Delhi District Court
M/S Netaji Subhash Institute Of ... vs Central Govt. Industrial Tribunal & Ors on 13 February, 2007
1 ID No. 157/2005
IN THE COURT OF SH. DINESH DAYAL
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
I. D. No. 157/2005
IN THE MATTER OF
M/S Netaji Subhash Institute of Technology
through its Deputy Registrar (Admn)
Azad Hind Fauz Marg
Sector-3 Dwaraka
New Delhi 110 045 ...Management
Versus
Its workman
Shri Pushkar Kumar Dhanolia
S/o Shri Hari Ram Dhanolia
C/o Delhi Labour Union
Aggarwal Bhawan GT Road,
Tis Hazari, Delhi 110 054
...Workman
A W A R D
Secretary (Labour), Government of
National Capital Territory of Delhi has
referred the dispute arising between the
parties named above for adjudication to this
Industrial Tribunal vide its order
No.F.24(1147)/2003/Lab/9549-53 dated 21.7.2005
with the following terms of reference :-
2 ID No. 157/2005
Reference:
Whether the services of Shri Pushkar Kumar
Dhanolia S/o Shri Hari Ram Dhanolia C/o
Delhi Labour Union , Aggarwal Bhawan ,
GT Road, Tis Hazari, Delhi- 54 have been
terminated illegally and/or unjustifiably
by the Management and if so, to what sum
of money as monetary relief along with
consequential benefit in terms of existing
laws/Government Notification and to what
other relief is he/are they entitled and
what directions are necessary in this
respect?
2. By a Corrigendum No. F.24
(1147)/2003/Lab/3773-78 dated 02.8.2005
Secretary (Labour), Government of National
Capital Territory of Delhi has further
referred the dispute arising between the
parties named above for adjudication with the
following terms of reference :-
Reference:
Whether non-regularization of services of
Shri Pushkar Kumar Dhanolia S/o Shri Hari
Rm Dhanolia on the post of LDC/Junior Steno
3 ID No. 157/2005
by the management from the initial date of
his joining into the employment i.e. 03.6.1999
in proper pay scale and allowances is legal
and/or justified and if not, to what
relief is he entitled and what directions
are necessary in this respect?
3. The workman has filed his statement of
claim alleging that he joined into the
employment of M/S Netaji Subhash Institute of
Technology w.e.f. 03.6.1999 as Data Entry
Operator. Initially, he was taken into
employment for three months on contract basis,
but the said contract of employment was
extended without any break till 30.11.2000.
During the said period the workman was working
under direct supervision and control of the
Management and he was not working under any
contractor. Vide letter dated 08.12.2000 the
workman was appointed on ad-hoc basis without
any break for six months in the pay scale of
Rs.3050-4590 on the post of LDC/Junior Steno
after proper medical checkup and police
verification . Thereafter the Management also
4 ID No. 157/2005
issued two more letters extending the period of
service of the workman without any break till
31.5.2002. The workman was entitled to be
regularised in the service in proper pay scale
& allowances in view of the fact that he was
continuously working on a regular nature of job
. But the Management terminated the services of
the workman vide letter dated 29.5.2002 only
mentioning the reason that the regular
incumbent has joined and therefore, services of
the workman are not required. The workman has
claimed that the non-regularisation of services
on the post of LDC/Junior Steno w.e.f.
03.6.1999 and termination of his services
w.e.f. 01.6.2002 is wholly illegal, bad and
unjust and amounting to unfair labour practice.
4. The claim of the workman has been
contested by the Management on the ground that
the workman was engaged on contract basis in
Netaji Subhash Institute of Technology w.e.f.
