Delhi District Court
Sh. Shashikanta Panda vs The Indian School on 28 July, 2009
DID No. 337/2008
1
IN THE COURT OF SH. S.K. KAUSHIK,
ADDITIONAL DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI
DID No. 337/2008
INDUSTRIAL DISPUTE BETWEEN
Sh. Shashikanta Panda
C/o Janvadi General Kamgar Mazdoor Union,
Room No. 95, Baracks No. 1/10,
Jamnagar House,
Shahjahan Road,
New Delhi - 110011
.........Workman
AND
The Indian School,
Through its Director,
Josip Broz Tito Marg,
New Delhi - 110049
.........Management
Date of institution : 23.02.2004
Date of argument : 13.07.2009
Date of award : 28.07.2009
AWARD
1.An Industrial Dispute between the management of The Indian School, Josip Broz Tito Marg, New Delhi - 110049 Through its Director DID No. 337/2008 2 and Sh. Shashikanta Panda C/o Janvadi General Kamgar Mazdoor Union, Room No. 95, Baracks No. 1/10, Jamnagar House, Shahjahan Road, New Delhi - 110011 was raised directly by the workman under section 10 (4A) of The Industrial Dispute Act, 1947 (in short Act) alleging that he was initially appointed by the management as Maintenance Assistant w.e.f. 03.2.99 to look after all electrical, mechanical, sanitary and civil works of the Indian School as per Annexure A which was revised w.e.f. 01.4.02 instead of 01.1.96 as per Annexure B; that management was bent upon to terminate / retrench his service without following procedure of law as he was continuously performing his duties of permanent nature w.e.f. 03.2.99 and maintenance work is a job of perennial nature; that treasurer of the management served retirement scheme vide letter dated 06.10.03 Annexure C, which he did not accept; that about 12 workmen including him staged a Dharna against unlawful retrenchment scheme of the management on 10.12.03 and 12.12.03 and thereafter management did not permit him to enter the school premises and handed over the papers as per Annexure D (Collectively DID No. 337/2008 3 three pages) to him at the school gate; that he wrote to Director of Education and other authorities against unlawful proforma as per Annexure E; that management was bent upon to terminate his service and so sent a so called retrenchment letter dated 16.1.04 Annexure F through registered AD post along with a cheque of Rs.39,681/; that this action of the management was only a camouflage for penalizing him for not signing the undertaking or for not offering retirement scheme; that he was not only performing the work of Electrician but he was appointed for the work of maintenance of electrical work, mechanical work, sanitary and civil work; that management had to serve 21 days notice U/s 9A ID Act for showing that assessment of the management was not an arbitrarily act and so the retrenchment order served upon him was for his victimization and management did not act in good faith but in a colourable exercise of employer's rights which is an unfair Labour Practice as per item No.5 of fifth schedule; that thereafter his daughter was thrown out of the school against which he filed writ petition; that after this illegal action, management awarded work to some fake DID No. 337/2008 4 contractors; that work which he was performing is still in existence being work of electrician, mechanical, sanitary and civil work; that he performed his duties till illegal termination of his service i.e. till 16.1.04 and so the stand of the management that work of electrician on full time is not of a permanent basis is unjustified; that he was given designation as Electrician at the time of his conformation in service on 08.4.02 but his duties were clearly mentioned in the order of regularization i.e. 03.2.99 that he would look after work of electrical, mechanical, sanitary and civil work and it can not be understood as to how within 10 months, the work could be reduced from full time to part time; that management cannot reduce the work of a permanent nature without following the provision of Section 9A ID Act; that he got the cheque encashed due to financial crunch. Workman prayed for directing the management to reinstate him as Electrician with full back wages and continuity of service with consequential benefits.
