Delhi District Court
Anjum Jahan Sheikh And 21 Ors vs M/S Hakeem Abdul Hammeed Centenary ... on 4 September, 2023
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref: F.24(47)/Lab./SD/2021/9146
Dated: 17.03.2021
POIT NEW NO.: 34/2021
Workman
Ms. Anjum Jahan Sheikh D/o Abdul Rashid Sheikh & 21 Ors.
Through
Sh. Siju Thomas (Joint Secretary)
Indian Professional Nurses Association (Regd.),
B-104, 2nd Floor, DDA Flats,
Kalkaji,
New Delhi-110054
Vs.
The Management of
M/s Hakeem Abdul Hammeed Centenary (HAHC) Hospital
Guru Ravidas Marg,
Hamdard Nagar,
New Delhi-110062.
Date of Institution : 20.03.2021
Date of presentation : 21.03.2023
before this court
Date of Arguments : 28.08.2023
Date of Award : 04.09.2023
AWAR D
1. The Labour Department, Govt. of the National
Capital Territory of Delhi has referred this dispute arising between
the parties named above for adjudication to this Tribunal, with
following terms of the reference:-
POIT NO.: 34/2021 Page 1 of 23
"Whether the demands of workman Ms. Anjum Jahan
Sheikh D/o Abdul Rashid Sheikh & 21 others
(Annexure-A) for payment of retrenchment
compensation as per section 25 F of the Industrial
Disputes Act, 1947, and of leave encashment, is illegal
and/or unjustified; and if so, to what relief are they
entitled and what directions are necesary in this
respect?"
2. Statement of claim Statement of Claim has been filed
on behalf of the workmen wherein they have stated that the instant
claim has been filed on behalf of the 22 Nursing Officers of the
Management Hospital namely M/s Hakeem Abdul Hameed
Centenary (HAHC) Hospital since the year 2016.
3. That on 11.07.2020, the Hakeem Abdul Hameed
Centenary Hospital, Delhi vide common order dated 11.07.2020
terminated around 84 Staff Nurses working on contractual basis
without any reason and without following the Rules established by
law. That the termination of the workmen was a retaliatory move of
the management, as prior to termination the workmen had been
regularly raising issues faced by the Nursing Staffs in fighting
Covid-19, in regard to not providing PPE Kits, N-95 mask, treating
Covid- 19 patients in ICU at the ratio of 1:6 etc. That the terminated
workmen were also demanding proper quarantine facility for the
Nurses attending Covid-19 patients, as 2 Nurses at that time got
infected while attending patients. However, the management went
on to take this extreme step of terminating the workmen instead of
resolving their grievances. That the workmen after being terminated
approached the Labour Commissioner seeking appropriate action
POIT NO.: 34/2021 Page 2 of 23
against their illegal termination vide representation dated
12.07.2020.
4. That seeing no action after approaching the Labour
Commissioner, the workmen approached the Hon'ble High Court of
Delhi twice. For the first time, it was prayed before Hon'ble High
Court of Delhi to direct the Labour Commissioner to take
appropriate action on the representation dated 12.07.2020. The Writ
Petition was disposed of by the Hon'ble High Court, vide order
dated 31.07.2020 within a period of 3 weeks directing the
Respondents to decide the representation.
5. That despite the order of the Hon'ble High Court, the grievances of the workmen were not taken up and remained as it is. The workmen who were neither re-instated nor were their full and final settlement done. Those still aggrieved by the inaction of the management, approached the Labour Commissioner with another representation dated 01.02.2021.
6. That the workmen again approached the Hon'ble High Court of Delhi seeking direction to the Labour Commissioner to act on the representation and issue terms of reference to this Court. The Hon'ble High Court vide order dated 17.03.2021, directed the respondents in the matter to decide the representation of the workmen within a period of ten days from that day. The following grounds have been taken by the workmen that the termination of the workmen by the management was arbitrary and unjustified.
