Delhi District Court
Smt. Poonam vs City Hospital on 8 January, 2025
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LIR No. 9468/16
CNR No. DLCT13-012915-2016
In the matter of:
Smt. Poonam
W/o Late Sh. Vinod Singh
R/o 296/13, Than Singh Nagar,
Anand Parvat, New Delhi - 110005.
Mobile No. 9899008936
Through: All India General Mazdoor Trade Union (Regd. 3025)
Office at: 170, Bal Mukund Khand,
Giri Nagar, Kalkaji, New Delhi-110019.
.....Claimant/Workwoman
Details of an immediate family member of the claimant/
workwoman:
Name: Ms. Komal (Daughter)
Mobile No. 9873282178
Details of Authorized Representative of claimant/workwoman:
Name: Sh. Anil Rajput
Mobile no. 9818086327
Email ID: Not Provided
VERSUS
1. M/s Sir Ganga Ram City Hospital
(a Unit of Conner Institute of Health Care
and Research Centre Pvt. Ltd.),
B-1/1, N.E.A Pusa Road, New Delhi-110060.
2. M/s Helpline Facility Management Pvt. Ltd.,
T-1404/1, 3rd Floor, Street No. 7,
Wazir Nagar, Kotla Mubarak Pur,
New Delhi-110003.
Also at : D-74, Ground Floor, Sector-2,
Noida (UP)-201301.
.....Managements
LIR No. 9468/2016
Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally
signed by Page No. 1 of 24
POOJA
POOJA AGGARWAL
AGGARWAL Date:
2025.01.08
16:00:32
+0530
Details of Authorized Representative of management no.1:
Name : Ms. Deepti Singh
Mobile no. 9873393746
E mail ID of management: [email protected]
Details of Authorized Representative of management no.2:
Name : Ms Kiran Saini,
Mobile no. Not provided
E mail ID of management: [email protected]
Date of Receipt of Reference : 03.11.2016
Date of Award : 08.01.2025
AWARD
1. A consolidated reference was received from the Joint
Labour Commissioner (Central District), Labour
Department, Government of NCT of Delhi vide its order
No. F-24(108)/16/Ref./CD/Lab/591 dated 21.10.2016,
under Section 10(1)(C) and 12(5) of the Industrial
Disputes Act, 1947 regarding an industrial dispute between
Sh. Ajay Dikka and 79 Ors. including the present
workwoman Smt. Poonam W/o Late Sh. Vinod Singh (at
Sl. No. 08) (hereinafter referred to as
'claimant/workwoman') and the managements of M/s Sir
Ganga Ram City Hospital (hereinafter referred to as
'management no.1') and M/s Helpline Facility
Management Pvt. Ltd. (hereinafter referred to as
'management no.2') with the following terms of reference:
"Whether the services of workmen Sh. Ajay Dikka
and 79 ors. as shown in 'Annexure A' have been
terminated illegally and/or unjustifiably by the
management; and if so, to what reliefs are they
entitled to and what directions are necessary in this
respect?"
LIR No. 9468/2016
Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 2 of 24
AGGARWAL
Digitally signed by
POOJA AGGARWAL
Date: 2025.01.08
16:00:39 +0530
2. After receipt of the reference, vide order dated 03.11.2016,
the Ld. Predecessor directed for the original reference to
be registered in the case of Ajay Dikka while a copy of the
original reference was directed to be annexed in other 79
cases including the present case.
3. Thereafter, notice of the reference was issued to the
workwoman who filed her statement of claim.
Facts as per statement of claim
4. Briefly stated, it has been asserted that the claimant/ workwoman was working with the management hospital since 01.04.2007 as a Ward Aaya with her last drawn salary being Rs. 9,568/- per month without any complaints or charges against her.
5. It has been further asserted that the management was not providing any benefits to the claimant/workwoman as per labour laws like appointment letter, leave book, Salary Slip, Weekly and Yearly Off, Double Overtime, Bonus, Travelling Allowance, HRA, prevailing Earned Leaves etc.
6. It has been further asserted that the claimant/ workwoman had been initially appointed by the Principal Employer but later on, her name was shown on the rolls of the contractor M/s Glaze Services Pvt. Ltd. which was a company of the Principal Employer itself.
