Delhi District Court
Suman Lata vs Ndmc on 17 December, 2025
POIT No. 681/2022 "Suman Lata Vs NDMC"
IN THE COURT OF SH. SHARAD GUPTA
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-II
ROUSE AVENUE COURTS, NEW DELHI
In the matter of:
POIT No. 681/2022
CNR No. DLCT13-001400-2022
Smt. Suman Lata
W/o Sh. Rakesh,
R/o 4477, Gali Lotan Jat,
Pahari Dhiraj, Sadar Bazar,
Delhi GPO, Delhi-110006
As represented by
Secretary,
Hospital Employees Union,
2nd Floor, 8, School Lane,
Opp. Lalit Hotel,
Bengali Market,
New Delhi-110001 ..... Workman
Versus
North Delhi Municipal Corporation
Through its Commissioner (North)
S.P. Mukherjee Civic Centre,
J.L. Nehru Marg,
New Delhi-110002 .... Management
Date of institution 21.03.2022
Judgment reserved on 11.12.2025
Date of Judgment 17.12.2025
ORDER
1. The present complaint under Section 33-A Industrial Digitally signed by SHARAD Disputes Act has been filed by the workman, on averment SHARAD GUPTA Date:
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that she joined into the employment of the management w.e.f. 25.09.2005 as ANM. She was taken in job on contract basis and paid lump-sum amount of salary while her counterparts who were doing the identical work were being treated as regular employees and were getting their salary in proper pay scale and allowances.
2. It is stated that workman was working against the vacant post of ANM since her induction into the employment of the management and she had undergone rigorous employment procedure at the time of her initial appointment.
3. It is stated that as the management was not regularizing her services despite number of request. Consequently, the workman raised an industrial dispute by way of sending a legal notice dated 23.12.2010 through Union but despite that no response was given by the management and in January, 2011 a claim was filed before the Conciliation Officer. On 11.02.2013 a reference order was issued in the matter and said matter regarding regularization has been referred to this Tribunal in terms of reference as under:-
1. "Whether demand of Smt. Kamini Arya W/o Sh. Ajay Kumar Jangid and Smt. Suman Lata W/o Sh. Rakesh for regularization on the post of ANMs in proper scale of Rs.
5,200-20,200/- from initial date of joining into the Digitally signed SHARAD by SHARAD GUPTA GUPTA Date: 2025.12.17 16:56:59 +0530 Award Page No. 2 of 20 POIT No. 681/2022 "Suman Lata Vs NDMC"
employment, is justified, and if so, what directions are necessary in this respect?"
2. "Whether demand of Smt. Kamini Arya W/o Sh. Ajay Kumar Jangid and Smt. Suman Lata W/o Sh. Rakesh for parity with contractual ANMs of Govt. of NCT of Delhi who are discharging the similar nature of duties and to pay difference of salary on the principle of "Equal Pay for Equal Work", is justified, and if so, what directions are necessary in this respect?"
The said reference order culminated in ID No.542/16 (old no.74/13) which is pending before this Tribunal.
4. It is stated that since the workman has raised her dispute regarding regularization of her services, the management felt annoyed and started pressurizing the workman to withdraw the same and when the workman did not withdraw the dispute, the management in the end of November 2017 refused duties to her and terminated her services orally. It is alleged that action of the management to terminate workman is a clear-cut act of victimization as the main motive of the management was to pressurize the workman to withdraw her industrial dispute and when the workman / complaint refused to the said illegal demand of the management, they have taken the drastic step of termination of services of the workman.Digitally signed by SHARAD
SHARAD GUPTA GUPTA Date:
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5. It is further submitted that more than 50,000 workers are working with the management. Management was supposed to give a three months notice to the workman as stipulated under law, but they did not give any such notice to her. Even the prior permission of the appropriate government was also not obtained by the management to take the impugned action of termination.
6. It is stated that service of the workman was terminated by the management illegally and unjustifiably and that too during the pendency of aforesaid industrial dispute. As such, the termination of workman is illegal, unjust and malafide and is in clear-cut violation of the provisions of Section 33(1) of 33 2 (b) of Industrial Disputes Act and the management officials are liable to be prosecuted for the offence as provided under the Industrial Disputes Act.
