Delhi District Court
Whether The Cause Of Workman Has vs Arjunlal Rajak 2006 Llr 38 on 4 October, 2008
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I.D. No. 44/02 & C.C. No. 05/03..
IN THE COURT OF SH. GURDEEP KUMAR
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF
M/s. Delhi Vidyut Board,
Shakti Sadan,
Nehru Place,
New Delhi-110019.
...Management
Versus
Its workmen
As represented by Sh. Inderjit Singh & Associates,
21, Shyam Enclave,
New Delhi-110092.
...Workmen
This order shall dispose of I.D. No. 44/02 as well as
complaint case No. 05/03 as the cause of action for the latter is
alleged to have arisen during pendency of the form of industrial
dispute.
A W A R D / O R D E R:-
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
Date of institution of case : 29.08.02 / 28.01.03.
Date on which the judgment
has been reserved : 30.09.2008.
Date on which the judgment
has been delivered : 04.10.2008.
Secretary (Labour), Government of National Capital
Territory of Delhi has referred the dispute arising between the
parties named above for adjudication vide its order No. F. 24
(2539) / 2002 / Lab. / 16598 - 602 dated 28.08.2002 u/s
10(1)(d) and 12(5) of the I.D. Act, 1947 with the following terms
of reference:-
"Whether the workmen S/Sh. Ashok
Kumar Sharma and 83 others as
shown in Annexure-'A' are entitled for
regularization of their services and if
so, to what relief are they entitled and
what directions are necessary in this
respect?"
In I.D. No. 44/02 workmen's case in brief is that Sh. Ashok
Kumar Sharma and 83 others as mentioned in Annexure A to
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
the reference have been employed with M/s. Delhi Vidyut Board
since their respective duties shown against their names on the
post of Electrical Supervisors / Inspectors / Junior Engineers
(Electrical) on the stop gap arrangement / summer load
exigency / contract basis for six months from time to time with
artificial breaks, on the consolidated fixed salary of Rs. 5500/-
per month. Although, they performed the same work of same
value for similar working hours with similar responsibilities as
performed by Junior Engineers (Electrical) appointed on regular
basis and paid their salary in the regular pay scale of Rs. 5500-
9000/- with usual allowances and all other facilities and benefits
of regular employees but they were treated as stop gap
arrangement / summer load exigency / contract basis and paid
only Rs. 5500/- p.m. a fixed sum. Equal pay for equal work and
other facilities and benefits provided to regular Junior Engineers
are totally denied to them. It is further averred that the job of
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
Electrical Supervisor / Inspector / J.E (Electrical) against which
they were employed is of regular and permanent nature.
2. It is further averred that there is a large number of regular
vacant posts with the management but the management with
malafide intention wanted to exploit labour of youth, so have not
appointed the workmen on permanent / regular basis to deprive
them of the status and privileges of permanent employment,
just to get unlawful gains, although they are fully qualified and
experienced persons. They are registered with Employment
Exchange. Their employment on temporary, casual, badli, stop
gap arrangement / contract basis and treating them so for
years, is unfair labour practice which is prohibited under Section
25 T of the Industrial Disputes Act, 1947. The so called
contract is unilateral as the workmen had no other choice
except to accept the employment under the compelling
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
circumstances of great unemployment problem in the country,
just for survival of self and dependants in world. Such contracts
in compelling circumstances cannot be termed contract with
free consent. In the absence of free consent to an agreement
does not make such agreement as valid contract, having
binding force. Thus, this so called employment on contra
contract basis is a fraud, cheating, a device of exploitation and
flouting the provisions of Industrial Disputes Act. In May, 1998
Delhi Vidyut Board issued an advertisement inviting
applications for 290 posts of Inspectors (Electrical) which was
subsequently withdrawn on or around 30th May, 1998 for want
of approval of competent authority. On 02.09.1998 Delhi
Vidyut Board passed a resolution to appoint 150 electrical
Inspectors / Supervisors on contract basis for six months. On
12.10.1998 applications were invited for 150 posts of Electrical
Inspectors / Supervisors on contract basis for six months from 3
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
years diploma holders in Electrical Engineering, whose names
are registered in the Employment Exchanges, against 117
candidates, including some of the concerned workmen were
appointed on 03.02.1999. Due to acute shortage of the staff,
similarly 156 more Electrical Inspectors / Supervisors were
appointed on 05.05.1999 and 12 more were appointed in June,
1999 on contract basis six month on fixed sum of Rs. 5,500/-
p.m. The said appointments were made by Delhi Vidyut Board
on the basis of projection of demand for power during summer
and winter, being peak seasons when requirement of
technically qualified hands increases very much. The said
requirement is perennial in nature and not occasional or during
the summer months alone.
