Delhi District Court
Through: Delhi Shops & Establishment vs M/S. Ambedkar College on 6 September, 2019
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
ROUSE AVENUE COURTS : DELHI
LID No. 801/16
Sh. Manoj Kumar
S/o Late Sh. Dharam Singh
R/o 15 Block, C6,
Sultanpuri, Delhi.
Through: Delhi Shops & Establishment
Kamgar Union (Regd.)
205, Pratap Khand,
Vishwakarma Nagar,
Delhi - 110 095.
... Workman
Versus
M/s. Ambedkar College
Gokalpur Village,
Delhi - 110 094.
... Management
Date of institution of the case : 26.05.2016
Date of passing the Award : 06.09.2019
A W A R D:
1. As per the statement of claim filed on record under
LID No. 801/16 Page 14/14
Section 2A of Industrial Disputes Act, 1947, the workman was
stated to be working with the management as Sweeper since
05.05.1999 with his last drawn salary of Rs.2,800/ per month. The
workman was stated to be performing his duty efficiently and
honestly without affording any kind of opportunity of any kind of
complaint nor there was any allegation against him. However, the
management had not provided him minimum wages as prescribed
by Delhi Government. It was stated by the workman that after
finishing his one month's leave, when he had reported for his work,
he was declined the same and the management had also
terminated his services abruptly on 02.06.2010 in an illegal and
arbitrarily manner without assigning any reason.
2. It was stated further by the workman that on 07.08.2014,
he had made a complaint to the Labour Office and the Labour
Inspector had called upon the management to appear in Labour
Office but the management had not appeared before the Labour
Inspector. Thereafter, the workman had sent a demand notice dated
13.11.2014 to the management by Speed Post. However, despite
service of the same, the management had neither replied nor
complied with it. On 09.12.2014, the workman had also filed the
statement of claim before the Conciliation Officer but the
management had not appeared there as well and hence, the
present statement of claim was filed. It was prayed by the workman
that he was entitled to be reinstated in services with full back wages
LID No. 801/16 Page 14/14
and continuity of his service along with all other consequential
benefits.
3. Notice of this statement of claim was sent to the
management which was also duly served upon it and management
had also appeared to contest the claim of the workman on merits
and had filed its written statement on record wherein it was stated
that the workman on his own had stopped coming to work since
June, 2010 and as an after thought, he had filed the present claim
after a period of six years. It was also stated that the offer of
appointment issued to the workman clearly mentioned the terms
and conditions of adhoc appointment which he had also accepted
without any objections, willfully and on his own. It was further stated
that the conduct of the workman was not satisfactory and he was
frequently absenting from duty without information to the
management. He was also caught stealing the LPG Cylinder and
also entering the principal room without permission in his absence
and various other misconducts of the workman were also noted by
management
4. On merits, all the factual contents of the statement of
claim which were neither specifically admitted to be correct nor
essentially and purely constituted matter of record, were denied by
the management as wrong and incorrect.
LID No. 801/16 Page 14/14
5. On the pleadings of the parties, the Ld. Predecessor of
this Court vide his order dated 16.08.2017, was pleased to frame
the following issues:
1. Whether services of workman Manoj Kumar were
terminated by management illegally and
unjustifiably? OPW
2. Whether workman is entitled to compensation for
unemployment? OPW
3. Whether the workman was simply appointed on
adhoc basis or was not a regular employee? OPM
4. Relief.
6. In order to discharge the onus of issues, the workman
himself had appeared as his own witness and had filed in evidence,
his examination in chief by way of affidavit Ex. WW1/A, wherein he
had reiterated the contents of his statement of claim on solemn
affirmation.
7. Besides this, the workman had also placed on record,
the following documents:
1. Copy of appointment letter dated 03.05.1999 is Ex. WW1/1 along
with other appointment letters and office orders issued to the
workman by the management from time to time (collectively running
into 29 pages).
LID No. 801/16 Page 14/14
2. Copy of complaint dated 07.08.2014 made to the Assistant
Labour Commissioner on union's letter head is Ex. WW1/2.
3. Copy of Demand Notice dated 13.11.2014 addressed to the
management on union's letter head is Ex. WW1/3.
4. Copy of statement of claim filed before the Conciliation Officer is
Ex. WW1/4.
8. During his crossexamination conducted by Ld. AR for
the management, the workman had admitted that he was initially
appointed for a period of three months at a single instance and his
job was renewed periodically for three months. It was also admitted
by the workman that he had never objected to the aforesaid terms
of his appointment . It was stated by the workman that he had lastly
attended the college on 02.06.2010. He was stated to have
proceeded on one month's leave after giving an application in
writing. It was denied by him that he had never filed any such
application and that is why same had not been placed on record by
him. It was also stated by him that though he used to take leaves
from the Section Officer but since the Section Officer was not
available on the said date, hence, the application was given by him
to Sh. Ram Kumar, who was P.A. to the Principal.
