Delhi District Court
Between The vs The on 5 October, 2013
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IN THE COURT OF SH.S.S.MALHOTRA, PRESIDING OFFICER, LABOUR
COURT NO. IX, KARKARDOOMA COURTS, DELHI
ID NO. 523/02(old), 280/13(New)
Unique Case I.D. No. 02402C0037432002
BETWEEN THE WORKMAN
1 Seema Juneja w/o Sh.Subhash Juneja
2 Anju Suri w/o Sh.A J Suri
3 Neelam Chadha w/o Sh.Pramod Chadha
Represented by
Sh.S.S Upadhyaya, General Secretary,
All India ITDC Mazdoor Janta Union,
166,Pratap Nagar, Opp.Mayur Vihar, Phase I,
Pocket IV, N.Delhi91
AND THE MANAGEMENT OF
General Manager,
Lodhi Hotel, a unit of ITDC,
Lala Lajpat Rai Marg, N.Delhi3,
(now purchased by M/s Hotel Scopevista Ltd)
Date of Institution : 04.01.2003
Date of receiving the case by way of
transfer : 03.08.2013
Date on which award reserved : 03.10.2013
Date of passing of award : 05.10.2013
AWARD
1 Vide this order, I shall dispose off the joint reference no. F. 24/ID.
(2204)/2002Lab./2173034 dated 11.12.02 as received after corrigendum from
the Secretary (Labour) Govt. of NCT of Delhi to the following effect:
"Whether the services of Smt.Seema Juneja w/o Sh.Subhash Juneja,
Seema Juneja & ors vs Lodhi Hotel
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Smt.Anju Suri w/o Sh.A J Suri & Neelam Chadha w/o Sh.Pramod Chadha have
been terminated illegally and/or unjustifiably by the management and if yes, to
what sum of money & monetary relief alongwith consequential benefit in terms of
existing laws/Government notifications and to what other reliefs are they entitled
and what directions are necessary in this respect?".
2 After receiving of the reference, notice was sent to the
claimants/workladies with direction to file the statement of claim which have
been filed jointly. As per the statement of claim, they have stated that they had
been employed in Lodhi Hotel as a Room Attendant since 23.6.86 and prior to
this employment, they were employed at Akbar Hotel, a unit of ITDC as a floor
keeper and after the closure of Akbar Hotel, a fresh appointment was given to
them in Lodhi Hotel as a Room Attendant in 1986 where they had been working
continuously till January, 1991 and were getting saree and blouse as a part of
their uniform for attending the duty of Room Attendant. In the year 1990, the
management changed the pattern of uniform and forced the work women to wear
'Salwar kameej' instead of 'saree and blouse' and the workladies requested the
management to allow them to continue to wear the saree and blouse as they were
getting from the day of their respective appointment in Lodhi Hotel but the
management did not allow this request rather vide letter dt.14.1.91 under the
signatures of Sh.U.Ahluwalia, the then General Manager instructed the time
officer not to allow the workladies to enter the Lodhi Hotel and as such the time
keeper did not allow the claimants/workladies to enter the Lodhi Hotel to perform
Seema Juneja & ors vs Lodhi Hotel
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their duties. The claimants/workladies thereafter made number of representations
to the management of Lodhi Hotel as well as other authorities for justice and to
allow them to perform their duties but the management continued to harass the
claimants/workladies by denying their entry in the Lodhi Hotel and to perform
their duties and ultimately in the month of May, 1991 the claimants represented
their case before the Conciliation Officer of Delhi Government through All India
ITDC Mazdoor Janta Union (for short 'Union') and after proper proceedings, the
Conciliation Officer referred the matter with the following reference:
'Whether the refusal of the duties to Smt.Anju Suri, Neelam Chadha and
Seema Juneja is illegal and/or unjustified and if so what relief are they entitled
and what direction are necessary in this respect'.
3 However, meanwhile when the Conciliation proceedings of the Lodhi
Hotel, a unit of ITDC were pending, the management of Lodhi Hotel had issued
the chargesheet to the workladies following the allegations as per the standing
order of Lodhi Hotel. As per section 16(IX) of the standing order, the
applicants/workladies have protested against the illegal action of the management
for serving the chargesheet on the ground that when the conciliation proceedings
are pending before the conciliation officer then the chargesheet can not be issued
under section 33A of I.D Act, 1947 but without hearing the claimants on the
said chargesheet, the management appointed Sh.S.C Ghai, an Enquiry Officer
who was subsequently replaced by Sh.Hardam Lal who otherwise was an outsider
for the employees and was incompetent to hold the said enquiry.
