Delhi District Court
Sumit vs Health And Family Welfare on 10 February, 2025
OLD CASE
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
F. No. 24(76)/Lab./CD/15/425
Dated: 22.05.2015
DLCT13-007234-2015
LIR NO.: 6754/2016
Workman:
Sh. Sumit S/o Sh. Diwakar Prasad, lastly Posted as Nursing
Orderly in Dr. Baba Saheb Ambedkar Hospital, Sector-6, Rohini,
Delhi, as represented through Secretary, Hospital Employees'
Union, Agarwal Bhawan, G.T. Road, Tis Hazari, Delhi-110054.
Vs.
The Management of:
(1) M/s Health & Family Welfare Department, Through its
secretary (Health), Govt. of NCT of Delhi, 9th Level, A-Wing,
Delhi Secretariat, New Delhi.
(2) M/s Dr. Baba Saheb Ambedkar Hospital, through its Medical
Superintendent, Sector 6, Rohini, Delhi-110085.
(3) M/s. Security Solution & Man Power Service, through its
owner/proprietor Sh. Jaideep, 1283, Sector-29, NOIDA,U.P.
Date of Filing : 03.09.2015
Date of Arguments : 10.02.2025
Date of Award : 10.02.2025
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between
LIR-6754-16 Page No. 1/28
the parties named above for adjudication to this Tribunal
with following terms of the reference:-
"Whether the services of workmen Sh. Gopal
Sen & 17 Ors. have been terminated illegally
and/or unjustifiably by the management during
the pendency of an industrial dispute and in
contravention of section 33(2)(b) of Industrial
Disputes Act, 1947 if yes, what is its effect and
what relief are they entitled?"
2. Statement of claim has been filed on behalf of 17 workmen
including present workman Sumit. However, perusal of
order sheet dated 03.09.2015 reveals that separate
statement of claims were filed for 17 workers and ld.
Presiding Officer, POLC-XVII directed to register all
claims separately. In the present claim, it is stated that the
the workman Sumit joined services of the management
w.e.f. 13.07.2008 on the post of Nursing Orderly on
contract basis. That the management used to change the
workmen from time to time but the workman concerned
was discharging his duties continuously and
uninterruptedly without even a single break and basically
the contract is merely a camouflage just to circumvent the
law and to avoid various legal liabilities. The management
was not regularizing the services of the workman,
therefore, workman raised the present dispute in February,
2014 for regularization of his services. It is further stated
that on 15.10.2014 Sh. Jayant Kumar, Medical
Superintendent of Dr. Baba Saheb Ambedkar Hospital
LIR-6754-16 Page No. 2/28
refused duties to the workman and informed him that there
is no requirement of his services and directed him not to
come on job in future and thus, terminated services of the
workman concerned during the pendency of aforesaid
dispute which is totally illegal, bad, unjust and malafide on
the following grounds:
(a) That the action of the management tantamount to
violation of section 33 A of Industrial Dispute Act because
neither any approval nor any permission has been sought
by the management from the Court, where the dispute
regarding regularisation is already pending;
(b) The management has no right at all to terminate
services of the workman concerned during pendency of
aforesaid case. Management did not given any prior notice
as required under the Industrial Disputes Act regarding
change of service condition to their prejudice.
(c) That the job against which the workman was
working is of a regular and permanent nature of job which
is still continuing with the management and management
cannot terminate services of the workman concerned.
(d) That the action of termination amounts to unfair
labour practice as provided in Section 2(ra) read with Item
No. 5 of the Fifth Schedule of the Industrial Disputes Act,
1947.
(e) That the workman was not served with any notice of
alleged misconduct nor any memo or charge sheet has
served upon him and no opportunity of being heard was
LIR-6754-16 Page No. 3/28
given to him. Even in case of 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 present workman at the time of termination of
his services.
(f) That no notice pay has been given to the workman
and as such the impugned termination is in total violation
of section 25 (f) (g) & (h) of I.D. Act.
3. In the present claim, workman prayed that an award be
made in his favour holding therein that he is entitled to be
reinstated in service along with continuity of service and
full back wages along with all consequential benefits either
monetary or otherwise and the concerned officials of the
management be also prosecuted for the offence committed
by them as provided under the Industrial Disputes Act
regarding change of service condition to the prejudice of
the workman during the pendency of aforesaid dispute.
