaints as per the instructions of employees of management No. 2.
On the other hand, ld. ARM submitted that claimant was never the employee of the management No. 2. In fact, he was hired by management No. 1 which used to provide manpower to management No. 2. He admitted that claimant used to mark his attendance in the records of management No. 2 because management No. 2 used to pay salary to him on the basis of their attendance. That fact does not prove that he was employed by management No. 2.
ID No.211/10/94. 15/23
11. Ex. WW1/B is the attendance sheet for various months and name of the claimant is appearing in those sheets. It is crystal clearly mentioned that the attendance sheets pertain to Fire Pump Room, Scope Complex.
It is clearly mentioned in gate pass Ex. WW1/F that such passes were issued to 9 persons including the claimant just to enter the complex. It is further mentioned that the persons to whom the passes were issued were the employees of management No. 1. It is mentioned in letter dated 27.06.1991 Ex. WW1/G(b) that the claimant was employed through management No. 1 for the operation and maintenance of Fire Fighting System and equipment. Union leaders of the claimant had written letter Ex. WW1/g to the Managing Director of Scope Complex on 22.10.1993 mentioning therein that the claimant etc. were the employees of contractor and that the contractor be directed to give them DA etc. as per 5th Pay Commission. Ex. WW1/H to Ex. WW1/H16 are the complaints attended by the claimant. It is mentioned in complaint Ex. WW1/H16 that on 26.11.1991, a complaint was attended by claimant at 11.00 a.m and that claimant was the employee of ID No.211/10/94. 16/23 management No. 1. After termination of services, the workman had made complaint Ex. WW1/K to SHO PS Seelam Pur in which has has described himself as the employee of Mr. T. Mittra, Engineer Incharge, Syndicate Power Engineers, Scope Complex, 7, Lodhi Road, New Delhi110003. There is a letter dated 07.05.1993 Ex. WW1/N written by claimant himself to Mr. T. Mittra of Syndicate Power Engineers. In the entire letter, the claimant is describing himself as employee of M/s. Syndicate Power Engineers. Another letter to that effect is Ex. WW1/O dated 24.12.1992.
12. It is the case of the claimant himself that he was employed by management No. 1 and to that effect is his deposition in para No. 2 of his affidavit i.e Ex. WW1/A. He admitted in cross examination that he joined the management on 01.06.1990 as Helper to Pump Operator. He termed Mr. T. Mittra somewhere as Contractor and somewhere as owner of Syndicate Power Engineers. He further admitted that management No. 1 was the contractor whose job was to maintain the Fire Fighting System for the whole complex. In cross examination dated 17.10.12, he deposed that Mr. ID No.211/10/94. 17/23 T. Mittra, being the owner of management No. 1 used to pay him the salary. He gave evasive replies that he used to take leave from management No. 1, but when he was confronted with the applications Ex. WW1/L, Ex. WW1/N and Ex. WW1/N1, he had to admit that all these applications were addressed to management No.
1. He further admitted that he had not placed on record any leave application addressed to management No. 2.
WW2 is also not supporting WW1. He deposed that he and WW1 were appointed by the management No. 1. It was management No. 1 which used to give them salary. For appointment in management No. 2, he clarified that there is always an advertisement followed by Appointment / Selection Committee and appointment letter is issued. He deposed that earlier he was employed by M/s. Best and Crompton which was a contractor with management No. 2. The contract of M/s. Best and Crompton came to an end and it was given to management No. 2 and thereafter he joined management No. 2 and in this way became its employee. About claimant, he deposed that claimant joined management No. 1 through one Mr. Rajesh Kumar Singh.
On the strength of above deposition and documents, it is held that claimant was not employee of management No. 2. ID No.211/10/94. 18/23
Issue No. 1A and 1B.
13. Onus of proof of these issues was heavily placed upon the workman. In order to discharge that onus, he deposed that he used to mark his attendance in the register maintained by management No. 2. He was issued gate passes by management No. 2. He used to discharge his service to the entire satisfaction of the officers of management No. 2.
It has already been held in the decision to issue No. 2 that he was not employee of management No. 2. He did not lead any evidence how the contract between management No. 1 and management No. 2 was sham and camouflages and was entered to defeat his legal rights. So both these issues are also decided against him.
Issue No. 3.
14. There is no single letter / demand notice by workman addressed to management No. 2. Letters Ex. WW1/G, WW1/L, Ex. WW1/N and Ex. WW1/O for reinstatement etc. have been addressed to Mr. T. Mittra, Engineering Incharge, Syndicate Power ID No.211/10/94. 19/23 Engineers, Scope Complex, Lodhi Road, New Delhi. All these letters make it clear that claimant had never raised any demand of any type from management No. 2. For the purpose of industrial dispute, the workman is required to prove that he was workman of any particular management, he raised some demands and the demands were not acceded to by the management. His case is lacking on all three counts. It has already been held that he was not the employee of management No. 2. In Sindhu Resettlement Corporation Ltd., Vs. Industrial Tribunal of Gujrat and others, AIR 1968, Supreme Court 529 (V 55 C 115), following was held by the Hon'ble Supreme Court : "It may be that the Conciliation officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from 21st February, 1958, but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant. If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an ID No.211/10/94. 20/23 industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer cannot become an industrial dispute.
Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal had ever existed between the appellant Corporation and the respondents and the State government, in making a reference, obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be form3ed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July, 1958 respondent No. 3 and respondent No. 2 respectively had confined their demands to the management to retrenchment compensation only and did not make any demand for reinstatement. On ID No.211/10/94. 21/23 these facts, it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject matter of dispute between the appellant and the respondents".
Above decision of the Apex Court was followed by the Division Bench of Hon'ble Delhi High Court in (1) Fedders Lloyed Corporation Pvt. Ltd. Vs. Lt. Governor, Delhi & Others, ILR (1969) 632 and (2) Delhi Transport Corporation, Parivahanalaya, Indraprastha Estate, New Delhi and Delhi Administration and others, II LLJ 1973 307. Issue No. 4
15. The reference has not been sent by the appropriate government. Claimant was not employee of management No. 2 and so there arises no question of his termination by it. He failed to substantiate that the contract between both managements was sham and camouflage. So he is not entitled to any relief. Claim is dismissed. Parties are to bear their own costs. The reference is ID No.211/10/94. 22/23 answered accordingly.
16. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 31.03.2015. POLCXVII/KKD, DELHI. ID No.211/10/94. 23/23