Delhi District Court
Between vs Presiding Officer on 13 July, 2007
1
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER:
LABOUR COURT-I : ROOM NO.50: KARKARDOOMA COURTS:
DELHI.
ID NO. 1487/2001
BETWEEN
Smt. Javitri Devi & Ors.
W/o Sh. Mohan Lal
Shramik Ekta Manch,
208, Pocket -D, Dilshad Garden,
Delhi - 110095.
........ Workmen
VS.
M/s Guru Teg Bahadur Hospital
Shahdara, Delhi - 110095.
........ Management
AWARD
Secretary (Labour), Government of National
Capital Territory of Delhi has referred this dispute arising
between the parties named above for adjudication to this
Labour Court vide notification No. S-11011/2/75/DK(IA)
dated 14.04.1975 with the following terms of the reference:-
"Whether the services of workmen as per
2
Annexure 'A' have been terminated
illegally and/or unjustifiably by the
management, and if so, to what sum of
money as monetary relief alongwith
consequential benefits in terms of existing
laws/Govt. Notifications and to what other
relief are they entitled and what directions
are necessary in this respect?
1 On receiving a notice from the court, the workmen
namely Javitri Devi, Krishna Devi, Ram Kumari and Meera
Devi filed their claim petition contending that they were
appointed by the respondent hospital as per the schedule
given below :-
Details of Workmen Smt. Javitri Safai- 26.04.1992 Rs. 53/- per day Devi Karamchari Smt. Krishna Ward Aaya 15.06.1992 Rs. 1050/- per month Smt. Ram Safai- 21.12.1991 Rs. 1050/- per Kumari Karamchari month Smt. Meera Ward Aaya 21.12.1991 Rs. 1050/- per Devi month They were discharging their duties diligently and used to work even on holidays. Though, they were working 3 under direct control of management but they were paid wages through a dummy contractor. Even the minimum wages fixed under law were never paid. Their service records were manipulated to deprive them from their legal rights.
When the workmen appealed for their regularization, their services were terminated on 17.11.99 without following due process of law. Since then, all the workmen are unemployed. They have served a demand notice dt.
15.12.99 for reinstatement but to no avail. Industrial dispute was raised before the Conciliation Officer but the proceedings failed on account of negative stand of the management.
2 The management contested the claim of the workmen by filing written statement stating that the claimants are not workmen as defined under section 2(s) of Industrial Disputes Act 1947 and therefore they have no right to raise any industrial dispute according to the management the claimants were hired only as daily wagers for small duration intermittently and they were never regular employees. As per management, the claimants were with management for following durations. 4
i) Smt. Javitri Devi :
26.08.1992 to 24.09.1992 21.11.1992 to 20.12.1992 20.02.1993 to 21.03.1993 23.03.1993 to 28.03.1993 13.04.1993 to 06.11.1993 09.07.1994 to 07.08.1994
ii) Smt. Krishna :-
05.05.1992 to 31.05.1992 18.06.1992 to 17.07.1992 05.04.1994 to 04.05.1994
iii) Smt. Ram Kumari :-
01.05.1991 to 09.05.1991 14.12.1991 to 12.01.1992 14.01.1992 to 12.02.1992 15.02.1992 to 25.03.1992 17.10.1992 to 15.11.1992 13.04.1993 to 12.05.1993 14.05.1993 to 31.05.1993 01.08.1993 to 22.08.1993 08.10.1993 to 06.11.1993 5 09.02.1994 to 10.03.1994 09.07.1994 to 07.08.1994
iv) Smt. Meera Devi :-
02.05.1992 to 31.05.1992 09.07.1994 to 07.08.1994 3 It is stated that none of them was regular employee, therefore question of their service record does not arise. Their services were not terminated on 17.11.1999 as alleged by them. In fact, none of them worked with the management after August 1994. Hence, their claim is highly belated. It was clarified that management is a Government hospital and it cannot make any appointment on its own. Before any appointment, it has to request the government and thereafter, after approval of different departments and ministries, the post is advertised and due process to appoint regular employees as per requirement of that particular post is followed. Nonetheless, the management being a hospital, there are some emergency services and there may be a delay of appointment of regular employees or some employees happen to be on leave and some times there may be some exigencies for which hospital may require 6 employment immediately. Then in that case, management sends a request to employment exchange for appointment of daily wagers against leave vacancies or other exigencies. There is a separate process to employ the regular employees through employment exchange. Employment exchange also sponsors them as daily wager employees separately. 4 It was denied that the claimants used to be paid through any dummy contractor. It was averred that they were working directly under management and were paid for the period for which services were rendered. The receipt of demand notice and other averments of the claimants were denied by the management.