7. It has been further asserted that the Principal Employers LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Page No. 3 of 24 Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.08 16:00:46 +0530 showed the name of the claimant/ workwoman in the records of a Sham Contractor i.e. management no. 2 w.e.f. 01.09.2015 even though the said contractor did not have any license under the Contract Labour (Regulation and Abolition) Act, 1970. It has also been asserted that the management no. 1 also did not have any registration under the Contract Labour (Regulation and Abolition) Act, 1970 as it had not renewed its registration since last three years.
8. It has also been stated that the claim of the claimant/ workwoman for regularization was pending, despite which the management no. 1 terminated his services on 30.07.2016 without any chargesheet or notice, and they also did not pay the earned wages for the period 01.07.2016 to 30.07.2016 to the claimant/workwoman, violating Section 33 and Section 25F of the Industrial Disputes Act.
9. It has been further asserted that the Principal Employer through Contractor M/s Glaze Services Pvt. Ltd. had entered into a settlement before the Conciliation Officer where it had been clarified that the contractor will employ the previous workmen and provide them all the facilities. It has been further asserted that the Principal Employer had given in writing that the workmen will work with the new contractor and better services will be provided to them, despite which the services of claimant/workwoman was terminated by the managements.
LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 4 of 24 POOJA POOJA AGGARWAL AGGARWAL Date: 2025.01.08 16:00:51 +0530
10.It has been further asserted that a demand letter dated 02.08.2016 was sent to the managements by the claimant/workwoman through registered AD/Speed Post but the managements did not reply to the same despite service, did not reinstate her and also did not make any payment to her.
11.It has been further asserted that the managements used to obtain overtime work from the claimant/workwoman but did not make any payment towards overtime despite repeated requests. It has been further asserted that the management did not reinstate her despite intervention of the Labour Inspector and thereafter, an industrial dispute was raised before the Labour Department but the conciliation proceedings failed, whereafter reference was sent to the Court.
12.It has also been asserted that the claimant/workwoman is unemployed since the date of her termination and hence the present claim seeking reinstatement with full back wages.
Facts as per reply/written statement of management no.1
13.In their reply/written statement, the management no. 1 raised preliminary objection as to there being no employer- employee relationship between the parties and as to the claimant/ workwoman being not a workman as defined under section 2 (s) of the ID Act, 1947.
LIR No. 9468/2016Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 5 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:00:57 +0530
14.It has also been asserted that the management no. 1 was not legally precluded from entering into a contract for service with an independent contractor with regard to any process, operation or other work in its establishment and that the management no. 1 had entered into bonafide a contract with various independent contractors from time to time for carrying out, inter-alia, the housekeeping services.
15.It has been further asserted that the claimant/workwoman had been employed by the management no. 2 contractor and that she had been deployed in the hospital for performing housekeeping service entrusted to it by the management no. 1 under a bonafide contract of service. It has been further stated that it was the management no. 2 which was responsible for employing its own employees, whose work was supervised by the contractor who also paid wages to the employees and as such the industrial dispute could only be raised against management no. 2.
16.It has been further asserted that the claimant/workwoman along with other labour employed by M/s Glaze Services Pvt. Ltd. had entered into a conciliation settlement through M/s All India General Mazadoor Trade Union (Regd), under Section 12 (3) read with Section 18 (3) of the Industrial Disputes Act, 1947 dated 17.09.2015 on the clear basis that they were employed by the contractor M/s Glaze Services Pvt. Ltd., after which they had received their full and final dues from their employer and subsequently the claimant/workwoman had been employed LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 6 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:03 +0530 by the new contractor management no. 2 as its fresh employee. It has been further asserted that management no. 2 M/s Helpline Facility Management Pvt. Ltd. had ceased to be a contractor of the management no. 1 w.e.f. 31.07.2016 and the housekeeping services had now been outsourced to a new contractor i.e. M/s. Evershine Housekeeping Services.
17.On merits, all the averments made in the statement of claim have been denied and it has been reiterated that the post of ward boy, which comes with the housekeeping services, had always been outsourced by the management no.1 to independent contractors which employed their own employees on its own rolls and also supervised their work.