POIT NO.: 34/2021 Page 3 of 237. That the termination of the workmen is illegal and violates the office order dated 20.03.2020, which directed all the employers not to terminate these employees, particularly casual or contractual workers from job or reduce their wages during Covid times. That the retrenchment of the workmen by the respondent management violates Section 25 F of the Industrial Disputes Act, 1947. That all the workmen had completed the statutory period of 240 days preceding the date of retrenchment and they prayed that they be paid retrenchment compensation due to the workmen and in addition to this be pleased to direct the Respondent to pay the leave encashments.
8. Written Statement is filed on behalf of the management wherein it has taken the objections that the workmen have concealed the fact that they were engaged by the Respondent on purely contractual basis for a fixed tenure of one year and that their respective Contracts stood expired with the efflux of time. Under the ID Act the expiration of contract cannot be equated with retrenchment under section 25 F of the ID Act as there is specific bar in the Act itself in this regard. Therefore, also the dispute as raised is misconceived and liable to be rejected.
9. That the claim of the workmen is not maintainable for the reason that the workmen were engaged on Contract basis and their contracts came to an end by efflux of time which does not fall under the definition of "Retrenchment" as given under Section 2 (oo) (bb) of the ID Act. Hence, not entitled for retrenchment compensation as claimed.
POIT NO.: 34/2021 Page 4 of 2310. That the present Statement of Claim is an abuse of process of law, misconceived, no merit, and is based on false and fabricated allegations and same is liable to be rejected. That the Claimants are guilty of suppressio veri and suggestion falsi and have not stated the whole facts correctly and therefore the statement of Claim as filed is liable to be rejected. That the claimants are not workmen within the definition of the Word as provided under the Act and therefore are not entitled to raise the present dispute. That the Claimants have concealed the fact they were being paid wages in excess of Rs 10,000/- and are not entitled to invoke the jurisdiction of this Hon'ble Tribunal therefore not entitled to raise an industrial dispute under the ID Act.
11. That the workmen had an opportunity duly provided by the Respondent to apply afresh and present themselves before a competent committee constituted for the purpose by the Respondent however they chose not to appear before the committee and rather raise false and frivolous litigation including the present dispute and as such they are not entitled to any relief to claim as claimed against the Respondent. That in terms of the contractual appointment of the Claimants, duly accepted by them, in addition to normal holidays they were entitled 1/2 days leave for each completed month of service. On the expiry of the contract the leave will be treated as lapsed, if not availed during the period of contract. Therefore, the claim of the claimants to leave encashment does not arise. That there is no cause of action arisen in favour of the workmen to raise the present dispute and for that reason also the dispute is not maintainable.
POIT NO.: 34/2021 Page 5 of 2312. In brief it is contended that the Hakeem Abdul Hameed Centenary Hospital (HAHC Hospital) is a medical college approved by the NMC (formerly known as MCI) established in 2012 in Hamdard Nagar to provide medical education to students of undergraduate MBBS and has Postgraduate Programmes which are aimed at catering to the ever-growing need of the society of medical education. HAHC Hospital is a hospital with about more than 500 beds extending healthcare facilities to weaker sections of the community. That the workmen were engaged on a contractual basis, and were governed by the terms of their Contract. That the contract stipulates a term of employment for a period of 1 year, on the expiry of which the employee stands relieved. That the contract of the 84 petitioners came to an end by efflux of time during the spread of the fatal COVID-19. Hence, renewal of the contract could not be done.
13. That the management on humanitarian grounds allowed the workmen who wanted to continue on their employment even though there was no new contractual obligation. The salary of all employees whose contract had expired prior to 10.07.2020 but continued to work, was partially protected by one-time grant of extension till 10.07.2020. That when the lockdown was lifted, they were relieved from the obligation of their respective contracts vide common office order dated 11.07.2020 with all their dues settled. In the event that any employee wishes to continue working with the management they have to undergo a mandatory procedure of interview and assessment. That this process of assessment is beneficial to both the employer as well as the employee. It gives the hospital an opportunity to weed out the underperforming individuals POIT NO.: 34/2021 Page 6 of 23 from the pool of willing workers while also affording deserving candidates the opportunity to negotiate the terms of his/her contract and receive a higher remuneration on new terms and conditions.