4 The workladies were served after a gap of 6 months and it is further
submitted that as per standing orders of Lodhi Hotel, there is no provision to stop
Seema Juneja & ors vs Lodhi Hotel
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any employees to enter the Lodhi Hotel to perform their legitimate duties and in
case there is any indiscipline by any of the employees then the workladies could
have been chargesheeted or could be suspended under law but under law they
could not have been stopped to perform their legitimate duties and, therefore,
such refusal of Lodhi Hotel from performing the duty to the claimants/workladies
was illegal and in violation of legitimate rights of the workladies.
5 It is further submitted that appointment of Sh.Hardam Lal, Enquiry officer
is illegal, unlawful as section 18 of the standing orders which are applicable upon
the Lodhi Hotel, specifically provides that officer/employee, not lower than the
status of the employee would be appointed as an Enquiry Officer and since
Sh.Hardam Lal was not even an employee of Lodhi Hotel, his appointment as an
Enquiry Officer was illegal from the date of appointment of Sh.Hardam Lal as an
Enquiry Officer. It is further submitted that despite such objection, Lodhi Hotel
continued to pursue its illegal domestic enquiry and finally concluded the
enquiry on 2.11.92 and submitted its finding whereafter the said Lodhi Hotel
issued a showcause notice on 3.2.93 for terminating the service of the
claimants/workladies and the workladies thereafter filed a detailed reply to the
showcause notice and also took the matter to the court vide I.D no.578/91 which
was pending before the Industrial Tribunal but the management ultimately
awarded harsh punishment of termination of service to the workladies. It is
further submitted that after the prolonged proceedings of the court, the court of
Sh.O.P Gupta, the then Ld.POIT passed an order dt.29.9.99 with the remarks that
the workladies are not entitled to any relief and an award was passed against the
Seema Juneja & ors vs Lodhi Hotel
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claimants/workladies.
6 It is further submitted that the court of Sh.O.P Gupta, the then Ld.POIT in
the said award has held that the same was not a case of termination as the
workladies were not coming for duty in the prescribed uniform and they had
stopped coming to duty, which is not the fact of the case. Infact the true facts of
the case are that the claimants/workladies repeatedly requested the management
to allow them to enter the Lodhi Hotel to perform their duties.
7 It is further submitted that the claimants approached the Hon'ble High
Court for getting the justice against the order of the court of Sh.O.P Gupta, the
then Ld.POIT but their writ petition before the Hon'ble High Court was also
dismissed and keeping in view all these facts i.e. judgment of Ld.POIT as well as
judgment of the Hon'ble High Court, the workladies then gave an application to
the General Manager of Lodhi Hotel vide letter dt.1.12.99 and subsequently gave
the reminder dt. 1.5.2000 requesting him to allow them to perform their duties as
they were prepared to give the measurement of the prescribed uniform and to
wear the same and the General Manager vide letter dt.11.7.2000 instead of taking
the claimants back on duty, struck off the names of the workladies from the rolls
of the management w.e.f 11.7.2000. Thereafter, the claimants preferred an appeal
on 5.2.01 to the Area Vice President(Hotel) for getting the justice as termination
of their service from the management was unlawful and unjustified as now the
workladies were ready to give the measurement of the prescribed uniform and it
is further submitted that the Manager Personal Sh.B,K Tripathi vide dt.20.8.01
asked the workladies regarding delay in making the appeal which was replied by
Seema Juneja & ors vs Lodhi Hotel
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the claimants/workladies but after a gap of 9 months, the Area Vice President
also rejected the appeal of the workladies vide letter dt.23.10.01 and as such the
workladies have no alternative except to proceed to the court of law after
exhausting all the departmental channel and as such have approached the
conciliation officer to start the conciliation proceedings in the matter. It is further
stated that after concluding the conciliation proceedings, the matter was
ultimately referred to this court with the following reference:
"Whether the services of Smt.Seema Juneja and Smt.Anju Suri have been
terminated illegally and/or unjustifiably by the management and if so, to what
sum of money as monetary relief alongwith consequential benefit in terms of
existing laws/Govt.notifications and to what other relief as the entitled are they
entitled and what directions are necessary in this respect".
