Delhi District Court
A. S. Ahluwalia S/O Sh. B. S. Ahluwalia vs M/S Indian Institute Of Technology on 7 March, 2014
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI:
KARKARDOOMA COURTS: DELHI
INDUSTRIAL DISPUTE (ID) No. 96/04
UNIQUE CASE ID No. 02402C0435722004
In the matter of :
A. S. Ahluwalia S/o Sh. B. S. Ahluwalia
R/o D.D.A. SFS Flat No.9,
PocketB, Sukhdev Vihar,
New Delhi - 110025 ......... Workman / Claimant
V/s.
M/s Indian Institute of Technology
Hauz Khas, New Delhi - 110016
..........Management
Date of Institution : 20.02.1996
Date of reserving for award : 04.03.2014
Date of award : 07.03.2014
AWARD
1. TERMS OF REFERNCE.
Vide Order No. F.24(3585)/95Lab./1305257 dated 16.02.1996 the
Secretary (Labour), Government of N.C.T. of Delhi made the following reference
under section 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947 read with
the Govt. of India, Ministry of Labour, Notification No. S11011/2/75DK (IA)
dated the 14th April, 1975 for adjudication by the court :
"Whether the services of Sh. A. S. Ahluwalia have been terminated
illegally and/or unjustifiably by the management and if so, to what
relief is he entitled and what directions are necessary in this respect?"
2. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM.
(i) The workman was appointed as U. D. C. (Upper Division Clerk) on
Page 1 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
28.02.1990 vide management's letter dated 28.02.1990.
(ii) Workman was performing his duties to his best (sic) and to the
satisfaction of his seniors. There was no occasion or chance or complaint of any
nature whatsoever from his superiors / management.
(iii) It was in early 1993 (i.e. after more than two years of his service) when
the management with ulterior motive started harassing the workman by issuing
frivolous, baseless letters to the workman and finally management terminated the
services of the workman on 31.03.1993 arbitrarily and without following the due
process of law.
(iv) That the applicant was served with the termination letter dated 31.03.1993
which is totally arbitrarily, illegal and without due process of law.
(v) The termination of services of the workman being illegal, workman
approached the Conciliation Officer and on consideration of the report submitted
by the Conciliation Officer, the Secretary (Labour), Govt. of NCT of Delhi was
satisfied that an industrial dispute exists between the management of M/s Indian
Institute of Technology, Hauz Khas, New Delhi and workman and, accordingly,
referred the dispute for adjudication.
With these averments, workman prayed for an order directing the
management to withdraw the letter dated 31.03.1993 terminating the services of
the workman which is absolutely, arbitrarily and illegal. Further, workman
prayed for an order for payment of unemployment compensation w.e.f.
02.04.1993 till reinstatement alongwith cost of litigation.
3. CASE OF MANAGEMENT AS PLEADED IN WRITTEN
STATEMENT OF DEFENCE.
Page 2 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
PRELIMINARY OBJECTIONS:
(i) Indian Institute of Technology is an Institute created by an Act of the
Parliament (The Institutes of Technology Act, 1961) and comes under the
Ministry of Human Resource Development, Govt. of India. Hence the claim, if
any, could have been raised before the adjudication machinery under the Central
Government. In view of this, the Government of National Capital Territory of
Delhi is not the 'appropriate government' and does not have the jurisdiction to
make a reference to this Court. The reference is liable to be returned / rejected
accordingly.
(ii) In identical facts several Civil Writ Petitions were filed before the Hon'ble
High Court praying for regularization. All the cases related to the personnel
engaged for specific time bound projects and end of their services upon the
completion of the projects All these writ petitions including C.W.P. No. 2875/93
and C.W.P. No. 4543/95 were dismissed as there was no scheme for
regularization. Infact, the Board of Governors of the management amended the
existing terms for project assignment vide resolution dated 08.08.1997. These
guidelines have, from time to time, been approved and are binding. Thus, claim
is without any basis and is liable to be dismissed.