14. That the average bed occupancy of the hospital during April to June was less than 70 patients per day out of a total of 470 plus beds. That the management does not need all the nurses herein on its rolls to cater to patients admitted to the hospital during this period. That the employees/nurses who continued to come regularly on duty were paid their full salaries for the duration that they worked for. That all the staff whose contract had expired prior to 10.07.2020 were encouraged to appear before the assessment Committee for reassessment and renewal of the contract. That vide letter dated 11.07.2020, the management invited all nurses, including these 84 nurses, who wished to seek renewal of the contract for fresh appointments to participate in the interview as per the advertisement appearing in the HIMSR website. That out of 84 of these 31 nurses herein, who appeared for the interviews on 13th and 14th July, 2020 of which 30 were selected and were issued offer letters for a fresh contract.
15. That apart from the interviews/reassessment process on 13 and 14 July a special sitting of the board was also held on Saturday the 18 July 2020 to accommodate the remaining nurses who had missed the interviews. This was specifically informed to Mr. Siju Thomas, the Joint Secretary of IPNA, personally by the Officiating Medical Superintendent to apply for renewal and attend the reassessment process. However, the INPA refused to accept this POIT NO.: 34/2021 Page 7 of 23 officer and misguided the workmen into not appearing for the reassessment process. That the management hospital has kept the abovementioned staff nurses on its rolls even though it did not need to do so during the peak epidemic period. That some of these employees were absent for long duration without prior intimation and some of these nurses refused or absented themselves from duties in the COVID-19 ward. That the hospital occupancy time is around 50 to 60 patients which includes approximately 16 COVID- 19 patients. The management has approximately 280 nurses on its rolls and as a result they are being employed only half the time or on alternate days. Rest of the contentions of the statement of claim are denied.
16. Rejoinder was filed on behalf of the workmen reiterating the contentions of the statement of claim.
17. After completion of proceedings, the following issues were framed by the Ld. Predecessor on 20.11.2021.
"i. Whether the claim of the workmen is not maintainable as per Section 2 (oo) (bb) of the I.D. Act, 1947? OPM ii. As per terms of reference."
18. To prove his case, workman examined himself as WW-1 and relied upon documents Ex. WW1/1 and Mark A to Mark G. He was duly cross-examined by ld. AR for the management. The workman also examined Ms Nirmala Kumar as WW-2, who tendered her evidence by way of affidavit Ex. WW2/A and relied upon documents already relied upon by WW-1. He was also cross-
POIT NO.: 34/2021 Page 8 of 23examined by ld. AR for the management. Thereafter, vide separate statement, Ld. AR for the workman closed workman evidence.
19. The management in their evidence examined Dr. Sunil Kohli, Head of Department, Medicine at Hakeem Abdul Hameed Centenary Hospital, as MW-1. He tendered his evidence by way of affidavit Ex. MW1/A in which he has also affirmed the contents of the written statement and relied upon certain documents. He was duly cross-examined by the ld. AR for the workmen. Thereafter, vide separate statement, the Ld. AR for the management closed management evidence.
20. Written submissions have been filed by both the parties. Thereafter, final arguments have been heard at length as advanced by ld. AR for the workman as well as ld. AR for the management.
21. Ld. AR for the workman argued that the management has illegally terminated the services of the workmen vide common order dated 11.07.2020. The said termination was an act of retribution by the mangement against those workmen who had been making demands for safety equipments for nurses during the pandemic. It is also argued that the case of the workmen is not covered under 2 (oo) (bb) as contended by the management as the workmen have been performing the permanent and perennial nature of work which is still continuing with the management. Moreover, the management kept taking the services of the workmen since their initial date of joining under the pretext of so-called contract agreement reliance is placed upon S.M. Nilajkar and Ors. v. Telecom, District Manager, Karnataka, AIR 2003 SC 3553.