03.6.1999 initially for a period of three
months as Data Entry Operator/LDC at a
5 ID No. 157/2005
consolidated salary of Rs.3000/- per month . He
was given extension from time to time and
continued to work on contract basis till
30.11.2000. From 08.12.2000 he was again
engaged on purely temporary & ad-hoc basis as
Junior Steno/LDC in the pay scale of Rs.3050-
4590 for a period of six months initially. His
ad-hoc engagement was further extended from
time to time up to 31.5.2002 (AN) . He was
relieved from his services w.e.f. 31.5.2002
(AN) as regular incumbent joined the services
of the Institute. The claim of the claimant is
liable to be dismissed on the ground that he
has not come to this court with clean hands and
has suppressed the material facts that he was
given an equal opportunity at par with the
other candidates for the appointment to the
post of LDC, but he could not qualify the
examination/ interview and new incumbent
qualified the exam and joined the Institute.
5. On these allegations of the parties,
following Issues were framed on 03.8.2005 :
6 ID No. 157/2005
ISSUES :
(I) As per terms of reference.
6. The workman has examined himself in
support of his case and has reiterated his
allegations made by him in the statement of
claim and proved on record the documents as
Ex.WW1/1 to WW1/27 . In his cross-examination
the workman has admitted that he joined the
services of Netaji Subhash Institute of
Technology (NSIT) from 03.6.1999. Various
office orders were issued granting him contract
appointment and extension thereof. It was
clearly mentioned in these orders that his
appointment was purely on temporary & contract
basis and shall be liable to be terminated if
the contract was over. It was also mentioned in
the office orders that he would not claim for
regular appointment for any of the post in the
Institute. At the time of his initial
appointment he was not told that the
appointments in the NSIT are done through Delhi
Staff Selection Board (DSSB). He also admitted
7 ID No. 157/2005
that the NSIT has advertised in the paper for
the appointment of LDCs through DSSB . He has
also applied for the appointment on the basis
of the said advertisement. Copy of the said
advertisement is Ex.WW1/M1. Copy of his
application format along with his qualification
certificates re collectively Ex.WW1/M2. He
denied that his application for regular
appointment was rejected because he did not
fulfill the qualification criteria . He
admitted that he passed his graduation in III
division . He, however, denied knowledge that
for fulfilling the qualification criteria the
candidate was required to be a II division in
his graduation . He admitted that the job on
which he worked on ad-hoc basis was fulfilled
by a successful candidate who had cleared the
examination for the post of LDC and the said
candidate is working on that post. He denied
that there is no vacant post on which he was
working at present.
7. The Management examined Shri JK Sharma
8 ID No. 157/2005
- Assistant Registrar (Administration) . He has
stated that Shri Pushkar Kumar Dhanolia was
engaged on contract basis in NSIT w.e.f.
03.6.1999 as Data Entry Operator/LDC at a
consolidated salary of Rs.3000/- per month . He
was given extension from time to time and
continued to work on contract basis till
30.11.2000. From 08.12.2000 he was gain engaged
on purely temporary & ad-hoc basis as Jr.
Steno/LDC in the pay scale of Rs.3050-4590 for
a period of six months initially. His ad-hoc
engagement was further extended from time to
time up to 31.5.2002 (AN) and he was relieved
from the services w.e.f. 31.5.2002 (AN) as
regular incumbent joined the Institute.
8. This witness has further stated that
the incumbent was duly informed that his
services are purely ad-hoc and were liable to
be terminated without assigning any reason and
he will have no claim for regular appointment
or for assignment of seniority on his post or
any equivalent post in the Institute on this
9 ID No. 157/2005
basis. The witness has further stated that the
post of LDC was advertised in the Employment
News 15-21 December 2001 . As per the said
advertisement, the eligibility criteria for the
post of LDC was a second class Bachelor's
Degree with a minimum typing speed of 40 words
per minute in English and 30 words per minute
in Hindi and the working knowledge of computer.
Shri Pushkar Kumar Dhanolia applied for the
said post, but his application was rejected as
he did not fulfill the required educational
qualification for the post of LDC being a III
class graduate. The witness has further stated
that the incumbent was informed vide
corrigendum dated 12.1.2001 which was in
partial modification to the earlier offer of
appointment dated 08.12.2000 that his
appointment was on purely temporary and ad-hoc
basis and was required to qualify the DSSSB
examination/interview. In case he did not
qualify the DSSSB exam and a new incumbent
joins the Institute, his services shall stand
automatically terminated without any notice
10 ID No. 157/2005
from the Institute and he will not be having
any claim for regular appointment in this
Institute.
