Delhi District Court
Between The vs The on 14 February, 2020
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER
LABOUR COURT, ROUSE AVENUE DISTRICT COURT, D.D.U.
MARG, NEW DELHI
LIR No. 1941/2017
Date of institution 12.07.2017
Date of transfer of case to this court 24.05.2019
Date of Award 14.02.2020
BETWEEN THE WORKMAN
Mrs. Sharda Rani W/o Sh. Ramesh Chand, H.No. 23/694, DDA Flat,
Madangiri, New Delhi110062. C/o: Delhi Offices & Establishment
Employees Union (Regd.), CITU, BTR Bhawan, 13A, Rouse Avenue, New
Delhi110002.
AND
THE MANAGEMENTS OF
1 M/s Department of Women and Child Development, Delhi Govt., Pt.
Ravi Shankar Shukla Lane, K.G. Marg, New Delhi110001.
2 M/s Intelligent Communication System India Ltd., (Joint Venture of
TCIL), 1st Floor, Above Post Office, Okhla Industrial Estate, Phase
3, New Delhi110020.
AWARD
1 By this award, I shall dispose off the reference sent by Dy. Labour
Commissioner, Labour Department, New Delhi, Government of NCT of Delhi
arising out between the parties named above to labour court vide Notification
No. F.No. F24(62)/DLC/NDD/17/319 dated 24.05.2017 with the following
terms of reference:
LIR No. 1941/17 1
"Whether the termination of services of Smt. Sharda
Rani aged 42 years W/o Sh. Ramesh Chand by the
management is illegal and/or unjustified and if so, to what
relief is she entitled and what directions are necessary in
this respect?"
2 After the receipt of reference, notice was issued to the worklady with
directions to file statement of claim which has been filed by the worklady
stating therein that the respondent no.1/management no.1 is the Women and
Child Welfare Department, a part of Govt. of NCT of Delhi, which is operating the Integrated Child Development Scheme, 1975 (ICDS) and the details of ICDS scheme, which are very essential to adjudicate this industrial dispute, are submitted in latter parts of this claim. It is further stated that the respondent no.2/management no.2 is a joint venture of TCILA Govt. of India Enterprise and DSIIDC an undertaking of Delhi Govt. and deploys employees on contractual basis to the respondent no.1/management no.1 and administrative control rests with the respondent no.1/management no.1. It is further stated that the worklady initially joined as Angandwadi worker in ICDS Sangam Vihar project w.e.f. 01.08.1998 till 03.05.2011 and at the beginning she was getting monthly wages of Rs.500/ per month and later on enhanced at intervals to Rs.700/, Rs.1200/, Rs.1500/ and finally Rs.4000/ per month. It is further stated that the management no.2 issued a letter No. ICSIL/WCD2011 dated 04.05.2011 informing the worklady that she was selected as Supervisor in management no.1 on contract basis w.e.f. 04.05.2011 and she worked as Supervisor @ Rs.15000/ from 04.05.2011 till 31.05.2016 but her services were discontinued illegally and unjustifiably w.e.f. 31.05.2016. It is further stated that in March 2014, the worklady was working as Supervisor to supervise 30 Anganwadi Centers (AWC in short) in Zamroodpur Project but LIR No. 1941/17 2 she received a 'show cause notice' dated 08.07.2014 from the Deputy Director, Ms. Lata Negi informing her that a surprise inspection was conducted on 12.03.2014 by Director (DWCD) alongwith CDPO (HQ) and CDPOICDS Zamroodpur in AWC No. 28, Gali No. 5, House No 258 of ICDS Zamroodpur. It is further stated that it was alleged that during the inspection, it was found that the quality and quantity of Supplementary Nutrition Food - Hot Cooked Meal Item (Khichri) supplied by NPO concerned was not in accordance with the prescribed norms and it was further said in the show cause notice that the observation made during the inspection revealed non performance and negligence/dereliction of duty towards the assigned work to her and she was called upon to explain the reasons for such negligence and dereliction of duty, within seven days. It is further stated that the worklady gave her explanation dated 15.07.2014, wherein she explained that when the inspection was conducted on 12.03.2014, she was working at her assigned Anganwadi Centre at Sriniwaspuri and then she received a telephone call from CDPO, Zamroodpur calling her to the kitchen situated in Tuglakabad. It is further stated that the worklady reached thereafter 45 minutes and by that time, her colleague Smt. Alka Pandey, Supervisor also reached there and inspection team also reached there. It is further stated that on 12.03.2014, the worklady was assigned the duty at Sriniwaspuri AWC and she was there on duty and the cooked food reached that AWC was in time and in proper quantity and quality and there was no deficiency either in quantity and quality and she explained in her explanation in detail, how