8 It is further submitted that the conciliation officer somehow ignored the
name of Smt.Neelam Chadha w/o Sh.Parmod Chadha while sending the reference
and as such corrigendum bearing no.F.24/(2204)/2002/Lab.66771 dt. 31.3.03
was issued and the name of Smt.Neelam Chadha was also added & the same
was sent for adjudication to the labour court .
9 It is further submitted that the workladies are without any job and facing
great financial problem on account of illegal action of the management as the
termination of the service of the workladies was very harsh punishment inspite of
the fact that the workladies were ready to give the measurement of the prescribed
uniform and accordingly, the workladies have filed the present statement of claim
before the court with a prayer that the management be directed to reinstate the
workladies with full back wages alongwith other consequential benefits and order
Seema Juneja & ors vs Lodhi Hotel
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dt.11.7.2000 on which date the names of the applicants/workladies were struck
off from the rolls of the management be held as illegal, unlawful and unjustified.
10 Present reference was received on 4.1.03 and thereafter it was fixed for
28.5.03on which date, all the three claimants filed their joint statement of claim through their AR Sh.S S Upadhya. On the said date, Sh.Suyash Shrivasta, Ld.AR for management (Lodhi Hotel) also filed his memo of appearance. Ld.ARW submitted on the same date that he wants to raise an objection about the appearance of counsel on behalf of the management and the matter thereafter was adjourned for filing WS by the management . It is also matter of record that since the name of the Hotel Scopevista Ltd. was also mentioned in the title of the claim, Ld.ARM for Hotel Scopevista Ltd also filed the authority letter with an application on behalf of Hotel Scopevista Ltd.for delition of its name from the array of parties and for substituting the name of ITDC in its place. Matter then was adjourned to 13.11.03 when Ld.ARM for Hotel Scopevista Ltd. also filed copy of the Sales and purchase Agreement in between the ITDC and Hotel Scopevista Ltd. It is also matter of record that an application was filed by Hotel Scopevista Ltd. for dismissal of the statement of claim and the proceedings against Hotel Scopevista Ltd.on 29.4.04 and meanwhile, Ld.ARW had filed an application dt.28.5.03 u/s 36 of the I.D Act for debarring the advocate from appearing on behalf of the management in the proceedings under I.D Act but subsequently, on 13.8.04, the Ld.AR for management Hotel Scopevista withdrew his application for dismissing the statement of claim and ld.ARW withdrew his application u/s 36 of the I.D Act and as such both these applications were Seema Juneja & ors vs Lodhi Hotel 8/20 dismissed as withdrawn and the matter was listed for arguments on the application of Hotel Scopevista Ltd.
11 Vide order dt.25.9.04, Ld.PO observed that the parties to the reference are Lodhi Hotel, a unit of ITDC and its workmen but the application has been filed on behalf of the Hotel Scopevista Ltd. for deleting its name from the array of the parties and it was further observed that although Hotel Scopevista Ltd.is not a party to the reference yet the court in the interest of justice, before passing any final order, granted an opportunity to the advocate of Hotel Scopevista Ltd. for making clarification on this aspect and ultimately, vide order dt.16.10.04, Ld.PO dismissed the application of Hotel Scopevista Ltd. by holding that the said application of Hotel Scopevista Ltd. is not maintainable and thereafter the matter was fixed for filing WS by the management Lodhi Hotel for 16.11.04 and on 16.11.04, none was present on behalf of the management and instead of proceeding the management as Ex.parte in the present case , the Court had granted one more opportunity to the management to file WS for 6.12.04 and on 6.12.04 again none was present on behalf of the management (Lodhi Hotel) and the management was proceeded Ex.parte and the matter was fixed for ex.parte evidence of the workman on 5.3.05.
