Sh. Harish Maan vs Municipal Corporation Of Delhi on 19 August, 2013

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Delhi District Court

Sh. Harish Maan vs Municipal Corporation Of Delhi on 19 August, 2013

IN THE COURT OF SH. BHUPESH KUMAR: PRESIDING OFFICER LABOUR
COURT NO. XVI: KARKARDOOMA COURTS : DELHI

ID NO. 138/07

Sh. Harish Maan
s/o Sh. Jagdish Maan
r/o Village & P.O. Shidi Pur
Lowa District.
Jhajjar, Haryana ...... Workman

VERSUS

1. Municipal Corporation of Delhi
The Commissioner,
Town Hall, Delhi.

2. The Head of the Department of CSE MCD
Basant Kunj, SectorA, Pkt1
New Delhi110037. ..... Management

Date of Institution : 03.10.07
Judgment reserved : 07.08.13
Date of decision : 19.08.13

A W A R D

1. The National Capital Territory of Delhi, through its Secretary (Labour) vide

reference no. F24/(432)/06/Lab./246072 dated 26.09.07 referred the dispute for

adjudication between the Management MCD and its workman Harish Maan in

ID No.138/07 1/14
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the following terms of reference:

"Whether services of Sh. Harish Maan s/o Sh. Jagdish Maan
have been terminated illegally and/or unjustifiably by the
management; if so, to what sum of money as monetary relief
alongwith other consequential benefits in terms of existing
Laws/Govt. Notification and to what other relief is he entitled
and what directions are necessary in this respect?"

2. Statement of claim filed by the workman wherein it has been submitted

the workman was working as a MAT in CSE Deptt. Of MCD. He was posted at

Vasant Kunj, SectorA, Pocket1, New Delhi and worked there from 01.06.98 to

31.03.00. He was appointed after selecting by duty constituted recruitment

committee. He was also examined by the competent medical authority and

declared fit for Govt. Service. After completing all the prerecruitment conditions,

he was given appointment w.e.f. 01.06.98 as MAT on daily wage basis. During

the tenure of his service, there was no allegations of misbehaviour, misconduct

or dereliction of duties against the workman. On 01.04.00 the workman was

called by Sh. Ramesh Dahiya, the then JE and he was directed to get his

transfer in the water supply department of MCD. As per direction, the workman

furnished his consent for his transfer. But he was not taken on duty in the water

supply department nor in the parent department i.e. CSE. No transfer orders

were issued in favour of the workman from CSE department to water supply

department. It has been submitted that Sh. Ramesh Kumar Dahiya has

terminated the services of the workman by misrepresenting the facts. The

ID No.138/07 2/14
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workman had continuously worked for a period of 456 days with the

management w.e.f. 01.06.98 to 31.03.00. The workman visited several times to

the management and also made representation dt. 23.06.04 to the department.

The workman has been working with the management for the last about one year

and nine months and was being paid an amount of Rs. 2,470/ as his last drawn

wages which is less than regular pay scale and minimum wages as declared by

the appropriate Govt. It has been further submitted that the services of the

workman has not been regularized by the management despite being no

difference in his working as well as working hours as a regular MAT employee.

The appointment of the claimant was proper, legal and valid and therefore

termination of his service is illegal, invalid and unjust because - the order of

termination was given illegally; the job against which he was working is of regular

and permanent nature and that post was duly sanctioned and is still continuing;

no memo or chargesheet was ever been served upon him; at the time of his

termination, no notice was given and no service compensation was offered or

paid to him; his name was struck off from the rolls of the management; the

management engaged fresh hands at his place after the illegal termination of his

services; the termination of services of the claimant was in violation of Section

25D, 25F, 25G, 25H, 25N, 25T and 24U of I.D. Act. Workman sent a legal

demand notice to the management but the management neither replied the same

nor any action was taken in this regard. The claimant is unemployed from the

date of his illegal termination and failed to secure any alternative employment

despite his best efforts. The prayer has been made by the workman for

ID No.138/07 3/14
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reinstatement with back wages from the date of his termination alongwith all

other consequential benefits.