7. It is averred that the management has no right to terminate the services of the workman without seeking prior permission/approval from Industrial Tribunal and the action of the management tantamount to adopting unfair labour practice as provided under Section 2(ra) read with Item No. 5
(a), (b), (d) & (f), of the Fifth Schedule of the Industrial Disputes Act, 1947.
8. Workman submitted that the impugned termination is in total Digitally signed violation of section 25 (f) (g) & (h) of I.D. Act as in case of SHARAD by SHARAD GUPTA Date: GUPTA 2025.12.17 16:57:12 +0530 Award Page No. 4 of 20 POIT No. 681/2022 "Suman Lata Vs NDMC"
retrenchment, no seniority list was displayed, no notice was given, no notice pay was offered and no service compensation was either offered or paid to the workman/complainant aforesaid at the time of termination of her service.
9. It is averred that the workman has completed much more than 240 days of continuous employment for the purpose of section 25-B of I.D. Act prior to her illegal termination and she cannot be thrown out of job in the manner it has been done. It is stated that workman has been meted out with hostile discrimination as juniors to her have been retained in service and she was thrown out of job. Some of her co- employees namely Ms. Geetanjli and Ms. Anju are still working in Najafgarh Zone. Even otherwise, fresh hands have also been taken into the employment after terminating the services of the workman. That due to initial impression of the workman that her grievance regarding termination will also be dealt with in her case regarding regularization bearing ID No.542/2016 she failed to file a separate complaint but thereafter, she time and again approached the management through letters and by approaching personally to be resumed back on duty but management did not take her back into service. That thereafter, due to onset of Covid 19 pandemic the workman could not file the complaint and as such, the delay if any, in filing of the present complaint was neither SHARAD Digitally signed by SHARAD GUPTA GUPTA Date:
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intentional nor deliberate. That the workman is not employed gainfully in any establishment since the day of her illegal termination.
10.Workman has prayed that her termination be held illegal, and a direction be issued to the management to reinstate the workman concerned in services with continuity of service and full back wages along with all consequential benefits and furthermore, the concerned officials of the management be also prosecuted for the offence committed by them as provided under the Industrial Disputes Act.
Written Statement
11.Management in its written statement stated that the counter part of the workman are not doing identical work or work of the same value. It is submitted that the workman was given the appointment letter in which it was clearly mentioned that the claimant is being engaged on contract basis for a period of six months till the same is filled up on regular basis and the workman joined the duties only after accepting the terms and conditions of the contract. It is denied that the workman had undergone any rigorous employment procedure at the time of their initial appointment with the management on contract basis.Digitally signed by SHARAD
SHARAD GUPTA
GUPTA Date:
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12.It is denied that the act of management by terminating the services of workman was an act of victimization as the main motive of the management was to pressurize the workman to withdraw her industrial dispute. It is submitted that the contractual service of the workman was terminated because the vacant seats were filled by the regular employees after passing the competitive exam conducted by DSSSB. Therefore, the management become bound to terminate the contractual service of workman as no vacant post were left with the management.
13.It is submitted that as per the terms and condition of the contract of the workman her contractual service can be terminated at any point of time without giving any reason or notice.
Issues
14.On 20.08.2025 on the basis of pleadings of the parties, following issues were framed:
(1) Whether the complaint of the workman under Section 33 ID Act is entitled to be allowed? OPW (2) Relief Workmen's Evidence
15.In order to prove her entitlement workman examined herself as WW1 and she tendered her evidence by way of an SHARAD Digitally signed by SHARAD GUPTA GUPTA Date:
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affidavit Ex.WW1/A. Workman deposed on the lines of her claim and proved the following documents: I. Copy of demand notice dated 23.12.2010 as Ex.WW1/1.
II. Copy of Postal Receipt as Ex. WW1/2.
III. Copy of order dated 11.02.2013 as Ex.WW1/3.
IV. Copy of corrigendum order dated 21.06.2013 as Ex. WW1/4.
V. Copy of Statement of claim filed by workman before the Industrial Tribunal regarding her regularization as Ex.WW1/5.
Management's Evidence
16.Management examined MW1 Sh. Akhilesh Kumar, Administrative Officer (Health), Hospital Administration Department, MCD who tendered his evidence by way of an affidavit Ex.MW1/A. He relied upon the documents as Ex.MW1/1 and Ex.MW1/2. Relevant part of his cross- examination, reads as under:
It is incorrect to suggest that the services of the workman were terminated in November, 2017. (Vol. The services of the workman were terminated w.e.f. 01.05.2017 ). I have not seen the attendance record of the concerned workman for the period from April to November, 2017. It is correct that the attendance record is maintained and preserved by the management. It is also correct that the said record is the authentic record in regard to attendance of the workman herein. I have not checked the records of Bazar Digitally signed by SHARAD Sita Ram Dispensary (Ayurvedic). It is correct that the concerned SHARAD GUPTA Date:
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workman had worked continuously and uninterruptedly w.e.f. 25.02.2005 to till the date of termination of services of the workman. (Vol. In MCD there is practice of giving one day break after completion of six months).