Facts as per Written Statement of management no. 2.
18.In their written statement, the management no. 2 has asserted that the management no. 1 was its client to whom they were providing cleaning and housekeeping services as per the contract agreement dated 28.08.2015 for the period from 01.09.2015 to 30.07.2016 in the premises of Sir Ganga Ram City Hospital. It has been further asserted that the application for obtaining license and an intimation of the commencement of the said contract under the CL (R & A) Act 1970, was given to the Licensing Officer, Pusa, New Delhi on 25.09.2015 vide Rule 21(1) of CL (R&A) Act 1970 in form IV and on 16.10.2015.
19.It has been further asserted that a special recruitment drive LIR No. 9468/2016 POOJA Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. AGGARWAL Page No. 7 of 24 Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:08 +0530 had been done by them for discharge their contractual obligations in the premises of the management no.1 and the claimant/workwoman had applied to the management no. 2 vide her application dated 30.08.2015 and she was issued the appointment letter dated 01.09.2015 wherein the clause 2 specifically stated that she was a contractual employee of the management no.2 and her employment ends suo-moto upon expiry of the contract.
20.It has been further asserted that during course of employment, contributions of EPF and ESIC were being made in the account of the claimant/workwoman and her monthly wages were being transferred to her bank account.
21.It has also been asserted that the management no. 1 had informed management no. 2 vide their letter dated 20.06.2016 that their contract will expire on 30.07.2016 which was not renewed and one month advance notice was given to all concerned workmen. It has been asserted that the workers ceased to be employees of management no. 2 w.e.f. 30.07.2016 (afternoon) and an intimation of closure of contract was sent to the licensing officer on 21.06.2016.
22.It has also been asserted that the claimant/workwoman had sent one demand letter which was suitably replied on 03.08.2016 and it has been asserted that the services of the claimant/ workwoman were not terminated by the management no. 2, but it was as a result of non-renewal of the contract.
LIR No. 9468/2016
Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 8 of 24
signed by
POOJA
POOJA AGGARWAL
AGGARWAL Date:
2025.01.08
16:01:13
+0530
23.On merits, all assertions made in the statement of claim have been denied including his last drawn salary and the contents of the preliminary objections have been reiterated.
Facts as per the rejoinders to reply/Written Statement of management no. 1 and Written Statement of management no. 2.
24.In the respective rejoinders, all the averments made in the written statement/reply as filed on behalf of management no. 1 and 2 were denied by the claimant/workwoman and the contents of statement of claim were reiterated.
Issues
25.The following issues were framed by Ld. Predecessor vide order dated 16.10.2018:
"1.Whether there was relationship of employer and employee between management no:1 and claimant? OPM
2. Whether the case of the management no:2 is covered under Section 2 (oo)(bb) of the ID Act? OPM-2
3. As per terms of reference.
4. Relief."
26.Vide order dated 20.04.2023 the Ld. Predecessor modified the onus in respect of the issue no. 1 as framed on 16.10.2018 (wrongly mentioned in the order as 19.11.2018) and reframed the issue as under:
"Whether there is no employer-employee relationship between the workman and the respondent no. 1 and therefore, claimant is not a workman under Section 2(S) of ID Act? OPW LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 9 of 24 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.08 16:01:19 +0530 Workman Evidence
27.The claimant/workwoman examined only herself and tendered her evidence by way of affidavit i.e. Ex. WW1/A. She also relied upon the following documents: S.No Description of Documents Exhibit/Mark
1. Demand Notice dated Ex WW1/1 to 02.08.2016 with postal Ex.WW1/3 receipts
2. Statement of claim filed Ex. WW1/4 before the Conciliation Officer
28.She was duly cross-examined on behalf of the management no.1, during which, inter-alia the documents i.e. copy of settlement i.e. Ex. WW1/M1 and receipts i.e. Ex. WW1/M2 to Ex. WW1/M4 were put to her. None appeared on behalf of management no.2 to cross-examine her.
