Delhi District Court
Sh. Mukesh Lawrence vs M/S Leprosy Mission Hospital on 5 October, 2007
Mukesh Lawrence Vs. leprosy Mission Hospital 1
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR
COURT-I : ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO. 94/00
BETWEEN
Sh. Mukesh Lawrence
C/o Hospital Employees Union,
Aggarwal Bhawan,
G.T. Road, Tis Hazari,
Delhi- 110054.
........ Workman
AND
M/s Leprosy Mission Hospital,
Nand Nagri, Delhi - 110093.
........ 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. F.24 (5229)/99- Lab./367/-75 dated 28.01.2000 with the following
terms of the reference:-
"Whether the termination of services of Sh.
Mukesh Lawrence is illegal and/or unjustified
and if so, to what relief is he entitled and what
directions are necessary in this respect?"
1 On receiving a notice from the court, the workman
Mukesh Lawrence Vs. leprosy Mission Hospital 2
namely Sh. Mukesh Lawrence filed his statement of claim
contending that he had been working as a helper with the
management since 17.04.1995. It was stated that the management
though appointed him as a helper but he was assigned the job of
medical worker. He used to do field work for which he was paid Rs.
20/- per day alongwith food allowance. Later on this allowance was
stopped on the plea that it had not been approved . He applied for
training as para medical worker and again as record keeper but
none of his applications was considered. In his place one Sushma
David, Senior of the claimant was sent for training as medical record
clerk, being wife of an Administrative Officer. After completion of
training she was assigned job of medical record clerk whereas the
claimant herein was illegally terminated w.e.f. 31.12.98. The
management tried to give it a colour of temporary employment but
the job against which he was appointed is a regular and permanent
job. The workman was regular and permanent employee of the
management. The management did not maintain a seniority list
and juniors to the workman have been retained in service in
violation of Section 25 G and H of Industrial Disputes Act . No notice
was given prior to termination nor any notice pay and retrenchment
compensation was paid to the workman. Since his termination , the
workman is unemployed. He served demand notice dt. 23.5.99 on
Mukesh Lawrence Vs. leprosy Mission Hospital 3
the management but to no avail.
2 The management in its written statement controverted the
averments of the respondent regarding illegal termination. The
relationship of employer and employee was not disputed but it was averred that the claimant was never a regular employee. He was appointed as a helper in the Opthalmic Department on 17.4.95 on purely temporary basis up to 30.6.95 unless extended in writing. It was made clear that his appointment was in relation to Christoffel Biinden Mission (CBM) project. His appointment was extended on same terms and conditions from time to time, lastly on 01.01.98 till 31.12.98. On 30.11.98, however a letter was issued to the workman informing that his contract of employment would stand terminated on 31.12.98 as the mission had discontinued their support for the said post. He was given due notice and was offered to be paid two months salary as compensation in addition to salary for December 1998. The workman on 31.12.98 refused to accept the said compensation in the form a cheque of Rs. 5368/-. On merits all other contentions of a workman were denied and it was clarified that the demand notice of the workman was duly replied by the management.
Mukesh Lawrence Vs. leprosy Mission Hospital 4 3 No rejoinder was filed. On the pleadings of the parties, following issues were framed by the ld. predecessor on 11.05.2003 :-
1) Whether the workman was employed for a fixed term and his case is covered U/s. 2 (oo) (bb) of the ID Act.
2) As per terms of reference.
4 The workman tendered himself as WW-1. The management on the other hand examined one Dr. Daphne Wilfred as MW-1. Evidence was closed. written final arguments were filed by the parties. Oral arguments were also advanced by both the sides. 5 I have carefully considered the matter and gone through the records. I have also perused the entire case law relied upon by both the sides.
My findings on the above issues are as follows:- ISSUE NO.1 & 2
Both the issues being inter-linked are taken up together for the sake of brevity From the above narration of averments of the parties, it is apparent that the management does not dispute that the claimant was working with it as helper since 17.04.95. It is also Mukesh Lawrence Vs. leprosy Mission Hospital 5 not disputed that the services of the workman stood ceased w.e.f 31.12.98. Likewise workman also does not deny that on his first appointment as helper, he was issued appointment letter as a purely temporary employee for a fixed duration i.e. up to 30.6.95 and that after expiry of the said period the fresh appointments were granted again for fixed durations on the same terms and conditions. The copies of appointment letters have been exhibited on the record by the management and have been admitted by the workman in his cross-examination. As per terms of appointment it is specified that the tenure of appointment was purely temporary and for the specified period. The service was to come to an end automatically on expiry of said period. The management was at liberty to terminate the service of the workman at any time if not satisfactory, without assigning any reason or without any notice. It is was also stipulated that the workman shall not be entitled to permanent absorption in Leprosy Mission Hospital India. All these appointment letters were duly received by the workman and accepted by him with his signatures. It is also an undisputed fact that the management has notified the workman through letter dt. 30.11.98 regarding expiry of his tenure w.e.f 31.12.98 and offered him to pay salary for two months as compensation. The receipt of this letter is also admitted by the claimant in his cross-examination. The main Mukesh Lawrence Vs. leprosy Mission Hospital 6 bone of contention between the parties is though legality of discontinuation of service of the claimant w.e.f. 31.12.98, however the workman has also contended that he was made to do the job of medical worker against wages of a helper and that while terminating him the management has retained employee junior to him violating Section 25 G and H of I.D. Act. Onus was on the workman to prove these contentions. Besides his bare affidavit, no evidence at all has been adduced by the workman to substantiate these averments. Not even a signal suggestion was given to MW-1 that any person junior to workman was retained or he was discriminated in violation of Section 25 G and H. The workman has though cited a case of one Sushma David but he has himself, in his pleadings, admitted that she was senior to him.