she was meticulously working since 2011 and there was no negligence on her part. It is further stated that earlier before this inspection, inspecting the kitchen was not assigned to the Supervisors and the kitchen work would be completed by 09.00 a.m. and the cooked food would be sent to the AWCs by 09.00 a.m. whereas the supervisor's duty hours starts LIR No. 1941/17 3 from 09.00 p.m. Hence, the supervisors were never asked to inspect the kitchen but by circular dated 01.05.2014 management no.1 changed the working hours of supervisors from 09.00 am 04.30 pm to 07.00 am - 02.30 p.m. and asked the supervisors to visit the kitchens. It is further stated that the worklady after 01.05.2014 started supervising the kitchens but she was never directed and made her aware that supervising the kitchens was part of her duty. It is further stated that after receiving the explanation from the worklady on 15.07.2014 the management no.1 maintained complete silence for two years and strangely the management no.1 issued the impugned order dated 31.05.2016 discontinuing her services. It is further stated that the termination of services of the worklady is illegal and unjustified as the management has not constituted a domestic enquiry and has not given any opportunity to the worklady to defend herself and summarily discontinued her services on 31.05.2016 which is violation of principles of natural justice. It is further stated that the worklady was allowed to work continuously and uninterruptedly two years after issuing of show cause notice, which indicates that the management no.1 has not seriously believed about the allegation of negligence towards her duties or otherwise why did it allowed the worklady to continue her services for two years more. It is further stated that the checking the kitchen food was not the job assigned to the worklady prior to and till the inspection dated 12.03.2014 allegedly happened. It is further stated on 01.05.2014 after a week of alleged inspection, the management no.1 issued office order dated 01.05.2014 making directions/guidelines that from 01.05.2014 that all the supervisors may be assigned one kitchen each by the concerned CDPOs and the working hours of supervisors may be changed from existing 09.00 am04.30 pm to 07.00 am 02.30 pm, as the work of cooking and supply of supplementary nutrition is already completed by 09.00 am. It is further stated that after that circular was LIR No. 1941/17 4 issued, the worklady started checking the kitchen as directed to her to the utmost satisfaction of her superiors and there was no complaint of any nature regarding negligence or dereliction of duty after the circular was issued. It is further stated that worklady has been used as a scape goat to cover up the gargantuan scam that was going on in Anaganwadi Projects, where Ministry Officials, NPOs, SHGs, procuring agencies have cahoots and swindle the money and once aberrations comes up in the scheme, a few Anganwadi helpers, workers and supervisors are removed from the services to show up that everything is okay and corruption has been swept away. It is further stated that in fact, these lower strata employeeshelpers, workers and supervisors have nothing to say but the higher echelon are neck deep in the horrendous scams run in crores of rupees in awarding contracts, appointing NPOs, SHGs, hiring kitchen and Anganwadi Centres and no one has been removed till date in the aberrations happened in Anganwadi schemes. It is further stated that the worklady sent a representation dated 08.06.2016 to the Secretary, Department of Workmen and Child Development and other concerned officials seeking justice, but did not get any response. She also sent another representation dated 09.11.2016 to Dy. Chief Minister, Govt. of Delhi but did not receive any response. It is further stated that the worklady sent a demand notice dated 09/15.12.2016 to the managements by speed post seeking reinstatement but she did not get any response. It is further stated that the worklady through her union sent a letter dated 28.12.2016 to the Assistant Labour Commissioner, Govt. of NCT of Delhi and also filed a statement of claim dated 27.01.2017 before the ALC/Conciliation Officer but the management no.1 refused to reinstate the worklady and ultimately, the matter has been referred for compulsory adjudication. It is further stated that the worklady is unemployed since the date of her termination and despite her best efforts, she could not get LIR No. 1941/17 5 any alternative employment and therefore, it is prayed that an award be passed in favour of the worklady thereby directing the managements to reinstate her in service with full back wages and attendant benefits.