(iii) I. I. T. is a premier educational institution engaged in imparting higher
Technological / Engineering and professional education. Besides the aforesaid
activity, the Institute also has a separate unit called the Industrial Research and
Development Unit which is engaged from time to time in carrying out specific
time bound research / developmental projects for various Government as well as
outside agencies. Each such project is to be completed within a specific time
Page 3 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
frame as per the requirements / needs of the sponsoring agency which provides
the necessary funds / resources for the project(s) sponsored by them. The number
of persons working on a specific project is decided by the Industrial Research
and Development Unit, which is the nodal agency to effectively coordinate and
supervise the various projects undertaken by the Institute, and the same depends
on the needs / requirements of the sponsoring agency. Such employment is only
for a specific / fixed tenure only during the continuation of a specific project and
automatically comes to an end at the completion of the said project or the expiry
of the term. These temporary engagements are governed and guided by the
terms and conditions of the contract of personal service signed by the claimant.
(iv) As per law laid down by the Hon'ble Supreme Court of India, the
Industrial Research & Development Unit which is engaged only for carrying out
research / development projects is not an 'industry' under section 2 (j) of the
Industrial Disputes Act, 1947.
ON MERITS
Management denied the case as pleaded by workman in toto and took the
stand that claimant was appointed to the temporary post of U.D.C. in Industrial
Research and Development Unit for the remaining sanctioned period of the said
post [i.e. upto 23.05.1992 (sic) (31.5.1992 vide Ex. WW1/M1)]. On expiry of the
first / initial two year term another sanction for a term of one year was renewed /
extended for one year w.e.f. 18.06.1992 (sic) (1.6.1992 vide Ex. MW1/4). The
conduct of workman was far from satisfactory and claimant failed to improve
despite repeated opportunities given to him during short term, temporary and
fixed duration employment. The services of claimant were terminated as per
Page 4 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
terms and conditions of the conduct of service after giving him all his legal and
statutory dues in terms of his appointment vide cheque no. 679634 dated
21.03.1993. There is no illegally / infirmity in such termination. Claimant is not
entitled to receive so called unemployment compensation and/or reinstatement
and, in any event, claimant is gainfully employed and is earning much more than
what he was earning during his temporary and fixed duration employment with
the management. Lastly management prayed for dismissal of claim of claimant
being baseless and frivolous.
4. REJOINDER.
In replication workman denied the case as pleaded by management in its
written statement of defense and pleaded that workman was appointed as U.D.C.
by Institute for Industrial Research and Development, a permanent unit of the
Institute. The workman successfully completed 240 days without any break and
disciplinary complaint against him. But due to wrong policies / laws made by the
Institute and those against the interest of the workman so that they may not
became permanent and remain as temporary (sic). Before appointment of
workman as U.D.C. w.e.f. 30.05.1990 (A/N), workman worked as U.D.C. on
daily wage basis from 13.02.1990 to 30.05.1990 (F/N) without any break and
marked attendance on the attendance register. But the management, intentionally,
gave 3 days break to discontinue his services and wages for the said three days
were not paid to him.
The workman was appointed as U.D.C. against advertisement no. 86/89
by the Institute for Industrial Research and Development Unit and his wages were
paid by the Institute from the funds administered and controlled by the Institute.
Page 5 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
The Institute, intentionally, got printed appointment letter in such a manner that
show that the workman is appointed for the time bound project. The workman
accepted the said post of U.D.C. and not the terms and conditions applicable to
the project employees. Workman was appointed for 2 years, if he was in any
project, his services should have terminated after 2 years but was given extension
in service for another one year alongwith other employees of Industrial Research
and Development Unit and after the termination of workman rest of the
employees were given extension in services. After termination of services of
workman post of U.D.C. was readvertised and selections were made and juniors
were promoted. The post of U.D.C. against which the workman was appointed is
a permanent one and not temporary and post of U.D.C. and work against that
post still exists.
Before termination of the services, workman did not receive one month
notice / pay in lieu thereof. The said notice was received by the workman with
the help of Member Secretary, Delhi Legal Aid and Advice Board, Patiala House
Courts, New Delhi. Before the termination of services of workman and (sic)
without giving any warning cheque no. 76595140 dated 17.03.1993 was in the
name of workman but before it was issued it was cancelled and not issued to the
workman. Thus, the management had already planned to terminate the services
of the workman and appoint somebody else of their choice in his place.
As per workman, the Institute / Industrial Research and Development Unit
is carrying research activities and they come under the definition of 'industry'
under section 2 (j) of the Industrial Disputes Act, 1947 (Banglore Water Supply
Vs. A. Rajappa AIR 1978 SC 548 relied).