5 In rejoinder, it was admitted that there is a specific procedure for regular employment in the hospital but the claimants averred that actually the said procedure is not followed. Rest of the contentions of the management were controverted and their own submissions were reaffirmed. 6 On the pleadings of the parties, following issue came to be framed on 09.05.03 :-
7
1) As per terms of reference?
Claimants filed their own affidavits towards
evidence, while Doctor N.K. Sinha, Dy. Medical
Superintendent was tendered as witness of the
management. Evidence was closed and written final
arguments were filed.
7 I have carefully considered the matter and gone
through the records.
8 I have also carefully perused the case law relied
upon by both the sides. Ld. AR for the workmen referred
following authorities of the Superior Courts :-
i) Coal India Ltd. Vs. Presiding Officer, Labour Court- III, 90 (2001) DLT 44
ii) Delhi Cantonment Board Vs. CGIT & Ors (2006) DLT 610
iii) MCD Vs. Sri Sukhbir Singh & Ors. 1994 LLR 332
iv) Samishtha Dube Vs. City Board Etawah 1999 II AD (SC) 257; Mgt of Horticulture Dept. Delhi Admn. Vs. Trilok Chand 82 (1999) DLT 747 8
v) Samishtha Dube Vs. City Board Etawah 1999 II AD (SC) 257
vi) MCD Vs. Sri Sukhbir Singh & Pors. 1994 LLR 332
vii) S.M. Nilazkar 2003 IV SCC 27
viii) M/s Nicks (India) Tools Vs. Ram Surat & Anr. 2004 VIII AD (SC)
ix) Hindustan Tin Works Vs. Employees of Hindustan Tin Works 1979 SCC( L&S ) 53;
M/s Nicks (India) Tools Vs. Ram Surat and Anr. 2004 VIII AD (SC) 9 In support of its arguments, the management relied upon following judgments :-
i) State of H.P V/s Suresh Kumar 1966(7) SC Cases 562
ii) R.N. Nanjundappa Thimmiah AIR (1972) SC 1767
iii) AIR (1996) SC 1565
iv) AIR (1997) SC 1445
v) AIR (1998) SC 1626
vi) Municipal Corporation Bilaspur Vs. Veer Singh Rajput AIR (1998) 9 SC 258
vii) GTB Hospital Vs. Kamlesh and Ors.
viii) Orissa University and Agricultural Technology Vs. Manoj K Mohanti (2003) 5 SC Cases 188 9
ix) Essen Deinki Vs. Rajiv Kumar AIR (2003) S 38
x) Surrender Kumar Sharma Vs. Vikas Adhikari & Ors. (2003) 5 SC Cases 12
xi) Uma Rani Vs. Registrar Co-operative Society and Ors. (2004) 7 SC Cases 112 My findings on the issue are as follows :-Issue No. 1
10 The contention of the management that the claimants are not workmen U/s 2 (s) of Industrial Disputes Act is without any merit because it is settled law that the Industrial Disputes Act makes no distinction between a permanent employee and a temporary/casual/daily wages or ad-hoc employee. There cannot be any dispute in this regard. However, under I.D. Act, to show entitlement to relief U/s 25 F of the Act, the prerequisite is that the workman must have worked with management for 240 days in year. AR for the management pointed out that claimants as per the details given by the management never worked for 240 days in any year. They were called only for exigencies intermittently. To support this, the copies of the remittance roll maintained in 10 respect of the daily wagers and their attendance sheets were put on record as Ex. MW-1/1 to MW-1/14. The witness MW-1 was though subjected to grilling cross examination but it was nowhere put to the witness that any of these documents were not maintained in regular course of business or were fabricated subsequently to defeat the claim of the workmen. They have though alleged that all of them were working regularly till November 1999 but admittedly not even a single document or any other independent evidence has been adduced by them to corroborate their stand. In the case reported as M/s Essen Deinki Vs. Rajiv Kumar AIR 2003 SC 38, hon'ble Apex court held that onus of proof of fact of 240 days working for applicability of sec. 25F is on the workman in case of denial of such fact. The workmen herein have failed to discharge the onus. In circumstances, the question of violation of Sec. 25 F of ID Act in their case does not arise. The case law relied upon by the AR for workmen in this regard is therefore distinguishable on facts of this reference.