12 However, on 5.3.05, one Sh.Karunesh Tondon, Advocate appeared on behalf of ITDC and filed another application for deletion of its name from the array of the parties and for substituting the name of Hotel Scopevista Ltd. in place of General Manager, Lodhi Hotel and simultaneously, WW1 to WW 3 were examined in chief and copy of their affidavits were given to Ld.ARM . It is Seema Juneja & ors vs Lodhi Hotel 9/20 matter of record that no application for setting aside Ex.parte order was filed by the management. The Court vide order dt.31.8.05 before deciding the application of ITDC, thought it appropriate to issue notice of the application to Hotel Scopevista Ltd. so that an opportunity be provided to Hotel Scopevista Ltd. also to submit its defence in the present matter so that the application be decided more effectively and thereafter Hotel Scopevista Ltd. again put in appearance through Sh.Sanjay Kumar, Advocate. After hearing the parties, vide order dt.21.9.06, the said application of the ITDC was dismissed by holding that the management of Lodhi Hotel can not be deleted as a party and Hotel Scopevista Ltd. can not be impleaded as a party.
13 It is a matter of record that thereafter, the said order of the then Ld.POLC was challenged before the Hon'ble High Court and vide order dt.19.3.12, the Hon'ble High Court dismissed the writ petition (Civil) no.3487/07 titled as ITDC vs Smt.Seema Juneja & ors. The matter thereafter was adjourned for WE. 14 It is also matter of record that the affidavit of Smt.Anju Suri was filed once again as examination in chief which was treated as an additional affidavit and Smt.Neelam Chadha although filed her affidavit of evidence yet somewhow she did not come forward to tender the same and the workladies/ARW thereafter closed their evidence and the matter was fixed for arguments. 15 Matter was pending for the arguments but meanwhile on the recommendation of the then Ld.POLC, present matter was transferred from the court of Sh.Rakesh Kumar Sharma, the then Ld.POLCXVII vide order dt.29.7.13 to this court and as such present matter was put up before this court on 3.8.13 for Seema Juneja & ors vs Lodhi Hotel 10/20 the first time.
16 I have heard the arguments and perused the record.
17 Before appreciating the evidence, it is to be observed that in this matter, WW1 was Sh.S.S Upadhya who is the AR for the claimants/workladies, WW2 was Smt.Seema Juneja who has filed her affidavit Ex.WW 2/A and WW3 was Smt.Anju Suri who has filed her affidavit Ex.WW 3/A. Smt.Neelam Chadha although has filed her affidavit of evidence but she has not turned up to tender her affidavit. It is also matter of record that this fact was brought to the knowledge of Sh.S.S.Upadhya on 30.9.13 and clarification in this regard was sought and Sh.S.S.Upadhya even appeared on 3.10.13 but despite such clarification, no application has been filed by the workman seeking permission to examine Smt.Neelam Chadha. Be that as it may be, the fact remains that the affidavit of Smt.Neelam Chadha has not been tendered.
18 Workladies have filed written arguments and I have perused the same. 19 This is quite an old matter as the claimants are in litigation since May, 1991. As far as present reference is concerned, it is also matter of record that the issue regarding change of the pattern of uniform, not allowing the workman to enter the Hotel, conducting the enquiry by Sh.Hardam Lal, issue of chargesheet have already been discussed and the order of the court of Sh.O.P Gupta, the then Ld.POIT with regard to the change of pattern in wearing the prescribed uniform have already attained finality and the present reference is only with regard to the removal of the name of the workmen from the rolls of the management on 11.7.2000. As per the workladies, they were not allowed to resume the duty w.e.f Seema Juneja & ors vs Lodhi Hotel 11/20 14.1.91 and they started claiming their rights before different forums and then they started conciliation proceedings where from a reference was sent to the court of Sh.O.P Gupta, the then Ld.POIT with a reference which is as under:
' Whether the refusal of the duties to Smt.Anju Suri,Neelam Chadha and Seema Juneja is illegal and/or unjustified and, if so to what relief are they entitled and what directions are necessary in this respect'.
20 But meanwhile, the management also chargesheeted the workladies on the ground of not wearing the prescribed uniform and even appointed the Enquiry Officer Sh.S.C Ghai and then Sh.Hardam Lal allegedly in violation of the standing orders of the management itself and thereafter ultimately the court of the then Ld.POIT answered the reference by holding that the order of the management thereby directing the workladies to wear the prescribed uniform was not in violation of rule 9A of the standing orders of the management which fact was subsequently confirmed by the Hon'ble High Court and the court of the then Ld.POIT in its order particularly in para no.17 has specifically concluded & it interalia means 'that the matter which was referred to the court or to the Enquiry officer was not pertaining to the termination of the workladies rather it was only with respect to not allowing the workladies to enter the Lodhi Hotel until and unless they wear a prescribed uniform. Therefore, primafacie there is no termination of the services of the workladies on 14.1.91 or 19.1.91'.