POIT NO.: 34/2021 Page 9 of 23Ld. AR for the management argued that the workmen were hired purely on a contract basis for a fixed tenure i.e. for the period of one year and the same was very well known to the workmen at the time of their entering into the contract. It has been argued that the services of the workmen were governed by the term of contract which clearly specified that no notice is required to be given on expiry of contractual agreement by efflux of time. Reliance is placed upon Karnataka Handloom Development Corporation Ltd. v. Sri Mahadeva Laxman Raval, (2006) 13 SCC 15.
22. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence.
23. My issue wise findings are:-
Issue No. 1: Whether the claim of the workmen is not maintainable as per Section 2 (oo) (bb) of the I.D. Act, 1947? OPM The management has argued that the workmen concerned were employed purely on contractual basis for a fixed tenure i.e. 1 year and the workmen concerned were very well aware about the said fact at the time of entering into the contract. It is further argued that their services were governed by the terms of the contract which clearly specified that no notice is required to be given on the expiry of the contractual period by eflux of time and that the contractual employment will not confer any right upon the employee to seek regular employment or any other benefit.POIT NO.: 34/2021 Page 10 of 23
24. Reliance is placed upon the judgment of Hon'ble Supreme Court in Karnataka Handloom Development Corporation Ltd. v. Sri Mahadeva Laxman Raval, (2006) 13 SCC 15 wherein it is held that a person who is engaged purely on a contractual basis is a contractual employee and not a worker. Therefore, Section 25 F of the ID Act will not be available. Further reliance is also placed upon State of Karnataka v. Uma Devi (2006) 4 SCC 1, wherein it was held that merely a temporary employee is continued for a time beyound the term of his appointment he will not be entitled to any right to be absorbed or made permanent in his service.
25. At the outset, the reliance placed upon by the management on Uma Devi (Supra) is misplaced as the present industrial dispute does not pertain either to absorption or permanency in service. The present dispute merely pertains to the issue that whether or not the workmen concerned are entitled for retrenchment compensation in accordance with Section 25 F of the I.D. Act as well as leave encashment. Even otherwise, it is a settled position that the judgment of Uma Devi (supra) pertains to the area of service law and has no applicability on the industrial law as held in Project Dir. Dep. Of Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796. Therefore, the judgment of Uma Devi (supra) as relied by the management is not applicable in the present facts and circumstances.
26. On the other hand, the workmen have argued that they were appointed by the management on different dates as mentioned in Annexure A of terms of reference as Staff Nurse on contract basis.
POIT NO.: 34/2021 Page 11 of 23The management kept extending the said contract from time to time. The work performed by the workmen is of permanent and perenniel in nature and the same is still continuing with the management. The workmen have also complted 240 days of continous services as mentioned in 25 B of the I.D. Act for the purposes of 25 F of the I.D. Act. It is also argued that their services were illegally terminated by the management without complying with the provisions of Section 25 of the I.D. Act as no notice or notice pay was either offered or given to the workmen and no retrenchment compensation was also paid to them.
27. In this regard, the Hon'ble Supreme Court of India in S.M. Nilajkar And Ors. vs Telecom, District Manager, AIR 2003 SC 3553 has has laid down certain parameters for assessing whether the disengagement of the workmen would fall under Section 2 (oo) (bb) of the I.D. Act or the same be considered as retrenchment u/s 25 F of the I.D. Act. The said parameters are as follows:
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 POIT NO.: 34/2021 Page 12 of 23 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 short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complaint 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.