2. Management contested the case by filing written statement. It is DID No. 337/2008 5 alleged by way of preliminary objections that this claim is not maintainable as school is not an industry. It is alleged that the proper forum for agitating this dispute is Delhi School Education Tribunal in view of rule 124 of Delhi Education Rules 1973 which deals with code of conduct for employees other than teachers. It is stated that this claim is misconceived as it was a case of retrenchment of service of a workman which is a matter under jurisdiction of Industrial Tribunal and so a Labour Court has no jurisdiction. In para wise reply management stated that contents of para 1 of the claim are a matter of record. In reply to para 2 of the claim it is stated that claimant was employed as an Electrician w.e.f. 03.2.99 and his salary was revised w.e.f. 01.4.02. Management denied contents of para 3 of the statement of claim and submitted that school had reorganized its working, functioning, administration and financial outflows as a consequence of which requirement for engagement of a full time electrician on permanent basis was considered to be financially unviable since full time Electrician was not required as there was inadequate work available for the Electrician. DID No. 337/2008 6 It is alleged that maintenance work at the school is not of a perennial nature. Management alleged that a school in Delhi works for about 220 days in a year and school children are not heavy consumers of facilities of school like water, electricity etc. It is stated that school provides quality utilities and so its breakdown, damage or repair is not of a perennial or regular nature. In reply to para 4 of the claim, it is stated that action of the school in retrenching the service of the claimant was for bonafide and valid reason as stated in the letter dated 16.1.04. It is stated that claimant and other employees resorted to various illegal activities and staged dharna and a hunger strike with the sole purpose of coercing the school to accede to their unjustified demand for which they were liable to strict disciplinary action as school had been granted an injunction by the civil court against staging dharna, gherao etc. It is stated that on the next date i.e. 12.12.03 claimant got ill and Police was summoned and he was taken to hospital where doctor advised him to take food but claimant refused and then he returned to the school and again sat on dharna in front of reception area of the school. It is stated DID No. 337/2008 7 that in evening condition of the claimant deteriorated due to which he was taken to the hospital by costriking employees and thereafter dharna was called off. In reply to para 5 of the claim it is stated that an undertaking was solicited from the claimant but he did not submit that undertaking pertaining to the acts of grave misconduct committed by him. In reply to para 6 of the claim it is stated that service of the claimant was retrenched vide letter dated 16.1.04. Management denied that its action is a camouflage for panalising the claimant for not signing the undertaking and for not accepting the retirement scheme dated 06.10.03. It is alleged that action of the school did not amount to change in service conditions and also did not amount to application of section 9A ID Act. In reply to para 8 of the claim it is stated that daughter of the claimant was studying on fee concession as a gesture of goodwill and she discontinued her studies at the end of academic year 2003 - 2004. Management denied the contents of para 9 of the claim and alleged that school authorities engaged the services of professionals from the market as per its requirement. Management DID No. 337/2008 8 denied that it employed any person in place of the claimant for performing maintenance and other jobs. Management denied the contents of para 10, 11, 12, 13 & 14 of the claim. Management alleged that claimant is not entitled to any relief.
3. Workman did not file rejoinder. From pleadings of the parties Ld. Predecessor framed following issues:
1. Whether the school is not an "industry" as defined under section 2(J) of the Industrial Disputes Act 1947?
2. Whether the school is governed by School Education Act 1975 and the rules framed thereunder?
3. Whether this court has no jurisdiction to try and entertain the matter?
4. Relief.
5. Both the parties were directed to lead evidence by way of affidavit.
Workman filed his affidavit Ex. WW1/A. He relied upon seven documents. Five of these documents are Ex.WW1/1 to Ex.WW1/5 and two documents are Mark A and Mark B. He was cross examined by AR DID No. 337/2008 9 for the management. Management examined its Bursar Sh. Kanwar Sain Vaid as MW1, who filed his affidavit Ex.MW1/A. He was cross examined by AR for the workman.