3. Notice of the claim was issued to the management. Management has

contested the claim by filing WS and took the preliminary objection that no

demand notice has been served upon the management. It has been submitted

that the present case suffers from latches. The claimant has alleged termination

in the year 2000 whereas the present claim has been filed in the year 2007 i.e.

after the lapse of more than 7 years. It has been further submitted that the

claimant has not worked for 240 days in a calender year. He was engaged for a

specific purpose i.e. on seasonal nature of work. His engagement was for limited

period subject to time to time sanction as per the requirement of work. The

claimant was disengaged when the work was over.

On merits, it has been denied that the claimant worked from 01.06.98 to

31.03.00. It has been submitted that as per the record, the claimant has worked

only for 151 days with the management against the seasonal/temporary nature of

work. It has been further denied that the claimant was appointed by proper

selection procedure. The selection procedure is followed only for regular

appointments. It has been submitted that in MCD, the daily wagers are engaged

for the temporary/seasonal nature of work and for specific period. It has been

further denied that the claimant has worked for 255 days in a year with the

management. It has been submitted that the claimant has worked only for 151

days. It has been further submitted that the termination/disengagement of the

ID No.138/07 4/14
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claimant is not illegal in view of provisions of Section 2(oo)(bb) of I.D.Act. It has

been submitted that the claimant was working on daily wages at the time of

termination and his contention for regular appointment is totally false. On the

basis of these submission, prayer has been made to dismiss the claim.

4. Rejoinder filed. On the basis of the pleadings of the parties, following

issues were framed on 07.07.09 by my Ld. Predecessor Court :

i) Whether the workman has completed 240 days or not ?

ii) As per terms of reference.

5. The workman appeared in the witness box as WW1 and led his evidence

by way of affidavit Ex. WW1/A. The witness has deposed on the similar lines to

that of contents of his claim and got exhibited the documents exhibited as Ex.

WW1/ 1 to Ex. WW1/ 7.

During cross examination, workman deposed to the effect that he joined

as daily wager. He was repeatedly reemployed for 89 days on muster rolls. He

continuously worked from 01.04.99 to 31.03.00. He was not employed through

employment exchange or through any commission. He sent an application/form

to the MCD. There was no advertisement in any newspaper regarding the post

he applied. There was no transfer order issued by CSE department to DJB. He

was also not issued any relieving order by the CSE, MCD.

WE was closed.

ID No.138/07 5/14
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6. On behalf of the management, Sh.M.S.Yadav, Ex.Engineer, Najafgarh,

MCD appeared in the witness box as MW1. This witness has led his evidence

by way of affidavit as Ex. MW1/A. He has deposed on the similar lines to that of

written statement

During his cross examination, he deposed to the effect that the workman

joined the management in the year 1998 and worked till March 2000. The

workman was terminated as he remained absent for long period. After March

2000, the work of the MAT was being taken by some other workman and was

continued. He has no personal or official knowledge in this regard if any

compensation was paid to the workman. He has no knowledge if the MAT is

appointed after following the recruitment procedure i.e. interview etc.

ME was closed.

7. I have heard the arguments of Sh. Sudhir Gupta, AR for workman and Sh.

H.Kaushal, AR for management. My issuewise findings are as under:

Issue No.1 : Whether the workman has completed 240 days or not ?

AR for management has submitted that the workman has joined the

management for 89 days as daily wager and at no stretch of time, he has

continuously worked for 240 days with the management. Therefore, the

workman is not entitled for any relief.

ID No.138/07 6/14
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On the other hand, AR for workman has submitted that workman has

joined the management on 01.06.98 and worked till 31.03.2000. Workman has

continuously worked with the management for more than 240 days is proved

from Ex. WW1/ 1 i.e. the copy of the muster roll and Ex. WW1/ 2.

In rebuttal to both these documents, AR for management submitted that

both these documents are forged and fabricated documents and are not duly

proved because none of these documents are signed by any official of the

management nor the author of the documents has been examined.

Heard. Material perused. In respect of contention of AR for management

that Ex. WW1/ 1 and Ex. WW1/ 2 are forged and fabricated documents, it is

found that the management has not cross examined the workman in respect of

both these documents nor even a suggestion was put to the workman that both

these documents are forged and fabricated. It transpires that the testimony of

workman in respect of both these documents remained uncontroverted and

unimpeached. Regarding signing of the documents by any official of the

management, it is found that Ex. WW1/ 1 bears signatures of the concerned

official. Further in case the management claimed both these documents to be

forged and fabricated, then why the management has not brought on record the

documents pertaining to the job of the workman for the said relevant period.

Here it is necessary to reproduce the relevant portion of the cross

ID No.138/07 7/14
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examination of WW1, which is as under :

"It is correct that I joined as Daily Wager. It is correct
that I was repeatedly reemployed on 89 days regularly
muster rolls. I continuously worked from 01.04.99 till
31.03.00."

Here it is also necessary to reproduce the relevant portion of MW1 Sh.

M.S.Yadav, Ex.Engineer, MCD which is as under :

"It is correct that I am aware that the workman joined the
management in the year 1998 and worked till March
2000. It is correct that the workman joined the
management in June 1998....... It is correct that as
matter of record, the workman continuously worked with
the management w.e.f. 1998 till March 2000."

From the careful perusal of the unshaken cross examination of the

workman and the cross examination of MW1 , it reflects that though he was

appointed for 89 days regularly but he continuously worked w.e.f. 01.04.99 till

31.3.00 i.e. more than 240 days.

This discussion leads to the conclusion that there is sufficient material on

record which reflects that the workman continuously worked for 240 days prior to

the date of his termination.

ID No.138/07 8/14
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8. Issue No.2 : As per terms of reference.

"Whether services of Sh. Harish Maan s/o Sh. Jagdish Maan have
been terminated illegally and/or unjustifiably by the management;
if so, to what sum of money as monetary relief alongwith other
consequential benefits in terms of existing Laws/Govt.
Notification and to what other relief is he entitled and what
directions are necessary in this respect?"

AR for workman has submitted that the workman qualifies the conditions

of Section 25F of I.D.Act that an employer employee relationship exist between

the parties and that the workman has worked continuously for 240 days,

therefore, the workman cannot be terminated without payment of compensation

and notice pay as per Section 25F of I.D.Act. Further, it has been submitted

that the workman was selected by the Committee duly constituted for the

recruitment. He further submitted that he was undergone the medical

examination and his character etc. was duly verified.

AR for management has submitted that the workman was appointed on

daily wages. At no stretch of time, any regular post was sanctioned or advertised

by the management as claimed by the workman.

Heard. Before proceeding ahead for ready reference, here it is necessary

to reproduce the relevant portion of cross examination of workman, which is as

under:

ID No.138/07 9/14
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"I was not employed through employment exchange or
through any Commission. I sent an application/form to
MCD. There was no advertisement in any newspaper
regarding the post, I applied."

The cross examination of the workman reflects that the workman was not

appointed through employment exchange or the post was not advertised.

Further, the workman earlier in unmistakable terms has stated that he was

appointed as daily wager. Now, the question arises when the post of the

workman was regularized if it was regularized at any stretch of time. But the

workman has not produced any record/evidence in this regard nor has asked the

management to produce any such record at any stretch of time during the course

of the proceedings.

The material on record reflects that the post was not sanctioned nor

advertised nor the applications of other public candidates were called.

On this score, in Union Public Service Commission Vs. Girish Jayanti

Lal Vaghela and ors, 2006 (2) SCALE 115, it is held that :

"A regular appointment to a post under the State or
Union cannot be made without issuing advertisement."

In R.N Nanjundappa Vs. T.Thimmiah, 1972 AIR (SC) 1767 : 1972 (1)

SCC 409 : 1972 SLR 94 : 1972 LIC 618 : 1972 (1) LLJ 565 : 1972 (2) SCR 799

ID No.138/07 10/14
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wherein it was held by the lordship of Supreme Court that :

"if the appointment itself is in infraction of the rules or
if it is violation of the provisions of the Constitution,
illegality cannot be regularised. Ratification or
regularisation is possible of an act which is within the
power and province of the authority but there has been
some noncompliance with procedure or manner which
does not go to the root of the appointment.
Accordingly, where procedure is not followed,
regularization cannot be made." (Paras 26,27,28)

In Ashwani Kumar and ors Vs. State of Bihar and ors., 1996 Supp.

(10) SCR 120, it was held by their lordship of Supreme Court that :

"the confirmation of regularization can be done only in
case of available vacancy which is also sanctioned."

In A. Umarani Vs. Registrar, Cooperative Societies and ors.,

MANU/SC/0571/2004 it is held that :

"reinstatement and regularization cannot be mode of
recruitment by any State and no regularization can be
made where the services of an employee is ad hoc in
nature."

In State of U.P Vs. Niraj Awasthi and ors, 2006 (1) SCC 667, it was

held by the lordship of Supreme Court that :

ID No.138/07 11/14
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"there was no power in the State under Article 162 of
the Constitution of India to make appointments and
even if there was any such power, no appointment
could be made in contravention of statutory rules."

In the light of said judgments, it is found that no appointment can be made

in the Govt. department without following the proper procedure and no person

can be benefited in case he is appointed in violation of the said procedure.

Coming to the present matter, there is nothing on record that any regular post

was advertised or any appointment procedure was adopted. Under these

circumstances, the termination of the workman, if any, cannot be termed as

illegal and unjustified.

Further, AR for management submitted that the claim of the workman

suffers from latches and delay. It is submitted that the workman was lastly

worked with the management till 31.03.00 but he has filed the present claim in

the year 2008. There is a gap of around 8 years. On this score, it is found that

the workman has not uttered a single word in the claim as well as in the evidence

that what prevented him for filing the claim after a long gap of around 8 years.

In case Sher Singh vs. General Manager & Ors. (supra), Hon'ble High

Court has, interalia, held as under :

"It is settled proposition of law that in service jurisdiction,

ID No.138/07 12/14
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stale claims ought not be entertained The present
proceedings suffer from gross delay and latches on the
part of the petitioner....... There is not a whisper in the
petition, much less any documents on record, to indicate
as to what steps did the petitioner take for pursuing his
claim against the respondent bank for the past 22 years.

To simply state that the petitioner was awaiting the outcome of the criminal proceedings, is meaningless as remedies under the service jurisprudence are entirely different and were always available to him, independent of the criminal case."

In case Radhey Lal Pradeep Kumar & Anr. V/s Shyam Lal & Anr. (supra), Hon'ble High Court has held as under: "However, since this Court has found the dispute raised to be stale and the reference to be bad and the claim of the respondent workman to be barred by principle of latches, there is no need for this Court to compute the compensation to which the respondent workman would have been entitled to....... The award of the Labour Court impugned in this petition is set aside/quashed. The dispute raised by the respondent workman is found to be stale and barred by latches and the respondent workman found not entitled to any relief."

Considering the entire facts and circumstances, it is found that the findings of the aforesaid judgment are fully applicable to the facts of the present case.

This court has no hitch to reach at the conclusion that the workman has failed to explain the delay of around 8 years in filing the present claim and accordingly the claim the workman suffers from delay and latches.

ID No.138/07 13/14

14 In view of the above discussion, the reference is answered in negative and the workman is not entitled for any relief.

9. Award has been passed. Copies of the award be sent to the appropriate Govt. for publication as per law. File be consigned to Record Room after necessary compliance by Ahlmad.

Announced in the Open Court (BHUPESH KUMAR) th on 19 August, 2013 Additional District & Session Judge Presiding Officer Labour Court XVI Karkardooma Courts : Delhi.

ID No.138/07 14/14

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Delhi District Court

Sh. Harish Maan vs Municipal Corporation Of Delhi on 19 August, 2013