Delhi District Court
Ashok Kumar Dagar Son Of Sh. Ran Singh vs The Management Of M/S Taj Sats Catering ... on 26 July, 2018
1
IN THE COURT OF MS SHAIL JAIN,
PRESIDING OFFICER, INUDSTRIAL TRIBUNAL02,
DWARKA COURTS, NEW DELHI
CID no. 1808/16 .
Ashok Kumar Dagar son of Sh. Ran Singh,
R/o H. NO. 199, Village and P.O. Maidan Garhi,
New Delhi110064.
..............Applicant/Management
Versus
The Management of M/s Taj Sats Catering Ltd.,
IGI Air port Complex, N. Delhi110037.
.................Respondent/workman
Date of Institution: 18.11.2014 Date of Award:26.07.2018 O R D E R :
1. By this order, I shall dispose off the application filed by the management for dismissal of the complainant u/s 33 A of the ID Act, as filed by the complainant/workman on the ground of passing of an Award . 1/26 against the workman by the Ld. POLC, along with the issue which was framed by my Ld. Predecessor to the effect that "Whether the complaint is maintainable", and was treated as a preliminary issue vide order dt. 06.03.2018.
2. Brief facts leading to the present application are as follows:
3. The present complaint u/s 33A of Industrial Disputes Act, 1947 has been filed by the workman submitting that the applicant/workman has been engaged by the management as driver since 01.10.2005 and his service record was good and he was drawing wages @ Rs. 7500/ per month which is much lesser than the permanent drivers of the management. It is further alleged by the workman that the management is one of the largest Air Catering industry in the Delhi Region and having huge profits from its business. It is further alleged that management is having 1200 employees to run the business in different posts such as Managers, Assistant Managers, supervisors, office staff etc. and out of 1200 employees , management has shown 320 employees as permanent employees of the management and rest of them are shown as Contract workers or Fixed Term employees whereas all these employees are working for the management round the clock along with permanent employees and doing the same job as is done by the permanent employees. It is further alleged that just to deny them same pay and perks as availed by the permanent employees, the management had kept them as either contract workers or Fixed term contract workers.
. 2/264. It is further stated by the workman that the management is having 50 vehicles including high lift to deliver food and beverages and other items to various air lines inside the airport as well as to outdoor catering and just to deny them same pay , perks and facilities the management had kept them on contract basis. It is further alleged that the management engaged the workman for the post of driver which was permanent and perennial in nature and just to deny proper pay and perks availed by the permanent drivers of the company, management issued an artificial appointment letter to the workman , appointing him on temporary basis for a fixed period for two years w.e.f. 01.10.2005 to 12.05.2006 with a monthly consolidated salary of Rs. 4000/ per month and assigned Token number 14737. Further , with ulterior motive on 16.06.2006 management called the workman to HR Manager's room and handed over a letter dt. 16.06.2006 appointing him as Driver on temporary basis for a fixed period of 32 weeks from 16.06.2006 up to 25.01.2007 and asked the workman to sign on dotted points of the appointment letter . Since workman needs job for his and his families survival , workman had signed the same on the dotted lines and management changed his Token no. as 15379. It is further alleged that another artificial appointment vide letter dt. 01.03.2007 reappointing him as a driver from 01.03.2007 to 28.02.2009 for another two years on a fixed salary of Rs. 5500/ per month was given to him and again his token number was changed as 15989. After completion of the stipulated period, management again reappointed him as a driver for further period of two year from 01.03.2009 to 01.03.2011 for a . 3/26 consolidated monthly salary of Rs. 7500/ per month and he was issued Airport entry pass time to time and also issued daily permit and air side driving permit time to time. Further, management was not paying him the perks and benefits as availed by the permanent drivers of the company, thus he along with other such temporary drivers had submitted representation letter dt. 17.11.2011 requesting the management to issue permanent appointment letter, however, management did not consider their request and not issued permanent appointment letter and also did not give same pay and perks and benefits , as availed by the permanent drivers. Thereafter they again send reminder dt. 2.12.2011 to the management urging them to issue permanent appointment letter and some officers of the management threatened him and others for demanding regularization and threatened them that they will terminate their services . Since the demand of the workman was not considered by the management, all these drivers along with present workman/complainant had filed an Industrial dispute before Conciliation officer. On failure to resolve the dispute, reference was made by Labour Department to the court, vide ID no. 69/2012. Further , it is alleged that since the management has not sought either any permission from the court before terminating him from service or to resume his duty nor has filed any approval application, the present complaint filed by the workman be allowed declaring that the action of the management in terminating the workman from duty is null and void and management be directed to reinstate the workman with all consequential benefits from the date of refusal of duty .