The contention of Ld.ARW as it is being reflected in the statement of claim is that after all such proceedings i.e. afer adjudicating the matter before the then Ld.POIT and after dismissal of the writ petition filed by the workladies, the Seema Juneja & ors vs Lodhi Hotel 12/20 workladies were ready to wear the prescribed uniform and they even wrote a letter to the management that they are now ready to give the measurement and wear the prescribed uniform but their such plea was rejected whereafter an appeal was also preferred vide letter dt.5.2.01 against the order of the management of Lodhi Hotel to the Vice President of Lodhi Hotel which was also dismissed and they were informed that their names have been struck off from the rolls of the management which letter is dt.11.7.2000. 21 Issue which the court has now to decide is as to what is the date of termination of the workladies i.e. if the workladies claim themselves that they have been terminated or they be deemed to have been terminated on 14.1.91 then it had different connotations and if their claim is that they have been terminated on 11.7.2000 then it can be viewed in different perspective . Therefore, the court now has to see is as to whether the termination is w.e.f 14.1.91 or w.e.f 11.7.2000.
After perusal of the proceedings and terms of the reference which was received in the court and which was decided by the court by Sh.O.P Gupta, the then Ld.POIT, it is clear that there was no termination of the workladies in the year 1991. The only dispute which was pending before the court of Sh. O.P Gupta, the then Ld.POIT and the reference which was received by the then Ld.POIT was to the effect that as to Whether the refusal of the duties to Smt.Sapna Walia, Anju Suri, neelam Chadha and Seema Juneja is illegal and/or unjustified or otherwise. Even the enquiry of Sh.Hardam Lal which is being challenged by ld.ARW, tooth and nail, was also not on the aspect of the Seema Juneja & ors vs Lodhi Hotel 13/20 termination of the workladies rather it was on the same lines of reference & which were concluded on 30.12.92 by holding that the workladies were ready to join the duties only with the precondition that they would wear Saree and Blouse instead of Salwar and Kameez.
22 Even otherwise Para no.17 of the order of Sh. O.P Gupta, the then Ld.POIT reads as under:
"The sum and substance of the above discussion is that management was justified in requiring the workman to wear Salwar Kameez. The workman did not do so and they themselves stopped coming to duty in the prescribed uniform and that is why they were not allowed to enter the Hotel. Otherwise there was no restriction for them. So, it is not a case of termination and there is no question of same being illegal and unjustified".
From all these facts, it is clear that the workladies were not terminated on 14.1.91.
23 Now, it is contended by the workladies that although after the report of the Enquiry Officer , the management issued a showcause notice dt.3.2.93 for terminating the service of the workladies and reply thereof was given to the management and it was informed that since the dispute is already pending before the court of Sh.O.P Gupta, the then Ld.POIT, no order be passed and it is also clear from the record that no such order of termination was ever issued to the workladies at that time and, therefore , the date of termination which otherwise is also relevant as per the claim of the workladies that their names Seema Juneja & ors vs Lodhi Hotel 14/20 have been removed from the rolls of the management would be 11.7.2000. Letter dt.11.7.2000 reads as under:
To Smt.Seema Juneja J3/151, Janta Flat, Kalkaji, N.Delhi19 Dear Madam, Sub: Joint Representation regarding joining duties at Lodhi Hotel This is with reference to your joint representation dt.21.12.99. It is to be informed that after the consideration of your abovesaid representation and in the facts and circumstances, your request for joining duties at Lodhi Hotel is rejected and your name is struck off from the roll of Lodhi Hotel w.e.f. 11.7.2000. You are advised to submit 'No demand Certificate' in the prescribed proforma from all the concerned departments so that all dues are settled.