4. Written statement was filed by management no. 1 and
management no. 2 wherein it is contended that they did not
appoint any workman at any time, rather vide letter dated
27.02.2008 of the Department of Health & Family Welfare
the post of Nursing orderly was called for on outsourced
basis and the tender was invited for providing ward
boys/maids on outsource basis only and hence, there is no
employer and employee relationship between the hospital
management and the workman. It is further contended that
the services of the ward boy/maids was provided through
LIR-6754-16 Page No. 4/28
open tender system and accordingly the contractor
awarded the work of providing manpower to the hospital.
It is further contended by the management no. 1 & 2 that
the hospital makes payment to the contractor on monthly
basis after submission of bill and verification of services
provided by the contractor's personnel. It is further
contended that as per wage roll provided by the
contractor/agency, the workers were being paid minimum
wages through ECS. It is further contended by the
management no. 1 & 2 that hospital management did not
have any interference in the procedure of appointment or
replacement of workmen by the contractor. It is further
contended by the management no. 1 & 2 that on
29.09.2014 the contractor/respondent no. 3 himself
terminated the contract with the hospital, hence, there is no question of illegal termination by the management no. 1 & 2 as he was not the employer of the workman. It is further contended that it was contractor/respondent no. 3 who was their employer and grievance if any has to be redressed by contractor/respondent no. 3 and not by the management no. 1 and 2 as there was no employer-employee relationship between the workman and the management no. 1 & 2. It is further contended by the management no. 1 & 2 that the workman has been working under the supervision of the Supervisor of the contractor/respondent no. 3.
LIR-6754-16 Page No. 5/285. Management no. 3/contractor also filed written statement contending that the claim petition filed by the workman is totally false, frivolous, vexatious and misconceived and the same has been filed without any cause of action. It is further contended that the present claim petition is filed by the workman just to blackmail the respondent no.3, with a view to get away from his illegitimate demands which the answering respondent has not acceded to. It is further contended that no cause of action whatsoever has arisen in favour of the workman and against the respondent no. 3 as there is no relationship of employee and employer between the workman and the respondent no. 3. Rest of the contentions of the statement of claim were also denied.
6. On the pleadings of parties, the following issues were framed vide order dated 21.05.2019:
1. Whether there is relationship of employer and employee between the workman and management no. 1 and 2 OPW
2. As per terms of reference.
7. In evidence, workman produced himself in witness box as WW-1 and filed his evidence by way of affidavit Ex. WW-1/A and relied upon several documents. He was duly cross-examined by AR for management. Thereafter, W.E. was closed by AR for workman.
8. Perusal of ordersheet dated 06.11.2024 reveals that management no. 3 did not opt to lead any evidence and thus, their opportunity to lead management evidence was closed. Further perusal of ordersheet dated 21.12.2024 LIR-6754-16 Page No. 6/28 reveals that management no. 1 and 2 submitted that they have no objection if the cross-examination of MW-1 Dr. Kumar Akhilesh conducted in the file of Naseema v. Health & Family Welfare bearing ID No. 4600/16 is adopted in the present case as well and hence, vide order of even date it was ordered that evidence conducted in ID No. 4600/16, in the case titled as Naseema v. Health & Family Welfare shall be read in this file and photocopy of cross-examination of MW-1 Dr. Kumar Akhilesh conducted on 10.12.2024 was kept in the present matter. Thereafter, management evidence was closed.
9. I have heard the arguments and perused the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence. The issue wise findings of this Tribunal are as under:-
Issue No. 1:
Whether there is relationship of employer and employee between the workman and management no. 1 and 2 OPW
10. Ld. AR for the workman submits that it is settled legal position that in cases where there is no abolition of contract labour under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA Act), the industrial adjudicator has the jurisdiction to examine the arrangement between the principal employer and the contractor. Specifically, the court can determine whether the contract is genuine or a sham and camouflage, intended to deprive the workmen of rightful employment benefits.
LIR-6754-16 Page No. 7/28Ld. AR for the workman further submits that the Hon'ble Supreme Court has time and again reiterated that the industrial adjudicator is empowered to pierce the veil of such arrangements to assess whether the intermediary was engaged merely as a facade. Where a contract is found to be nominal or a ruse, and it is established that a direct relationship of employer and employee exists between the principal employer and the workmen, appropriate relief can be granted.