. 4/265. With this , it is prayed that the termination of the services of the workman by management be declared null and void and direct the management to reinstate the workman in service with all consequential benefits from the date of refusal of duty .
6. The respondent/management filed written statement with facts that the present complaint filed by the complainant/workman is misconceived, legally not maintainable and is liable to be dismissed. It is further alleged that the complainant was appointed on a fixed term contractual basis and his fixed term appointment came to an automatic end on 28.02.2013 by efflux of time on the expiry of fixed term contract . Further the automatic termination of the fixed term temporary contractual appointment of the complainant, in terms of contact of workman, does not fall within the mischief of Section 33 and section 33A of the Industrial Disputes Act, 1947 (herein after referred as ID Act).
7. The complainant/workman had already raised an industrial dispute challenging his termination from service which has been referred for adjudication to Labour court by the appropriate Government. Since the subject matter of the legality of termination of services of complainant is already pending before labour court no. XVII, the present complaint as filed is not maintainable. It is further alleged that the complainant cannot be permitted to indulge in multiple litigation for challenging the termination from service. The complaint filed by the complainant before the Hon'ble Court is wholly misconceived , legally incompetent and not maintainable and as such is liable to be . 5/26 dismissed. Further, the section 33 or section 33A of ID Act are not applicable to the facts of the present case.
8. On merits, it is submitted by the management that there is no merit or substance in the complaint filed by the complainant and the complaint filed by the complainant is liable to be dismissed. The complainant was appointed on a fixed term temporary contractual basis and the same came to an end on 28.02.2013. It is further alleged that the management is engaged in the business of airline catering and management caters the various airlines under different contracts which are for specific period and the nature of business of air catering keeps on fluctuating from time to time, depending upon the contracts and the number of meals catered and thus, the management cannot afford to have all its employees on permanent roles. It is further alleged that as per the business requirement and necessity , certain number of employees are appointed on fixed term contract basis and their contracts are renewed subject to their performance/contract/suitability and the organizational requirements. It is further alleged by the management that before issuing the appointment letter to the workmen, the management has taken due care to inform them that their appointments are on a fixed term temporary contractual basis and thus they have no right to seek continuation or absorption in service of the management on the expiry of their fixed term employment. Further in the appointment letter, it is clearly mentioned that the appointments being for fixed term, shall lapse automatically on the expiry of fixed term, hence, no relief can be granted to the complainant/workman in . 6/26 the present case. All other allegations levelled by the workman/complainant in the complaint are denied as the same are vague. With this, it is prayed that the prayer of the complainant is wholly misconceived, legally incompetent and devoid of merits and as such the same is liable to be dismissed .
9. Rejoinder to the written statement was filed by the workman/complainant wherein the workman/complainant has reiterated the facts mentioned in the complaint and denied the averments made in the written statement filed by the management.
10. After completion of the pleadings, issues were framed by my Ld. Predecessor on 03.09.2015. Thereafter matter was listed for WE. During the pendency of the case for WE, present application was filed by the management on the ground that the Award has been passed against the workman by the Ld. POLC in a reference u/s 10(1) of ID Act declaring that termination of workman was not illegal and was as per contract, and thereby management has sought the dismissal of the present complaint. This application was duly replied by the workman and arguments were heard on the application. Vide order dt. 06.03.2018 this Tribunal was of the opinion that since an issue in respect to the maintainability of the complaint has already been framed by my Ld. Predecessor, this issue can be decided without the evidence and hence issue no.2 "Whether the complaint is maintainable" was treated as preliminary issue and arguments on the preliminary issue as well as application filed by the management for dismissal of the complaint were heard together.
. 7/2611. Arguments heard from Ms. Poonam Dass , Ld. AR for the management and Sh. Manu Nayyer, Ld. AR for the workman/complainant.