Management Evidence
29.The management no. 1 examined Sh. Jitender Kumar Sharma as M1W1 who tendered his evidence by way of affidavit i.e. Ex. M1W1/A and relied upon the following documents:
S.No Description of Documents Exhibit/Mark
1. Original resolution dated Ex.M1W1/1 27.02.2024 in his favour.
2. Copy of contract between Ex.M1W1/2 Management no.1 and Management no.2. dated 28.08.2015
3. Letter dated 20.06.2016 issued Ex.M1W1/3 by Management no.1 to Management no.2.LIR No. 9468/2016
Smt. Poonam vs Sir Ganga Ram City Hospital & Anr.
POOJA Page No. 10 of 24AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:24 +0530
4. Office order dated 30.06.2016 Ex.M1W1/4 issued by management no.2
5. Copy of application dated Ex.M1W1/5 16.10.2015 of management no. 2 under Contract Labour Act
6. Return of contribution of Ex.M1W1/6 management no.2 under EPFO (colly)
7. Electronic challan under ESIC Ex.M1W1/7 on behalf of management (colly) no.2.
8. Registration certificate issued Ex.M1W1/8 to management no.1 under (colly) Contract Labour Act
9. Copy of award dated Ex.M1W1/9 06.01.2018
10. Copy of award dated Ex.M1W1/10 24.01.2024 in POIT No.53/23 titled Vikram & Ors. vs. Sir Ganga Ram City Hospital
11. No Dispute Award dated Ex.M1W1/11 11.10.2022 in LIR No.1653/19 titled as Ajay Dikka & 79 ors.
vs. Sir Ganga Ram City Hospital
30.He was duly cross-examined on behalf of the claimant/ workwoman.
31.The management no.1 also examined three summoned witnesses. M1W2 Sh Arun Singh Rawat, Assistant from ESIC Branch Office, Okhla produced the records pertaining to the claimant/workwoman i.e. e-pehchan card issued by M/s Glaze Services Pvt. Ltd. i.e. Ex M1W2/1 (colly); ledger sheet i.e. Ex M1W2/2; monthly contribution history i.e. Ex M1W2/3 (colly) and Audit Trail i.e. Ex LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 11 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:31 +0530 M1W2/4. He was not cross-examined on behalf of the claimant/ workwoman despite opportunity.
32.M1W3 Sh Vibash Kumar, UDC from ESIC Branch Office Ashram produced the summoned record i.e. Return of Contribution (Form 5) of management no.2 from October 2014 to September 2016 i.e. Ex M1W3/1A which was tagged in the connected file LIR No. 9519/2019. He was also not cross-examined on behalf of the claimant/ workwoman despite opportunity.
33.M1W4 Sh Umesh Kumar, SSSA from EPFO Regional Office, Wazirpur produced the record i.e. Electronic challan cum return (ECR) for wages of March 2015 to July 2016 pertaining to the management no.2 i.e. Ex M1W4/2 which was tagged in the connected file LIR No. 9519/2019. He was also not cross-examined on behalf of the claimant/ workwoman despite opportunity.
34.The management no.2 was proceeded ex-parte vide order dated 21.12.2024.
35.At the stage of final arguments, on the request of Ld. AR for workwoman, the issue no.1 was reframed as under:
"(1) Whether there was relationship of employer-
employee between management no.1 and the claimant/workwoman? OPW"
36.No further evidence was led on the amended issue as both the Ld ARs gave a statement to the effect that they did not LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 12 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:36 +0530 wish to lead any further evidence and relied on the evidence already led.
Final Arguments
37.Final arguments were then advanced on behalf of the claimant/ workwoman as well as management no. 1 by their respective Authorized Representatives.
38.The final arguments as advanced have been carefully considered along with the evidence on record and after careful consideration, the issue wise findings are as under:
Issue No. 1. as reframed on 21.12.2024:
Whether there was relationship of employer- employee between management no.1 and the claimant/workwoman? OPW
39.The onus to prove this issue was on the claimant/ workwoman as it is a settled proposition of law that the burden to prove a fact is on the one who asserts the same. Thus it was for the claimant/ workwoman to prove the existence of employer-employee relationship between the management no.1 and her, and not for the management no.1 to disprove the same. (Ref: Babu Ram v. Govt. (NCT of Delhi), 2018 SCC OnLine Del 7243).
