Delhi District Court
Smt. Kasturi Devi vs M/S Darshan Academy on 13 April, 2011
1
IN THE COURT OF SH. DAYA PRAKASH: PRESIDING OFFICER
LABOUR COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID NO. 520/06
Smt. Kasturi Devi
W/o Late Sh. Pooran Chand
R/o House No. 573, Block G
Shakur Pur
Delhi. ...... Workman
VERSUS
M/s Darshan Academy
Kirpal Bagh
Pambari Road
Delhi. ...... Management
Date of Institution : 27.04.04
Judgment reserved : 19.02.11
Date of decision : 13.04.11
A W A R D
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24(570)/2003/Lab./59296 referred the dispute for adjudication between the Management M/s Darshan Academy and its ID No. 520/06 1/18 2 workman Smt. Kasturi Devi in the following terms of reference:
"Whether the services of Smt. Kasturi Devi w/o Late Sh. Pooran Chand have been terminated illegally and/or unjustifiably by the management and if so, to what relief is she entitled and what directions are necessary in this regard?"
2. As per claim, workman was employed as an Aaya in Darshan Academy English Medium School at Pambari Road, Delhi in July, 1998. It is stated that though workman was employed as an Aaya to look after the nursery school children as Care taker yet she was doing all round school class rooms sweeping, dusting, serving drinking water, tea to guests and staff of Darshan Academy, Delhi. It is further stated that the duty of workman was also after the closing of the school as Helper to Principal Office staff. It was complete 12 hours full time work with no break. it is further stated that workman performed her duty with honesty as an Aaya cum Peon cum Helper for five years with her last pay drawn Rs. 2100/ per month which was much less than the minimum wages prescribed by the labour department, Gove. of NCT of Delhi. It is further stated that workman was an active Trade union member which was unacceptable by the management. It is further stated that workman demanded regular 8 hours duty though she never objected to all sorts of petty jobs taken by the management from her as an Aaya cum Peon cum Helper. She demanded to raise her salary from Rs. 2100/ per month to Minimum wages under Labour Laws of Govt. of NCT from the Principal of ID No. 520/06 2/18 3 management in October, 2003. For working more than 8 hours in the school which she never refused to do. Workman demanded over time wages which too were never paid. On demanding minimum wages and over time beyond 8 hours job in the school by Mrs. Kasturi Devi from the Principal, she was humiliated badly, her salary for the month of September, October, 2003 were stopped and on 15.11.03, Mrs. Kasturi Devi was abruptly terminated from the job of an Aaya from Darshan Academy by the Principal, Mr. David without any base, without any notice or chargesheet. It is further stated that a notice on 17.11.03 was served to Principal of management to reinstate the workman and to pay her salary which did not effect on the management. It is further stated that the persons employed by management and junior to workman were at the salary of Rs. 4000/.
3. Notice of claim was issued to management. AR for management appeared and filed WS. It is stated in the WS that the management committee of the school had terminated the services of the workman as an Aaya on 31.07.03 on the undisputed ground of misbehaviour and cruel and harsh attitude towards little children of the nursery classes. It is further stated that the workman has in the past made a complaint against the principal of the school of physical assault and of trying to burn her. The said complaint was made solely to blackmail the school authorities into retaining her services. After investigation, the complaint was found to be false by the ID No. 520/06 3/18 4 police and the complaint was dropped. It is further stated that the workman has done her best to malign the name of Darshan Academy School and is still continuing with hurling false and frivolous allegations. It is further stated that the workman was on duty to take care of the tender little children of nursery classes as an Aaya in the management but instead of showing motherly affection and love towards them, she treated with cruelty with them for which she did not deserve to be in the service of such a reputed school. Hence, in this regard services of the workman had not been found to be satisfactory and compatible with the noble objectives with which the Darshan Academy school had been set up. Therefore, to maintain the standard of the school, the workman's services had been terminated by the management to avoid any cruel treatment being meted out by the workman to innocent little children of nursery classes.