Page 6 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
5. ISSUES
Vide order dated 19.01.2001, ld. predecessor of this Court framed the
following issues :
(i) Whether workman was working on the temporary project post
and his services have been terminated as per terms &
conditions?
(ii) As per terms of reference.
6. EVIDENCE.
Workman examined himself as WW1 A. S. Ahluwalia. He filed his
affidavit Ex.WW1/A as his examinationinchief referring to documents
Annexure A - Application dated 09.04.2002; Annexure B - Judgment in Ramzan
Khan Vs. UOI 1991 (1) SLR 159 - 166; Annexure 14 - Advertisement No.
IITD/IRD/86/89; Annexure A - Appointment Letter No. IITD/IRD/M37/1469
dated 30.05.1990; Annexure 12 - Extension Letter dated 01.06.1992 extending
services of workman for another one year w.e.f. 01.06.1992; Annexure 13 - Letter
No. IITD/IRD/M37/1345 dated 18.05.1993 extending services of other staff
members after termination of service of workman; Annexures 1, 2, 4 -
Advertisements for the post of U.D.C. on which workman was working, re
advertising the said post after termination of service of workman; Annexures 7,
8, 9, 10(2), 11, 13 - Memos. issued to workman within few days as management
was determined to terminate the services of workman and replies of the
workman. In examinationinchief recorded in Court workman relied upon
documents Annexure A & I, Mark A - Letter dated 26.03.1993 issued to
workman by Mr. A. K. Monga, Assistant Registrar (IRD). It also bears
endorsement "THE ALLEGATION IS DENIED BY ME - Sd/ 26.03.1993";
Page 7 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
Mark B - OFFICE MEMORANDUM dated 17.12.1992 issued to workman by
Mr. D. Parsad, Head, Industrial Research and Development; Mark C - Letter
dated 31.05.1991 issued to workman by Mr. K. P. Sinha, Superintendent,
Industrial Research and Development; Mark D - Joining Report of workman
dated 30.05.1990. Management had put Ex.MW1/W1 - Appointment letter
dated 30.05.1990 to the workman in his cross examination.
Management filed affidavit of Mr. Vivek Raman, Assistant Registrar in
management's evidence. But, subsequently, Mr. K. K. Bhattacharji appeared in
witness box as MW1 K. K. Bhattacharji by tendering affidavit Ex.MW1/1A and
relied upon documents Ex. MW1/1 - Application of management for recalling
the claimant for cross examination and for initiating appropriate proceedings
against him under section 191 / 193 of IPC r/w section 340 Cr. P. C.; Ex.MW1/2
- Resolution No. BG / 35 / 97; Ex.MW1/3 - Advertisement (photocopy);
Ex.MW1/4 Office Memorandum dated 01.06.1992 extending duration of
temporary posts; Ex.MW1/5 - Letter dated 31.03.1993 terminating services of
workman under clause 9 of his appointment; Ex.MW1/6 Letter addressed to
workman to be dispatched through Registered Post; Ex.MW1/7 - Photocopy of
envelope addressed to workman with AD Card (photocopy); Ex.MW1/8 -
Notice issued by Hon'ble Delhi High Court in C. W. No. 4543/95.
7. ARGUMENTS.
I have heard workman himself and Sh. Vikram Deswal, adv. for the
management. Written submissions have been filed by workman. Workman relied
upon case laws reported as (i) Bangalore Water Supply and Sewerage Board Vs.
A. Rajappa & Ors. AIR 1978 SC 548; (ii) Managing Director, Uttar Pradesh
Page 8 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
Warehousing Corp. Vs. Vinay Narain Vajpayee AIR 1980 SC 840; (iii) Olga
Tellis & Ors. Vs. Bombay Municipal Corporation AIR 1986 SC 180; (iv) Dr. T.
