Delhi District Court
In Brief vs Arjunlal Rajak 2006 Llr 381 Has Held As on 18 March, 2008
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I.D. No. 95/2005.
IN THE COURT OF SH. GURDEEP KUMAR
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF
(1) M/s. Delhi Transport Corporation,
I.P Estate,
New Delhi-2.
(2) M/s. Eye Bird Placement Services (P) Ltd.,
G-83, Room No. 106, Vijay Chowk,
Laxmi Nagar, Delhi.
(3) GM (PP) Pesco, (Punjab Govt)
SCO No. 89-90, Sector 34-A,
Chandigarh-160022.
(4) M/s. Tehlan Security & Placement Services
Pole No. 38, V.P.P Dichaun Kalan,
New Delhi.
(5) M/s. Peregrine Security Pvt. Ltd.
RZ-1A, Kapashera Crossing,
New Delhi-110037.
(6) M/s. Competent Placement Services (Regd.)
34, Pocket E-19, Sector-3, Rohini,
Delhi-110085.
(7) M/s. Four S Security & Allied Services Pvt. Ltd.
150-B, Pocket M & N, Janta Flats, Sarita Vihar,
New Delhi-110044.
Contd...
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I.D. No. 95/2005.
(8) Security-cum-investigation Agency,
A-74/1 SFS, Marg No. 3, Near Anupam Cinema,
Saket, New Delhi-110017.
...Managements
Versus
Its workmen as per Annexure 'A'
represented by DTC Workers Unity Centre,
37E/1, Govindpuri, Kalkaji,
New Delhi-19.
...Workmen
A W A R D :-
Date of institution of case : 02.07.2005.
Date on which the judgment
has been reserved : 12.03.2008.
Date on which the judgment
has been delivered : 18.03.2008.
Secretary (Labour), Government of National Capital
Territory of Delhi has referred the dispute arising between the
parties named above for adjudication vide its order No. F. 24
(373) / 2005 / Lab. / 6070- 74 dated 29.08.2005 u/s 10(1)(d)
and 12(5) of the I.D. Act, 1947 with the following terms of
reference:-
Contd...
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I.D. No. 95/2005.
"Whether the demand of workmen
shown in Annexure 'A' for regularization
on the post of Driver with M/s. D.T.C.
Alongwith all consequential benefits at
par with permanent driver is justified or
not? And if so, what relief are they
entitled and what directions are
necessary in this respect?"
In brief, the case of the workmen is that applicant union
is one of the largest Trade Unions of the DTC Workers having
majority membership in the management No. 1.
Management No. 1 is the only State owned transport
corporation of Delhi having a few thousand buses and also
employs thousands of drivers on permanent basis. The
management took an arbitrary, illegal and malafide decision in
2003 not to recruit any more drivers on permanent basis
though the DTC is in need of 3000 additional drivers on
permanent basis to run their fleet of buses without interruption
throughout the year. The Corporation also decided to hand
over the work of plying the buses to contract drivers and
Contd...
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I.D. No. 95/2005.
w.e.f. May, 2003 DTC has appointed around 3000 drivers
through contractors. Management No. 1 decided to hire
contract drivers only with the intention to defeat the labour
laws and exploit the workmen by paying the contract drivers a
lesser wage and increased hours of work. The work
performed by the above contract drivers is permanent and
perennial in nature and they are engaged in running the core
activities of the management No. 1. The contract drivers are
working regularly for more than 8 hours and are not being paid
equal wages as that of the permanent drivers on the rolls of
the DTC, though they are performing same and similar kind of
work. The scale of pay of a driver at the entry level with
management No. 1 is Rs. 3200-85-4900 which includes
admissible allowances and comes to Rs. 9,000/- whereas a
driver on contract basis is paid around Rs. 3,500/- only. It is
further averred that though initially the contractors recruited
the contract drivers but presently the recruitment is also done
Contd...
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I.D. No. 95/2005.
by the respective Depot Managers of management No. 1.
They are also engaged in plying the buses of management
No. 1 just like the permanent drivers of management No. 1.