Yours sincerely (Ashok Chawla) General Manager This letter is written to the workladies against their representation dt.21.12.99 which is Ex.WW 5/9B where the workladies interalia mentioned that since the Industrial Tribunal presided over by Sh.O.P Gupta had passed an award dt.14.12.98 against them and since no relief has been granted to them even by the Hon'ble High Court , the workladies are now ready to give the measurement of prescribed uniform in terms of the statement of management's witness Seema Juneja & ors vs Lodhi Hotel 15/20 Ms.Mandral before the court where she allegedly deposed that if the applicants give the measurement, the management has no objection to allow them to join their duties. This letter was followed by another letter dt.1.5.2000 Ex.WW 1/8A but this representation was rejected vide letter dt.11.7.2000 Ex.WW 5/9B. 24 It is against this order of striking their names from the rolls of the management, the workladies preferred an appeal before the Area Vice President, Human Resources and the said appeal was also dismissed vide order dt.23.10.01. The workladies in their statement of claim in para no.31 have mentioned that after exhausting all the departmental channels have approached the conciliation officer to start the conciliation proceedings in the matter wherefrom the reference as mentioned herein was sent and it interalia means that the workladies are challenging their termination from the date of removing their names from the rolls of the management. Court is of the opinion that for all practical purposes, the date of termination of the workladies would be 11.7.2000. 25 Now, coming to the aspect of removing the names of the workladies from the rolls of the management w.e.f 11.7.2000. Admittedly, the workladies are not on duty from 19.1.91. Meaning thereby they had not worked with the management for approximately 9 ½ years which interalia means that they had not worked for 240 days continuously with the management during the preceding 12 months from the alleged date of their termination. Section 25 of I.D Act is very specific which reads as under.
Conditions precedent to retrenchment of workmen No workman employed in any industry who has been in continuous service for not less than Seema Juneja & ors vs Lodhi Hotel 16/20 one year under an employer shall be retrenched by that employer until
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay(for every completed year of continuous service) or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate government(for such authority as may be specified by the appropriate Government by notification in the official Gazette).
Section 25 (B) of the I.D Act defines the continuous service and it reads as under: (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than
(i) one hundred and ninety days in the case of a workman employed below ground in a mine and
(ii) two hundred and forty days, in any other case
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than
(i) ninety five days, in the case of workman employed below ground in a Seema Juneja & ors vs Lodhi Hotel 17/20 mine and
(ii) one hundred and twenty days in any other case 26 The fact, therefore, would remain that the workladies have not completed 240 days of continuous service with the management during the preceding 12 months from the alleged date of their termination and the issue would be as to 'whether they are covered within one of the proviso as defined in section 25(B) of the I.D Act or not and which provisions are that if the workman has not been able to join the duties for any reason which can not be attributable to him, for example, if there is a closure of the management, if the workman has fallen ill or if the workman has not been able to join the duty on account of any work which is attributed to the management and any such other facts then the workman is deemed to be on duty. Here, the question is that whether non joining of the workladies in the prescribed uniform amounts to an act which can be attributable to the management or not and answer of this issue is squarely covered in the award passed by the court of Sh.O.P Gupta, the then Ld.POIT. Therefore, this court is of the opinion that this absence on the part of the workladies from joining the duties can not be attributed to the management. This fact further goes to prove that the workladies had remained absent without any legal and lawful excuse from joining the duties as it is the workladies who have defied the lawful order of the management with respect to change of pattern in wearing uniform. 27 Had the award of the court of Sh.O.P Gupta, the then Ld.POIT would have been in favour of the workladies then such direction of the management for not allowing the workladies for joining the duties would have been attributable to the Seema Juneja & ors vs Lodhi Hotel 18/20 management but here the judgment of the court of competent authority is not in favour of the workladies. The workladies even had preferred an appeal by way of writ petition bearing WPC no.3487/07 before the Hon'ble High Court which was also dismissed by the Hon'ble High Court and, therefore, this court is of the opinion that such non joining the duties by the workladies can not be attributed to the management rather it is the case where the workladies had been running absent from the duties without any reasonable cause.