12. The contention of the workman/complainant in respect to the application, as filed by the management is two folds, firstly, that since the management has changed the service condition of the present workman/complainant by terminating his service during the pendency of an Industrial dispute no. 69/2012 raised by the workman for regularization of his services along with other workmen, hence, termination of service of present workman/complainant is a violation of Section 33 of ID Act and thus, the present complaint is legally maintainable in the present form. The second limb of argument on behalf of workman/complainant has been that the Management Taj Sats Catering Ltd. has violated the Model Standing orders by appointing the present complainant on a fixed term contract. It was argued by the Ld. AR for the workman that since the year 2007 "Fixed term employment" has been replaced with the term "Badli" , in the Model Standing Orders, despite that the present management continued to appoint the complainant/workman and other similarly situated workman on a fixed term contract, which in itself is illegal and against the "Model Sanding Orders" . Therefore, it is prayed by the Ld. AR for the workman that the application filed by the management be dismissed and preliminary issue be decided in favour of the workman. Workman has relied upon following judgments: . 8/26 (1) The Standard Vaccum Refining Company of India Vs. It's workmen 1960 AIR SC 948 (2) Oil and Natural Gas Corporation Vs. The Petroleum Coal Labour Union and ors. , WP no.
1846/2000 Madras High Court.
(3) Smt. Vandana and 22 ors. Vs. MCD, ID no.
166/2016 decided by Sh. Chandra Gupta, POIT on 05.05.2017 (4) Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd.
Vs. Ram Gopal Sharma and ors, decided by Supreme Court of India on 17.01.2002.
13. On behalf of management, Ms Poonam Dass had argued that the workman/complainant was appointed for a fixed period and after completion of his contractual period the services of workman/complainant came to an end by efflux of time and there is no change in service condition of the workman, therefore, the provisions of Section 33 have not been violated by the Management. Hence, the present complaint u/s 33 A of ID Act , as filed by the workman is not maintainable. As regards the arguments of Ld. AR for the workman in respect to violation of "Model Standing orders" by the management, it is submitted by the Ld. AR for the management that the management Taj Sats Catering Ltd. , has their own "Certified standing orders " and as per their certified standing orders, there is no such category of employment called a "Fixed term employment". This term has been used by the workman/complainant himself in his complaint. As per the . 9/26 "Certified Standing orders" of the Management, the term used is the Temporary employees who are appointed for a limited period of time, as mentioned in the appointment letter. It is, therefore, stated by the Ld. AR for the management that since admittedly in the appointment letter of the workman/complainant, limited period of employment has been mentioned, hence, he was appointed as a "temporary workman" and after the completion of term of contract of employment as per the appointment letter, he was relieved from his services as no other renewal of his employment was there. It is, therefore, submitted by Ld. AR for the management that as the workman/complainant was never terminated nor discharged nor his service conditions were changed rather his services have come to an end by efflux of time, as per the period of employment, hence, there is no violation of Section 33 of ID Act, thus, the present complaint is not maintainable. It is further submitted by the Ld. AR for the management that vide order dt. 23.03.2017, Ld. POLC Sh. Umed Singh Grewal has answered the reference in negative in ID no. 65/14/13, which was preferred by present complainant against his alleged termination of services. Ld. POLC has dismissed the claim of the workman that his services was terminated illegally and has held that his services had come to an end due to efflux of time. Therefore, it was again prayed by the Ld. AR for the management that the present complaint, as such is not maintainable as there is no violation of Section 33 of the ID Act and once the Award has been passed in favour of the management stating that the termination of the workman was not illegal or unjustified, the . 10/26 present complaint is not maintainable and thus should be dismissed. The Management has relied upon following judgments:
1. BA Security Agents Employees Union Vs. Regional Labour Commissioner and ors, 2010 LLR 1083.
2. Mahender Singh Dhantwal Vs. Hindustan Motors Ltd. And ors. 1976 II LLJ 259 SC.
3. Management of Essopre Mills Ltd. vs. Presiding Officer, Labour Court and ors., 2008 III LLJ 614 SC.
14. I have considered the submissions of Ld. ARs for the parties, perused the record carefully and have carefully gone through the judgments relied upon by Ld. ARs for the parties.