C. M. Pillai Vs. Indian Institute of Technology, Guindy, Madras AIR 1971 SC
1811; (v) Indian Institute of Technology Vs. Mangat Singh (1974) II LLJ 191
Delhi and (vi) Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress &
Ors. AIR 1991 SC 101. Ld. counsel for management relied upon case laws
reported as (i) Escort Limited V/s Presiding Officer & Anr. 1997 LLR 699; (ii)
M. Venugopal V/s Divisional Manager AIR 1994 SC 1343; (iii) Gangadhar Pillai
V/s M/s Siemens Ltd. Appeal (Civil) 4769/06 by Hon'ble Mr. Justices S. B. Sinha
and Dalveer Bhandari (10/11/2006) (SCI); (iv) Nand Lal V/s Housing and Urban
Development Corporation Ltd. (HUDCO) and Anr, W. P. (C) No. 15187/2006
decided on 11.10.2006 by Hon'ble Mr. Jusstice Shiv Narain Dhingra, Judge
Hon'ble Delhi High Court and (v) M/s AIR India Ltd. V/s Mahindra Singh and
Anr, W. P. (C) 7875/2001 decided on 13.11.2013 by Hon'ble Mr. Justice A. K.
Pathak, Judge Hon'ble Delhi High Court. Material on judicial file perused.
8. PRELIMINARY OBJECTIONS AS REGARDS "appropriate govt." and
'industry':
During the course of arguments ld. counsel for management pressed for
decision of the Court regarding preliminary objection (i) noted hereinabove in
para.3 of this award. It is submitted that management (Indian Institute of
Management) comes under the Ministry of Human Resource Development, Govt.
of India &, thus, Govt. of N.C.T. of Delhi is not the 'appropriate government'
competent to refer the dispute to this Court. In view of case laws reported as (i)
Sports Authority of India Vs. Sports Authority of India, Kamgar Union & Ors.
Page 9 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
Manu/DE/1245/2004; (ii) Apparel Export Promotion Council Vs. The P.O. Indul.
Tribunal No.1 and Ors. MANU/DE/0664/2002 and (iii) Indian Tourism
Development Corporation Vs. Delhi Administration and Ors. MANU/DE/0297/
1982 the objection is held to be without any substance. Notification No. S11011/
2/75 - DK (IA) dated 14/4/1975 issued by Ministry of Labour, Govt. of India
mentioned in the Order of Reference made by Secretary (Labour) in this case has
been upheld by Hon'ble Delhi High Court.
Also, objection of the management that Industrial Research &
Development Unit which is engaged only for carrying out research / development
projects is not an 'industry' u/s. 2(j) of the Industrial Disputes Act, 1947 is also
held to be without any substances in view of case law reported as. Banglore
Water Supply and Sewerage Boad Vs. A. Rajappa & Others (supra). Here,
admittedly, Industrial Research & Development Unit is engaged from time to
time in carrying out specific time bound research / development projects for
various governments as well as out side agencies. Thus, it is not a case that
Industrial Research & Development Unit is meant for inhouse research /
development work only.
9. APPLICATION UNDER SECTION 191/193 IPC r/w S. 340 Cr. P. C.,
1973:
An application moved by management u/s. 191 / S. 193 IPC r/w section
340 IPC is pending adjudication. Vide order dated 20.01.2006 it was observed
that this application u/s. 340 Cr. P.C. and Section 191/193 IPC shall be disposed
off finally at the time of final disposal of the case. Section 11 of the Industrial
Disputes Act, 1947 deals with Procedure and Power of Conciliation Officers,
Page 10 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
Boards, Courts and Tribunal. Section 11(8) reads as under :
"(8) Every Labour Court, Tribunal or National Tribunal shall be
deemed to be Civil Court for the purposes of sections 345, 346 and
348 of the Code of Criminal Procedure, 1973 (2 of 1974)."
From the above section, section 340 Cr. P.C. is missing. Thus, Labour
Court constituted u/s. 7 of the Industrial Disputes Act, 1947 is not a "Court" for
the purposes of section 195 (1) (b) of the Code of Criminal Procedure, 1973 &,
thus, section 340 Code of Criminal Procedure, 1973 has no application before
Labour Court. Legislature in its wisdom u/s. 195 (3) Code of Criminal
Procedure, 1973 has not declared the Labour Court constituted u/s. 7 of the
Industrial Disputes Act, 1947 to be a "Court" for the purposes of section S.195(1)
(b) or 340 of the Code of Criminal Procedure 1973. Hence this application is
hereby dismissed.
10. My ISSUEWISE FINDINGS are as under:
ISSUE No.1:
Whether workman was working on the temporary project post and his services
have been terminated as per terms & conditions?
ISSUE No.2: As per terms of reference.
(Whether the services of Shri A. S. Ahluwalia have been terminated illegally
and/or unjustifiably by the management and if so, to what relief is he entitled and
what directions are necessary in this respect?)