3 Notice of statement of claim was sent to both managements. The management no.1 did not appear despite service and ultimately the management no.1 was proceeded exparte by Ld. Predecessor of this court vide its order dated 05.12.2017. However, the management no.2 has contested the present case and filed its written statement thereby taking preliminary objections that the workman has got no locus standi to file the present claim since she has been appointed on contractual basis and at the time of her appointment she had gone through the terms and conditions mentioned in the letter for contractual engagement dated 04.05.2011 and signed after understood the terms and conditions mentioned therein, therefore, the workman is under obligation to follow the said terms and conditions. It is further stated that there is no dispute between the workman and management no.2 and therefore, this court lacks jurisdiction to entertain and decide the present claim against management no.2. It is further stated that the workman has filed the present case in order to malign the prestige of the management no.2 and to create false evidence against the management no.2 as an arm twisting tactic to cause unlawful loss to the management no.2 without there being any fault whatsoever on their part and as such the claim of the workman is liable to be dismissed with exemplary punitive costs. As far as merits are concerned, all the averments of the statement of claim are denied word by word and ultimately it is prayed that the statement of claim of the workman be dismissed against the management no.2.
4 The worklady thereafter filed rejoinder to written statement of management no.2, wherein all the contents of the written statement were LIR No. 1941/17 6 denied and the facts of the statement of claim were reiterated and reaffirmed as correct and it is prayed that an award be passed in favour of the workman in terms of prayer made by her in statement of claim.
5 After the completion of the pleadings of the parties, following issues were framed by Ld. Predecessor of this court vide order dated 05.01.2018: 1 As per terms of reference? OPW 2 Relief.
6 After framing of the issues, matter was fixed for worklady's evidence. The worklady examined herself as WW1 in support of her case and relied her evidence on documents i.e. photocopy of show cause notice dated 08.07.2014 issued by management no.1 is Mark A; photocopy of letter sent by her dated 15.07.2014 to management no.1 is Ex.WW1/1, photocopy of office order dated 31.05.2016 issued by management no.1 is Ex.WW1/2; photocopy of her letter dated 08.06.2016 to management no.1 is Mark B; photocopy of her letter dated 09.11.2016 sent to Dy. Chief Minister of NCT of Delhi is Ex.WW1/3; photocopy of demand notice dated 09.12.2016 sent to management no.1 and 2 alongwith copy of postal receipts are Mark C (colly.); photocopy of letter dated 10.01.2017 sent to Dy. Labour Commissioner by management no.2 is Mark D and photocopy of office order dated 01.05.2014 issued by management no.1 is Mark E. The worklady did not examine any other witness in support of her claim and her A.R. closed WE on 01.04.2019. Thereafter, opportunity was granted to the management no.2 to lead its evidence. Accordingly, the management no.2 examined one witness i.e. Ms. Deepti Gupta, Manager (Legal), as M2W1 and relied its evidence on documents i.e. copy of authority letter dated 05.01.2017 is Ex.M2W1/1; copy of letter dated 10.01.2017 sent to Dy. Labour Commissioner by management no.2 is Ex.M2W1/2; copy of letter dated 03.03.2017 sent to Dy. Labour LIR No. 1941/17 7 Commissioner by management no.2 is Ex.M2W1/3 and copy of letter dated 13.04.2017 sent to Dy. Labour Commissioner by management no.2 is Ex.M2W1/4. The management no.2 did not examine any other witness and M2W1/Manager (Legal) closed M.E. on 20.09.2019. Thereafter, matter was fixed for final arguments.