11. To substantiate his claim, ld. AR for workman has relied upon case titled as Hussainbhai v. Alath Factory Thezhilali Union [(1978) 4 SCC 257], wherein the Hon'ble Supreme Court held that when a definite plea is raised before the industrial adjudicator asserting that the appointment of a contractor was sham and nominal, it is within the jurisdiction of the Tribunal to examine the evidence and determine whether the contractor was interposed only to evade statutory obligations. The principle has also been echoed in Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. [(2004) 3 SCC 514], wherein the Hon'ble Supreme Court observed that the question of whether a contract is genuine or a mere camouflage is a question of fact. The industrial adjudicator, based on evidence, is entitled to pierce the corporate veil and determine whether the relationship between the principal employer and the workman is, in substance, that of an employer and employee.
LIR-6754-16 Page No. 8/2812. Keeping in view the above position of law and the evidence brought on record in the present case, it is to be analyzed whether the arrangement between Management No. 1 & 2 with Management No. 3 is genuine or whether it is a sham and camouflage intended to evade compliance with labour laws and deny the workman the benefits of an employer-employee relationship. The Court is required to consider several factors, as established in a catena of cases, including Balwant Rai Saluja vs. Air India Ltd. [(2014) 9 SCC 407] and Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. [(2004) 3 SCC 514]. These factors directly influence the determination of whether the arrangement between the principal employer and the contractor is genuine or a sham. The factors include:
(a) who is the appointing authority;
(b) who is the paymaster;
(c) who has the authority to dismiss;
(d) the duration and continuity of the service;
(e) the extent of control and supervision exercised over the workman;
(f) the nature of the job;
(g) the nature of the establishment; and
(h) the right to reject work or services.
13. Keeping in view the factors enumerated above, this tribunal has carefully examined the pleadings, evidence, and material placed on record by both parties.
14. The workman has filed Identity Cards issued by M/s Prime Services and M/s Security Solutions and Manpower Services. While these ID cards were issued by previous LIR-6754-16 Page No. 9/28 contractors, a crucial aspect remains consistent is that his continuous employment within the establishment of Dr. Baba Saheb Ambedkar Hospital/Management No. 2. In the cross-examination dated 24.08.2024, conducted by ld. AR for the management, workman (WW-1) deposed that - I was working in the Baba Saheb Ambedkar Hospital as Nursing Orderly. I was not a permanent employee of the aforesaid hospital. I came to know about the vacancy in the aforesaid hospital through word of mouth and pursuant to which I applied in the aforesaid hospital. I underwent the selection procedure consisting of written test as well as interview conducted by the officials including Dr. Matolia of the said hospital. My salary was disbursed by the staff (Rajesh, Mukesh etc.) of the management hospital." The workman categorically denied being employed by the contractor or being posted in the hospital through the contractor. He also refuted the claim that his services were terminated by the contractor (Management No. 3), stating that his termination was effected by Management No. 1 &
2. Furthermore, during cross-examination by Management No. 3, it emerged that Management No. 3 was not even in the picture in 2009, when the workman was initially appointed as a Nursing Orderly.
15. On the other hand, Management No. 1 & 2, in their Written Statement, claimed to have annexed a copy of the "tender document" as ANNEXURE R-1 and the termination notice dated 29.09.2014 as ANNEXURE R-2.
LIR-6754-16 Page No. 10/28However, in-fact no such documents have been placed on record. The order sheet only reflects the filing of the Written Statement on behalf of Management No. 1 & 2, with no mention of any supporting documents being filed. Furthermore, the Management Witness (MW1 Dr. Kumar Akhilesh), in his Affidavit Ex. MW1/A and while leading evidence on behalf of Management No. 1 & 2, did not rely on or produce any document in support of their claims. Thus, it is evident that no documentary evidence has been submitted by the managements to substantiate their assertions. As far as management no. 3 is concerned, his opportunity to lead evidence was closed vide order dated 21.12.2024.
16. Even the relevant portion of cross-examination of the MW-1 (Dr. Kumar Akhilesh) for the purpose of establishing the employer-employee relationship is important which is as follows:
● The service particular given in Annexure-A of terms of reference dated 22.05.2015 are correct, which is Ex. MW1/W1.
● It is correct that prior to 2010, the workmen were directly employed including the concerned workmen by the management no. 1 & 2. It is also correct that the outsource system started somewhere in 2009-10. ● It is correct that after 2010, contractors kept changing, however, concerned workmen worked continuously and uninterruptedly with management no. 1 & 2. ● It is correct that the management no. 1 & 2 do not have any registration certificate under CLRA Act. ● It is correct that concerned workmen were working under the control and supervision of the LIR-6754-16 Page No. 11/28 doctors/nurses and various officials of management no. 1 & 2.
● It is also correct that all the material required for performing duties of nursing orderly, was provided to the concerned workmen by management no. 1 & 2. ● It is also correct that management no. 1 & 2 were taking the attendance of the concerned workmen. ● It is correct that the job of the contractors/agencies was merely to disburse the salaries to the concerned workmen, and apart from that, the former do not have any role to play.
● It is correct that the workmen concerned had worked against the vacant post of nursing orderlies since their initial appointments.
18. The testimony of the Management Witness (MW-1) confirms the service particulars of the workmen, which includes their date of joining and designation, which now remain undisputed. It also establishes that the outsourcing system was introduced at a later stage, whereas the workmen were initially engaged directly by Management No. 1 & 2, without any intermediary. The workmen have been continuously working with Management No. 1 & 2, while contractors/intermediaries have come and gone over time.
19. On one hand, Management No. 1 & 2 contend that the workmen are employees of the contractor/Management No. 3, yet on the other hand, they admit that they have not obtained any registration certificate under the CLRA Act for employing outsourced labour in their establishment.
The Management Witness further admitted that complete control and supervision over the workmen have always LIR-6754-16 Page No. 12/28 remained with Management No. 1 & 2. It is also admitted that Management No. 1 & 2 provide the workmen with tools and materials, and maintain their attendance records. The workman had admittedly worked against the vacant post of Nursing Orderlies. The role of the contractor was limited solely to salary disbursement. Reliance is also placed on the admission of the MW-1 regarding not having any registration certificate as mandated under CLRA Act. Neither the management no. 1 & 2 nor the management no. 3 has placed on record any registration certificate and labour license as mandated under Section 7 and 12 of the Contract Labour (Regulation & Abolition) Act, 1970. The Division Bench of the Hon'ble High Court of Gujarat in Gujarat Mazdoor Panchayat v. State of Gujarat, 1991 SCC OnLine Guj 80 has observed the the following:
"37....In this connection, it will be necessary to note that even if contract labour system is in vogue in a concern, employees employed by the contractor can validly raise the following contentions which may buttress their grievance that even though they are the direct employees of the principal employer, they have wrongly been treated as employees of the contractor who is not a real intermediary. Such types of dispute under the I.D. Act can legitimately be raised in the following cases which are mentioned by way of illustrations only without suggesting that they are exhaustive:--
(1) When it is alleged that employees were directly employed by the principal employer and subsequently contract system was introduced for the same activities resulting in snapping of relationship of employee-
employer between the workmen on one hand and the LIR-6754-16 Page No. 13/28 main employer on the other, thus violating Section 9A of the I.D. Act.
(2) When there is absence of proper registration of the concerned principal-employer under the Contract Labour Act.
(3) When there is absence of proper licensing of the concerned contractor who employs contract labour at a given point of time.
(4) Even though principal employer be registered employer under the act and the concerned contractor may be licensed contractor under the Act his licence may not cover the activity which is carried on by the contract labour.
(5) Even though principal employer may be registered employer under the Contract Labour Act and the contractor may be having a valid licence to employ contract labour, under the Contract Labour Act, for a given activity, still licence issued to him may not cover exact number of employees employed by him meaning thereby, number of permissible employees under the licence may be less than number of employees actually employed and qua such excess number of employees protective umbrella of licence would not be available to the contractor so far as the activity covered by the licence is concerned.
(6) Even though principal employer may be registered employer and the contractor may be licensed contractor and the workmen employed by him might be covered by the permissible number of employees as recognised by the licence and even though such activities may be covered by a licence, in fact and in substance, control including disciplinary control and supervision of the entire activity would be with the principal employer and the wages of the employees may in fact be coming out of coffers of the principal employer, and may be getting paid through the contractor who may operate as a mere conduict (sic) pipe. Such type of control, supervision LIR-6754-16 Page No. 14/28 and payments being outside the scope of Section 10(2)read with Sections 20 and 21 of the Contract Labour Act would give rise to a legitimate contention that the principal employer is in fact and substance the real employer and the so-called contractor is an eye-
wash. (emphasis supplied)
20. In view of the settled position of law, as well as the documentary and oral evidence placed on record, this Tribunal concludes that the Managements have failed to comply with the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA Act). Despite claiming to be governed by the CLRA Act, neither a valid registration certificate nor a license, as required under the Act, has been produced before this Tribunal.
21. Based on the factors established for determining an employer-employee relationship, the evidence clearly points towards Management No. 1 & 2 being the actual employer of the workman. It is evident that the appointment authority is management no. 1. The workman was directly appointed by Management No. 1 initially, with intermediaries only introduced in 2009-10 to ostensibly shift the employer-employee relationship. The pay master is management no. 1, and the role of the contractor was merely to disburse the salary to the workman. There is continuity in service, as the contractors kept changing but the workman remained the same. The control and supervision over the workman also lies with the management no. 1 & 2. It exercises exclusive control LIR-6754-16 Page No. 15/28 over the workman, including maintaining attendance, supervising their work, supplying the tools and materials for performing their duties. The work of Nursing Orderlies which the workman had been performing is of permanent and perennial nature, which is evident by his continuous engagement with the management no. 1 & 2. Neither the management no.1 nor the management no. 2 possess any registration certificate and labour license as mandated under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 prior to deploying the contractual workers.
22. Keeping in view above narrated facts and circumstances, it is held that the contractual arrangement between Management No. 1 & 2 with Management No. 3 is mere sham, nominal, and a camouflage just fabricated to deprive the workman of his rightful employment benefits. The evidence on record clearly establishes that the workman is, in fact, an employee of Management No. 1 & 2. Accordingly, this issue, i.e., Issue No. 1, is decided in favor of the workman and against the managements.
Issue No. 2: As per terms of reference.
Whether the services of workmen Sh. Gopal Sen & 17 Ors. have been terminated illegally and/or unjustifiably by the management during the pendency of an industrial dispute, and in contravention of Section 33(2)(b) of I.D. Act, 1947, if yes, what is its effect and what relief are they entitled?
LIR-6754-16 Page No. 16/2823. At the outset, the AR for the workmen has placed reliance on Ex. WW1/6, which is the complaint filed under Section 33A before the conciliation officer. The pleadings and grounds raised before both the conciliation officer and this Tribunal pertain to the alleged illegal termination of the services of the workmen by the management in violation of Sections 25F, 25G, and 25H of the Industrial Disputes Act, as well as Section 33 of the said Act. The primary contention is that the services of the workmen were terminated without seeking prior permission or approval from the competent authority, rendering the termination illegal and void-ab-inito. It has been argued that the terms of reference must be read in light of the pleadings of the parties and should not be restricted merely to a violation of Section 33(2)(b) of the Industrial Disputes Act.
24. In this regard, reliance is placed on the judgment in Dharamvir Singh vs. MCD, W.P.(C) No. 6862/2011, decided on 24.01.2013, wherein the Hon'ble Delhi High Court, after considering various precedents, reaffirmed the settled position that the terms of reference must be construed liberally in light of the pleadings of the parties. The Court emphasized that industrial adjudication must be guided by a broader perspective, keeping in mind the objectives of labour legislation, and that procedural and technical objections should not be allowed to defeat the legitimate claims of workmen. The relevant portion of the judgement is as follows:
LIR-6754-16 Page No. 17/28"Section 10(1)(c) of the I.D. Act empowers the appropriate Government to refer the existing or apprehended industrial dispute or any matter appearing to be connected or relevant to the dispute relating to any item specified in the Second Schedule to a Labour Court for adjudication. Section 2(k) of the I.D. Act defined the term industrial dispute. Any dispute or difference between the employer and individual workman connected with or arising out of discharge, dismissal, retrenchment or termination is deemed to be an industrial dispute under Section 2-A of the I.D. Act. The definition of industrial dispute is itself wide enough to include any dispute or difference connected with the employment or non-employment. There is a long line of decisions of the Supreme Court taking a view that order of reference should be liberally construed and the reference should not be rendered incompetent merely because it is made in general terms and it is always permissible for the Labour Courts or the Tribunals to construe the reference in the light of the backdrop against which it is made and to bring out the real dispute for its decision. The obvious reason for this approach is not only the width of language used in the definition of industrial dispute in Sections 2-A and 10 of the I.D. Act but also the object behind the labour legislations. Industrial peace has to be achieved as early as possible and the battle is generally between unequals. At least one party, namely, the worker cannot afford to fight continuous long drawn battle against the employer and hence technical, formal and procedural points have almost no place in such disputes. Indeed the duty of Courts and Tribunals is to discourage ingenuity on such points and to adjudicate at controversy on merits. Many times the reference is cryptic and vague and is not LIR-6754-16 Page No. 18/28 properly worded. Sometimes it is not even possible to mention therein the defence of the other party. In such case it is the duty of the adjudicating authority to examine the pleadings, documents etc. and to locate the exact nature of dispute."
25. In view of the settled legal position, this Tribunal holds that the scope of the present reference must be determined in light of the pleadings before the appropriate authority. Consequently, the claim of the workmen of illegal termination is not confined solely to a violation of Section 33(2)(b) of the Industrial Disputes Act but must also be examined in view of other provisions i.e. Section 33, 25F, G & H of the I.D. Act.
26. Now, moving on to the aspect of illegal termination of services of the workman, the workman has argued that his services have been terminated by the managements during the pendency of their industrial dispute seeking regularisation of their services. It is argued that the industrial dispute was raised in February 2014, whereas, the services of the workman was terminated w.e.f. 15.10.2014 by Medical Superintendent of Dr. Baba Saheb Ambedkar Hospital and the workman was told that his services are no longer required. Such termination is in violation of Section 33 of I.D. Act and is void-ab-initio. In support of this contention, reliance is placed on the judgments in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, Appeal (Civil) No. 87-88 of LIR-6754-16 Page No. 19/28 1988, decided on 17.01.2002, Tops Security Ltd. vs. Subhash Chander Jha, LPA 1044/2011, decided on 16.07.2012, and Badshah Singh vs. Delhi Jal Board, LPA No. 604/2014, decided on 27.08.2019. These judgments have consistently held that any termination of workmen during the pendency of an industrial dispute, without obtaining prior approval under Section 33 of the Industrial Disputes Act, is unlawful and invalid.
27. The management no. 1 & 2, on the other hand, has contended that it never terminated the services of the workman, and argued that he was in fact the employee of Management No. 3. However, in light of the findings on the issue of employer-employee relationship, this contention is untenable. The workman is an employee of Management No. 1 & 2, and the latter cannot absolve themselves of liability by shifting responsibility onto an intermediary.
28. It is undisputed and in fact, admitted by the management that the workmen had raised an industrial dispute regarding their regularization on the post of Nursing Orderly, titled as "Gopal Sen & Ors. vs. Department of Health & Family Welfare & Anr.", before the conciliation officer, GNCTD. The management witness (MW-1) in his cross-examination conceded it as correct that the workmen/its union raised an industrial dispute regarding regularisation of the services of the concerned workmen LIR-6754-16 Page No. 20/28 on the post of Nursing Orderly in November 2013. It is also correct that subsequent to Legal Demand Notice, the workmen filed their statement of claim before the conciliation officer in January 2014. Therefore, the factum of pendency of industrial dispute for regularisation of services of the workman is not disputed.
29. The workman has contended that his services were terminated w.e.f. 15.10.2014. While the management witness (MW-1) showed ignorance regarding the exact date of termination, it is significant to note that from the outset including the legal demand notice (Ex. WW1/1), the complaint under Section 33A before the conciliation officer, the claim filed before this Tribunal, and the affidavit of the workman (Ex. WW1/A) the workman has maintained that his termination was effected by the Medical Superintendent of Management No. 2 on the said date. Furthermore, the management, during the cross- examination of the workmen, did not dispute the date of termination, thereby leaving it unchallenged and rendering it an undisputed fact on record.
30. 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. The relevant provision states:
LIR-6754-16 Page No. 21/2833. Conditions 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 194[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 proceeding; 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 195[or, where there are no such standing orders, in accordance with the terms 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 conditions of service applicable to that workman immediately before the commencement of such proceeding; 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.
31. The Hon'ble Supreme Court in Bhavnagar Municipality v. Alibhai Karimbhai, (1977) 2 SCC 350 has categorically held that LIR-6754-16 Page No. 22/28 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. The 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, in this case, without the prior sanction of the 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.