Both the issues are being taken up under a common discussion as issues
are so intimately interconnected with each other that decision of the Court on
one issue will have direct bearing on the decision of the Court on another issue.
In rejoinder workman pleaded that he was appointed as UDC against
Page 11 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
advertisement no. 86/89 which has been produced by management as Ex.
MW1/3. Copy of this advertisement is also relied upon by workman as Annexure
14 (Mark as Mark A for identification purposes today).
Relevant portion of this advertisement Ex. MW1/3 (or Mark A) reads as
under :
"............................................................................................................
...APPLICATIONS are invited to the temporary post of Upper
Division Clerk in the pay scale of Rs.12002040 created from
Industrial Research & Development Unit Funds (the post is
sanctioned upto 31.5.1992 but likely to be extended)......."
WW1 A.S. Ahluwalia in his crossexamination deposed that, "......... It is
correct that I have got the original appointment offer by the management, which
is Ex. WW1/M1.....". The 'Subject' of this appointment offer dated 30.05.1990
reads as under :
"Subject : Offer of appointment to the temporary project post of
U.D.C. In the Research Scheme Admn. Overhead Charges release
from Consultancy (sanctioned upto 31.05.1992) in operation under
Head, IRD, Dept./IRD Unit."
Offer of appointment dated 30.05.1990, Ex. WW1/M1 was subject to,
interalia, following terms and conditions :
"1. POST : The appointment is purely on temporary
basis and will not continue beyond the
duration of the above scheme viz. upto
31.5.1992. Your appointment in this outside
funded project does not give you any claim
whatsoever for appointment/regularisation
against the Institutes part.
........................................................
Page 12 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
9. TERMINATION OF
SERVICE : During the period of temporary appointment
in the Research Project, services are liable to
be terminated with one month's notice in
writing by either side. ....................."
Undisputedly / admittedly vide OFFICE MEMORANDUM dated 1.06.1992, Ex. MW1/4, the duration of the temporary posts from the funds of the IRD Administrative Overheads realised from the Research / Consultancy Project for a further period of one year w.e.f. 01.06.1992. Name of workman appears in this OFFICE MEMORANDUM Ex. MW1/4.
Subsequently, vide Ex. MW1/5 services of the workman were terminated w.e.f. 31.03.1993. Relevant portion of Ex. MW1/5 reads as under : "Subject: Termination of the appointment of Sh. A. S. Alhuwalia, temporary U.D.C. (I.R.D. Unit) w.e.f. 31.03.1993 (AN) under Clause 9 of his appointment.
The services of Sh. A. S. Ahluwalia, temporary U.D.C., I.R.D. Unit are hereby terminated with effect from 31.03.1993 (AN) in terms of the Clause 9 of offer of appointment No. IITD/IRD/M37/1469 dated 30.05.1990.
In terms of clause referred to above, he is paid one month's salary vide enclosed Cheque No.679634 dated 31.03.1993 for Rs.5,092/ (Rupees five thousand ninety two only) in lieu of required one month notice period along with his salary due to his upto 31.03.1993 (AN). The above has the approval of the Competent Authority.." NOW stand of management is that services of workman have been terminated in terms of offer of appointment Ex. WW1/M1 &, thus, this does not amount to "retrenchment" as defined u/s. 2(oo) of Industrial Disputes Act, 1947 in as much as case of workman is falling in exception (bb) to section 2(oo) of the Page 13 to 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04 Industrial Disputes Act, 1947. On the other hand case of workman is that his services have been terminated w.e.f. 31/03/1993 arbitrarily, illegally and without due process of law.
SECTION 2 (oo) (bb) of the INDUSTRIAL DISPUTES ACTS, 1947 READS AS UNDER: "2. Definitions. In this Act, unless there is anything repugnant in the subject or context;
(a).....
(b) .......
........
(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued illhealth;"
As the facts suggest workman was appointed to temporary project post of U.D.C. in the Research Scheme Admn. Overhead Charges in operation under Head IRD, Dept. / IRD Unit.