40.In the case at hand, the claimant/workwoman has testified in Ex.WW1/A that she was working at the management no.1 since 01.04.2007 having been appointed by the management no.1 itself, but her name was transferred to the contractor M/s Glaze Services Private Ltd. and thereafter, her name was illegally shown in the records of a LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 13 of 24 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.08 16:01:41 +0530 Sham Contractor i.e. the management no.2 since 01.09.2015 even though the management no.2 did not have any licence under the Contract Labour (Regulation and Abolition) Act, 1970 nor the management had renewed its registration under the said Act.
41.However, except self serving testimony in her affidavit, the claimant/workwoman has not filed any document to prove her appointment/ employment with the management no.1 including appointment letter, ID card or even any salary slip etc.
42.Despite having asserted in her statement of claim, that she was not provided any appointment letter, salary slip etc. by the management, for reasons best known to her, the claimant/ workwoman did not even testify in her evidence affidavit i.e. Ex WW1/A regarding not being provided the legal facilities which leads to the inference that the same were deliberately withheld by her as they would not have supported her case and thus, this non-averment when coupled with the factum of non-production of any document to prove her employment with the management no.1, is fatal to the claim of the claimant/ workwoman as to being an employee of the management no.1 even more so, since in her cross-examination, she has admitted that she had been employed by M/s Glaze Services Pvt. Ltd.
43.It is also pertinent to note here that the claimant/ workwoman has herself admitted in her cross-examination LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 14 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:46 +0530 that it was M/s Glaze Services Pvt. Ltd. and the management no.2 which used to deduct her ESIC and EPF contributions and even her attendance used to be marked by M/s Glaze Services Pvt. Ltd. and the management no.2.
44.These admissions further disprove the existence of employee-employer relationship between the claimant/ workwoman and the management no.1, since the PF and ESI contributions are made / deducted by an employer which, in this case, the claimant/ workwoman has admitted was M/s Glaze Services Pvt. Ltd. and the management no.2 and she has not led any evidence to prove that such deductions / contributions were made by the management no.1.
45.It is also pertinent to note here that during her cross-
examination, the claimant/workwoman has also admitted her signatures on the settlement i.e. Ex WW1/M1 which is a settlement arrived at between M/s Glaze Housekeeping Services Pvt. Ltd. and the Union of the workwoman. She has also identified her signatures on the details of settlement/receipt i.e. Ex WW1/M2 to Ex WW1/M4 (colly) admitting the receipt of payments from M/s Glaze Services Pvt. Ltd. She has also admitted that after her settlement, she had joined the management no.2.
46.These admissions further disprove the claim of the claimant/workwoman as to being an employee of the management no.1 and as to her services having been LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr.
POOJA Page No. 15 of 24AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:52 +0530 transferred to M/s Glaze Services Pvt. Ltd. or as to her having been shown on the rolls of the management no.2 illegally, since if she was infact an employee of the management no.1 and if her name had been shown on the rolls of the management no.2 illegally, there would have been no occasion for the claimant/workwoman to have joined the management no.2 herself, that too after any settlement with M/s Glaze Services Pvt. Ltd.
47.It is not lost sight of that in the present case, the claimant/workwoman has also asserted that the contract between the management no.1 and M/s Glaze Services Pvt. Ltd. as well as management no.2 were sham.
48.It is a settled proposition of law that in cases, where the contract between the principal employer and contractor is alleged to be sham, nominal or merely a camouflage to deny employment benefits to the employee there are two well-recognized tests to find out whether the contract labour are the direct employees of the principal employer i.e. (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. (Ref: Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635)
49.However, in the present case, it is not even the case of the claimant/workwoman that her salary was being paid by the management no.1 nor is it her case that she was working LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 16 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:01:57 +0530 under the supervision or control of the management no.1. Even in her cross-examination, she has admitted that during her employment with M/s Glaze Services Pvt. Ltd. and the management no.2, her work was supervised by supervisors of those two entities and that her wages used to be paid by the aforesaid employers.
50.The aforesaid admission has proved not only the factum of the employment of the claimant/workwoman with M/s Glaze Services Pvt. Ltd. and the management no.2, but also the factum of non-payment of salary by the management no.1 at any point of time. Hence, the factum of payment of salary of the claimant/workwoman by the management no.1 and as to the job of the claimant/ workwoman being supervised by the management no.1, remains unproved.