11 AR for the management has also submitted that 11 the claim of the workers is highly belated. Admittedly, the claimants have failed to bring on record any evidence to show that they worked continuously till 17.11.1999 or that their services were terminated on that date. The categorical stand of management is that the workers worked intermittently till 1994 as and when the need arose. It is also admitted case that they used to be employed through Employment Exchange. Their payment and attendance record are already produced and proved. Hence, it cannot be said that the management is guilty of withholding any best evidence. In any case, when it has been held herein above that there was no question of retrenchment in absence of work for 240 days in the preceding year, the attraction of Sec. 25 G or 25 H does not arise. 12 Admittedly, the respondent is a government hospital having well laid out procedure for appointment of regular employees. It can also not be denied that government procedures take time and in hospitals there can be urgent requirements on account of leave vacancies or other exigencies. In such cases, casual daily wagers are called as per procedure prescribed for that purpose. No 12 employment letters for such appointments are mandatory under law.
13 AR for the workmen canvassed that hospital is duty bound to consider these casual employees before any regular appointments. MW-1 has categorically stated that for regular appointments subsequent to 1992, public notices were issued and the posts/vacancies were duly advertised in the newspapers for public at large. It is not the case of workmen that the hospital has made any regular appointments without following the procedure prescribed. In a recent case, our own Hon'ble High Court in decision dated 22.12.05 in LPA No. 734/2002 titled Guru Teg Bahadur Hospital Vs. Kamlesh and Another has held as under :-
As noted above, all appointments of Ministerial staff and Contingency staff are required to be made in the hospital in accordance with the Recruitment Rules. For all regular appointments, the names are called from the employment exchange and only those who fulfill the requisite qualifications are considered by the duly constituted Departmental Selection Committee and on selection individuals are appointed. There are a number of regular sanctioned posts of Safai Karamchari in the hospital which are 13 required to be filled up in accordance with the Recruitment Rules. Since the respondent No. 1 was never selected by the Departmental Selection Committee, we fail to see how she can be regularized. She was even over-age at the time of her initial appointment. She was only appointed on leave vacancy as a daily wager. In our opinion she cannot be regularized, otherwise there will be violation of Rules. The respondent No. 1 was appointed dehors the Rules, whereas those regularly appointed after her appointment were appointed in accordance with the rules."
Hon'ble High Court had in this case relied upon decision of Hon'ble Apex Court in R.N. Nanjundappa T. Thimmiah (supra) held as under :-
"If the appointment itself is any infraction of the rules or it if is in violation of the provision of Constitution, the illegality cannot be regularized, ratification or regularization is possible of an Act which is within the power and province of authority but there has been some non compliance with procedure or manner which does not go to the rout of appointment. The regularization can not be said to be a mode of recruitment to accede to such a preposition would be to introduce a new head of appointment in defiance of the rules or it may have effect of a set of 14 naught the rules."
14 In view of this proposition of law laid down by Hon'ble Superior Courts in the above noted cases, it is held that no order for reinstatement as claimed can be made in favour of the claimants as it would amount to regularization of their services in contravention of the rules. Besides as mentioned above, claimants have failed to prove that they have worked for 240 days in the preceding year. Therefore, they cannot be entitled to protection available under Sec. 25 F of Industrial Disputes Act.
In another case titled as State of M.P. Vs. Arjun Lal Rajak 2006 LLR 381, their lordships held as under :-
"It is beyond any doubt or dispute that a daily wager does not hold a post. The Forest Department is a wing of the State. Its employees hold a status. For acquiring that status and for obtaining the constitutional protection in terms of Article 311 of the Constitution of India, all appointments must be made in conformity with the Constitutional Scheme as laid down under Articles 14 and 16 of the Constitution of India as well as the rules made in terms of the proviso to Article 309 of the Constitution of India or in terms of a Legislative Act. Concededly, while appointing the respondent, the 15 constitutional provision or the statutory provisions had not been followed."
In another case reported as Secretary, State of Karnataka and Others Vs. Umadevi and Others 2006(4) Scale 197 the respondents were temporarily engaged on daily wages in the Commercial Taxes Department. Their claim that they worked in the department based on such engagement for more than 10 years and hence they are entitled to be made permanent employees of the department entitled to all benefits of regular employees. Their Lordships held as under :-
"Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme."
"A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or 16 engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule."
Their Lordships further held that "But sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, The States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointments or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without 17 the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wise powers under Article 226 of the Constitution of India.
Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over.
It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment."
1815 In view of the above discussed facts, evidence and the settled position of law, I am afraid the authorities relied upon by the workmen do not render any assistance to them, being distinguishable on facts. 16 For the above lineated detailed reasons, I am satisfied that it cannot be held that the workmen were terminated illegally or unjustifiably by the management. They are therefore not entitled for any relief or directions in the present reference. The reference is answered accordingly. Copies of the award be sent to the appropriate government for publication as per law after necessary compliance by Ahlmad. File be consigned to record room.
Announced in the open court (MAMTA TAYAL) on 13th July, 2007 PRESIDING OFFICER LABOUR COURT-I KARKARDOOMA COURTS, DELHI (Six separate copies attached)