15. Before filing the present complaint, the workman/complainant herein has already raised an industrial dispute in respect to his termination, the same was referred by the Government of NCT u/s 10 of ID Act to the court of Ld. POLC in following terms : " Whether the services of Sh.
Ashok Kumar son of Sh. Ran Singh have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled?"
16. Thus, it is clear that by way of ID no. 2604/16 (Old number ID no. 65/14/13) , workman herein has challenged his termination to be illegal or unjustified by the management in the year, 2013. Thereafter in . 11/26 the year, 2014 present complaint u/s 33A of ID Act was filed by the workman/complainant on the same facts and circumstances.
17. In order to understand the scope of Section 33 A of the ID Act , it is necessary to reproduce the provisions of Section 33 and Section 33A of ID Act.
"Section 33 of ID Act:
Condition of service, etc., to remain unchanged under certain circumstances during pendency of proceedings: (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before, (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute (or, where there are . 12/26 no such standing orders, in accordance with the term of the contract, whether express or implied, between him and the workman.
(a) alter, in regard to any matter not connected with the dispute, the condition of service applicable to that workman immediately before the commencement of such proceedings; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise , that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) (4) (5) Section 33A:
Special provision for adjudication as to whether conditions of service, etc, changed during pendency of proceedings Where an employer contravenes the provisions of Section 33 during the pendency of proceedings (before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal, National Tribunal) any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner.
(a) To such conciliation officer or board, and the conciliation officer, or board shall take such complaint into account in mediating in, and . 13/26 promoting the settlement of, such industrial dispute; and
(b) to such arbitrator, Labour court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of This Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.
18. From the bare reading of the provisions of Section 33 of ID Act, it is clear that the purpose of section 33 of the Act is to protect the workman during pendency of any Industrial dispute against victimization by the employment for raising such Industrial dispute and, therefore, it has been laid down by the legislature that during the pendency of any proceedings in respect to an Industrial dispute, no employer shall alter the conditions of service, applicable to any workmen to the prejudice of the workmen.
19. Section 33A on the other hand enables the employee i.e. workman who has been aggrieved by such act of contraventions of provisions of Section 33 of ID Act by the Management or employer to make a complaint in writing to the Tribunal or Labour court and it has also been provided that such complaints shall be treated as a reference made u/s 10 of the ID Act.
20. From the provisions of Section 33 and section 33A of the ID Act, it is abundantly clear that section 33 prohibits the employer to . 14/26 alter the service conditions of the workman during pendency of any Industrial dispute, related to such Industrial dispute and in case any such term or condition is changed or altered by the employer, workman has been provided a right u/s 33 A, ID Act to make a complaint in this regard to the Labour Court or Industrial Tribunal where the matter is pending . In order to apply these principles to the present facts for applicability of Section 33A of ID Act, it is necessary that there should be an alteration in terms of service conditions of workman during the pendency of earlier industrial dispute. In the present case, as per the case of the workman, he was working with the employer/management for a fixed period of time and his service contract was time to time renewed by the management. Finally on 01.03.2013 he was not allowed to resume duty , as per the claim of the workman. It is the contention of the workman that he was being penalized for raising the Industrial dispute for regularization of his services. Whereas the contention of Ld. AR for the management is that workman was appointed only for a fixed period of time, as the nature of business of management i.e. of Air Catering is such that it keeps on fluctuating from time to time depending upon various contracts entered into between the management and other parties. Hence, management cannot afford to have all its employees on permanent basis. It is also the case of the management that as per the limited requirement and necessity , management appoints certain number of employees on contractual basis. Present workman is one of them. Since the term of employment of the present workman came to an end on 28.02.2013 and his services . 15/26 were not required by the management beyond 28.02.2013, therefore, the workman/complainant ceased to be in service w.e.f. 01.03.2013, or that his contract was not renewed further.
21. Workman has contested the claim of the management on two grounds, firstly that appointing of person for fixed term contract is illegal as is against the modal standing orders and Secondly that it was a change in service condition of the workman as he has raised an industrial dispute for his regularization. On the other hand, the contention of management is that workman was not appointed on fixed term contract basis as there is no such category of employees on fixed term contract, therefore, there is no violation of Model Standing orders and second aspect of the argument of Ld. AR for the management has been that the workman/complainant was appointed for a limited period of time which come to an end on 28.02.2013 and, therefore, as his service were not required further by the management, hence his further contract was not renewed. Thus, it is claimed by the management that it is not a case of termination but it is a case of non renewal of contract of the workman.