9. I have heard the learned Authorised
Representatives for the parties. My findings on
the Issue are as under :
ISSUE No. 1 :
10. Learned AR for the workman has argued
that there is no distinction between a
permanent employee and a temporary employee.
The services of a temporary employee can not be
terminated without complying with the
provisions of Section 25F of the Industrial
Disputes Act 1947 . Reliance has been placed on
the judgment of Delhi Cantonment Board Vs.
Central Govt. Industrial Tribunal & Ors.
reported as 2006 (88) DRJ 75 (DB) . In this
case it has been held that In service law
there is an important difference between a
temporary employee and a permanent employee. A
permanent employee has a right to the post
11 ID No. 157/2005
whereas a temporary employee does not, vide
State of UP Vs. Kaushal Kishore Shukla (1991) I
SCC 691. However, there is no such distinction
in industrial law. It may be noted that the
Industrial Disputes Act, makes no distinction
between a permanent employee and a temporary
employee (whether a probationer , casual, daily
wage or adhoc employee).
The definition of 'workman' in Section
2(s) of the Industrial Disputes Act states that
a 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 reward,
whether the terms of employment be express or
implied, and for the purposes of any proceeding
under this Act in relation to an industrial
dispute, includes any such person who has
been dismissed, discharged or retrenched in
connection with , or as a consequence of, that
12 ID No. 157/2005
dispute, or whose dismissal, discharge or
retrenchment has led to that dispute, but does
not include any such person --
i) who is subject to the Air Force Act,
1950 (45) of 1950), or the Army employee
of a person , or
ii) who is employed in the police
service or as an officer or other
employee of a person , or
iii) who is employed mainly in a
managerial or administrative capacity,
or
iv) who being employed in a supervisory
capacity, draws wages exceeding one
thousand six hundred 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.
A perusal of the above definition
shows that there is no distinction in
13 ID No. 157/2005
industrial law between a permanent employee and
a temporary employee. As long as the person is
employed to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory
work for hire or reward, he is a workman under
the Industrial Disputes Act , and will get the
benefits of that Act.
11. Since the respondents in the aforesaid
case were the workmen under the Industrial Disputes Act, Section 25F of the Industrial Disputes Act was held to be applicable and it was held that it was a case of violation of Section 25F of the Industrial Disputes Act.
12. In the instant case, the workman joined the services of the Management initially on 03.6.1999 and his joining report is Ex.WW1/4. Thereafter his contract appointment was extended vide Ex.WW1/5 , WW1/6, WW1/7 , WW1/8 , WW1/9 & Ex.WW1/10. His last contract of appointment come to an end on 30.11.2002. Thereafter vide Office Order No. 121(207)/99- 14 ID No. 157/2005 Estt./NSIT/267 dated 08.12.2000 which is Ex.WW1/11, the claimant was appointed to the post of Junior Steno/LDC on ad-hoc basis and on the following terms & conditions :
6. APPOINTMENT : This appointment is purely temporary and on adhoc basis for six months when he joins duty.
7. PAY AND POST : Your pay will be fixed at Rs.3050/- per month plus usual allowances in the scale of pay of Rs.3050-4590/-.
8. MEDICAL EXAMINATION : Before joining the post, you will be required to furnish medical certificate from an authorized Medical Officer/Medical Board about your being of sound health and physically fit for service in the Institute.
9. CHARACTER and ANTECEDENT VERIFICATION : Your appointment will be provisional and subject to verification of character and antecedents. Meanwhile, at the time of joining you will be required to furnish a character certificate from the District Magistrate or any responsible person (Gazetted Officer).
10.TERMINATION OF APPOINTMENTS : During the period of appointment your services are liable to be terminated with one month's notice in writing given by either side.
11.VERIFICATION OF CERTIFICATES : You will be required to 15 ID No. 157/2005 submit all your original certificates in respect of educational qualifications and experience including birth certificate for verification , before your appointment in the Institute.