POIT NO.: 34/2021 Page 13 of 2328. Mark A i.e. the office order dated 21.05.2018 issued by the management pertains to the appointment letter of Ms. Anjum Jahan Sheikh. As per the said office order, it is stated that "Director General, HIMSR is pleased to appoint Ms. Anjum Jahan Sheikh D/o Mr.Abdul Rashid Sheikh as Staff Nurse in Hakeem Abdul Hameed Centenary Hospital of HIMSR, on contractual basis for a period of one year w.e.f. the date of your joining."
29. Similarly, office order dated 25.02.2019 pertains to the workmen concerned mentioned that "Director General, HIMSR is pleased to approve contractual appointment of staff nurses in Hakeem Abdul Hameed Centenary Hospital of Hamdard Institute of Medical Sciences and Research, on all inclusive fixed salary of Rs. 20,000/- for a period of one year w.e.f. the date of their joining."
30. Additionally letter dated 05.04.2016 is placed upon record which states that "on the recommendation of the selection committeee held on 09.02.2016, the vice chancellor is pleased to approv contractual employment as Staff Nurse in the Hakeem Abdul Hameed Centenary Hospital of Hamdard Institute of Medical Sciences and Research, for a period of one year w.e.f. 25.02.2016, the date of joining duty." The office order dated 26.04.2017 is aslo placed upon record, wherein the management granted an annual increment to 65 nurses appointed on contractual basis between Februrary 2011 to December 2015 @ 5 % of the salary fixed at the time of appointment per annum w.e.f. 01.04.2017 untill further orders. Mark B i.e. Office order dated 11.07.2020, is the extension POIT NO.: 34/2021 Page 14 of 23 order issued by the management consequent to which another office order dated 17.07.2020 i.e. Mark C was issued by the mangement.
31. Perusal of court record reveals that the aforesaid appointment orders/extension orders placed by the workmen depict that the workmen appointed as Staff Nurse by the management have been working continuously and uninterruptedly from their initial dates of joining as mentioned in Annexure A and the said initial dates of their joining are not disputed by the management. Even though, the appointment order has stated that the engagement of the staff nurse will only be for the period of one year despite the same, the management continued to take their services beyond their fixed term period. This itself suggest that the job for which the workmen were appointed is of permanent and perennial in nature and the same is continuing with the management. This is evidence from the facts that the workmen has placed upon record the details of walk in interview conducted by the management for the post of staff nurse.
32. Further, the workmen i.e WW-1 in their cross- examination dated 01.10.2022 stated that "my affidavit in evidence is filed on behalf of all 22 workmen including myself. I have been authorised on behalf of the other workmen. I joined the management hospital on 25.02.2016. The period for my employment was one year. My employment was extended thereafter on year to year basis. Vol. During covid, the workmen were told by the mangement to continue and their service contract was extended, but certainly through a WhatsApp message it was informed that 84 workmen (posted in Covid) were terminated.
POIT NO.: 34/2021 Page 15 of 23This termination was done by the management through office order dated 11.07.2020, Ex. WW1/1........................ it is correct that my employment was on conract basis. My contract was last extended on 31.05.2019 for a period of one year. It is correct that the management conducted fresh walk in interviews for the post of staff nurse at the hospital, which was open to all. I did not participate in the abovesaid walk in interview...................... it is correct that out of 84 nurses as mentioned in Ex. WW1/1 some nurses participated in the fresh walk in interview conducted by the management."
33. The said testimony of WW-1 was further corroborated by WW-2 who in addition to the aforesaid facts have further stated "I participated in the abovesaid walk in interview held on 13-14 July 2020. I was selected in the said walk in interview, but I refused. Vol. My proposed salary was reduced to 28,000/- from 67,252/-."
34. The bare perusal of the aforesaid cross-examination further strengthen the case of the workmen that their employment with the management was not temporary/contractual, but they have been working since their initial joining on a permanent and perenniel nature of job.