6. I have heard learned authorized representative (hereinafter to be referred as AR) for the parties and have gone through the record. Findings on the issues are as under:
ISSUE NO. 1
7. Onus to prove this issue was upon the workman. AR for workman submitted that as per judgment of Apex Court in Banglore Water Supply Vs. A. Rajjappa: 1978 I LLJ 349 a school is an industry. I have carefully considered this submission. Their Lordships in Banglore Water Supply's case (supra) held that if an education institution fulfills the triple test then it cannot be exempted from the scope of section 2(J) ID Act. By relying upon this judgment of the Apex Court, Their Lordships in the DID No. 337/2008 10 judgment reported as Ram Kishan Vs. Samrat Ashok Technical Institute Vidisha: 1995 I LLJ 944 (MP) held that the educational service is not only an industry but is the mother of industries. Accordingly I hold that the management school is an industry within the meaning of the term U/s 2(J) ID Act qua the claim of the workman. This issue stands decided accordingly in favour of the workman. ISSUE NO. 2 & 3
9. Case of the management is that the school is governed by Delhi School Education Act 1973 and Delhi School Education Rules 1973 and therefore, the appropriate forum is Delhi School Education Tribunal and not the Labour Court.
10. Similar question came up for consideration in the case reported as Management of M/s Mahavir Senior Secondary Model School, Delhi Vs. Ram Surat Mishra, 2007 LLR 326. In this case Their Lordships DID No. 337/2008 11 rejecting the contention of the school management that it was governed by Delhi School Education Act / Rules 1973 and so workman should raise dispute before Delhi School Education Tribunal, observed as under:
"The remedy to a terminated school employee will be either under the Delhi School Education Act or the Industrial Disputes Act and, as such, on applicability of the Industrial Dispute Act, it cannot be said that he should avail the remedy as available under the Delhi School Education Act."
11. In view of the above referred judgment I hold that even if the school is governed by Delhi School Education Act / Rules, 1973, the jurisdiction of this court is not barred. Both these issues stand disposed of accordingly.
ISSUE NO. 4
10. This issue is regarding the relief to be granted to the workman. Relief can be granted to the workman only when it is found that his service was terminated illegally. Thus point that come up for DID No. 337/2008 12 consideration now is whether service of the workman was terminated illegally.
11. Case of the management is that the school had reorganized its functioning, administration and financial out flows as a consequence of which requirement for engagement of full time Electrician on permanent basis in the employment of the school was considered financially unviable and so action of the school in retrenching the service of the claimant was based on bonafide and valid reasons, as stated in the letter dated 16.1.04. Before proceeding further contents of letter dated 16.1.04 need to be considered.
12. The letter dated 16.1.04 reads:
"As you aware, your services have been engaged by our school since 03.2.1999 as an Electrician. During this period we have carefully assessed the quantum of work as also the requirements for engagement of a full time Electrician on a permanent basis in the services of our School. We have also carefully considered the financial implications of retaining a DID No. 337/2008 13 full time Electrician on the School rolls. Based on the aforesaid facts, the management has taken the decision not to retain on the rolls of the school an Electrician on full time permanent basis. We have also carefully considered our records and observe that you are the only Electrician employed by the school on a full time permanent basis, hence there are no other Electrician, much less a Junior Electrician in the services of our school. In the light of the above facts and circumstances, please be informed that we do not require your services any further with effect from the afternoon of January 16, 2004 i.e. you shall stand retrenched from our services.
13. AR for the workman submitted that management could not effect any change in the service condition of the workman in respect of the matters specified in the Fourth Schedule of ID Act without giving 21 days notice to the workman. He submitted that when by reorganization of the functioning, administration and financial outflows, management was going to declare the workman as surplus then it was certainly a change in the condition of service of the workman and so management was under a legal obligation to serve a 21 days notice to the workman U/s 9A ID Act. He submitted that since management did not comply with the DID No. 337/2008 14 provisions of Section 9A ID Act and so the action of the management in retrenching the workman on the basis of such reorganization was illegal. He relied upon the judgment of the Apex Court reported as Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad: 1999 II LLJ 600 and judgment of Rajasthan High Court reported as Mohan Singh & Others Vs. R.S.R.T.C. & Another: 1993 II LLJ 104. AR for the management submitted that management did not initiate any such action for which Section 9A could be said to be applicable. He submitted that Section 9A ID Act is not applicable and contention of the AR for the workman is without merit.