3. It is further averred that the workmen and some others
have filed various writ petitions including CWP No. 4432/99,
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
CWP No. 6468/99 and CWP No. 6493/99 against DVB. In
their affidavits in those proceedings Delhi Vidyut Board stated
that it does not want to continue with contract staff any more
and, therefore, there would be no need to make any further
appointments on contract basis. In the light of that affidavit,
interim orders passed earlier by Their Lordships were vacated.
Workmen's LPA No. 06/00 filed against the said order dated
08.12.1999 passed by Their Lordships was also dismissed by
Their Lordships on 07.01.2000. It is further averred that
despite the said assurances during the proceedings in the
Hon'ble High Court Delhi Vidyut Board issued letters of
appointment to the workmen herein and various others on
contractual basis for six months on consolidated salary of Rs.
5500/- p.m. The workmen herein and others have filed CWP
No. 6341/00 and 5980/00 in the Hon'ble High Court of Delhi
which was subsequently withdrawn. However, the
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
management of Delhi Vidyut Board suo motu further extended
the employment of the workmen on the same terms upto
30.06.2002 vide Office Order dated 24.04.2002 which was
further extended upto 31.08.2002. The business of Delhi Vidyut
Board w.e.f. 0.107.2002 under Disinvestment Policy of
Government of N.C.T. of Delhi written statement transferred in
the name of following companies :-
1. DISCOM-1, BSES Yamuna Power Ltd., through its C.E.O.,
Law Department, Kamla Market, New Delhi.
2. Delhi Power Supply Co. Ltd. (TRANSCO)
Through its Chief Managing Director / CLO
Sub-Station, New Delhi.
3. DISCOM-2, BSES Rajdhani Power Ltd.
Through its C.E.O., BSES Bhawan,
Nehru Place, New Delhi.
4. DISCOM-3, TATA Power Ltd., New Delhi. (North Delhi Power
Limited).
The managements of the said companies decided to
discontinue the services of the workmen w.e.f. 31.08.2002
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
although there was large availability of the work and vacant
sanctioned posts. The workmen have sought directions to
regularize their services from their initial dates of appointment
with Delhi Vidyut Board on the post of Electrical Supervisors /
Inspectors / Juniors Engineers (Electrical) in the proper pay
scale with usual allowances and other benefits. They have also
asked for the relief for equal pay at par with Junior Engineers
(Electricals) appointed on regular basis from initial dates of their
employment, on the principle of equal pay for equal work.
4. The reference was received by my ld. Predecessor on
29.08.2002. Workmen filed their statement of claim on
07.01.2003. In the statement of claim, the workmen mentioned
the names of BSES Yamuna Power Limited, BSES Rajdhani
Limited, Delhi Power Supply Co. Ltd. and NDPL in the array of
the managements and, therefore, notices were sent to them as
Contd...