35. The management witness i.e. MW-1 in his cross- examination dated 15.11.2022 stated "that there was no termination of any contract. The contract of these 84 nurses had ended due to efflux of time during or soon after Covid lockdown period. Vol. We had over 200 nurses employed during that period. The contract of these 84 nurses had ended between February to July 2020." When POIT NO.: 34/2021 Page 16 of 23 questioned by the AR for the workmen that did the management make the claimants worked beyound their contract period to which the witness replied "no there was no forcing on any nurse to work beyond their contract period. As a matter of fact some of the nurses whose contract had expired between February to July 2020 voluntarily went away to seek other employment. Those nurses who continued to work were paid their full salaries even though there was no contractual obligation upon the hospital. I would also like to state here that during this period the bed occupancy of the hospital was around 70 patient and we did not need such a large of nurses during that time. However, consequent the covid pandemic and on compassionate basis these 84 nurses were provided full salaries during the lock down period and beyond as they voluntarily continued to work." When further questioned on the following points, the witness answered as below:
"Q: till when was the service of the
claimants/nurses extended?
A. I am not very vlear since this is under the
jurisdiction of Finance Department of the Hospital However, I believe that they were paid their full salries upto 10.07.2020.
Q. Has there been any other staff apart from
the nursing staff who had been appointed on
contractual basis?
A. I am not exactly prevy to this
information. The hospital has certain doctors and faculty membrs who are appointed on contractual basis and their contracts are also renewed from time to time based on an assessment report. There POIT NO.: 34/2021 Page 17 of 23 may be other categories of staf, which I may not be aware of."
36. The aforesaid testimony of the management witness suggests that the services of the workmen concerned were taken periodicaly under the pretext of socalled contract agreement for the period of one year. Some of the workmen concerned in the present case, as mentioned in Annexure A of the reference, has worked for the mangement since 2011, despite their contract fixed for one year. The services of the workmen, as admitted by the management witness were to be expired in different dates as per the efflux of so- called contract, yet they were terminated vide order dated 11.07.2020 on the same date itself.
37. The management has placed reliance upon the case of Karnataka Handloom Development Corporation Ltd. v. Sri Mahadeva Laxman Raval (2006) 13 SCC 15, wherein the Hon'ble Supreme Court has held that the workman engaged by the management was only on contract basis for a seasonal work and thus, are covered Section 2 (oo) (bb) of the I.D. Act. However, it is important to note that the said judgment has a distinguishable facts and circumstances with the present case at hand. The workmen in the said case, were appointed under a scheme called Vishwa Programme introduced by the State Government to train and to rehabilitate the weavers. Further they were appointed specifically under the scheme on contract basis for a period of 200 days only and on a fixed pay of Rs. 400 p.m. with the stipulation that the contract of appointment automatically expires on the 201 day. There was also a finding of fact pertaining to the training programme in POIT NO.: 34/2021 Page 18 of 23 para no. 13 that the said programme is not perennial in nature of work. As and when such schemes are sanctioned for such a limited period, expert weavers on stipend of Rs. 1000 for a specific period of 9 months are appointed. Therefore, it is clear that the said workmen were engaged only under Vishwa Programme/Scheme and after the expiry of the scheme i.e. in August 1994, the services of the workmen also came to an end w.e.f. 31.08.1994.
38. However, in the present case, the work of staff nurse in the aforesaid hospital is of permanent and perennial in nature and can in no way be seasonal. Some of the workmen concerned have been working since 2011 which goes contrary to the contentions of the management that their services were required only for a period of one year. The factum of Covid 19 as stated by the management that due to the pandemic because of the influx of the number of patients the services of the staff nurses was required in huge number and after the pandemic the management does not require their services any more. Notably, the Covid 19 Pandemic came in the year 2020 whereas, the said workmen have been working with the management prior to 2020 and some of them since 2011 also. Further even for the sake of arguments consdering it to be true that the number of nurses are more then the work in the hospital, then in that case, the management is supposed to follow the retrenchment procedure as prescribed under 25 F of the I.D. Act. It is is not upon the whims and fancies of the managmeent that it can pick and choose the workmen and terminated their servics without assigning them any reason whatsoever.