It is correct that the work and conduct of the workman was satisfactory during her entire tenure with the management and there was nothing adverse against her. ( Vol. I have not seen the management record in this regard). It is correct that the management has not taken any approval or permission from any Court, Tribunal and Conciliation Officer while terminating the services of the workman. (Vol. She was terminated from services vide office order dated 27.04.2017).
It is correct that no notice or notice pay in lieu of notice was either offered or paid to the workman while terminating her services by the management. It is also correct that no retrenchment compensation was either offered or paid to the workman while terminated her services. (Vol. The same is not required as there is a service condition in the appointment letter that her services can be terminated any time without giving any notice).
It is correct that no seniority list of ANMs was exhibited/displayed on or before terminating her services. ( Vol. Management does not prepared any seniority list in regard to contractual workmen). The workman has never committed any misconduct nor any memo, charge-sheet was ever issued to her as per the record of the management. The management does not have any evidence or material to show that the workman is Digitally signed SHARAD by SHARAD GUPTA GUPTA Date: 2025.12.17 16:57:47 +0530 Award Page No. 9 of 20 POIT No. 681/2022 "Suman Lata Vs NDMC"
gainfully employed elsewhere after her termination from services by the management.
17.Final arguments have been heard at length as advanced by both the parties. I have gone through the documents, pleadings as well as arguments of parties.
Analysis and Discussion Issue No.1: Whether the complaint of the workman under Section 33 ID Act is entitled to be allowed? OPW
18.Complaint of workman in short is that her termination by the management was illegal and in violation of Section 33-A of the Industrial Disputes Act, during the pendency of an industrial dispute without prior permission from the Tribunal.
19.On the other hand, it is the case of management that workman was merely a contractual employee and her employment was governed by the terms of the contract. It is also argued that the non renewal of contract of the workman would not amount to retrenchment in terms of Section 2 (oo) (bb) of the Industrial Disputes Act, 1947.
20.In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, Appeal (Civil) No. 87-88 of 1988, decided on 17.01.2002, Tops Security Ltd. vs. Subhash Chander Jha, LPA 1044/2011 and Badshah Singh vs. Delhi Jal Board, LPA No. 604/2014, decided on 27.08.2019 it has been consistently held Digitally signed by SHARAD SHARAD GUPTA GUPTA Date:
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that termination of any workman during the pendency of an Industrial Dispute, without obtaining prior approval under Section 33 of the Industrial Disputes Act, is unlawful and invalid.
21.It is an undisputed fact that the workman had raised an industrial dispute regarding her regularization on the post of ANM, and in that respect a POIT No. 108/2017 titled as "Kavita & 12 Others vs. North Delhi Municipal Corporation, bearing POIT No. 118/2017 is still pending adjudication. It is a matter of record that the assertion of the workman was that she was refused duties in the end of November, 2017, as per the stand of the management and testimony of MW-1 the services of the workman were terminated vide office order dated 27.04.2017 Ex. MW1/2 w.e.f. 01.05.2017. The contention of the workman through out has been that she had attended to her post till November 2017. Pertinently management failed to bring on record the authentic attendance record of the workman. The contention of MW-1 in this regard was that he has not seen the attendance record of the concerned workman for the period from April to November, 2017 and he had not checked the records of Bazar Sita Ram Dispensary (Ayurvedic). Be that as it may the fact that the workman was terminated from service is not disputed. As per Ex.MW1/2 the services of the workman was terminated w.e.f. 01.05.2017. Taking the case of the Digitally signed by SHARAD SHARAD GUPTA GUPTA Date:
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management that the services of the workman were terminated w.e.f. 01.05.2017, it is not disputed that on the day when workman was terminated i.e. on 01.05.2017, the said dispute was pending.