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I.D. No. 44/02 & C.C. No. 05/03..
well. On 15.07.2003 Mr. B.K. Singh as A.R appeared for Delhi
Transco Ltd. Successor and Trust of DVB. Vide his orders
dated 15.07.2003 my ld. Predecessor deleted the names of
respondent No. 1, 2 and 4 mentioned in the said statement of
claim. The said Delhi Transco Ltd. filed written statement and on the basis of the pleadings on record by that date my ld. Predecessor vide orders dated 30.10.2003 settled issues as under :-
1. Whether the cause of workman has been duly espoused? (OPW).
2. Whether the claim is not maintainable?
(OPW)
3. Whether the claim is not maintainable against Delhi Transco Ltd.?
4. Whether the Discom-I and II and Delhi Power Transco is not liable for the claim? (OPM)
5. Whether the workmen are entitled for regularization as claimed?
Contd...
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6. In terms of reference.
On 22.11.2004 Delhi Transco Ltd. filed an application that the management of BSES Rajdhani Power Ltd, BSES Yamuna Power Ltd. and NDPL be treated as party besides Delhi Transco Ltd. Notice was sent to the said companies and the said application was allowed by my ld. Predecessor vide orders dated 28.02.2005.
5. Delhi Transco Ltd. has filed a written statement taking preliminary objections that the terms of reference is against M/s. Delhi Vidyut Board which is no more in existence having been unbundled in terms of the provisions of Delhi Electricity Reforms Act, 2000 read with Delhi Electricity (Transfer Scheme) Rules, 2001 in as much as the terms of reference is against the non-existing organization, the same is wholly Contd...
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misconceived and ill-conceived. M/s. Delhi Transco Limited is not a party to the terms of reference and, therefore, claim against that company is not maintainable. It is further averred that in terms of reference which relates to the alleged regularization of the claimant Ashok Sharma & 83 others whose names are given in Annexure A to the terms of reference. Out of the said 84 persons, only few persons came on the rolls of Delhi Transco Ltd. whose names are mentioned in the Annexure A to the written statement. As far as the rest of the claimants are concerned, they never came on the rolls on Delhi Transco Limited and as such their claim against Delhi Transco Limited is liable to be rejected. Regarding the persons whose names are given in Annexure-A to the written statement, it is further averred that the terms of their employment have already been overred. After expiry of their contract period on the dates given against their respective names in the said annexures, Contd...
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they are no more on the rolls of Delhi Transco Ltd. and as such question of their regularization does not arise. It is further averred that claim is not maintainable for want of espousal of their cause. On merits, Delhi Transco Ltd. stated that none of the claimants were taken by Delhi Vidyut Board by a due procedure and selection through Delhi Subordinate Services Selection Board (DSSSB) as was done for the regular employees of erstwhile Delhi Vidyut Board from time to time and, therefore, the workmen are not entitled to be regularized. It is also denied that they are entitled to equal pay for equal work or that nature of their work and responsibilities are similar and identical to the regular employees. Rest of the averments in the statement of claim are denied in toto. It is denied that any of the claimants are entitled to be appointed / regularized on their services from the initial date of their appointment or any other relief Contd...
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6. The management of NDPL has also filed a written statement taking preliminary objections that the appointments of the claimants by erstwhile Delhi Vidyut Board were due to seasonal pressure of work and claim against the newly formed corporate entities including NDPL is not maintainable as the said appointments were based on contract and there was no privity between the newly formed corporate entities and the said claimants. It is further averred that the reference was made against Delhi Vidyut Board and it is well settled that the dispute can be settled between the parties mentioned in the reference. The only exceptions can be, if successor-in-interest came forward or if the appropriate government issues the corrigendum to the reference. Since, this is not the case herein, the claim is without any merits and beyond jurisdiction of this Tribunal. It is further averred that names of the claimants Contd...
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were not mentioned in the transfer scheme issued under Delhi Electricity Reform (Transfer Scheme) Rules, 2001. Therefore, the services of the claimants were never allocated to NDPL. They were neither appointed by NDPL nor their services were discontinued by NDPL. They were initially appointed by the erstwhile Delhi Vidyut Board for a specific period and on the expiry of specific period, their services stand terminated without any notice. Rest of the averments are denied in toto. It is also denied that the claimants are entitled to regularization on the posts from initial date of their employment by BSES.
7. BSES Yamuna Power Ltd. and BSES Rajdhani Power Ltd. have filed joint written statement taking preliminary objections that the claim is not maintainable for want of relationship of employer and employee between them and the workmen. They were never engaged by them and they were engaged by Contd...
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erstwhile Delhi Vidyut Board which is no more in existence after 30.06.2002. They were engaged by erstwhile Delhi Vidyut Board temporarily from time to time for specific work for stop gap arrangement / summer load exigencies on contract basis with breaks on consolidated salary of Rs. 5,500/- per month. It is further averred that the reference had been made only against Delhi Vidyut Board and this Tribunal has no right to change / add / alter / amend the parties in the reference. It is only the appropriate government which can change / add the parties to the reference by way of passing a corrigendum to the Tribunal. It is further averred that the contract of the claimants engaged by Delhi Vidyut Board came to end on 31.08.2002 and, therefore, the claimants have no concern with them.
8. It is further averred that the claimants in question were employed by erstwhile Delhi Vidyut Board prior to its unbundling Contd...
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on 30.06.2002; that they were employed specifically on contract basis on a fixed lump sum subject to availability of work. It is denied that the claimants used to perform duties similar and identical to the duties being performed by Junior Engineer ( Electrical) who were appointed on regular basis. It is denied that the claimants are entitled to regularization or any other relief. Rest of the averments in the statement of claim are denied in toto.
9. The workmen filed rejoinder denying averments in the written statements and reiterating the facts stated in the statement of claim.
10. In the light of the said written statements filed by the companies, namely, BSES Rajdhani Power Limited, BSES Yamuna Power Limited, Delhi Transco Limited and DPCL, my Contd...
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ld. Predecessor on 08.08.2005 reframed issues which are reproduced below:-
1. Whether the cause of the workmen has been duly espoused? (OPW)
2. Whether the claim of the workmen is not maintainable? OPM
3. Whether Delhi Power Company Limited is not liable in the present claim? OPM.
4. Whether North Delhi Power Limited is not liable in the present claim? OPM.
5. Whether BSES Rajdhani Power Limited is not liable in the present claim? OPM.
6. Whether BSES Yamuna Power Limited is not labile in the present claim? OPM.
7. Whether Delhi Transco Limited is not liable in the present claim?
8. Whether the workmen are entitled for regularization? OPW.
Contd...
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9. In terms of reference.
11. Both the parties have adduced their respective evidence. Out of the 84 workmen mentioned in the annexure A to the reference, workmen, namely, Anil Kumar - WW1, Jitender Kumar - WW2, Sunil Kumar - WW3, Kanwal Jeet Singh - WW4, Anil Kumar - WW5, Pankaj Kumar - WW6, Arun Kumar
- WW7 and Peeyush Saxena - WW8 entered the witness box and tendered their respective affidavits in evidence reiterating their averments as spelled out in the statement of claim. Rest of the workmen mentioned in the annexure A to the reference did not enter the witness box to adduce their evidence.
12. As against this, the management examined MW1 - Mr. R.C. Kataria from BSES Yamuna Power Limited and BSES Rajdhani Power Limited, MW2 - Shashi Kumar from NDPL, Contd...
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MW3 - Mr. K. Sivaraman from DPCL and MW4 - Mr. Sudarshan Kumar from Delhi Transco Limited. They all tendered their respective affidavits Ext. MW1/A to MW4/A respectively in their evidence reiterating averments in their respective written statements. MW1 - Mr. R.C. Kataria also relied upon a document Ext. MW1/1. MW4 Mr. Sudharshan Kumar also relied upon the documents Ext. MDTLW1/2 to MDTLW1/4.
13. Coming to the complaint case No. 05/03, it has been filed by Sh. Anil Kumar one of the claimants in I.D. No. 44/02 against BSES Yamuna Power Limited under Section 33 (A) of the Industrial Disputes Act, 1947. Contention of the complainant is that during pendency of the said industrial dispute, the management has terminated his services w.e.f. 02.09.2002 in violation of the provisions of Section 33 (A) of the Industrial Contd...
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Disputes Act, 1947 and, therefore, the management be directed to reinstate him in the services with continuity of service and full back wages on the post of Electrical Supervisor / Junior Engineer.
14. In the written statement filed by the management, it is stated that the reference (I.D. No. 44/02) is itself without jurisdiction and bad in law and as such complaint under Section 33 (A) of the Industrial Disputes Act, 1947 is not maintainable. It is denied that it has violated provisions of Section 33 (A) of the Industrial Disputes Act, 1947 or terminated services of the complainant at any point of time. It is also denied that the complainant was ever an employee of the management, and, therefore, question of termination of his services does not arise.
15. The complainant filed rejoinder denying averments in the Contd...
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written statement and reiterating the facts stated in the complainant. On the said pleadings, vide orders dated 19.01.2004 my ld. Predecessor settled the issues as under :-
1. Whether the management has violated the provisions of Section 33 (A) Of the Industrial Disputes Act, 1947? OPC
2. Whether the complainant is not workman? OPR
3. Relief.
The complainant examined himself as CW1 and tendered his affidavit dated 16.04.2004 reiterating the averments as spelled out in the complainant. He also relied upon the documents Ext. CW1/1 to CW1/8. In his cross examination he admitted to have never worked for Delhi Transco Limited or Delhi Power Company Limited. He also admitted that he was appointed purely on contract basis and was employed by Delhi Vidyut Board which was unbundled w.e.f. 30.06.2002. He Contd...
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further admitted that the last renewal of his contract was upto 31.08.2002 which was never renewed thereafter. He also admitted to have worked after 31.08.2002 as his contract had expired on that day.
16. On the other hand, the management examined MW1 - Mr. R.C. Kataria who tendered his affidavit Ext. MW1/A reiterating averments in the written statement. He also relied upon the document Ext. MW1/1.
17. I have heard ld. A.Rs for the managements and considered the submissions made by them. A.R for the workmen did not address any arguments despite repeated opportunities and his opportunity to address arguments was closed vide orders dated 30.09.2008. I have also gone through the written submissions placed on record by the managements Contd...
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and the evidence and other relevant material on record. My findings on the issues are as under :-
ISSUE NO. 1. in I.D. No. 44/02.
Whether the cause of the workmen has been duly espoused? OPW.
18. Admittedly, this is not a dispute covered under Section 2 (A) of the Industrial Disputes Act, 1947. In order to bring it within the ambit of an industrial dispute as denied under Section 2(k) of the Industrial Disputes Act, 1947, the claimants are required to plead and prove by cogent evidence that their cause has been espoused by the union or by sufficient number of workers of the managements. Bare perusal of the statement of claim does not reveal any plea to that effect nor there is any evidence whatsoever by the claimants. In the absence of any Contd...
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pleadings and evidence, I am of the considered view that claimants have failed to prove espousal of their cause by the union or by sufficient number of workers of the managements to bring their dispute within the ambit of an industrial dispute as defined under Section 2 (k) of the Industrial Disputes Act, 1947. The issue is accordingly decided against the claimants and in favour of the managements.
ISSUES NO. 2 to 9 in I.D. No. 44/02.
2. Whether the claim of the workmen is not maintainable? OPM
3.Whether Delhi Power Company Limited is not liable in the present claim? OPM.
4. Whether North Delhi Power Limited is not liable in the present claim?
OPM.
5. Whether BSES Rajdhani Power Limited is not liable in the present Contd...
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claim? OPM.