In reply on merits, it is denied that the workman joined the services of the management in July, 1996. On the contrary, the workman was employed w.e.f 1.03.03 on probation and temporary basis for a period of one year and as per clause 2 of her Contract of Service, the service of the workman was liable to be terminated at any time during probation by Managing committee of the school if found unsatisfactory and the services of the workman was in found unsatisfactory and the services of the workman were in fact found unsatisfactory and thus terminated w.e.f 1.08.03. It is submitted that the ID No. 520/06 4/18 5 workman had been employed with the management on 1.03.03 to 31.03.03 on probation and temporary basis. The contract of service of the workman clearly showed that the school had employed her w.e.f 1.03.03. It is further stated that from August, 2003 onwards she had not been employed with the school. Later on, she joined a contractor who provides casual labour for cleaning and sanitation etc. when required by the school. The workman was rendering her service as an Aaya for nursery classes of the school. It is further stated that management committee of the school terminated the services of the workman in accordance with clause 2 of the Contract of service which provided that her services could be terminated at any time on the ground of unsatisfactory performance. her services had been terminated after getting several complaints against her. it is pertinent to mention here that despite repeated warnings and opportunities for improvements given to her she did not show any kind of improvement. Every time she was found to be defiant in her services, she would raise sentimental pleas of being a widow and seeking pardon and would be willing to write apology letters that she would not repeat the defiant conduct but all her assurance proved to be false and on many occasions on her sentimental pleas, no charge sheet or disciplinary proceedings were initiated against her nor any memo issued to her. The letter dated 30.01.03 written by or on behalf of the workman assuring of improving her behaviour. However, despite her assurances, her misbehaviour continued and the care taker had to bring to notice of the ID No. 520/06 5/18 6 Principal, repeated instances of misconduct by his letter dated 30.03.03. Sometimes her services were suspended for a few days by way of punishment. It is fur;ther stated that the workman had been on probation and temporary basis with management during 1.03.03 to 31.07.03. The managing Committee had terminated her services according to the Contract of her service on account of several serious complaints received against her.
4. Perusal of file shows that several opportunities were given to place Rejoinder on record. However the opportunity was not availed by the workman. Later on, on 5.07.05 an application filed to place the Rejoinder on record. Vide an order application was dismissed.
5. After completion of pleadings, the only issue was framed on 2.12.04 :
1. As per terms of reference.
6. Parties led their evidence.
On behalf of workman, Workman Smt. Kasturi Devi examined herself as WW 1, Sh. Ramesh was examined as WW 2, Smt. Kesar was examined as WW 3, Sh. Vijay Kumar was examined as WW 4, WASI Sunit was examined as WW 5.
On behalf of management, A. David deposed as MW 1.
ID No. 520/06 6/18
7 Sh. Sikander Lal Gambhir filed his affidavit as MW 2.
7. During the course of proceedings, management was proceeded ex parte on 4.04.06. Later on order of setting aside exparte was set aside vide order dated 4.05.06.
8. Perusal of file further shows that again on 28.03.02 management was proceeded exparte which was again set aside.
9. During the course of proceeding, Rejoinder filed on behalf of workman wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
10. WW 1 Kasturi Devi in evidence by way of affidavit supported the averments made in the claim.
In cross examination of WW 1, she stated that she has not filed appointment letter appointing her as an Aaya w.e.f July 98 on the salary of Rs. 2100/ per month. She stated voluntarily that she was not given any letter. She further stated that she had asked for appointment letter but she was not given. She had asked for issuance of appointment letter from the principal. She further stated that she had filled application form for employment. She ID No. 520/06 7/18 8 further stated that no wage slip was issued to her by the management. She further stated that since she was taken on duty after filling of application form for employment, question of sending any letter for joining duty with the management does nor arise. She suggested it wrong that she was employed by the management on 1.03.03 and stopped coming for duty from 1.07.03. She further suggested it wrong that then she was appointed by the management she was on six months probation. She stated voluntarily that she was appointed on permanent basis. She further stated that she had never worked with any contractor before joining the management. She further suggested it wrong that after termination of her services from the management she started working with the contractor of the school. She was working as Aaya with the management. The management had never any complaint against her work and conduct. She further stated that she used to sign on the register before receiving her salary. She suggested it wrong that she had performed duty with the management for 12 hours. No overtime used to be paid by the management. She further stated that she had not filed any case or complaint regarding non payment of overtime to any authority. She was not paid wages for the months of September and October, 2003 when she was terminated in November, 2003. She further stated that initially she was paid wages in cash for four years and later on my salary used to be transferred in her account.
ID No. 520/06 8/18
9 Sh. Ramesh was examined as WW 2.
In cross examination of WW 2, it is stated that his sister does not reside with her. He knew about the case of his sister i.e workman since she used to go to her school where she was working. She was appointed with the management in July, 1998. She used to get Rs. 2100/ per month as salary. he further stated that workman had not been residing with him when she was working in the school. He further stated that earlier he used to reside C63, Pitam Pura/Saraswati Vihar, Delhi. He was residing at C63, Saraswati Vihar, Pitam Pura, Delhi in the year 1998. He stated again that he was residing at H573, J.J Colony, Shakurpur in the year 1998. He was working as Mason and there was no fixed place of his work during the period of service of workman with the school. He used to work from 8.00 a.m to 5.00p.m as Mason at the place where ever he used to get work. He further stated that the workman used to work for 12 hours. He came to know about this fact since he used to take her back home from the school. He further stated that his sister had informed him that she was terminated by the management and then he along with her met with the principal of the school and enquired as to why services of her sister were terminated. He further stated that no criminal case was registered by the police but Principal of management and one other official of the management was called in the police station Ashok Vihar in connection with the said complaint. He further stated that he was present with the workman when she was humiliated and kicked out by the Principal of ID No. 520/06 9/18 10 the school.