14. For appreciating the rival contentions Fourth Schedule of ID Act needs to be considered. Item No. 10 of the IVth Schedule reads:
rationalization, standardisation or improvement of plant or technique which is likely to lead to retrenchment of the workmen. Reorganization of functioning, administration and financial outflows of the management DID No. 337/2008 15 resulted in issue of the letter dated 16.1.04 to the workman, reproduced as above, meaning thereby that by way of this reorganization management declared the workman as surplus and then retrenched him on the ground that he was the only Electrician.
15. In the judgment reported as Hindustan Liver Ltd. Vs. R.M. Roy 1973 I LLJ 427, the Apex Court held that rationalization or standardlization by itself would not fall under item 10 of IVth schedule of ID Act unless it is likely to lead to retrenchment of workman.
16. In the judgment of Lokmat Newspaper's case (supra) Their Lordships at page 621 observed as under:
"So far as item Nos. 19 and 11 are concerned, it becomes obvious that before any such change in conditions of service of the workmen is to be effected, as a precondition for such proposed change, notice under Section 9A has to be issued; without complying with such pre condition of notice, proposed change would not legally come into operation. We are directly DID No. 337/2008 16 concerned with item No. 10 of this Schedule. It, therefore, becomes obvious that before any rationalisation, standardisation or improvement of plant or technique is to be resorted to by any management if by such an exercise retrenchment of workmen is likely to result, then before introducing such rationalisation, standardisation or improvement of plant or technique, as the case may be, a prior notice under Section 9A is to be issued to the workmen who can get an opportunity to show that they may not be retrenched because of the new scheme of rationlisation etc. which is in the offing and can suggest ways and means available to the management to avoid such proposed retrenchment of the workmen despite such introduction of a new scheme. Consequently, it must be held on the very wordings of Section 9A read with item No. 10 of Fourth Schedule "that any management which seeks to introduce a new working pattern for its existing work force by any future scheme of rationalisation, standardisation or improvement of plant or technique which has a tendency to lead to future retrenchment of workmen" has to give prior notice of proposed change. Therefore, it must be held that notice under Section 9A must precede the introduction of rationalisation concerned........"
17. Since in the present case management did not comply with provision of Section 9A ID Act, in as much as, it did not serve 21 days notice DID No. 337/2008 17 upon the workman Shashi Kanta Panda of its intention to reorganize its working and functioning of administration and financial outflows which resulted into his retrenchment and so by relying upon on the judgement of Apex Court in Lokmat Newspaper's case (supra) I hold that retrenchment of the workman on the ground that he had become surplus on the basis of the reorganization of the working and functioning of the administration and financial outflows of the school was illegal.
18. When illegal termination of service of a workman stands established then point for consideration is as to what would be just and appropriate relief to the workman. In the present case workman was declared surplus as a result of reorganization of functioning, administration and financial outflows by the management without complying Section 9A ID Act and so only reinstatement would be the just and appropriate relief. I accordingly direct the management to reinstate the workman with continuity of service and consequential benefits. DID No. 337/2008 18
19. Now coming to the question of back wages. Workman has not specifically stated in the statement of claim that he remained unemployed and could not get any service despite his best efforts. However, in the statement of claim he has alleged that he encahsed the cheque as he was financially suffering for want of money meaning thereby that he remained unemployed till he exhausted the cheque amount of Rs.39,681/. Considering these facts and circumstances I hold that award of 75% of the last drawn wages as back wages would meet the ends of justice. Accordingly I award 75% of the last drawn wages as back wages to the workman and direct the management to pay the back wages amount within 3 months of the award becoming enforceable, failing which he would be entitled to recover the amount of back wages with interest @9% per annum from the date of award. A sum of Rs.39,681/ paid by the management to the workman as retrenchment compensation shall be adjusted by the management in the amount of the back wages awarded by this court and to be paid by the management to the workman. This issue stands decided accordingly. DID No. 337/2008 19
20. Award stands passed as per foregoing findings on the issues. Copy of the award be sent to Ld. Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. Award be also sent to server (www.delhicourts.nic.in). File be consigned to record room. Announced in Open Court on this 28 day of July 2009 th S.K. Kaushik Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi