Delhi District Court
Through vs Corporate Office At No.2 on 23 May, 2023
Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.
LIR No.1747/2019
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER : LABOUR COURT - 08
ROUSE AVENUE DISTRICT COURTS : NEW DELHI
LIR No:1747/2019
CNR No. DLCT13-003108-2019
In the matter of
Shri Sunil Kumar
S/o Late Shri Adalat Singh
R/o WZ-1424, Nangal Rai,
New Delhi - 110046
Through:
All India General Mazdoor Trade Union (Regd.),
170 Bal Mukund Khand, Giri Nagar,
Kalkaji, New Delhi - 110019
....WORKMAN
VERSUS
M/s. Adecco India Pvt. Ltd.
39, Ist Floor, Pusa Road, Karol Bagh,
New Delhi - 110005
AND
Corporate Office at No.2,
Nal Wind Tunnel Road, Murugeshpalya,
Bangalore - 560017
....MANAGEMENT
Date of institution : 20.07.2019
Date of Award : 23.05.2023
AWAR D
1. Reference under Section 10(1)(c) read with Section 12(5)
of the Industrial Disputes Act, 1947 has been received from
Page 1 of 10
Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.
LIR No.1747/2019
Deputy Labour Commissioner, Central District, Employment
Exchange Building, Pusa Campus, New Delhi setting out
following dispute for adjudication by the Court:
"Whether the termination of services of
workman Shri Sunil Kumar S/o Late Shri
Adalat Singh Age 34 years by the
management is illegal and/or unjustified
and if so, to what relief is he entitled and
what directions are necessary in this
respect?"
2. As averred in the claim, Shri Sunil Kumar working in the
post of 'Technician Tier-II' proceeded on medical leave from
09.08.2018 to 13.08.2018 but was not allowed to join duty on
14.08.2018 and his services were illegally terminated on
01.10.2018 without notice, charge sheet, retrenchment
compensation and one month salary in lieu of notice.
3. Demand letter dated 24.01.2019 seeking reinstatement
with back wages was neither replied nor complied whereas
settlement could not be effected before Conciliation Officer, Pusa
Campus, New Delhi leading to reference of dispute by the
Labour Office. It is submitted that workman has remained
unemployed since the date of illegal termination of service and is
entitled to be reinstated in the post with continuity of service and
other benefits including back wages.
Page 2 of 10
Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.
LIR No.1747/2019
4. M/s Adecco India Pvt. Ltd. has filed written statement
contesting the claim inter alia on following grounds:
i. Shri Sunil Kumar was engaged on fixed term contract
under Section 2(oo) of I.D. Act, 1947 and statement of
claim is liable to be rejected in the absence of 'principal
employer'.
ii. Provisions of the Contract Labour (Regulation and
Abolition) Act, 1970 are applicable and statement of
claim is not maintainable as Shri Sunil Kumar working
on fixed term contract was not a regular employee of
M/s Adecco India Pvt. Ltd.
5. Averments in the claim have been disputed in para-wise
reply by contending:
i. Shri Sunil Kumar being contractual employee was
engaged on fixed term contract basis with M/s
Hindustan Coca Cola Beverages Pvt. Ltd., Gurgaon
vide appointment letter dated 11.08.2015 and term of
employment from 27.07.2015 to 26.07.2016 was
specifically mentioned in para-1 of the letter of
employment;
ii. Term of employment was subsequently extended upon
the understanding that claimant would not be a regular
employee of M/s Adecco India Pvt. Ltd.;
iii. Shri Sunil Kumar was not granted medical leave from
09.08.2018 to 13.08.2018 and did not join duty after
08.08.2018. He was, nevertheless, paid salary for the
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Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.
LIR No.1747/2019
month of August, 2018 and additional sum Rs.19,386/-
transferred erroneously by M/s Adecco India Pvt. Ltd.
has been adjusted towards full and final settlement of
dues.