6. Whether BSES Yamuna Power Limited is not liable in the present claim? OPM.
7. Whether Delhi Transco Limited is not liable in the present claim?
8. Whether the workmen are entitled for regularization? OPW.
9. In terms of reference.
In view of the findings on issue No. 1 above, this Tribunal has no jurisdiction to adjudicate the dispute between the parties. Besides, reference is only against Delhi Vidyut Board. The claimants in their statement of claim referred to unbundling of Delhi Vidyut Board on 30.06.2002 and creation of six companies but did not go for issuance of corrigendum. They were required to approach the competent government for issuance of corrigendum to change / add the names of the managements in place of or in addition to Delhi Vidyut Board as Contd...
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the unbundling of Delhi Vidyut Board and creation of six companies had taken place before the reference had been received in this Tribunal. In the light of these facts, reference to these companies by the claimants in their statement of claim is beyond the terms of reference and in view of this, their claim against all these companies by getting them served during the proceedings without issuance of corrigendum by the appropriate government without their inclusion in the reference cannot be said to be maintainable.
19. In view of the findings on issue No. 1 above, there is no question of an industrial dispute as defined under Section 2 (A) or 2 (k) of the Industrial Disputes Act, 1947 to be adjudicated by this Tribunal. As admitted by WW1 to WW8, no demand notice was served by them on erstwhile Delhi Vidyut Board or any of the companies that succeeded the Delhi Vidyut Board. Service Contd...
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of demand notice is pre-requisite for raising an industrial dispute under Section 10 (2) of the Industrial Disputes Act, 1947 and in the absence of service of demand notice by the claimants goes to prove non-existence of an industrial dispute within the meaning of Section 2 (A) or 2(k) of the Industrial Disputes Act, 1947. As a result, it cannot be said that the claimants are entitled to any relief or any directions from this Tribunal.
20. Otherwise also, as admitted by WW1 to WW8 in their cross examination, they had been engaged by erstwhile Delhi Vidyut Board on contract basis for specific period which was extended from time to time which admittedly expired lastly on 31.08.2002. Ext. WW1/1 which is a document placed on record by the claimants and thus it is revealed that the claimants mentioned therein had been engaged for different purposes Contd...
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specified therein on contract basis which expired lastly on 31.08.2002. It is not the case of the claimants nor anything has been proved in evidence to say that they had been employed by erstwhile Delhi Vidyut Board by following the due selection procedure. This goes to show that their engagement was dehors the recruitment rules. In other words, recruitment rules for the post concerned were not followed in their appointments with Delhi Vidyut Board and, therefore, the claimants do not have any legal right to be regularized on the said posts. The claimants at no stage had any lien or any rights whatsoever qua those posts on which they worked on contract basis for specific period. In view of the matter WW1 to WW8 and any of the 84 claimants mentioned in the annexure A to the reference cannot be said to be entitled to any relief including regularization of their services on any of the posts mentioned in the statement of claim. As admitted by WW1 to WW8 their contract period Contd...
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expired on 31.08.2002 and they have not worked with any of the companies which came into existence after unbundling of Delhi Vidyut Board and, therefore, the question of their regularization with any of the managements does not arise. On this, I am fortified by the settled proposition of law. The Hon'ble Apex Court in State of M.P Vs. Arjunlal Rajak 2006 LLR 381 has 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 constitutional provision or the statutory provisions had not been Contd...-:31:-
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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."
Contd...
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"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 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 Contd...
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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 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 Contd...
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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."
The Hon'ble Apex Court in the case reported as State of H. P. Vs. Suresh Kumar Verma and another AIR 1996 Supreme Court 1565 has laid down as under :-
It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of Contd...-:35:-
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the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
In the case reported as Ashwani Kumar and others Vs. State of Bihar and others AIR 1997 Supreme Court 1628 there was recruitment in T.B Eradication Programme of the Government supported by planned expenditure. Selection Committee entrusted to recruit 2250 Class III and Class IV employees. 6,000 employee were recruited by adopting kick and choose principle. Establishment procedure for appointment of Class III and IV employees was not followed. It was was held by Their Lordships that recruitment was made ex facie illegal and not binding on State Government; that there could not be recruitment without sanctioned post backed by financial Contd...-:36:-
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budget support; that procedure laid down by Government for recruitment had to be followed though appointment was not to State service. It was further held by Their Lordships that employee whose entry in the service is illegal being in total disregarded of recruitment rules or being not on existing vacancy, has no case for regularization.
