Delhi District Court
Smt. Prem Rani Sehgal vs Vivekanand School on 16 April, 2014
IN THE COURT OF SHRI SANJAY SHARMA
PRESIDING OFFICER : LABOUR COURTXIX
KARKARDOOMA COURTS : DELHI.
LIR/D No. 103/2010
Unique Case ID No. 02402C0 103372010
Smt. Prem Rani Sehgal
W/o Shri Vijay Kumar Sehgal
R/o 9/5437 Gali No. 5
Raghubarpura No. 2, Gandhi Nagar,
Delhi - 110 031 ..............................Claimant
Versus
Vivekanand School
BlockD, Anand Vihar
Delhi - 110 092 .......................MANAGEMENT
Date of institution of the case : 19.4.2010
Date for which Award reserved : 27.3.2014
Date of passing the award : 16.4.2014
A W A R D :
The claimant has filed the claim against the management
directly claiming that she has been working with the management on
permanent basis as Aaya vide appointment letter dt. 10.7.1994, at last
drawn monthly salary of Rs.11,482/ and was having clean service record.
She alleged that she was being paid salary of a IV class employee but for
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the last 34 years, she was pressurized by the management to tender
resignation after taking full and final payment or to lessen her salary. She
further alleged that she was issued letter dt. 01.10.2009 vide which she was
informed that her services will come to an end w.e.f. 16.11.2009 due to
some correspondence with the Directorate of Education but she had no
knowledge about it. She further alleged that on her objection to the same,
she was assured by the management that this is a formal letter and the
management is considering to continue her service. She further alleged
that due to the said assurance, she did not file any reply to the same. She
further alleged that she worked with the management till 13.11.2009 and
14.11.2009 and 15.11.2009 were holidays and when she went to join duties
on 16.11.2009, she was refused duties and she was asked to take full and
final dues amounting Rs.60,000/ and on her objection for termination of
service, she was terminated and earned wages were not paid to her. The
claimant sent a demand notice dt. 23.11.2009 and 07.12.2009 to the
management but it was not replied. Accordingly, through the present
claim the claimant has claimed reinstatement with full back wages and
continuity of service alongwith other consequential benefits.
2. The management appeared and opposed the claim by filing
WS wherein all the allegations were refuted specifically and categorically.
It was submitted on behalf of the management that the management school
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is neither an 'industry' nor an 'industrial establishment' as per Section 2(j)
and (Ka) of the ID Act. It was further submitted that since it was ordered
by the Directorate of Education vide letter dt. 01.9.2009 to dispense with
the services of the overage staff within 45 days, the management relieved
the claimant. It was further submitted that five other overage employees
accepted the orders and were paid salary and other dues up to 15.11.2009
but the claimant refused to accept the cheques for encashment of leave and
gratuity. It was thus, submitted that the services of workman were never
terminated.
3. The claimant filed a rejoinder denying the allegations made by
the management and reinstating the pleas taken by him in his claim. From
the pleadings of the parties, following Issues were framed on 02.8.2010 :
1.Whether the management is an industry as per Section 2(a) and (ka) of the ID Act, 1947? OPM
2. Whether the provisions of Industrial Disputes Act are applicable on the dispute?
OPW
3. Whether the workman/claimant was over age at the time of employment with the management? OPM
4. Whether the management was bound to comply the order vide order dated 01.9.2009 of the Directorate of Education and if so, LIR/D No. 103/2010 3 of 9 whether order passed by the management, amounts to termination of the workman? If so, its effect?
5. Relief.
4. The workman examined herself as WW1 and closed the evidence. The management examined Shri Pradymun Ahuja - Manager as MW1.
5. I have heard Shri Pradeep Kumar - Ld. AR for the claimant and Shri Piyush Gupta - Ld. AR for the Management and have carefully gone through the records. My issuewise findings are as under :
ISSUE No. 1 :
6. In Bangalore Water Supply and Sewage Board vs A. Rajappa 1978 I LLJ 349 SC it was held that absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. It was also held that the true focus is functional and the decisive test is the nature of activity with special emphasis on employer employee relations. Thereafter it has been a settled law that even a school, whether private or recognized, is also an industry and the nonteaching employees are workmen for the purposes of the ID Act and as such this issue is decided in favour of the workman and against the management.