6. Following issues were settled on 19.04.2022 after rejoinder
and completion of pleadings:
1. Whether services of workman Shri Sunil
Kumar S/o Shri Adalat Singh have been terminated
illegally and/or unjustifiably by the management on
01.10.2018 and if so, to what relief is he entitled and
what directions are necessary in this respect?... OPW
2. Whether statement of claim is liable to be
dismissed in the absence of employer-employee
relationship as claimant was not a regular employee
of respondent and had worked on fixed term
contract?... OPM
3. Relief.
7. Averments in the claim have been reiterated in affidavit Ex.WW-1/A tendered in evidence and Shri Sunil Kumar has relied upon following documents during examination-in-chief recorded on 19.12.2022:
(i) Photocopy of Aadhar Card - Ex. WW-
1/1(OSR).
(ii) Office copy of statement of claim filed before Page 4 of 10 Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.LIR No.1747/2019
Conciliation Officer, Labour Office, Pusa, New Delhi - Ex. WW-1/2.
(iii) Office copy of demand notice dated 24.01.2019 addressed to management - Ex. WW-1/3.
(iv) Original postal receipts w.r.t. demand notice -
Ex. WW-1/4.
(v) Photocopy of appointment letter dated 11.08.2015 - Ex. WW-1/6(OSR).
(vi) Copy of salary slip of applicant for the month of September, 2018 - Ex. WW-1/7.
(vii) Photocopy of ESI Card of applicant - Ex. WW-
1/8 (three pages)(OSR).
(viii) Photocopy of medical fitness and medical certificate of applicant - Ex. WW-1/9(Colly) (OSR).
8. His cross-examination has been recorded and workman's evidence was closed on 24.01.2023.
9. Matter continued to be listed for management evidence but neither affidavit of witness was filed nor AR/counsel appeared on three consecutive dates on 20.02.2023, 24.03.2023 and 18.04.2023. Management evidence was accordingly closed in view of sub-rule (8), Rule 10B of the Industrial Disputes (Central) Rules, 1957 and matter was posted for final arguments.
10. Shri R.B. Singh for workman has addressed the submissions urging reinstatement in service with all consequential benefits by adverting to (i) appointment letter Page 5 of 10 Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.
LIR No.1747/2019dated 11.08.2015; (ii) salary slip for the month of September, 2018; (iii) ESIC - e-pehchan Card mentioning Adecco India Pvt. Ltd. as the employer AND (iv) photocopy of medical certificate/fitness affirming five days leave from 09.08.2018 to 13.08.2018.
11. I have considered his submissions and perused pleadings and workman's evidence adduced on judicial record.
12. Shri Sunil Kumar having denied (a) employment on temporary basis AND (b) services deputed with M/s Hindustan Coca-Cola Beverages Pvt. Ltd., Gurgaon has later on admitted respondent's contention of services being rendered under the supervision of M/s Hindustan Coca-Cola Beverages Pvt. Ltd., Gurgaon. Following portion of cross-examination of WW-1 is extracted below for reference:
"It is wrong to suggest that appointment letter dated 11.08.2015 (Ex. WW-1/6) was issued for one year from 27.05.2015 to 26.07.2016. It is wrong to suggest that I was employed by management on temporary basis."
"It is wrong to suggest that my services were deputed with M/s Hindustan Coca-Cola Beverages Pvt. Ltd., Gurgaon. Again said my services were availed by M/s Hindustan Coca-Cola Beverages Pvt. Ltd. at Delhi and Gurgaon. It is correct that I continued to serve under supervision of M/s Hindustan Coca-Cola Beverages Pvt. Ltd. during 27.05.2015 to 26.07.2016. Vol. Management did not communicate the fact of hiring services for one year at the time of joining."Page 6 of 10
Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.
LIR No.1747/201913. Shri R.B. Singh for workman has adverted to para-10 of para-wise reply for contending that claimant/workman continued to work with M/s Adecco India Pvt. Ltd. till 08.08.2018.
14. Though no evidence has been led by management to prove unauthorized absence from duty from 09.08.2018 to 13.08.2018 but workman having averred about medical leave from 09.08.2018 to 13.08.2018 has remained silent about services rendered at M/s Hindustan Coca-Cola Beverages Pvt. Ltd., Gurgaon from 14.08.2018 till alleged termination of service on 01.10.2018.
15. Respondent's contention that Shri Sunil Kumar having remained absent from 09.08.2018 was nevertheless paid wages/salary for the month of August, 2018 whereas Rs.19,386/- inadvertently transferred in his account has been adjusted towards full and final settlement of dues seems probable in the absence of averment and evidence to prove that Shri Sunil Kumar was not allowed to join duty till 01.10.2018.
16. It is well settled law that termination of service contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression "retrenchment" under Section 2(oo) of I.D. Act, 1947.
17. Hon'ble Supreme Court of India in para-3 of judgment titled "State of Haryana Vs. Om Prakash and Anr" (1998) 8 SCC 733 has returned its finding in following words:
"Retrenchment within the meaning of Section 2 (oo) means termination by the employer of the service of the workman for Page 7 of 10 Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.LIR No.1747/2019
any reason whatsoever. Therefore, it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression "retrenchment" in Section 2(oo) of the Act. There was nothing of the sort in the instant case. It was the workman who ceased to report for duty and even after he ceased to report for duty, it is not his case that at any point of time he reported for duty and he was refused work. He straightaway proceeded to invoke the provisions of the Act and, therefore, this is a case in which the employer has done nothing whatsoever to put an end to his employment and hence the case does not fall within the meaning of Section 2(oo) of the Act. Therefore, the case does not attract Section 2(oo), nor does it satisfy the requirements of Section 25-F. "
18. Relevant contents of the letter of employment dated 11.08.2015 being relevant are extracted below:
"LETTER OF EMPLOYMENT Dear Sunil Kumar, We are pleased to offer you an employment in our organization Adecco India Pvt. Ltd. as TECHNICIAN TIRE 2 for a fixed period of employment ("Contract"), on the following terms and conditions.
1. The term of your employment shall be valid from 27.07.2015 to 26.07.2016. Notwithstanding this, in the event of the project/work/deputation for which you are being employed terminates before the aforementioned period, this Contract shall be co-terminus with the project/work.Page 8 of 10
Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.LIR No.1747/2019
2. You shall report to work on 27.07.2015 at 9.00 a.m. at Hindustan Coco- Cola Beverages Pvt. Ltd. GURGAON.
3. Details of your salary break up with components are as per the enclosure attached herewith.
4. This contract shall be terminable by either party giving 15 day's notice in writing or salary in lieu of notice, to the other party.
5. You will, with effect from 27.07.2015 be deputed by the Company to work at the client's office/premises at any of their locations, either onsite or offshore.
6. You will be governed by the policies of the client's organization with respect to leaves and holidays."
19. It is evident from letter of employment Ex. WW-1/6 that services of Shri Sunil Kumar were rendered to M/s Hindustan Coca-Cola Beverages Pvt. Ltd., Gurgaon through contractor M/s Adecco India Pvt. Ltd.
20. Shri Sunil Kumar having admitted service under the supervision of M/s Hindustan Coca-Cola Beverages Pvt. Ltd. has neither produced any document/attendance record himself nor moved any application for summoning attendance record verifying duty rendered at the site of the 'principal employer' before alleged termination of service on 01.10.2018. Termination of service by management under Section 2(oo) of the I.D. Act could not therefore be proved and workman is not entitled to any Page 9 of 10 Shri Sunil Kumrar Vs. M/s Adecco India Pvt. Ltd.
LIR No.1747/2019relief under Section 25F of the I.D. Act.
21. FINDING: Issue No. 1 & 2 are decided against Shri Sunil Kumar in the absence of any act on the part of employer putting an end to the service of the employee.
RELIEF
22. Statement of claim seeking reinstatement with continuity of service and other consequential benefits including back wages is dismissed.
23. Reference stands answered in aforesaid terms.
24. Copy of Award be sent to Deputy Labour Commissioner, Central District, Employment Exchange Building, Pusa Campus, New Delhi for publication.
25. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT DATED: 23.05.2023 Digitally signed by TARUN TARUN YOGESH YOGESH Date:
2023.05.26 14:43:43 +0530 (TARUN YOGESH) PRESIDING OFFICER - LABOUR COURT-08 ROUSE AVENUE DISTRICT COURTS: NEW DELHI Page 10 of 10