12.(a) GENERAL : you will have no claim for regular appointment on this post or on any other post in this Institute on this basis.
(b) Your ad-hoc appointment on the post shall be governed by the Institute rules for all purposes.
(c) You shall comply with all the orders/rules of the Institute.
13. The workman accepted this offer of appointment vide Ex.WW1/12. His employment was extended on the same terms & conditions on 05.3.2001 vide Ex.Ww1/13 and were further extended for a period of six months vide Office Order dated 06.6.2001 which is Ex.WW1/14. His ad-hoc appointment was further extended on the same terms & conditions vide Ex.Ww1/15 . The workman has filed various documents which are Ex.WW1/16 to WW1/25 to show that he worked continuously with the Institute till 31.5.2002 when his services were terminated vide letter Ex.WW1/26.
16 ID No. 157/200514. It is quite apparent that no notice was given to the claimant before terminating his services w.e.f. 31.5.2002. Section 25F of the Industrial Disputes Act provides as under :
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until --
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice ;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served 17 ID No. 157/2005 on the appropriate Government [for such authority as may be specified by the appropriate Government by notification in the Official Gazette].
15. It is, therefore, proved on record that there was no compliance with the provisions of Section 25F because no notice or wages in lieu of the notice were given to the workman before terminating his services. The record also shows that though the claimant has initially joined the service of the Management as a contract employee but after 08.12.2000 his services were not on contract and he was employed on ad-hoc basis against a proper pay scale.
16. The judgment in the case of Delhi Cantonment Board Vs. Central Govt. Industrial Tribunal & Ors. referred to above clearly shows that there is no distinction between a permanent employee and a temporary employee so far as the provisions of Section 25F of the 18 ID No. 157/2005 Industrial Disputes Act is concerned. It is, therefore, evident that the termination of the claimant was in contravention of Section 25F of the Industrial Disputes Act .
17. The workman has admitted in his cross- examination that when he was given an ad-hoc appointment vide Ex.WW1/11, he was informed that appointments in Netaji Subhash Institute of Technology are done through DSSSB after following the said procedure of appointment. The workman was therefore aware that his appointment was de-horse the rules.
18. In the case of Secretary, State of Karnatka and others Vs. Umadevi and others Civil Appeal No. 3595-3612 of 1999 decided on 10.4.2006, it was held that When the Court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it can not be said 19 ID No. 157/2005 that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules.
This judgment further provides that there is no rule for regularization of persons who have been appointed de hors the rules and specifically lays down that all those decisions which run down with the principle settled in this judgment or which directions running counter to what has been held in this case will stand denuded of their status as precedents.
19. The claimant is, therefore, not entitled to regularisation on the post of Junior Steno/LDC.
20. The question of reinstatement of the workman to the said post also does not arise because a regular incumbent, who was appointed in accordance with the rules after proper selection through Delhi Staff Selection Board, has already joined at the said post. The wrong 20 ID No. 157/2005 done to the workman can be compensated by giving him appropriate compensation . I find that an amount of Rs.10,000/- should be paid to the workman as compensation for termination of his services in contravention of Section 25F of the Industrial Disputes Act, 1947 .
21. It is, thus, held that non-
regularisation of services of the workman Shri Pushkar Kumar Dhanolia S/o Shri Hari Ram Dhanolia on the post of LDC/Junior Steno by the Management from the initial date of his joining into the employment i.e. 03.6.1999 in proper pay scale and allowances is legal and justified. However, he is entitled to Rs.10,000/- as compensation from the Management. Thus, the Management is directed to pay a sum of Rs.10,000/- to the workman as compensation . Reference is answered.
Let six copies of this award be sent to the appropriate Government ie. Secretary (labour), Government of National Capital Territory of 21 ID No. 157/2005 Delhi for necessary action at their end.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 13th Day of February 2007 (DINESH DAYAL), PRESIDING OFFICER INDUSTRIAL TRIBUNAL II, KARKARDOOMA COURTS, DELHI