7 During the course of arguments, Ld. AR for worklady argued and submitted that the management no.2 did not raise any objection in its written statement that the claimant is not a workman with in the definition of section 2
(s) of the Industrial Disputes Act, 1947, that's why this issue was not framed by this court. Ld. AR for worklady further submitted that even in appointment letter there is no term or clause showing that the claimant shall have to perform her duties either in managerial or supervisory capacity. Ld. AR for worklady further submitted that this fact can only be ascertained from the evidence which has not been led by the management no.2. Thus, the worklady is a workman within the definition of section 2 (s) of the Industrial Disputes Act. Ld. AR for worklady further submitted that the worklady had been performing his duties to the entire satisfaction of the managements but the management illegally terminated the services of the workman. Ld. AR for worklady further submitted that the worklady is not claiming any relief against the management no.2 and she is claiming relief against management no.1 only. 8 Ld. AR for management no.2 argued and submitted that the worklady was appointed purely on contractual basis in terms of letter for contractual engagement and when she did not perform her duties to the entire satisfaction of the management no.1, her services were discontinued by the management no.1 vide termination letter Ex.WW1/2. He further submitted that the management no.2 never terminated the services of the worklady, rather her services were discontinued by the management no.1 when her work was not LIR No. 1941/17 8 found up to mark, hence the claim of the worklady be dismissed. 9 Ld.AR for management no.1 filed written arguments reiterating his same arguments as mentioned therein.
10 I have perused the written arguments filed by management no.1. 11 I have also perused the record. On perusal of record, my issuewise findings are as follows: ISSUE NO.1 12 The onus to prove this issue was upon the worklady and she had to prove that her services were terminated by the management illegally and/or unjustifiably. Before adverting to evidence part, it is pertinent to mention here that at the time of hearing the final arguments this court raised a query and asked Ld. AR for worklady as to how worklady falls within the definition of section 2 (s) of the Industrial Disputes Act, 1947, after perusing her statement of claim wherein the worklady stated in para 7 that in March 2014 she was working as supervisor to supervise 30 Anganwadi Centres, to which Ld. AR for worklady argued that the management no.2 did not raise any objection in its written statement that the claimant is not a workman with in the definition of section 2 (s) of the Industrial Disputes Act, 1947, that's why this issue was not framed by this court. Ld. AR for worklady further submitted that even in appointment letter there is no term or clause showing that the claimant shall have to perform her duties either in managerial or supervisory capacity. Ld. AR for worklady further submitted that this fact can only be ascertained from the evidence which has not been led by the management no.2. Thus, the worklady is a 'workman' within the definition of section 2 (s) of the Industrial Disputes Act.
13 This court is of the opinion that the contentions of Ld. AR for worklady are having no relevance since this is a legal aspect, which has to be taken care LIR No. 1941/17 9 of. The definition of a 'workman' is defined under section 2 (s) of the Industrial Disputes Act, 1947 Act which reads as under: "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person i who is subject to Air Force, 1950 (45 of 1950), or the Army Act, 1950(46 of 1950), or the Navy Act,1957 (62 of 1957); or ii who is employed in the police service or as an officer or other employee of a prison; or iii who is employed mainly in a managerial or administrative capacity; or iv who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
FINDINGS 14 Since the worklady was working as supervisor to supervise 30 Anganwadi Centres and was drawing wages Rs.15000/ per month, it is clear that the worklady was discharging her duties in supervisory capacity, therefore, she is not a 'workman' within the definition of section 2 (s) of the Industrial Disputes Act, 1947.
15 Further, it is settled law that anganwadi workers are not 'industrial workmen' and also ICDS programme does not fall within the definition of section 2 (j) of the Industrial Disputes Act, 1947. The Hon'ble Supreme Court of India in case titled as State of Karnataka & Ors. Vs. Ameerbi & Ors., Case No. Appeal (Civil) 49534957 of 1998, decided on 07.12.2006 has clarified that:
LIR No. 1941/17 10"the Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statue. Their posts are not created. Recruitment rules ordinary applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme existed".
16 It was further observed in aforesaid judgment that:
"A 'fortiori' the State in terms of a scheme may exercise control over a section of the persons working but thereby only, they do not become entitled to protection under Article 311 of the Constitution of India". It referred the provisions of the Minimum Wages Act and opined them also not apposite. Judgment recorded that "the said Act is applicable to the workmen working in the industries specified therein. It is not the case of the respondents that the ICDS programme would constitute an 'industry' or Anganwadi workers are industrial workmen....it is not a case where the concept of minimum wage, living wage or fair wage can be brought in service".