51.In view of the aforesaid discussion, in the absence of any documentary evidence having been led by the claimant/ workwoman to prove her employment by the management no.1, it is held that the claimant/ workwoman has failed to prove the existence of any employer-employee relationship between the management no.1 and her. Rather, from the evidence as led, it stands proved that the claimant/ workwoman was not the employee of the management no.1 but was the employee of the management no.2, which fact is also admitted by the management no.2, in its written statement and needs no further proof.
LIR No. 9468/2016Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 17 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:02:02 +0530
52.This issue is accordingly decided against the claimant/ workwoman and in favour of the management no. 1.
Issue No. 2: Whether the case of the management no.2 is covered under Section 2 (oo)(bb) of the ID Act? OPM-2 and Issue No. 3: As per terms of reference
53.Both these issues are being taken up together as they involve inter-connected facts. While the onus to prove issue no. 2 was on the management no. 2, the onus to prove the issue no. 3 was on the claimant/workwoman as the reference in this case has been received in respect of the her termination of service being illegal and/or unjustifiable and it is the claimant/workwoman who has asserted the same.
54.It is duly noted that in her evidence affidavit i.e. Ex WW1/A, the claimant/workwoman has categorically testified that her services had been terminated by the managements on 30.07.2016 and in its written statement, the management no.2 has also admitted that the claimant/ workwoman ceased to be its employee from 30.07.2016. Hence, on the basis of admission of the management no.2, the factum of cessation of employment of the claimant/ workwoman with the management no.2 w.e.f 30.07.2016 stands proved.
55.However, there is no admission by the management no.2 as to it having terminated the services of the claimant/ workwoman on 30.07.2016 as they have set up the defence LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 18 of 24 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.08 16:02:07 +0530 that the claimant/workwoman was recruited under a special recruitment to perform the contract in the establishment of the management no.1 and in the appointment letter of the claimant/workwoman, it was specifically stated that she was a contractual employee for all purposes and her employment suo-moto ends on the expiry of the contract. Thus, it was the defence of the management no.2 that the employment of the claimant/workwoman ceased on the expiry of her contract.
56.That being so, it was for the management no. 2 to prove that its case was covered under Section 2(oo)(bb) of the Industrial Disputes Act. However, for reasons best known to them, the management no.2 stopped appearing in this matter and did not lead any evidence to prove the same nor they proved any appointment letter of the claimant/ workwoman containing any stipulation as to the termination of the employment.
57.In the absence of any evidence having been led by the management no. 2, the factum of the termination/cessation of the employment of the claimant/ workwoman being covered under Section 2(oo)(bb) of the Industrial Disputes Act remains unproved and it is held that the management no. 2 has failed to discharge the onus cast upon them.
58.Thus, from the evidence as led, on a scale of preponderance of probabilities, it stands proved that the cessation of services of claimant/workwoman on LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally signed by Page No. 19 of 24 POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.08 16:02:12 +0530 30.07.2016 was in the nature of termination of services by the management no.2 and that her services had not ended due to expiry of any contract between the management no.2 and the claimant/workwoman.
59.In as far as the legality of such termination is concerned, it is noted that it is not the case of the management no.2 that they had complied with the provisions of Section 25F of the Industrial Disputes Act, 1947 prior to retrenchment of the claimant/ workwoman in as much as it is not the case of the management no.2 that they had given any notice pay to her prior to her termination.
60.Though the management no.2 has asserted in its written statement as to having sent a one month notice to all the concerned workers after receipt of notice of the management no.1 dated 20.06.2016 and as to non-renewal of contract after completion of period of contract on 30.07.2016, for the reasons best known to them, the management no.2 did not lead any evidence to prove the factum of such notice having been sent to the claimant/workwoman herein.
61.Thus, the mere self serving averment of the management no.2 in its written statement is not sufficient compliance of the provisions of Section 25 F of the Industrial Disputes Act as per which it was necessary for the management no.2 to have given not only the one month's notice or notice pay in lieu thereof but also to have paid the retrenchment LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 20 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:02:18 +0530 compensation, which the management no.2 has miserably failed to prove.