The crux of the defence raised by the management to the claim of workman against his termination is that the claimant was only a casual employee appointed as helper on temporary basis from 17.4.95 till 30.06.95 and that he was given similar subsequent appointments as per requirement of the mission till 31.12.98. The workman labels this as an unfair labour practice adopted by the management to deny the legal benefits to the employees. On the contrary, the management claims that it was specific project available for providing comprehensive community Mukesh Lawrence Vs. leprosy Mission Hospital 7 eye care service to the poor and needy named as Christoffel Binden Mission (CBM) project. The claimant was appointed on purely temporary basis on the said project. Though the project was continuing but due to some budgetry constraints, the contract of service of the workman could not be renewed w.e.f 31.12.98 and the workman was given due notice of two months in this regard and was being paid two months salary towards compensation which shows the bonafide of the management.
On these premises, I shall proceed to deal with the controversy in hand. So far as initial engagement of the claimant by the management since 17.04.95 till 30.6.95 as a helper is concerned, there is no dispute. As per appointment letter dt.17.4.95, Ex. WW1/M8, it had been clearly stipulated that appointment was purely temporary till 30.6.95 and his services could be terminated without any notice or reason by the management at any time even prior to 30.6.95. On the bottom of the letter the workman has appended his signatures with his eyes open, accepting all these terms and conditions without any reservation. His subsequent appointment letters are exactly the same. Even today the workman does not dispute that he was always appointed on temporary basis. AR for workman has claimed that he was given temporary employment letters so as to deny him the legal benefits Mukesh Lawrence Vs. leprosy Mission Hospital 8 of a regular employee. The management has proved that in the budget for the year 1998 the grants for salaries were reduced thereby constraining the management to reduce the work force. These documents are not rebutted in evidence. In fact Workman as WW1 in his cross-examination admitted that he was working on Christoffel Blinden Mission (CBM) project and that it was based on budget approved on year to year basis. The claimant has though alleged that such repeated temporary appointments amounted to unfair labour practices but he has no where claimed that such appointments were against any rules governing management. In the case of 'Regional Manager, SBI vs. Raja Ram'. Hon'ble Supreme Court has laid down that short term appointments per se are not illegal and unfair labour practice except when they are with artificial breaks solely with the view to deprive the workman of the status and privileges of permanent workman.
In a recent judgment, in case of 'Punjab SEB vs. Darbara Singh (2006) 1SCC 121'. It was held that the conditional appointment for a specific period does not attract conditions laid down in section 25F. Same was the view of the Hon'ble Apex court in case of 'Kishore Chandra Samal vs. Orissa State Cashew Development Corporation Ltd. (2006) 1SCC 253'. Mukesh Lawrence Vs. leprosy Mission Hospital 9 In a latest case of 'Gangadhar Pillai vs. Siemens Ltd. 2007 (1) LLL 139', the workman was initially appointed in 1978 on temporary basis and he continued so with intervals till 10.05.2000. Hon'ble Apex Court held that act of employer in terminating services of such employee cannot amount to unfair labour practice. It would come within purview of section 2 (oo) (bb). Same was the view of the court in 'Municipal Council Samrala vs. Rajkumar (2006) 3SCC 81'. In another case of Surjeet Kumar Vs. Presiding Officer and Others 2007 II LLJ page 999, our own Hon'ble High Court has held that termination of the workman as a result of non renewal of contract of employment between the employer and the workman would not attract Section 25 F of I.D. Act.
I am afraid that the case law relied upon by AR for claimant viz. ' Samishta Dube Vs. City Board, Etawah and Anr. The Supreme Court of India 1999 I CLR 864, M/s. Nicks (India ) Tools Vs. Ram Surat & Anr. 2000 VIII A.D. (S.C.) 444, D.K. Yadav Vs. J.M.A. Industries Ltd. 1993 Supreme Court cases ( L & S) 723, M/s. Hindustan Tin Works Pvt. Ltd. Vs. The employees of the M/s. Hindustan Tin Works Pvt. Ltd. and Others 1979, Supreme Court Cases (L & S) 53, S.M. Nilajkar and Others Vs. Telecom District Manager, Karnataka, AIR 2003 Supreme Court 3553 are not applicable being distinguishable Mukesh Lawrence Vs. leprosy Mission Hospital 10 on facts.
In circumstances, I am of the view that the services of the workman ceased on expiry of his temporary appointment period and it does not amount to retrenchment as it is squarely covered under section 2 (oo) (bb) of Industrial Disputes Act. Therefore, there is no question of illegal termination or unjustifiable termination by the management. The issues are decided in favour of management and against the workman.
In view of my findings on the above issues, the workman is not entitled to any relief or directions in this 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 05th October, 2007 PRESIDING OFFICER LABOUR COURT-I
KARKARDOOMA COURTS, DELHI
(SIX COPIES ATTACHED)