22.Section 33 of the Industrial Disputes Act imposes a statutory bar on employers from altering the service conditions of workmen to their prejudice during the pendency of an industrial dispute.
23.Hon'ble Supreme Court in Bhavnagar Municipality v.
Alibhai Karimbhai, (1977) 2 SCC 350 has categorically held that, if an industrial dispute concerning regularization is pending, the service conditions of the workmen, however insecure, must subsist during the pendency of such a dispute. Relevant portion of the judgment is as follows:
14. The character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition of employment, however, insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be altered to their prejudice by putting an end to that temporary condition. This could have been done only with the express permission of the Tribunal. It goes without saying that the respondents were directly concerned in the pending industrial dispute. No one can also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case. To permit rupture in employment, Digitally signed by SHARAD in this case, without the prior sanction of the SHARAD GUPTA Date:
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Tribunal will be to set at naught the avowed object of Section 33 which is principally directed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication. We are, therefore, clearly of opinion that the appellant has contravened the provisions of Section 33(1)
(a) of the Act and the complaint under Section 33-A, at the instance of the respondents, is maintainable. The submission of Mr Parekh to the contrary cannot be accepted.
24.Management, has submitted that workman was a contractual employee, and the non-renewal of her contract does not amount to illegal termination of her services during the pendency of the dispute for regularization. Instead, it falls under the ambit of Section 2(oo)(bb) of the Industrial Disputes Act, 1947, which excludes the termination of a contract worker upon the expiry of the contract period from the definition of retrenchment.
25.Hon'ble Delhi High Court in the case of Jitender Kumar v.
State (NCT of Delhi), 2019 SCC OnLine Del 10648 after relying upon the judgment of Hon'ble Supreme Court in S.M. Nilajkar v. Telecom District Manager, (2003) 4 SCC 27 has observed the following with respect to the applicability of Section 2(oo)(bb) of I.D. Act. The relevant portion of the judgment is as follows:
14. In S.M. Nilajkar v. Telecom, District Manager, Karnataka, (2003) 4 SCC 27 : AIR Digitally signed 2003 SC 3553, the Supreme Court held that by SHARAD SHARAD GUPTA GUPTA Date:
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where the management pleads that clause (bb) of Section 2(oo) of the ID Act is attracted; the burden of proof would be on the management to establish the same by way of evidence. Paragraphs 13 and 14 of the said judgment read as under:
"13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of Sub-
clause (bb) subject to the following conditions being satisfied:
(i) that the workman was employed in a project or scheme of temporary duration;
(ii) the employment was on a contract, and not as a daily-wager simplicitor, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project; and
(iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract.
(iv) the workman ought to have been apprised or made aware of the abovesaid terms by the employer at the commencement of employment.
14. The engagement of a workman as a daily- wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was Digitally signed by SHARAD short-lived and as per the terms of the contract SHARAD GUPTA the same was liable to termination on the expiry GUPTA Date:
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of the contract and the scheme or project coming to an end. The workman may not therefore complain that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of Sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily-wagers in a project. For want of proof attracting applicability of Sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment."
15. As already noticed in the present case, the Respondents have failed to lead any evidence themselves and also failed to cross-examine any of the workmen. The question as far as the Labour Court is concerned, was only whether Section 25-F of the ID Act, stood attracted. Interestingly, in the written statement filed by the Respondents, no plea was taken that clause (bb) of Section 2(oo) of the ID Act was attracted. In any event, there was no evidence to support such a plea. The learned Single Judge, therefore, was in error in permitting the Respondents to raise the plea for the very first time in the High Court. Notwithstanding this, in the absence of any evidence to show that the termination was in terms of the contract, such a plea could not have been entertained and adjudicated upon.
16. The fact remains that in these cases, the services of the Appellants were continued well Digitally signed beyond the period of 89 days, in terms of the SHARAD GUPTA by SHARAD initial appointment orders, which took effect GUPTA Date:
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from 1st December, 2001. Admittedly, they continued serving for over four years till the actual date of termination of their services, by the order dated 20th December, 2005.
26.In the present case, burden to prove the applicability of Section 2(oo)(bb) lies with the management. Workman was working as Auxiliary Nurse Mid-Wife in the establishment of management. In his cross-examination MW1 Akhilesh Kumar admitted that workman had worked continuously and uninterruptedly w.e.f. 25.02.2005 and the services of the workman were terminated w.e.f. 01.05.2017.