Their work is supervised and controlled by the Supervisors
and Officers of management No. 1 and contractors have no
role in their supervision while on duty. The union sent
various demands to management No. 1 calling upon them to
regularize the services of the drivers engaged on contract
basis and to make them payment of wages at the same rates
as that of regular drivers but management refused. It is
further averred that DTC Workers Unity Centre in its meeting
held on 09.05.2004 decided to espouse the cause of the
workmen employed on contract basis and to raise an
industrial dispute claiming regularization of the services of the
drivers appointed on contract basis. The workmen as per
Annexure 'A' are working as contract drivers with the DTC for
considerable length of time. The management has not
Contd...
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I.D. No. 95/2005.
disclosed to the workmen under which contractor they are
employed and, therefore, by way of abundant caution all the
contractors have been arrayed as parties to the present
proceedings. They are employed in the core activities of the
Corporation. Therefore, their services are liable to be
regularized by management No. 1 on their permanent rolls.
They have prayed for regularization in the service of DTC in
the pay scale of Rs. 3200-85-4900 and fixing their wages
along with all other allowances and benefits, equal wages as
compared with similarly placed regular employees with effect
from their date of appointment.
2. Vide orders dated 10.08.2005 management No. 8 was
proceeded ex-parte as none appeared for it. On 31.08.2005
none appeared for management No. 2 and 6. As such,
managements No. 2 & 6 were also proceeded ex-parte by my
ld. Predecessor.
Contd...
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I.D. No. 95/2005.
3. The management No. 3 filed its written statement taking
preliminary objections that reference is totally ill conceived
and has been instituted with malafide intention to harass them
in view of the fact that they have not supplied even a single
workmen / driver to management No. 1. No provisions of the
industrial or labour laws have been violated qua the rights of
the workmen by them and reference deserves out right
dismissal from this tribunal.
4. The management No. 7 filed its written statement taking
preliminary objections that reference is legally incompetent
and claim filed by the workmen should be dismissed. The
answering management in terms of agreement entered into
with D.T.C management No. 1 is providing certain services to
the workmen in order to fulfill its obligation. Under the said
agreement the answering management employed its own
Contd...
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I.D. No. 95/2005.
work force and deployed them at the premises of D.T.C
management No. 1 for providing the requisite services. No
relation of employer and employee therefore exists between
the D.T.C management No. 1 and workmen. And as such
they are not entitled under law to raise any dispute seeking
regularization in their employment. It is averred that they
have supplied drivers with D.T.C. management No. 1 for
providing the requisite service under the agreement and
wages of the concerned employees are being paid by them
and they have the legal licence issued by the Govt. of NCT of
Delhi office of the licensing officer. It is further averred that
they are providing the facilities of provident fund, E.S.I and
bus passes to its workmen and all the workmen party to the
reference are working under their direct control and their work
is also supervised by it. It is further averred that workers unity
centre is a union of only workers of D.T.C. and the union who
has filed aforesaid case is not entitled the same as the
Contd...
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I.D. No. 95/2005.
workmen who are employees of the answering management
cannot be member of the said union (D.T.C. Workers Unity
Centre). Rest of the averments are denied in toto.
5. The management No. 1 also filed its written statement
stating that till 1972 it was employing 10,312 drivers.
However, the answering management because of depleted
strength of out shading buses was overstaffed. Therefore,
vide Voluntary Retirement Scheme dated 3rd March, 1993, the
D.T.C. was compelled to reduce its work force of drivers and
conductors. The said V.R.S. with its notifications was
continued till August, 1996 and after the final of V.R.S., the
management was left with 7474 drivers. In the meanwhile
because of the judgment of the Hon'ble Supreme Court, the
diesel driven buses run by the answering management had to
be phased out. Therefore, the CNG buses were introduced
and in the year 2000 they had strength of only 1000 buses
Contd...
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I.D. No. 95/2005.
and it did not require even those drivers, which were on its
pay rolls. Even now the answering management has fleet
strength of 3463. It is averred that at present it is not in a
position to know its future requirement relating to the drivers.
Hence the requirement of engagement of drivers is in these
circumstances and not of the permanent and perennial in
nature. To overcome temporary requirement of drivers, they
have resorted to temporary engagement of drivers which at
the given time does not exceed 1250-1300 outsourced driver
on an average basis. The management at the present stage
is not aware of its permanent requirement keeping in view the
policy of Government. Hence, the drivers mentioned in the
present petition taken from the out sourcing agency on the
contract basis. It is further averred that workmen had no
master and servant relations with the answering management
at any point of time. They had given the contract to the
other respondents to provide the drivers on the terms and
Contd...