22. In order to prove their contentions, in respect to the fixed term contract and whether it is violation of the Model Standing orders. Ld. AR for the workman has placed on record replies received by him in RTI wherein it is stated that the Fixed Term employment was removed from the Model Standing Orders, in the year, 2007 by the Government and, therefore, anyone still employing a person on Fixed Term Contract basis is in violation of the Model Standing orders. On the other hand, . 16/26 Ld. AR for the management has placed on record their certified standing orders which specifically describe the classification of an employee in clause 2 of the rules, which is as follows: Classification of employees:
Employees shall be classified as:
A. Permanent B. Probationer C. Relief Employee/Reliever D. Temporary E. Casual F. Apprentice G. Trainee (A) Permanent: (B) Probationer: (C) Relief Employee/Reliever: (D) Temporary:
Temporary employee' will include:
i) A person who is appointed for a limited period of time mentioned in the Appointment letter
ii) A person employed in connection with increase in work which is of a seasonal or temporary character."
23. From the reading of classification of employee, as per Certified Standing Orders of the Management company, it is clear that . 17/26 the "Temporary employee" means and include a person who is appointed for a limited period of time mentioned in the appointment letter. It has been admitted by the workman/complainant that initially he was appointed as a driver on 01.10.2005 till 12.05.2006. Thereafter he was again appointed as a driver on temporary basis from 16.06.2006 up to 25.01.2007. Further he was appointed from 01.03.2007 to 28.02.2009 and after completion of this period he was again re appointed from 01.03.2009 to 01.03.2011. From 01.03.2011 his contractual employment was further extended for a period of two year commencing from 01.03.2011. Thereafter, admittedly the contract of employment of workman has not been extended by the management and his services came to an end on 28.02.2013. It is admitted on the part of the workman that his service tenure was for contractual period as per the appointment letter given to him, unless extended otherwise.
Therefore, it can be presumed that on 01.03.2013 when obviously his service contract was not extended by the management, thus, his tenure of service had come to an end by efflux of time and not by any change of service condition, as per appointment letter issued by the management.
24. Except during the course of the argument, Ld. AR for the workman has not raised the point in his pleadings that the workman was appointed on Fixed Term Contract service which was illegal being in contravention of the Model Standing orders and since the workman had acted upon employment contract and worked for all the periods so appointed, as admitted by both the parties, now it cannot be claimed by . 18/26 the workman that his service orders were illegal. This argument of Ld. AR for the workman cannot be accepted.
25. The question here is that what will be the effect of amendment of "Model Standing Order" after the certified standing orders have already made and certified for the management. This issue has been dealt with by the Hon'ble High Court of Judicature, Karnataka in case of M C Raju Vs. Executive Director , in this case Hon'ble High Court of Karnataka was dealing with the effect of amendment in Model Standing Orders on the Certified standing orders of a business establishment. In this case Hon'ble High Court of Karnataka has considered various provisions of Industrial employment (standing orders) Act, 1946 which deals with the provisions of Model Standing orders to be framed by the Government and Certified Standing orders which apply to the business establishment. After considering the issue of effect of amendment in Model Standing Orders on the Certified Standing orders of business establishment, Hon'ble High Court of Karnataka , has observed that : "The language of S.12A makes it clear that the Model Standing Orders shall be deemed to be applicable until the Standing Orders are made as contemplated by the Act. The reference to the Standing Orders, as finally certified under the Act in S.12A, is obviously to the first standing orders made for the establishment after the Act came into force. It, therefore, follows that if the Model standing Orders are amended subsequent to the coming into operation of the first Standing Orders in . 19/26 respect of the particular establishment, the same do not automatically become applicable to the establishment concerned.
Steps have to be taken to amend the existing Standing Orders in accordance with S.10 of the Act. Until such steps are taken to amend the existing Standing Orders to bring them in conformity with the amended Model Standing Orders, the amended Model Standing Orders will not be applicable to the establishment".