62.Hence, as in the present case, the conditions prescribed in Section 25 F of The Industrial Disputes Act, 1947 have not been complied with, the termination of the claimant/ workwoman by the management no.2 is held to be illegal.
63. Thus issue no. 2 and issue no. 3 are decided in favour of the claimant/ workwoman and against the management no.2.
Issue no. 4. Relief
64.It is pertinent to note here that the claimant/ workwoman seeks reinstatement with full back wages and consequential benefits.
65.In Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, (1980) 4 SCC 443. also referred to by the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 as well as Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, the Hon'ble Supreme Court laid down as under:
"....Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-a-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums: the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 21 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:02:25 +0530 discretion left in the Court to make appropriate consequential orders. The Court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The Court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the Court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not. comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted."
(Emphasis supplied)
66.In Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, it has also been held by the Hon'ble Supreme Court that:
"4. It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz. (i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left toher credit; (iii) where the workwoman has been rendered incapacitated to discharge the duties and cannot be reinstated and / or (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasised is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation"
(Emphasis supplied)
67.In the present case, as per the testimony of the claimant/workwoman in Ex. WW1/A, she is unemployed since the termination of her services by the management. Nothing material could be brought out in her cross- examination to discredit this testimony of the claimant/ workwoman.
68.Even so, in the present case, the unrebutted testimony of LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Digitally Page No. 22 of 24 signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2025.01.08 16:02:31 +0530 the claimant/workwoman as to the management having refused to reinstate her even after intervention of the Labour Inspector, indicates the loss of confidence between the parties, and it would not be conducive in the interest of industrial peace to reinstate the claimant/workwoman with the management no.2.
69.That being so, in view of the legal proposition as laid in Surendra Kumar Verma v. Central Govt. Industrial Tribunal- cum- Labour Court, (1980) 4 SCC 443 and referred in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 as well as Tapash Kumar Paul v. BSNL, (2014) 15 SCC 313, considering that in its written statement, the management no.2 has admitted the claimant/workwoman to have been its employee only w.e.f. 01.09.2015 and the claimant/ workwoman has not led any evidence to prove that she was working with the management no.2 since prior to 01.09.2015; and further considering that the services of the claimant/workwoman were terminated on 30.07.2016 i.e. when she had been working with the management no.2 for less than a year prior to her illegal termination, and also considering that it cannot be presumed that the claimant/ workwoman would have remained idle since termination of her services, it would be inequitable to award reinstatement, and interests of justice shall be served if the claimant/ workwoman is awarded lump sum compensation of Rs 25,000/- (Rs. Twenty Five Thousand Only) payable by the management no.2. Hence, the claimant/workwoman LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. POOJA Page No. 23 of 24 AGGARWAL Digitally signed by POOJA AGGARWAL Date: 2025.01.08 16:02:38 +0530 is awarded lump sum compensation of Rs 25,000/- (Rs. Twenty Five Thousand Only) in lieu of reinstatement to be paid by the management no.2.
70. The reference qua the claimant/workwoman Smt. Poonam w/o late Sh Vinod Singh is accordingly answered as under:
"The services of the workwoman Smt. Poonam w/o late Sh Vinod Singh were terminated illegally by the management no.2 and she is awarded lumpsum compensation of Rs.25,000/- to be paid by the management no.2 to her in lieu of reinstatement."
71.The awarded amount of Rs. 25,000/- (Rs. Twenty Five Thousand Only) be paid to the claimant/workwoman by the management no.2 within 30 days from the date of publication of the award failing which the management no.2 will be liable to pay interest @ 8% per annum on the awarded amount till realization.
72.Copy of Award be uploaded on the website of RADC and be also sent to the concerned department through proper channels as per rules.
73.File be consigned to the record room after necessary Digitally compliance. signed by POOJA POOJA AGGARWAL Announced in the Open Court AGGARWAL Date:
2025.01.08 today i.e. on 08th January 2025 16:02:45 +0530 (POOJA AGGARWAL) Presiding Officer Labour Court -01 Rouse Avenue District Court New Delhi (sy) LIR No. 9468/2016 Smt. Poonam vs Sir Ganga Ram City Hospital & Anr. Page No. 24 of 24