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conditions of the agreement / contract executed between the answering management and the other respondents. The other respondent managements mentioned in the petition has the direct control of the workmen and used to pay the wages to the drivers. The other respondents are employer of the workmen and used to pay the wages to the workmen. It is further averred that answering management pays to the other respondents / agencies for onward transaction with their drivers on the basis of prescribed rates i.e. Rs 1.50 p per K.M for city services and Rs. 1.00 for inter-states services respectively for kilometers operated by its driver and no question of hours involve herein. On an average, a driver provided by an agency / other respondents operate about 125-130 K.Ms in a shift per day and earns about 160-170 per day and Rs. 4,000-4400 per month. Rest of the averments are denied in toto.
Contd...
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6. The management No. 4 M/s. Tehlan Security & Placement Services has also filed its written statement to the statement of claim of workmen stating that reference is legally incompetent and claim filed by the workmen should be dismissed. The answering management in terms of agreement entered into with D.T.C. Management No. 1 is providing certain services to the workmen in order to fulfill its obligation. Under the said agreement the answering management employed its own work force and deployed them at the premises of D.T.C. management No. 1 for providing the requisite services. No relation of employer and employee therefore exists between the D.T.C. management No. 1 and workmen. And as such they are not entitled under law to raise any dispute seeking regularization in their employment. It is further averred that they have supplied drivers with D.T.C. management No. 1 for providing the requisite service under the agreement and wages of the concerned employees are Contd...
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being paid by them and they have the legal licence issued by the Govt. of NCT of Delhi office of the licensing officer. It is further averred that they are providing the facilities of provident fund, E.S.I and bus passes to its workmen and all the workmen party to the reference are working under their direct control and their work is also supervised by it. It is further averred that workers unity centre is a union of only workers of D.T.C and the union who has filed aforesaid case is not entitled the same as the workmen who are employees of the answering management cannot be member of the said union (D.T.C. Workers Unity Centre). Rest of the averments are denied in toto.
7. The management No. 5 M/s. Peregrine Security Pvt. Ltd. also filed its separate written statement to the statement of claim of claimants taking preliminary objections that in the present petition the relief is claimed against / from the D.T.C. Contd...
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as such there is no case made out against the answering management. As per knowledge of the answering management, present petition is not filed by the authorized workmen union. Rest of the averments are also denied in toto.
8. The claimants filed their rejoinders to the written statements of management No. 1, 4, 5, & 7 denying averments made in the written statements and reiterating the facts stated in the statement of claim.
9. On the above facts / pleadings of the parties, following issues were settled by my ld. Predecessor on 05.05.2006 :-
1. Whether the cause of the workmen is duly espoused? OPW
2. Whether the workmen are entitled to be regularized on the post of Driver with DTC? OPW.
Contd...
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3. In terms of reference.
10. Both the parties were directed to adduce their evidence. Out of 25 claimants mentioned in the Annexure A to the reference, only one claimant, namely, Jay Prakash appeared in the witness box and tendered his affidavit Ext. WW1/A reiterating the averments as spelled out in the statement of claim. Out of the remaining claimants one Deep Narayan has filed his affidavit but he did not appear in the witness box to tender the same and to stand the test of cross examination. Other claimants mentioned in the Annexure A to the reference did not even file their affidavit in evidence. Workmen evidence was closed vide orders dated 19.09.2007. Thereafter the management examined MW1 Mr. Jagdish Chand, Deputy Manager who tendered his affidavit Ext. MW1/A reiterating the averments of the management No. 1 and spelled out in its written statement. Besides, he stated that there is no privity of Contd...
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contract between any of the claimants and the DTC management. He also proved documents Ext. MW1/1 to MW1/18. He had produced the originals of all those documents at the time of his statement on 30.01.2008. Management closed its evidence on 30.01.2008.
11. I have considered the submissions made by A.R for the management No. 1 DTC. I have also carefully gone through the evidence on record.
My findings on the issues are as under:- ISSUE NO. 1
12. Onus of this issue is placed on the claimants. As already mentioned above, there are 25 claimants mentioned in the Annexure A to the reference. Out of them only one claimant, Contd...