27.It is evident that the workman was not employed in a project or scheme of temporary duration and workman was engaged in permanent and perennial work, and not in a temporary project. In the facts of the present case, contention of the workman in para 2 of her complaint was that she was working against the vacant post of ANM since her induction into the employment of the management and she had undergone rigorous employment procedure at the time of her initial appointment. In its written statement, the management asserted that the contents of the corresponding para were a matter of record. However, the management denied that the workman had undergone any rigorous employment procedure. Thus, it is admitted that the workman had been working against the vacant post of ANM which establishes Digitally signed the permanent nature of her employment. SHARAD GUPTA by SHARAD GUPTA Date:
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28.It is also not in dispute that the service of the workman was terminated after she raised an industrial dispute for her regularization, reference order in respect of which was issued on 11.02.2013. This implies that the termination was retaliatory in nature and not due to the expiry of any contract, as alleged by the management.
29.There is another aspect of the matter even as per the memorandum/contract relied upon by the management as Ex.MW1/1 the post could be terminated at any time on either side by giving one month's notice or by giving one month's salary without assigning any reason. The relevant term of the memorandum dated 13.09.2005 is excerpted as under:-
The post is purely on contract basis for period of six months or till such time the post is filled up on regular basis through DSSSB, whichever is earlier. The appointment can be terminated at any time on either side by giving one month's notice or by giving one month salary without assigning any reason.
30. In the facts of the present case, MW-1 admitted that no notice or notice pay in lieu of notice was either offered or paid to the workman while terminating her services by the management. Thus, the management even failed to establish that the services of the workman were terminated in terms of contract of her employment. Thus, contention of the management that the termination falls within the exception Digitally provided under Section 2(oo)(bb) of the I.D. Act and does not SHARAD signed by SHARAD GUPTA GUPTA Date:
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constitute retrenchment, and that the compliance with Section 33 of the I.D. Act is not required, is unsustainable and devoid of merit.
31.It is an admitted position that no prior permission or approval was sought by management from any competent authority before terminating the services of the workman nor there is any material on record to establish compliance by the management with the statutory requirement of obtaining permission or approval under Section 33 of the Industrial Disputes Act.
32.Accordingly, it is concluded that termination of the services of the workman w.e.f. 01.05.2017 by the management, without prior permission or approval from the appropriate authority, is in violation of Section 33 of the Industrial Disputes Act and is, therefore, void ab initio. Further reliance is placed on the judgments of Tops Security Ltd. v. Subhash Chander Jha, 2012 SCC OnLine Del 3691, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, Appeal (Civil) No. 87-88 of 1988, decided on 17.01.2002.
33.Nonetheless, termination of the workman is also in clear violation of Sections 25F, 25G, and 25H of the Industrial Disputes Act, as no notice, notice pay, or retrenchment compensation was provided to the workman prior to her termination. Furthermore, the management failed to produce Digitally signed by SHARAD SHARAD GUPTA GUPTA Date:
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any evidence proving compliance with the principle of "last come, first go'" nor did it display or exhibit any seniority list. MW-1 admitted in his cross-examination that no seniority list of ANMs was exhibited or displayed on or before terminating her services.
34.Therefore, it is held that the termination of the workmen w.e.f. 01.05.2017 by the management cannot be sustained. The issue is decided in favour of the workman and against the management.
Relief
35.In view of the fact that removal of workman from service is held to be in violation of Sections 25F, 25G, and 25H and Section 33 of the Industrial Disputes Act, therefore, workman is entitled to be re-instated with continuity in service on the post of ANM along with full back wages from the date of her termination i.e. 01.05.2017.
36.Management is directed to implement the award within 60 days of its publication, failing which it shall be liable to pay interest at the rate of 8% per annum from the date of termination, 01.05.2017 till realization.
37. Copy of the award be sent to the appropriate Government for Digitally signed publication. by SHARAD SHARAD GUPTA GUPTA Date:
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38. File be consigned to Record Room.
Dictated and announced in the open Court on 17th December, 2025 Digitally signed SHARAD by SHARAD GUPTA GUPTA Date: 2025.12.17 16:59:02 +0530 ( SHARAD GUPTA ) Presiding Officer Industrial Tribunal-II, Rouse Avenue District Court New Delhi Award Page No. 20 of 20