POIT NO.: 34/2021 Page 19 of 2339. In view of the oral as well as documentary evidence placed on record and the settled position of law laid down in S.M. Nilajkar (supra), this tribunal holds that the services of the workmen concerned are not covered under Section 2 (oo) (bb) of the I.D. Act. Hence, the claim of the workmen is very much maintainable in the present form. Accordingly, issue no. 1 is decided in favour of the workmen and against the management.
Issue no. 2.
"As per terms of reference"
40. It is an undisputed position that the workmen have been working as staff nurse from their respective initial dates of joining. Meaning thereby, the workmen have completed 240 days of continuous service for the purpose of section 25B of the I.D. Act as required under section 25F of the I.D. Act.
41. The management vide order dated 11.07.2020 Ex. WW- 1/1 have terminated the services of the workman concerned. Nothing has been placed on record by the management that the compliance under section 25 F and G were followed by the management. Meaning thereby, 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 workmen concerned while terminating their services.
42. It is contended by the management that it has not terminated the services of the workmen, instead the workmen were offered to appear in the walk-interview for the post of staff nurse and as per which their services would have been retained, it the POIT NO.: 34/2021 Page 20 of 23 workmen themselves which did not appear for the walk-interview and hence they can not argue that their services were illegally terminated by the management. It is noteworthy that the workmen have placed the document Annexure R-5 at page 33 as per which they have raised certain demands before the management for providing N-95 masks, quarantine facilities among other things, which corroborate the testimony of the workman that due to the aforesaid demands the management victimize the workmen either by terminating their services altogether or under the garb of walk-in interview reduced their salary by more than 50%. The WW-2 Smt. Nirmala Kumari has stated in her cross-examination dated 01.10.2022 that "I was selected in the said walk in interview but I refused. Vol. My proposed salary was reduced to Rs. 28000/- from 67252/-. The factum of reduction of salary has also been admitted by the management in his cross-examination under the pretext that there had been a downfall in the quality of her work.
43. In view of the documentary and oral evidence on record, this tribunal holds that the management has clearly committed unfair labour practice as mentioned in Fifth Schedule at Item No. 5 (a) and (b) of the I.D. Act by terminating the services of the workman concerned by way of victimization and in colourable exercise of employer's rights as the workmen dared to raise their genuine demands before the management. This tribunal further holds that while terminating the services of the workman concerned, the management contravened Section 25 F, G and H of the I.D. Act.
POIT NO.: 34/2021 Page 21 of 2344. In the present case, the prayer as well as terms of reference are limited to extent whether or not the workman concerned are entitled for the relief of retrenchment compensation and leave encashment, therefore, this tribunal would not go into the aspect of automatic relief of reinstatement with full back wages once the termination is held to be illegal. No such plea has been taken by the workman in their statement of claim and rejoinder either.
45. Therefore, since the management has not complied with the provisions of Section 25F, G and H of the I.D. Act while terminating the services of the workman concerned, the workmen are entitled to the retrenchment compensation as provided u/s 25F of the I.D. Act and leave encashment with an interest rate of 8% per annum from the date of accrual to till the final payments are made. The management in the present case has withheld the rightful dues of the workman and indulged them in unnecessary litigation. It can not be disregarded that the important role played by the health workers during the Covid'19 Pandemic and ultimately they were rewarded by the management with their termination, therefore, management is directed to pay their rightful dues with the aforesaid rate of interest. The management is directed to implement the regularisation benefits to the workman as passed in this award within 60 days from the date of this award becomes enforceable.The award is passed accordingly. The terms of references are answered in favour of the workman and against the management. The award is passed accordingly.
POIT NO.: 34/2021 Page 22 of 2346. Copy of the award be sent to the appropriate Government for publication as per rules.
File be consigned to the Record Room.
Announced in the open Tribunal on this 04.09.2023 (Ajay Goel) POIT-I/RADC, New Delhi POIT NO.: 34/2021 Page 23 of 23