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namely, Jay Prakash has appeared in the witness box as WW1. Rest of the claimants did not appear in the witness box. Even WW1, Jay Prakash in his affidavit Ext. WW1/A did not say even a single word with regard to espousal of cause of the workmen by the union as required under the law. Therefore, there is no iota of evidence by the claimants to discharge the initial burden which lies on them. As mentioned earlier, the other claimants mentioned in the Annexure A to the reference have not entered to the witnesses box and, therefore, there is no iota of evidence by them as well. In the light of this, it is held that claimants have failed to prove that their cause has been duly espoused as required under the law to make out a case in industrial dispute within the meaning of Section 2 (k) of the Industrial Disputes Act, 1947. On this ground alone, the claim is liable to be rejected. The issue is accordingly answered against the claimants and in favour of the management.
Contd...
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ISSUE NO. 2.
13. Onus of this issue is placed on the claimants. Initial burden lies on them to prove that they are entitled to be regularized on the post of Driver with DTC. They have not sought any relief against any other managements mentioned in the reference. The relief is sought only against the management No. 1 i.e. D.T.C. In this regard the only evidence is the deposition by one of the claimants, namely, Jay Prakash who tendered his affidavit Ext. WW1/A duly attested by Hon'ble High Court of Delhi. In that affidavit he has simply reiterated the averments by the claimants in their statement of claim which are already discussed above in brief. It is noticed that WW1 Jay Prakash in his cross examination has admitted that he was engaged by the management (DTC) as Driver on contract basis for 89 days Contd...
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only. Thereafter he was reengaged for another 89 days as and when required. In his further cross examination he admitted that he had been engaged by DTC through its concerning agencies and the wages used to be paid by those agencies and not by DTC. He also admitted that he entered into the agreement Ext. WW1/M1 and at that time he was engaged as Driver by DTC through those agencies. Perusal of the agreement Ext. WW1/M1 (also marked as MW1/7) reveals that he had been engaged on contract for a fixed tenure of 89 days from 10.05.2006 to 06.08.2006 with a clear understanding vide clause No. 15 that his engagement is purely casual in nature and he shall not claim any claim for regularization in DTC at any point of time. This goes to show that the claimant Jay Prakash was not employed as a Driver with DTC after following the due procedure. It is settled proposition of law that for acquiring that status and for obtaining the constitutional protection in terms of Article 311 of Contd...
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the Constitution of India, all appointments must be made in conformity with the Constitutional Scheme as laid down under Articles 14 and 16 of the Constitution of India as well as the rules made in terms of the proviso to Article 309 of the Constitution of India or in terms of a Legislative Act. Employee whose entry in the service is alleged being illegal in total disregard of recruitment rules or being not on existing vacancy, has no case for regularization. Hon'ble Apex Court in State of M.P Vs. Arjunlal Rajak 2006 LLR 381 has held as under :-
"It is beyond any doubt or dispute that a daily wager does not hold a post. The Forest Department is a wing of the State.
Its employees hold a status. For acquiring that status and for obtaining the constitutional protection in terms of Article 311 of the Constitution of India, all appointments must be made in conformity with the Constitutional Scheme as laid down under Articles 14 and 16 of the Constitution of India as well as the rules made in terms of the proviso to Article 309 of the Constitution of India or in terms Contd...-:21:-
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of a Legislative Act. Concededly, while appointing the respondent, the constitutional provision or the statutory provisions had not been followed."
In another case reported as Secretary, State of Karnataka and Others Vs. Umadevi and Others 2006(4) Scale 197 the respondents were temporarily engaged on daily wages in the Commercial Taxes Department. Their claim that they worked in the department based on such engagement for more than 10 years and hence they are entitled to be made permanent employees of the department entitled to all benefits of regular employees. Their Lordships held as under :-
"Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that Contd...-:22:-
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unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme."
"A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule."
Their Lordships further held that "But sometimes this process is not adhered to and the Constitutional scheme of public employment is by-
passed. The Union, The States, their Contd...
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departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointments or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the Contd...
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constitutional scheme. Such orders are passed apparently in exercise of the wise powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment."