9. In his further crossexamination conducted by Ld. AR for
LID No. 801/16 Page 14/14
the management on 26.10.2018 itself in the post lunch session, the
workman was stated to be familiar with the procedure for applying
for the leaves in a prescribed format as well as their approval and
sanctioning by the Section Officer. It was further stated that he had
no approval in respect of his last leaves from 02.06.2010 till
30.06.2010, whereas it was mandatory in any government
department to have a prior approval for more than two days leaves
and especially for one month's leaves. He had denied the
suggestion that he had never applied for the leaves nor had taken
any approval from any officer in the college and had abandoned his
work of daily wager. He was sated to have joined the college on
16.12.1998 on Daily Wages as Safai Karamchari. Though he had
denied the suggestion that he had not filed any document on record
to show his employment with the management since December,
1998 as there was no such document, but Ex. WW1/MX1 (also Ex.
WW1/1) was stated to be his first appointment letter. However, no
interview of workman was conducted at the time of his initial
appointment. He had also not applied for job with the management
on adhoc basis on 03.05.1999. It was further admitted by the
workman that as per the terms mentioned in Ex. WW1/MX1, his
services had already come to an end by efflux of time. Ex.
WW1/MX2 was stated to be bearing the signature of workman at
Point A. It was also admitted by him that in a similar manner, he
was further given adhoc appointments for a period of three months
on each occasion whenever there was an exigency of work and the
LID No. 801/16 Page 14/14
said appointments had also come to an end by efflux of time after
expiry of the period mentioned in the said letters.
10. Three permanent Safai Karamcharies were stated to
have been employed by the management and the workman himself
had described himself as "Kacha Employee" and had adhoc
employment with the management from May, 1999 till 2005. It was
further admitted by him that since 2005 till his last date of working,
he was employed as a Daily Wager and used to get monthly salary
after deducting the leaves taken by him in that particular month and
considering the actual working days for which he had worked with
the management. It was denied by him that he was habitually
absenting from his duty and was also not performing his work
properly. Ex. WW1/MX3 was stated to be the representation made
by the workman to the management. It was denied by him as wrong
that he was working in a very casual manner and was not obeying
the orders of superiors or that he had entered in the Principal Office
without permission on 09.07.2010 which amounted to be a
disobedience.
11. It was admitted by him that he had filed a complaint
before the National Commission for Safai Karamchari. However, he
could neither recollect the date of filing of the said complaint nor he
was aware of the final outcome of the said complaint. Ex.
WW1/MX4 was admitted to be the copy of order as well as covering
LID No. 801/16 Page 14/14
letter passed by National Commission for Safai Karamchari on his
complaint. He had denied the suggestion that he had not taken any
action regarding his termination since 2010 till 2014 as his services
were never terminated by the management rather he had
abandoned the same on his own as he was gainfully employed
elsewhere during the said period.
12. His family was comprising of his wife and two children
aged about 15 and 14 years and both of them were studying in the
school. He was living in the self owned house. He worked as a
casual Daily Wager and his wife was also doing stitching job to run
the household. He earned around Rs. 1,500/ to Rs. 2,000/ per
month and was also paying his electricity and water bills. He was
stated to be able to run his household and bear the expenses of
education of his children and he had denied the suggestion
regarding his gainful employment. Though he had tried to look out
for job at many places like M2K, Rohini and in some courier
company at Rama Road but he could not find one and during his
entire period of unemployment of eight years, he had looked up for
job at the above mentioned two places only and nowhere else and
that too in the year, 2013. After 2013 till the date of his deposition
before the Court, he had not searched for any job.
13. In his further crossexamination conducted on
29.10.2018, the workman had denied the suggestion that he had
LID No. 801/16 Page 14/14
never worked for a continuous period with the management as
stated by him in his statement of claim as well as affidavit or that
claim filed by him was time barred or that he had filed this case only
to claim undue advantage from the management. The other formal
suggestions were also denied by him as wrong.
Thereafter, workman's evidence was closed.
14. In rebuttal, one Sh. Ilam Singh S/o Sh. Attar Singh
working with the management as Caretaker was examined by it as
MW1 and he had placed on record, his examinationinchief by way
of affidavit Ex. MW1/A, wherein he had reiterated the stand of the
management as taken in its written statement on solemn
affirmation. Besides this, he had also placed on record the
authorization issued in his favour by the Principal as Ex. MW1/1 and
copy of office communication dated 29.11.2004 along with other
communications as Ex. MW1/2 (collectively running into 3 pages).
15. During his crossexamination conducted by Ld. AR for
the workman, it was admitted by the witness that he had not gone
through the statement of claim as well as affidavit of workman. He
was stated to be working as a Caretaker with the management
since 1991 till the date of his deposition. It was also admitted by him
that the post of Sweeper was permanent in nature and one Satish
Kumar was already employed by the management on the said post.
However, he did not know if he had left his job or what else had
LID No. 801/16 Page 14/14
happened to him. It was denied by him that the workman had
worked continuously with the management from 1999 till 2010 upto
last date of his employment. He had further stated that the factum
regarding workman having abandoned his job as mentioned in para
7 of his affidavit Ex. MW1/A was correct and not what was stated in
para 2 of the said affidavit regarding adhoc appointment of the
workman and its coming to an end after expiry of the said specific
period. It was further denied by the witness that the workman had
never abandoned his job rather his services were terminated by the
management illegally. It was though admitted by him that all the
appointments as well as termination of services of the employees of
college were required to be made with the approval of its governing
body. However, it was further added by him that it was applicable
only in respect of permanent employees. It was denied by him that
the workman was employed as a permanent employee since
beginning of his employment.