32. In the present case, it is an admitted position by Management No. 1 & 2 that no prior permission or approval was sought from any competent authority before terminating the services of the workmen. The MW-1 has admitted the same in his cross-examination. Even otherwise, the managements have failed to produce any document or order evidencing compliance with LIR-6754-16 Page No. 23/28 the statutory requirement of obtaining permission or approval under Section 33 of the Industrial Disputes Act. Accordingly, this Tribunal holds that the termination of the services of the workman w.e.f. 15.10.2014 by the management no. 1 & 2, 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 judgements 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. Even otherwise, the said termination is in contravention to Section 25F, G and H of the I.D. Act. The MW-1 has admitted in his cross-examination dated 10.12.2024 that " it is correct that no notice, or notice pay in lieu of notice or retrenchment /service compensation was paid by the managements to the women prior to terminating their services. It is correct that Nursing Orderlies who joined into the employment of the management no. 1 & 2 in 2012, 2013 and thereafter are still working with the management.
34. Meaning thereby, the termination of the workmen was effected in blatant violation of the mandatory provisions of Sections 25F, 25G, and 25H of the I.D. Act, as neither notice nor notice pay in lieu thereof, nor retrenchment compensation was offered or paid prior to his termination. Furthermore, it stands established that co-workers and even juniors to the workmen-- some appointed in 2012, and even in 2013 and thereafter, i.e., LIR-6754-16 Page No. 24/28 after the termination of the workmen--continue to remain in employment with Management No. 1 & 2. This conclusively proves that the principle of "last come, first go" as mandated under Section 25G of the I.D. Act was disregarded, and fresh appointments were made without granting the workmen concerned the statutory preference under Section 25H. Considering the material on record and the legal submissions advanced, this Tribunal holds that the present complaint filed by the workman is maintainable. It further finds that his termination was carried out during the pendency of their industrial dispute regarding regularisation, in clear contravention of Section 33 of the I.D. Act, without obtaining prior permission or approval from the competent authority. The said termination is also held to be in violation of Section 25F, G and H of I.D. Act. Therefore, this Tribunal holds that the termination of the workmen w.e.f. 15.10.2014 by Management No. 1 & 2 is non est and void ab initio, having no value in the eyes of law. Accordingly, this issue is decided in favour of the workman and against the managements.
Relief:
35. The AR for the workman has argued that once the termination is held to be illegal the normal relief is to award reinstatement with continuity in service and full backwages. She placed reliance upon the judgement of Hon'ble High Court in Management of DTC v. Ram Kumar, 1981 SCC OnLine Del 377 wherein it was held that once the termination is held to be illegal LIR-6754-16 Page No. 25/28 and unjustified, the normal rule is to award reinstatement with full backwages and continuity in service except when the workman is gainfully employed coupled with receiving wages equivalent to his last drawn salary at the time of his illegal termination. The Para 13 of the aforementioned judgement is as follows:
"13...The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his services was unjustified he would normally be entitled to reinstatement with full back wages excepting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus 'full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure.' See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha (13). Thus if the employer wishes to show that workman was gainfully employed he must establish and prove that fact no presumption of being gainfully employed can he raised. It is not disputed that no evidence has been led or even shown on the record by the appellant which shows that the workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement, because as said in Panitole Tea Estate case (P. 240) "if his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule"
36. Further, reliance upon case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324, LIR-6754-16 Page No. 26/28 wherein the Hon'ble Supreme Court has held that onus to prove that the gainful employment shifts to the management once the workman has pleaded that he/she is not gainfully employed elsewhere. The Para 33 of the aforementioned judgement is as follows:
"38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
37. The Ld. AR for management No. 1 and 2 neither pleaded nor proved any exceptional circumstances to justify deviation from the consequential relief of reinstatement with continuity in service and full back wages once the termination was held to be illegal.
38. During the course of final arguments, the Ld. AR for the workman fairly conceded that the workman has been employed with management No. 2 since March 2020.
LIR-6754-16 Page No. 27/2839. Considering the factum of gainful employment, the Tribunal is of the considered opinion that the workman is entitled to reinstatement with continuity in service and full back wages. However, it is clarified that from March 2020, i.e. from the date of his gainful employment with management No. 2, the workman shall not be entitled to back wages but his services to be treated in continuity.
40. Accordingly, the management is directed to implement the award within 60 days of the publication of this award, failing which the management will be liable to pay interest @ 8 % per annum from the date of reference i.e. 22.05.2015 till its realisation. The award is passed accordingly.
41. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Records Digitally after due compliance. signed by MOHINDER MOHINDER VIRAT VIRAT Date:
2025.02.11 16:17:18 Announced in open Tribunal +0530 on this 10.02.2025 (Mohinder Virat) POIT-I/RADC, New Delhi.LIR-6754-16 Page No. 28/28