The Hon'ble Apex Court in the case reported as State of H. P. Vs. Suresh Kumar Verma and another AIR 1996 Supreme Court 1565 has laid down as under :-
It is settled law that having made rules of recruitment to various services under the State or to a class of posts Contd...-:25:-
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under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
In the case reported as Ashwani Kumar and others Vs. State of Bihar and others AIR 1997 Supreme Court 1628 there was recruitment in T.B Eradication Programme of the Government supported by planned expenditure. Selection Committee entrusted to recruit 2250 Class III and Class IV employees. 6,000 employee were recruited by adopting kick and choose principle. Establishment procedure for appointment of Class III and IV employees was not followed.
It was was held by Their Lordships that recruitment was made ex facie illegal and not binding on State Government; that Contd...-:26:-
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there could not be recruitment without sanctioned post backed by financial budget support; that procedure laid down by Government for recruitment had to be followed though appointment was not to State service. It was further held by Their Lordships that employee whose entry in the service is illegal being in total disregard of recruitment rules or being not on existing vacancy, has no case for regularization.
Same is the proposition of law laid down by the Hon'ble Apex Court in Surendra Kumar Sharma Vs. Vikas Adhikari and another (2003) 5 Supreme Court Cases 12. In the case reported as Umarani Vs. Registrar, Cooperative Societies and others (2004) 7 Supreme Court Cases 112 it was held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and in ignorance of essential qualifications, the same would be illegal and cannot be regularized by the State by invoking power under Article 162 of the Constitution to Contd...-:27:-
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regularize such appointments.
Our own Hon'ble High Court in a decision dated 22.12.2005 in LPA No. 734/2002 titled Guru Teg Bahadur Hospital Vs. Kamlesh & Another relying upon decision by the Hon'ble Apex Court in R. N. Nanjundappa T. Thimmiah (1972) 1 SCC 409: (AIR 1972 SC 1767) and State of H.P. Vs. Suresh Kumar Verma and Another (1966 ) 7 SCC 562, has held as under :-
As noted above, all appointments of Ministerial staff and Contingency staff are required to be made in the hospital in accordance with the Recruitment Rules. For all regular appointments, the names are called from the employment exchange and only those who fulfill the requisite qualifications are considered by the duly constituted Departmental Selection Committee and on selection individuals are appointed. There are a number of regular sanctioned posts of Safai Karamchari in the hospital which are required to be filled up in accordance with the Recruitment Rules. Since the respondent No. 1 was never selected Contd...-:28:-
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by the Departmental Selection Committee, we fail to see how she can be regularized. She was even over- age at the time of her initial appointment. She was only appointed on leave vacancy as a daily wager. In our opinion she cannot be regularized, otherwise there will be violation of Rules. The respondent No. 1 was appointed dehors the Rules, whereas those regularly appointed after her appointment were appointed in accordance with the rules."
The Hon'ble Apex Court in R.N. Nanjundappa T. Thimmiah (supra) held as under :-
"If the appointment itself is in infraction of the rules or if it is in violation of the provision of Constitution illegality cannot be regularized. Ratification or regularization is possible of an Act which is within the power and province of authority but there has been some non compliance with procedure or manner which does not go to the root of the appointment. Regularization can not be said to be a mode of recruitment. To accede to such a preposition would be to introduce a new head of appointment in defiance of the rules or it may have effect of a Contd...-:29:-
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set of naught the rules."
Therefore, it cannot be said that claimant Jay Prakash is entitled to regularization as Driver with DTC management No. 1. As mentioned above, none of the other claimants mentioned in annexure A to the reference has entered to the witness box. Therefore, there is no iota of evidence by any of the other claimants. As a result they are also not entitled to be regularized on the post of Driver with management No. 1 (DTC). The issue is accordingly decided against the claimants and in favour of the management No. 1.
ISSUE NO. 3.
14. In the light of the findings on issue No. 1 and 2 above, the claimants mentioned in Annexure A to the reference are not entitled to any relief or any directions from Contd...
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this Tribunal.
The reference is answered accordingly. File be consigned to record room after due compliance by the Ahlmad.
(GURDEEP KUMAR) ANNOUNCED IN THE OPEN COURT PRESIDING OFFICER ON 18th Day of March, 2008 INDUSTRIAL TRIBUNAL II, K.K.D COURTS, DELHI Contd...