16. As on the date of his deposition, two persons who had
been outsourced, were working as Sweeper in the college. It was
further admitted by him that the workman was working directly
under the college since 1999 till 2005. He had no knowledge if the
management had sent any reply to the demand notice Ex. WW1/3
or not. It was further denied by the witness that the management
had not paid the minimum wages to the workman and when the
workman had raised the demand for the same, the management
LID No. 801/16 Page 14/14
had got annoyed and had terminated his services. Other formal
suggestions were also denied by him as wrong and incorrect.
Thereafter, management's evidence was also closed.
17. In support of its arguments and contentions, the
management had also relied upon the following citations:
1. Secretary, State of Karnataka and Others Vs. Umadevi (3)
and Other, (2006) 4 SCC 1.
2. Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra
and Others, (2005) 5 SCC 122.
3. Union Public Service Commission Vs. Girish Jayanti Lal
Vaghela & Others, 2006 (2) Scale 115.
4. Director, Institute of Management Development, U.P.,
Appellant Vs. Smt. Pushpa Srivastava, Respondent, AIR 1992
SC 2070.
5. Union of India and Another Vs. Arulmozhi Iniarasu and Others, (2011) 7 SCC 397.
6. The Municipal Committee Gobindgarh through its Administrator Vs. The Presiding Officer, Labour Court, Patiala & Anr., C.W.P.No. 6093 of 1992, 1994 LLR 206 (P & H).
9. Manju Saxena Vs. Union of India & Anr., Civil Appeal Nos. 1176611767 of 2018 arising out of SLP (Civil) No. 3020530206 of 2017, decided on 3.12.18.
LID No. 801/16 Page 14/1418. In the light of aforesaid testimonies of the parties as well as material available on record, my issuewise findings are as under: ISSUE NO. 1 :Whether services of workman Manoj Kumar were terminated by management illegally and unjustifiably? OPW and ISSUE NO. 2: Whether workman is entitled to compensation for unemployment? OPW: The onus to prove both these issues was upon the workman. However, the workman during his crossexamination himself had admitted regarding his appointment being purely on temporary or adhoc basis for a period of three months and also his fresh appointment again for a period of three months. The workman had further admitted regarding his having proceeded on leave without getting any prior approval for the same and not applying for the same in the right format.
Since it is the admitted case of the workman himself that at no point of time whatsoever, he was ever considered for permanency in employment by the management. Hence, I have no hesitation in holding that an adhoc / temporary employee had no lien over the permanent post nor he could have claimed permanency in respect of his employment.
As per document Ex. WW1/1 itself, the services of workman were stated to be liable to be terminated at any time LID No. 801/16 Page 14/14 without assigning any reason or notice. Furthermore, I must mention here that the present claim has been filed by the workman under Section 2(A) of I.D. Act, 1947 on 26.05.2016 citing the date of his termination as 02.06.2010 i.e. almost after six years of the date of his alleged termination and that too, without filing any certificate issued to him by the Conciliation Officer, under Section 2(A) of Industrial Disputes Act, regarding non adjudication of dispute within 45 days of commencement of conciliation proceedings. However, Section 2(A) of the Act itself provides that such a claim could be preferred by a workman under aforesaid provision only within three years of the date of termination and not thereafter. Hence, present claim is hopelessly barred by limitation as well.
Therefore, I have no hesitation in holding that the management could not be said to have indulged in any illegal or unjustified act while dispensing with the services of the present workman. Hence, the workman is not entitled to receive any kind of compensation for his unemployment.
Both the issues are, therefore, answered in negative and are decided in favour of the management and against the workman.
ISSUE NO.3 : Whether the workman was simply appointed on adhoc basis or was not a regular employee?
LID No. 801/16 Page 14/14OPM: The onus to prove this issue was upon the management. In view of my discussion in respect of Issues No. 1 and 2 above, once the workman himself had admitted himself to be an adhoc employee, then the onus of this issue has already been discharged by the management and thus, this issue is answered in affirmative and is decided in favour of the management and against the workman.
ISSUE NO. 4- Relief: In view of my findings to Issues No. 1, 2 and 3 above, the statement of claim as filed by the workman is dismissed being devoid of any merits.
Award is accordingly passed. Copy of award be sent to Labour Commissioner for publication. File be consigned to record room. Digitally signed LOKESH by LOKESH KUMAR ANNOUNCED IN OPEN COURT KUMAR SHARMA on 6th Day of September, 2019 SHARMA Date: 2019.09.07 16:24:21 +0530 (Lokesh Kumar Sharma) Addl. District & Sessions Judge Presiding Officer, Labour CourtXIX Rouse Avenue Courts, New Delhi LID No. 801/16 Page 14/14