ONUS TO PROVE that services of workman were terminated in terms of a stipulation contained in that behalf in the contract of employment is on the Page 14 to 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04 management. Clause 9 of offer of appointment, Ex. WW1/M1, dated 30/05/1990 provided that during the period of temporary appointment in the Research Project, services are liable to be terminated with one month's notice in writing by either side. Services of workman were terminated vide Ex. MW1/5. Relevant portion of Ex. MW1/5 has been reproduced hereinabove. Careful perusal of Ex. WW1/M1 and Ex. MW1/5, evidently, make this Court to form an opinion that Clause 9 of Offer of Appointment Ex. WW1/M1 has not been strictly complied with by management in as much as vide Ex. MW1/5 one month's notice has not been given to workman as contemplated vide clause 9 of Ex. WW1/M1 and what was, purportedly, paid to workman, vide Ex. MW1/5, was one month's salary vide cheque no. 679634 dated 31.03.1993 for Rs.5,092/ (Rupees Five thousand ninety two only) in lieu of required one months notice period alongwith his salary due to him upto 31.03.1993 (AN). Offer of Appointment Ex. WW1/M1 did not permit / allow the management to pay one month's salary in lieu of the one month's notice contemplated under Clause 9 of Offer of Appointment Ex. WW1/M1.
MW1 Mr. K. K. Bhattacharji in his evidence affidavit, to show / prove compliance with the terms of Offer of Appointment Ex. WW1/M1 as regards termination o services of workman deposed as under :
"3. ....The claimant was employed with the IRD Unit to a temporary project post on a purely contractual basis for a specific / fixed term and his services were terminated as per the terms and conditions of the contract of services. He was paid all his legal dues and entitlements in terms of his appointment at the time of severance of the casual/ temporary project related employment....."
Page 15 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
There are no specific depositions as regards the mode / manner of termination of services of workman and details etc. of the legal dues and entitlements allegedly paid to workman at the time of termination of his services. WS of management in this regard refers to cheque no. 679634 dated 21.03.1993 but Ex. MW1/5 refers to cheque no. 679634 dated 31.03.1993. MW1 Mr. K. K. Bhattacharji in his cross - examination deposed that, "............... It is correct that the services of workman were terminated on 31.03.1993. It is wrong to suggest that the dues of the workman were never paid at the time of his termination. Vol. The workman had refused to accept the cheque prepared for full and final settlement of his account. The cheque is available on the record. Thereafter, the cheque was sent to the workman through post........". The cheque is not on the record as deposed by MW1 Mr. K. K. Bhattacharji. There is inconsistency as regards details of the cheque. It is not the case of management that workman refused to accept the cheque in the presence of MW1 Mr. K. K. Bhattacharji or Mr. K. K. Bhattacharji himself attempted to deliver the cheque to workman. Management in the evidence affidavit Ex.MW1/1A did not disclose / depose about the alleged refusal of workman to accept the cheque and sending the cheque to workman through post. Even the WS of management does not contain corresponding averment. Management also did not produce any documentary evidence in support of above referred depositions of MW1 Mr. K. K. Bhattacharji made by him in his cross - examination regarding workman's refusal to receive the cheque. No person in whose presence workman refused to receive the cheque has been named / attempted to be examined by management. In this regard ld. counsel for management in the course of arguments relied upon claimant Mark -
Page 16 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI
A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04
B (marked today for identification purposes). Document MarkB cannot in any manner help the management in the facts and circumstances of this case. Firstly, MW1 Mr. K. K. Bhattacharji in his evidence affidavit Ex.MW1/A did not depose in terms of contents of document Mark - B as regards workman's alleged refusal to receive the letter / cheque. Management itself did not rely upon document Mark - B in the course of its evidence. Management even did not attempted to examine the person who allegedly was supposed to deliver document Mark - B to workman or in whose presence workman refused to receive the document Mark - B. Also, document mark - B was not put to workman in his cross - examination. There is no cross - examination of the workman with the suggestion that he refused to take delivery of document Mark
- B in the presence of the persons named therein. There is no suggestion in his cross - examination that on 31.03.1993 the cheque in question was attempted to be given to him but he refused to accept the same. Court is mindful of the fact that case pertains to year 1993 and evidence of management was recorded in 2007 / 2011 and possibility of persons named in mark - B not in the employment of management or otherwise not available cannot be ruled out altogether. But if it was so, management must so plead and depose. Management also could have provided the last known address of these persons attempted to get them examined in Court by taking summons from Court. Infact, management even did not care to prove / produce document Mark - B. If Court is to read document Mark - B filed by workman, it has to read it as a whole and it further reads that, " THE TERMINATION LETTER IS GOT WITH THE HELP OF MEMBER SECRETARY LEGAL AID CELL, PATIALA HOUSE COURTS.....". Thus, it may not have been given to workman on 31.03.1993. Management, in the facts Page 17 to 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04 and circumstances of this case cannot be permitted to rely upon document Mark
- B for the first time ever in the course of final arguments.