17 It was further held in aforesaid judgment that:
"We are concerned herein with only one question, viz., whether the respondents (Anganwadi Workers) are holders of any civil post. We are, having regard to the materials on record, of the view they are not. Keeping in view of the facts and circumstances of this case, we are of the opinion that the Tribunal (Administrative Tribunal) has no jurisdiction to entertain the application".
18 Therefore, keeping in view of the facts and circumstances and also keeping in view law laid down in aforesaid judgment, it is held that the worklady being an Anganwadi worker/supervisor is not a 'workman' within the definition of section 2 (s) of the Industrial Disputes Act, 1947, nor ICDS programme constitutes an 'Industry' within the definition of section 2 (j) of the said Act.
19 As far as issue no.1 is concerned, this court is of the opinion that since LIR No. 1941/17 11 issue no.1 has been framed, this court is also deciding the same. The defence of the management no.2 in its written statement is that the worklady was appointed on contract basis in terms of letter for contractual engagement. The worklady in her cross examination deposed that she was appointed on 04.05.2011 and she had received appointment letter which was signed by her. She further admitted that she had been appointed purely on contractual basis for a fixed period. She further admitted that she was working under the control of management no.1. She further deposed that there was no due against management no.2 till the date of his termination. She further deposed that he has been terminated by management no.1. She further denied the suggestion that there was deficiency of services on her part.
20 M2W1 Ms. Deepti Gupta was also cross examined by Ld. AR for worklady and in cross examination she deposed that appointment letter to the worklady was issued by the management no.2. She further deposed that no charge sheet was issued to the worklady, nor any domestic enquiry was conducted by the management no.2 against the worklady. She further deposed that no retrenchment compensation had been paid to the worklady by the management no.2 at the time of termination of her services. She further deposed that no termination letter was given to the worklady by management no.2. She further admitted that worklady continued her services with the management no.2 from 04.05.2011 to 31.05.2016. She further denied the suggestion that worklady had written letter dated 15.07.2014 to the management no.1 or that the contents of her affidavit and her above deposition are false.
FINDINGS 21 Admittedly the worklady was appointed purely on contractual basis for a fixed period. Though it is admitted that the worklady continued her services LIR No. 1941/17 12 with the management no.2 from 04.05.2011 till 31.05.2016, yet the worklady cannot claim regular engagement in terms of Clause 1 of the letter for contractual engagement which clearly says that the worklady will not claim regular engagement even if there is such a vacancy for the post hold by her or otherwise and no compensation or remaining wages on expired period of contractual and fixed period of engagement will be payable by the management, if her contract is terminated before the specified period of her contract". Clause 5 of the letter for contractual engagement also clearly says that "in case any adverse report is received, the contract engagement is liable to be cancelled".
22 In case titled as Secretary, State of Karnataka & Ors. Vs. Uma Devi; Appeal (Civil) 35953612 of 1999, the Hon'ble Supreme Court of India has observed that: "the States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein".
23 Since the worklady was appointed purely on contractual basis and since she is not an industrial workman being Aanganwari worker, this court is of the opinion that the claim of the worklady is not maintainable. Therefore, same is dismissed. Issue no.1 is decided in favour of the managements and against the worklady.
ISSUE NO.2 (RELIEF) 24 Keeping in view of the findings of the court on issue no.1, it is held that the worklady is not entitled to any relief against the managements and an award to that effect is passed today. Reference is disposed of accordingly.
LIR No. 1941/17 1325 A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
PRONOUNCED IN OPEN (RAMESH KUMARII)
COURT ON 14.02.2020 PRESIDING OFFICER:LABOUR COURT
ROUSE AVENUE DISTRICT COURT
NEW DELHI
Digitally
signed by
RAMESH
RAMESH KUMAR
KUMAR Date:
2020.02.15
15:25:23 -
0900
LIR No. 1941/17 14