26. It has been further held that :
" Thus, it becomes clear that it was not the intention of the legislature that the Model Standing Orders should become effective and come into operation immediately as and when they are amended. If the intention of the legislature was that they should be deemed to come into operation, as soon as the amendment came into operation, there would not have been a bar as contemplated in Subs.(1) of S.10. This is an additional reason which suggests that the legislature did not contemplate that the amendment to the Model Standing Orders should become operative as soon as the amendment comes into operation. We have, therefore, no hesitation in taking the view that as and when the Model Standing Orders are amended, the only way to give effect to the amendment is by resorting to the procedure of amendment contemplated by S.10 of the Act and that until the existing Certified Standing Orders are suitably amended, the amended Model Standing Orders cannot be deemed to be applicable to the concerned establishment".
. 20/2627. In view of this, I am of the opinion that the arguments of Ld. AR for the workman that Certified Standing Orders of the Management herein were in contravention of Model standing orders and hence not applicable, cannot be accepted, as once Certified Standing Orders having been made by the Management and have been duly certified, the same will remain in effect till the amendment in Model Standing Orders is incorporated by the Management in their own Certified Standing Orders, by way of amendment.
28. The other limb of argument of Ld. AR for the workman is that his service conditions were violated by terminating his services. Once workman has himself admitted in his complaint that his service contract was renewed from 01.03.2011 for two years and thereafter there was no renewal letter, issued to him, this clearly shows that the service of the workman had come to an end when the contract had completed or expired on 28.02.2013. Therefore, there is no substance in the argument of Ld. AR for the workman that any service condition of the workman has been altered by the management or that the management has terminated the services of the workman during the pendency of the Industrial dispute. Pendency of Industrial dispute for regularization of the worker was separate from the completion of the term of contract of employment of the workman. Just because an Industrial dispute was pending between Management and workman, Management cannot be forced to continue with the employment of a contractual worker even after completion of contract. There are various judgments which have already held that discharging of service of the . 21/26 workman due to expiry of the duration of their contract does not violate the provisions of Section 33 of I.D. Act. I will discuss the judgments, while considering the authorities relied upon by Ld. AR for the parties.
29. Ld. AR for the workman has relied upon four judgments, in order to prove his case, but none of the judgments as relied upon by the Ld. AR for the workman supports the case of the present complainant/workman. As regards , The Standard Vaccum Refining Company of India Vs. It's workmen 1960 AIR SC 948, this is a case in respect to regularization , being an Industrial dispute and it nowhere talks about the provisions of Section 33 and Section 33A ID Act, hence this judgment is not applicable to the facts of the present case. Similarly Oil and Natural Gas Corporation Vs. The Petroleum Coal Labour Union and ors. , WP no. 1846/2000 Madras High Court and Smt. Vandana and 22 ors. Vs. MCD, ID no. 166/2016 decided by Sh. Chandra Gupta, POIT on 05.05.2017 are also on the point that dispute of regularization of service is an Industrial dispute , as per section 2 (k) of the ID Act. Here again, present matter is not related to the regularization of the workman, hence, it cannot provide any help to the workman. As regards , case of Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and ors, decided by Hon'ble Supreme Court of India on 17.01.2002, it also does not provide any help to the workman herein. As in that case Hon'ble Supreme Court has considered the provisions of Section 33 (2)(b) of the ID Act and the effect of the dismissal of the approval application of the employer. Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. Vs. . 22/26 Ram Gopal Sharma and ors, as mentioned above, was not a case of a limited period of contract. In that case Hon'ble Supreme Court has held that once approval application u/s 33 (2)(b) is disallowed , the dismissal or discharge order will have no effect. Thus, this judgment also does not support the case of the workman.
30. On the other hand, Management has relied upon BA Security Agents Employees Union Vs. Regional Labour Commissioner and ors, 2010 LLR 1083, this is a case, which squarely applies to the facts in hand. In this case Hon'ble High Court of Delhi has considered the judgment of Division bench of the Hon'ble High Court in CWA (P) 1305.1991 titled Delhi Pradesh Rajdhani Mazdoor Union (Regd.) Vs. DDA (unreported). In that case Hon'ble Division Bench of Hon'ble High Court of Delhi has held that :
"The DDA in terminating the services in terms of the contract had not in any manner varied the terms of service of the members of the petitioner union in that case and therefore there was no question of seeking any express permission in writing of the authority before which the proceedings were pending because the services got extinguished by efflux of time on the expiry of their contract. It was further held that if the DDA had tried to terminate the services before the contract was over then the workmen would have been protected under section 33."