MW1 Mr. K. K. Bhattacharji in his cross - examination further deposed that after refusal of workman to receive the cheque, the cheque was sent to workman through post. Reasonable behaviour requires that cheque with termination letter must have been sent to workman through post on 31.03.1993 itself or within one / two day thereafter. But no evidence has been led by management that it was so done by management. Documents Ex. MW1/6 and Ex.MW1/7 pertains to months of October / November 1993. What is most important to note is that Ex.MW1/6 does not mention that cheque was being sent through post as workman refused to receive it. But what is mentioned is that, "....... The above cheque was found near IIT Staff Canteen by an outsider and was deposited in the security control room......". In the facts and circumstances of this case (i.e. when management has failed to prove that cheque in question ever reached the hands of workman as a matter of fact after alleged refusal of workman to receive the same) it is for the management to explain how the cheque was found near IIT Staff Canteen. Letter Ex.MW1/6 refers to revalidation of cheque till 31.12.1993. Why and under what circumstances the cheque was revalidated has remained totally unsubstantiated on judicial record. What ultimately happened with the cheque after its return undelivered vide Ex.MW1/7 has also not been explained by management. As per MW1 Mr. K. K. Bhattacharji, the cheque is on record. But it is not so.
In view of above detailed discussion it can be said that management has failed to establish on judicial file that it complied with the clause of Offer of Page 18 to 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04 Appointment Ex.WW1/M1 at the time of termination of services of workman on 31.03.1993. Ex.MW1/5 does not at all refer to any misconduct etc. on the part of workman and does not put any stigma on the work and conduct of workman. Thus, it is not a case of termination of services of workman on account of misconduct. Accordingly, it is held that workman was appointed on temporary project post but his services were not terminated by management as per terms and conditions of contract of employment. Case laws relied upon by workman are of no help to him in the facts and circumstances of this case as workman was appointed on temporary project post in terms of written contract of employment permitted under section 2 (oo) (bb) of the Industrial Disputes Act, 1947. Issue no. 1 & 2 are accordingly decided and it is held that services of the workman have been terminated illegally / unjustifiably in as much as management has failed to prove compliance with the terms of stipulation regarding termination of services of workman as contained in the contract of employment Ex.WW1/M1. Relief.
NOW the question arises as to what relief workman is entitled on account of illegal termination of his services. There is even no pleadings of the workman that after illegal termination of his services, workman made efforts to get alternative employment and still he is unemployed. Without making averments as regards efforts to get alternative employment and failure to get such job, workman in prayer clause straightway prayed for unemployment compensation. Obviously, in the absence of above referred averments, no full back wages can be allowed in favour of workman. Thus, workman's alleged employment / unemployment with M/s J. K. Synthetics or M/s JK Tyres is immaterial. Also, Page 19 to 20 (ANAND SWAROOP AGGARWAL) PO-LC- XI: KKD: DELHI A. S. Ahluwalia Vs. M/s Indian Institute of Technology ID No. 96/04 keeping in view the temporary nature of appointment of workman against a project, no case for reinstatement of workman is made out. Also, the ground on which termination of services of workman has been held to be illegal does not entitle the workman to reinstatement.
In the totality of facts and circumstances of this case, in my considered opinion, ends of justice would be met if workman is granted lump sum compensation to the tune of Rs.1,25,000/ for illegal termination of his services by the management payable to the workman by management. If this sum of Rs. 1,25,000/ is not paid to the workman within one month of publication of the award, management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment.
11. Further a sum of Rs.25,000/ is allowed to workman towards cost of litigation payable to the workman by the management.
12. Reference stands answered accordingly.
13. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.
14. File be consigned to Record Room after completing due formalities. PRONOUNCED IN THE OPEN COURT ON 07.03.2014.
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
Page 20 to 20 (ANAND SWAROOP AGGARWAL)
PO-LC- XI: KKD: DELHI