Law with respect to preceding 12 months from the alleged date of termination is very clear and the court is taking the assistance of judgment titled as Suraj Pal Singh vs the Presiding Officer and Anr. 124 (2005) DLT 248 it was interalia held that:
'29 Sub section (2) of section 25 B also incorporates a deeming fiction. As per sub section (2) to section 25 B, if a workman has worked for 240 days or 190 days(in case he is employed below ground in a mine) during the period of 12 calender months preceding the date with reference to which calculation is to be made, he shall be deemed to be in continuous service for a period of one year. In case of a retrenchment, the reference date will be the date on which the retrenchment order is passed. Therefore, if a workman has worked for 240 days(190 days in case he has worked below ground in a mine) during the period of 12 calendar months preceding the date of his retrenchment, the said workman is deemed to have rendered continuous service for a period of one year. Section 25B (2) refers to a period of 12 months immediately preceding and counting backwards from the relevant date and not to any other period of employment. If a workman has worked for more than 240 days during this period of 12 months prior to his retrenchment, he is deemed to be in continuous service for Seema Juneja & ors vs Lodhi Hotel 19/20 a year. The words' preceding the date with reference to which calculation is to be made' are not redundant or otiose. The period of 12 months mentioned in section 25B(2) is not. Therefore, any period of 12 months but the immediately preceding 12 months with reference to which calculation is to be made'.
28 Ld.ARW has forcefully argued that the workladies have been terminated on the basis of the report of the Enquiry Officer Sh.Hardam Lal whereas the workladies could not have been terminated on the basis of report of Enquiry Officer as Sh.Hardam Lal was not an employee and under law, he could not have any power to hold any enquiry and in support of his contention has relied upon various judgments titled as Hotel Kanishka vs Delhi Administration, LPA no.40/95 of High Court of Delhi, Maruti Udyog Ltd. vs Ram Lal & ors (2005) 2 Supreme Court Cases 638.
Court without going into the merit of various judgments as relied upon by Ld.ARW, is in agreement with the contention of Ld.ARW that the Enquiry conducted by Sh.Hardam Lal was not in accordance with the standing orders applicable to the management but the issue in this case is still open as to whether the cause of termination of the workladies was the enquiry report or not. This would again lead to as to on what aspect, the enquiry was referred to Sh.Hardam Lal. Admittedly, there is no enquiry conducted by Sh.Hardam Lal with respect to the removal of the names of the workladies from the rolls of the management w.e.f 11.7.2000 for which the present reference has been received rather the enquiry which was conducted by Sh.Hardam lal and which is not in accordance Seema Juneja & ors vs Lodhi Hotel 20/20 with law , was only on the aspect of non wearing of the prescribed uniform by the workladies and that enquiry has already been culminated in the order of Sh.O.P Gupta, the then Ld.POIT which order was got confirmed by the Hon'ble High Court. Therefore, the court is of the opinion that this argument of Ld.ARW regarding conducting of enquiry by Sh.Hardam Lal would have been relevant only for the reference as it was sent to the court of Sh.O.P Gupta, the then Ld.POIT and the same is not relevant at all with respect to the reference received qua the removal of the name of the workladies on 11.7.2000 i.e. as far as termination of the workladies is concerned and as such the workladies have not been able to prove that they had been terminated illegally or they have been terminated on the basis of enquiry conducted by Sh.Hardam Lal. 29 Keeping in view the discussions as held hereinabove, it is held that the workladies have failed to prove that their services have been terminated illegally or unjustifiably by the management. The reference is answered accordingly and an award is passed to this effect and it is held that the workladies are not entitled to any relief in this claim as they have failed to prove that condition as mentioned in section 25(B) of the I.D Act.
A copy of this Award be sent to the Deputy Labour Commissioner, Govt. of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 5th OCTOBER, 2013 PRESIDING OFFICER
LABOUR COURTIX/KKD COURTS:DELHI
Seema Juneja & ors vs Lodhi Hotel
21/20
ID no.280/13
5.10.13
Present: Sh.S.S.Upadhyay, Ld.ARW
Mgt.has already been proceeded Ex.parte.
Vide my separate award, it is held that the workladies have failed to prove that their services have been terminated illegally or unjustifiably by the management. The reference is answered accordingly and an award is passed to this effect and it is held that the workladies are not entitled to any relief in this claim.
A copy of this Award be sent to the Deputy Labour Commissioner, Govt. of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
(S.S.MALHOTRA) POLCIX/5.10.13 Seema Juneja & ors vs Lodhi Hotel