31. in view of the judgment of the Division bench in Delhi . 23/26 Pradesh Rajdhani Mazdoor Union (stated above), Hon'ble High Court of Delhi in B A Security Agents Employees Union has held that terminating the services in terms of contract does not very the terms of service , therefore, section 33 would not be applicable.
32. The second judgment Mahender Singh Dhantwal Vs. Hindustan Motors Ltd. And ors. 1976 II LLJ 259 SC, is also relied upon by the Ld. AR for the management. However, I am of the opinion that this judgment is not applicable to the present facts in hand as the issue before the Hon'ble Supreme Court in Mahender Singh's case was that "Whether the termination of the workman was on account of misconduct of employee or not and it was not in respect to a fixed term contract. Hence, the facts of both the cases can be differentiated. Similarly , Management of Essopre Mills Ltd. vs. Presiding Officer, Labour Court and ors., 2008 III LLJ 614 SC, does not apply to the facts of present case as the case before the Hon'ble Supreme Court was in respect to the strike of the workman which is not the case here.
33. Therefore, in view of my above discussion, I am of the opinion that the workman/complainant herein was appointed for a limited period of contract and the contract has come to an end on 28.02.2013, this fact has not been disputed by the workman. After 01.03.2013 management had not renewed the service contract of the workman, hence, his services has come to an end due to expiry of his contract by efflux of time and he has not been dismissed or retrenched by the management. It is also important here to consider the provisions . 24/26 of section 2 (oo) (bb) of the I.D. Act wherein it is clearly mentioned that the term "retrenchment" would not include the termination of service which results due to non renewal of contract of employment on expiry of the contract period. Therefore, it is clear that neither the workman was terminated nor he was retrenched in any manner as his service contract had come to an end and was not further renewed by the management, therefore, there is no violation of Section 33 of ID Act by the management and hence provisions of Section 33A of ID Act does not apply to the facts of present case. The complaint is thus not maintainable u/s 33A of ID Act as there is no violation of Section 33 of ID Act by the management.
34. My view also gets support from the recent judgment of Hon'ble Punjab and Haryana High Court in Baljeet Singh Vs. Industrial Tribunal, Bathinda and ors. , 2018 LLR 622, wherein it was held that :
"Undisputedly the petitioner was appointed on contract basis. He has no legal right to hold the post after the fixed period of employment is over."
35. Further from the Award passed by Ld. POLC Sh. Umed Singh Grewal in ID no. 65/14/13, between the same parties , on the same facts, it is clear that Ld. POLC has already held that complainant/workman was appointed only for a fixed period and in this way his case is not covered u/s 33 of ID Act, 1947, as the services of the workman was never terminated by the management , and the same has come to an end due to efflux of time and hence, it was not . 25/26 retrenchment. Therefore, Ld. POLC has answered the reference to the effect that the services of the workman were not terminated illegally or unjustifiably by the management.
36. In view of my above discussion, various judgments considered and as per the judgment of POLC Sh. Umed Singh Grewal in ID no. 65/14/13 , it is clear that workman/complainant had been employed only on contractual basis and after completion of his contract, it was not further renewed hence his services came to an end, on expiry of his employment contract, and there was no violation of Section 33 ID Act, committed by Management. Hence, the application of the management and the preliminary issue , both are decided in favour of the management . The service of workman had come to an end by efflux of time and not due to change in service conditions of the workman. The application of the management and the preliminary issue " Whether the complaint is maintainable", both are allowed in favour of management to the effect that the complaint filed by the workman/complainant is not maintainable and hence dismissed.
37. The copy of the award be sent to the Government of NCT of Delhi for publication of the award. File be consigned to Record Room.
38. File be consigned to the Record Room.
Announced in the open Court on (SHAIL JAIN) this 26th July, 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
. SHAIL Digitally signed by
SHAIL JAIN26/26
JAIN Date: 2018.07.27
14:48:36 +0530