Same is the proposition of law laid down by the Hon'ble Apex Court in Surendra Kumar Sharma Vs. Vikas Adhikari and another (2003) 5 Supreme Court Cases 12. In the case reported as Umarani Vs. Registrar, Cooperative Societies and others (2004) 7 Supreme Court Cases 112 held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed thereunder and in ignorance of essential qualifications, the same would be illegal and cannot be regularized by the State by invoking power under Article 162 of the Constitution to regularize such Contd...-:37:-
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appointments.
Our own Hon'ble High Court in a decision dated 22.12.2005 in LPA No. 734/2002 titled Guru Teg Bahadur Hospital Vs. Kamlesh & Another relying upon decision by the Hon'ble Apex Court in R. N. Nanjundappa T. Thimmiah (1972) 1 SCC 409: (AIR 1972 SC 1767) and State of H.P. Vs. Suresh Kumar Verma and Another (1966 ) 7 SCC 562, 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 required to be filled up in accordance with the Recruitment Rules. Since the Contd...-:38:-
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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."
The Hon'ble Apex Court in R.N. Nanjundappa T. Thimmiah (supra) held as under :-
"If the appointment itself is in infraction of the rules or if it is in violation of the provision of Constitution 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 root of the appointment. 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 Contd...-:39:-
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in defiance of the rules or it may have effect of a set of naught the rules."
Out of the 84 claimants mentioned in annexure A to the statement of claim, the remaining 76 have not appeared in the witness box and as such there is no evidence from their side and, therefore, they also cannot be said to be entitled to any relief or any directions from this Tribunal.
21. Now, I shall take up the issues framed in complaint case No. 05/03.
ISSUES NO. 1, 2 & 3.
1. Whether the management has violated the provisions of Section 33 (A) Of the Industrial Disputes Act, 1947? OPC
2. Whether the complainant is not workman? OPR
3. Relief.
Contd...
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All the issues are interconnected and hence taken up together.
In view of findings on issues No. 1 and 2 to 9 in I.D. No. 44/02 it has been held that no industrial dispute as defined under Section 2(A) or 2(k) of the Industrial Disputes Act, 1947 was pending adjudication in Industrial Tribunal on the day of alleged termination of services of the claimant Anil Kumar. In view those findings, question of violation / contravention of the provisions of Section 33 (A) of the Industrial Disputes Act, 1947 by the respondent management during pendency of the said I.D. No. 44/02 does not arise. Therefore, the claimant Anil Kumar is not entitled to any relief in the complaint under Section 33 (A) of the Industrial Disputes Act, 1947 and his complaint is dismissed being without any merits.
22. In view of the aforesaid findings and for the detailed Contd...
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reasons given therein, all the claimants mentioned in I.D. No. 44/02 and the complainant Anil Kumar in complaint case No. 05/03 are not entitled to any relief or any directions from this Tribunal. Complaint under Section 33 (A) of the Industrial Disputes Act, 1947 is dismissed. Reference which is the subject matter of I.D. No. 44/02 is answered accordingly in view of the management and against the workmen and is disposed of accordingly.
The reference is answered accordingly. File be consigned to record room after due compliance by the Ahlmad.
(GURDEEP KUMAR) ANNOUNCED IN THE OPEN COURT PRESIDING OFFICER ON 4th Day of October, 2008. INDUSTRIAL TRIBUNAL II, K.K.D COURTS, DELHI Contd...