LIR/D No. 103/2010 4 of 9 ISSUE No. 2 :
7. There cannot be any dispute that the provisions of the Industrial Disputes Act are applicable on the present dispute once the workman has surrendered to the jurisdiction of the Labour Courts. Reliance can be placed on the judgment delivered in Apeejay School & anr. Vs. Govt. of NCT of Delhi & anr., decided on 17.5.2012 (in WP(C) No. 2354/2010), wherein it was held on the basis of various decisions that the non teaching staff have both the remedies available to him under the Delhi School Tribunal Act as well as under the ID Act. Hence, this issue is also decided in favour of the workman and against the management. ISSUE No. 3 :
8. The workman was appointed in the year 1994 as per Ex.WW1/1 which document has also been admitted by MW1, being the appointment letter. There is nothing on record to show that there was any age stipulation or upper age limit for the purposes of appointment to the post of Aaya at that time. The Notification Ex.MW1/10 was not in existence which had fixed the upper age limit to 35 years. Thus, the appointment was on the sole discretion of the management without any limit as to age. In view thereof, it cannot be said that the workman was overage at the time of her appointment and this issue is accordingly, LIR/D No. 103/2010 5 of 9 decided in favour of the workman and against the management. ISSUE No. 4 :
9. The management has claimed that at the time of appointment the workman was 36 years 5 months and 22 days of age. In this context, the management has relied upon an affidavit submitted by the workman herself Ex.MW1/9 which mentions her date of birth as 20.1.1958. The workman failed to place on record any other proof of her age except the said affidavit. In her crossexamination as well, she deposed her date of birth to be the same, i.e. 20.1.1958. The said affidavit has not been challenged by the workman in the crossexamination of MW1.
10. As per the Notification issued by the Department of Education dt. 06.5.1997 Ex.MW1/10, the age of appointment for the post of Aaya should have been between 2035 years.
11. As per the case of the management, an inspection was carried out in its school on 20.4.2006 by the Department of Education and pursuant thereto an order was passed by the Directorate of Education , directing the management school to dispense with the services of all the overage staff within 45 days. In compliance of the said order, the services of the workman were dispensed with vide letter dt. 01.10.2009 Ex.MW1/2. This order of the Education Department has reference to the Notification LIR/D No. 103/2010 6 of 9 Ex.MW1/10 which prescribes the upper age limit for appointment to the post of Aaya to be 35 years.
12. It is however, reiterated that the appointment of the workman was made in the year 1994 which is again an undisputed fact as per Ex.WW1/1. The Notification Ex.MW1/10 was issued on 06.5.1997, i.e. much after the appointment of the workman was done and was not in effect at the time of her appointment. This Notification cannot have any retrospective effect nor it says so. Admittedly, the workman has given an unblemished service of 15 years and it will be highly unjust to say that she was overage at the time of appointment on the basis of a Notification which was issued much after her appointment and it will further be unjust to dispense with her services on the basis of the same. At the most, the services of those employees who were appointed after the said Notification and were overage can be dispensed with but not of those employees who were appointed, may be overage, before such Notification was in existence. It may also be noted that the said order Ex.MW1/1 on the basis of which the services of the workman were dispensed with no where says that the services of such employees be also dispensed with who were overage at the time of appointment before the Notification Ex.MW1/10. Thus, the management school was not obliged or bound to comply with the order Ex.MW1/1 dt. 01.9.2009.
LIR/D No. 103/2010 7 of 9
13. Ld. AR for workman relied upon a judgment in Surender Singh Vs. Manager, Haryana Shakti Senior Secondary School & anr. 95 (2002) DLT 135 Delhi, wherein the petitioner was appointed under a wrong interpretation of a rule of relaxation of two years in age and had served for four months with the management. It was held that since the workman had already been appointed and had worked for four months, the order terminating the petitioner's service was quashed. Similarly, the order dispensing with the services of the workman on the basis of a Notification and order which were nonexistent at the time of her appointment, cannot be upheld. Accordingly, this issue is also decided in favour of the workman and against the management. ISSUE No. 5/Relief :
14. The services of the workman came to an end w.e.f. 16.11.2009 and since then she claims to be unemployed. There had been no challenge to this position of unemployment of the workman by the management. It is clear from the above discussion that the services of the workman were wrongly dispensed with upon a wrong interpretation of the order of the Directorate of Education .The management could have sought clarification from the Department before dispensing with the services of the workman LIR/D No. 103/2010 8 of 9 and as such it is clearly at fault.
15. Admittedly, the workman has not received any gratuity or other service benefits including compensation .
16. In view thereof, it is directed that the workman be reinstated in service with immediate effect and she shall also be entitled to continuity of service and full back wages alongwith consequential benefits.
Claim is accordingly answered. Let a copy of this Award be sent for publication and case file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 16th day of April 2014 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR/D No. 103/2010 9 of 9