Smt. Kesar was examined as WW 3.
In the cross examination of WW 3, it is stated that she did not have any document to show that workman was working with the management. She stated voluntarily that she was working with Darshan Academy and have also told her that the services have been terminated. She came to know that the workman was getting salary of Rs. 2100/ as she had told her about that. No cheque or salary slip was shown to her by workman in that regard. She further stated that she did not have any document about termination of services of workman by the management.
11. MW 1, A. David in examination in chief supported the averments mentioned in the WS.
In cross examination of MW 1, he stated that he was the Principal of Darshan Academy since December, 1997. He further stated that the management used to maintain register of employees. He further stated that management is a private school recognized by Govt. He further stated that the management school was affiliated with CBSE in the year 2005 and not before. He further stated that the management has been maintaining the record of employees since beginning. He further stated that he did not remember as to how many employees were there on he rolls of Academy in ID No. 520/06 10/18 11 1998. He further stated that the document Ex. WW 1/M1 which is an agreement for Contract of Service bears the signature which appears to be of Kasturi Devi. He further stated that Ex. WW 1/M2 is a letter written to Sh. S. L Gambhir by the workman and the said documents bears her signatures. He stated that he did not remember when he started engaging people on contract basis in the Academy. He suggested it wrong that the workman employed with the Academy since 1998. He suggested it wrong that the workman was not engaged under a contract dated 10.05.03. It is further suggested it wrong that the work and conduct of the workman was satisfactory during the period she worked in the Academy. He further stated that he had not issued any memo to the workman regarding her misconduct. He admitted that the amount payable column has been corrected after applying fluid with respect to salary of April, 2003 which was paid in May, 2003. He further admitted that in the attendance register of August, 2003 there appears no signature of the principal or other authority. He further suggested it wrong that the workman was employed with the management since July, 1998.
Affidavit of another MW Sh. Sikander Lal Gambhir filed. But this witness was not examined and ME was made closed.
12. Perusal of file shows that workman evidence in additional was led on an application filed on behalf of the workman.
ID No. 520/06 11/18
12 Sh. Vijay Kumar was examined as WW 4.
In cross examination he stated that a person becomes member of PF from the date of joining in the establishment. He further stated that he cannot say when the member becomes permanent in the establishment or not. Kasturi was member of PF scheme from 1.03.03 to 30.09.03. He admitted that the contribution was received by PF Department only from 1.03.03 to 30.098.03. He further admitted that the contribution are received only for the period of employment in the establishment.
WASI Sunita was examined as WW 5.
In cross examination it is stated that the said complaint was filed against termination of the workman. She further stated that she did not know as to when happened in the complaint. She further stated that she had no personal knowledge about the case.
13. Final arguments heard.
14. Citations filed on behalf of workman.
Shivalik Knit Polyfab Vs. Presiding Officer & Anr., 2004(3) CLJ (H.P) 116 V.P Ahuja Vs. State of Punjab, 2000 (2) SCT,327 CHD Developers Ltd. Vs. Rajinder Prasad & Anr., 2009 (162) DLT ID No. 520/06 12/18 13 86 Citations on behalf of management also filed :
Madhyamik Shiksha Parishad Vs. Anil Kumar Mishra and ors, AIR 1994 SC1638 Gujarat Mineral Development Corporation Vs. P.H Brahmbhatt, (1974) 3 SCC 601 Tilak Singh Tomar Vs. State of M.P & ors., 2000 LLR 971 Commissioner of Police, Hubli and Anr., Vs. R.S More, (2003) 2 SCC 408 Pavanendra narayan Verma Vs. Sanjay Gandhi P.G.I of Medical Sciences & Anr. 2002 LLR 113 G. K Malik Vs. Hindustan Petroleum Corporation Limited, 1998 LLR 461 Life Insurance Corporation of India & Ors., Raghavendra Seshagiri Rao Kulkarni, 1986 (53) FLR523 (SC)
15. I have seen the file and my findings with respect to the only issue are as under :
REGARDING ISSUE NO. 1 : As per terms of reference.ID No. 520/06 13/18
14 Keeping in view the claim, reply, evidence and documents on record and my inference on the basis of these are that the reference be answered in negative i.e. against the workman on following grounds :
(i) For the applicability of the Industrial Dispute Act, workman should have proved that she continuously worked for 240 days without any break in a year or the last when she has worked. Workman alleged that she joined the school/management in July 1998 and was terminated on 15.11.03. Workman has failed to prove that she has joined the management in July 1998 and continuously worked till 15.11.03.
(ii)From the record, it appears that initially in the year 2002, workman was employed through a labour contractor S.L.Gambhir Agency and she was offered to be appointed on contract basis for one year by the management and thereafter again joined the same agency S.L.Gambhir Agency, contractor in September and October 2003. As per documents, till February 2002 starting from August 2001 workman joined with Labour Contractor S.L.Gambhir Agency and thereafter again employed for the month of August 2003 to October 2003 with S.L.Gambhir Labour Contractor. Her joining with independent contractor does not give her any right or claim against the ID No. 520/06 14/18 15 management.
(iii)On the record is a contract of service between workman and the management dt. 10.03.03 by which the workman was employed on a probation for a period of one year w.e.f. 01.03.03. Record shows that by the end of 31.07.03 she was no more in service of management.
(iv)I have seen the attendance register by which the presence of workman is recorded from March 2003 till July 2003. I have also seen the wages register wherein the workman had received wages from March 2003 to July 2003. I have also seen the attendance register and wages register of February 2003 to August 2003 where the name of the workman is not mentioned. This shows and proves that the workman worked with the management from March 2003 till July 2003 and this shows that the workman has not completed the required 240 days for the purposes of applicability of labour laws.
(v)It is well established that a person on contract basis cannot work as a matter of right beyond the contractual period unless subsequently extended by the management.
In State of Punjab and ors. Vs. Surinder Kumar and ors., 1991 ID No. 520/06 15/18 16 Suppl. (3) SCR 553, it was held by lordship of Supreme Court that :
"where terms on which appointments were made is for a particular period then the person cannot claim employment beyond that period. In that case the court was dealing with respect to temporarily post of lectures. It was further held that specific term on which appointment was made should be normally enforced."
In Director, Institute of Management Development, U.P Vs. Pushpa Srivastava (Smt.), MANU/SC/0409/1992 wherein it was held by their lordship of Supreme Court that :
"where the appointment was on purely contractual and adhoc basis on consolidated pay for a fixed period and terminable without notice, the appointment comes to an end by efflux of time. Thereafter, the appointee has no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service....... when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post comes to an end."
In Madhyamik Shiksha Parishad, UP Vs. Anil Kumar Mishra and ors, MANU/SC/0390/1994, wherein it was held by their lordship of Supreme Court that :
"ad hoc appointees / temporary employees engaged on ad hoc basis and paid on piecerate basis for certain clerical work and discontinued on ID No. 520/06 16/18 17 completion of their task, were not entitled to reinstatement or regularization of their services even if working period ranged from one to two years."
"These decision indicates that if the engagement was made in a particular work or in accordance with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service."
vi) In the present case, the contract ended even before completion of one year i.e. within six months.
vii)Ex. WW1/M2 is a letter by which workman has admitted his misbehaviour and sought pardon of the same from S.L.Gambhir Agency, the contractor of the management. On the record is a complaint made by the class teacher Shweta Joshi to the Principal of the management in which the misbehaviour with the child is reported against the workman. S.L.Gambhir Agency has also filed a complaint against Kasturi Devi with the Principal and on 11.09.03 it is also written and she was also warned.
viii)On the record is a complaint by workman Kasturi Devi against the ID No. 520/06 17/18 18 management stating that the Darshan Academy under the shadow of religious charitable mission, Kirpal Rohini Satsang at Kirpal Bagh, Delhi9, runs a big business with this English Medium School charging heavy fees, running a Restaurant, a Milk & Cold Drinks Bar, a General Store Books Stall at Kirpal Bagh. The land of this place was given by DDA at nominal price to maintain a Green Land and Simrans. The complaint was sent to National Human Rights Commission. On the record, is a ordersheet from the National Human Right Commission, Law Division dt.21.04.04 by which the workman/complainant by which the workman/complainant stated that the Principal of the School Darshan Academy mishandled her and threatened her.
In view of the above reasons and discussions, it is held that services of the workman were not terminated illegally and she is not entitled to any relief.
16. Award has been passed. Copies of award be sent to the appropriate Government for publication as per law. File be consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH)
on 13 April, 2011
th
Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
ID No. 520/06 18/18
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ID No. 520/06 19/18