Delhi District Court
After Receipt Of Reference vs Suresh & on 9 May, 2007
IN THE COURT OF SH. R.K. JAIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS,
DELHI.
I.D. NO. 184/99
BETWEEN:
Work-woman Smt. Nirmla W/o Sh. Jokhan Tiwari, 70-M,
C.P.W.D. Complex, Vasant Vihar, New Delhi-57.
.... The workman
AND
M/s Hope Hall Foundation School, Sector-7, R.K. Puram, New
Delhi-22.
...... The management
AWARD
The Secretary (Labour) Govt. of the 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 (583)/99/-Lab./12213-17 dt. 17-3-99 with
the following term of reference.
"Whether the services of Smt. Nirmala
have been terminated illegally and/or
unjustifiably by the management, and if so,
to what relief is she entitled and what
directions are necessary in this respect?"
1.After receipt of reference, notice was sent to the 1 work-woman through Union and she filed her statement of claim submitting therein that the management was being run by a society registered under the Societies Act and was an Industry as defined in Section 2(j) of the I.D. Act. and was also an establishment as defined in the Delhi Shops and Establishment Act, 1954.
2. It is further submitted that the work-woman was appointed as an Aaya on 30-5-96 and she worked with the management continuously till 15-5-98 and her last drawn wages were Rs. 1600/- per month. She demanded that she should be paid wages and allowance on the basis of Section 10 of the Delhi School Education Act and this fact irritated the management and they not only turned their deaf ear to the demands of the work-woman but also kicked her out of job illegally and unjustifiably.
3. It is further submitted that the management did 2 not pay salary to the work-woman for summer vacation and on 15-5-98 when she left the school for summer vacation, she was never told that her services were no more required by the school. She was expected to join duty on 1-7-98 after the summer vacation but as she was to attend to marriage in a family, she requested the management that she would not be able to join her duties on 1-7-98 but on 6-7-98. She reported for her duties on 6-7-98 and then she was refused duties and her services were orally terminated. She asked the termination order in writing but the management declined her request.
4. It is further submitted by the work-woman that the management was bound to seek approval of the Directorate of Education before removing her from services as per provisions of Delhi School Education Act and was also bound to serve one month notice or pay salary in lieu of the notice under Delhi Shops and Establishment Act and also 3 under I.D. Act but the management instead of paying anything removed her from services illegally and unjustifiably.
5. It is further submitted that the work-woman served a demand notice by registered cover on the management but no communication from their side was received.
6. It is further submitted that the work-woman was facing acute financial hardships and as she was rendered unemployed by the management and she was entitled to be reinstated in service with payment of full back wages and continuity of service and prayer is made accordingly.
7. The notice of the claim was sent to the management and the management in its amended written statement took the preliminary objections that the statement of claim was not signed by the claimant and that 4 the claim was not maintainable under I.D. Act.
8. On merits, it was denied that the work-woman was employed as Aaya on 30-5-96 and that she continuously worked up to 15-5-98. It was submitted that the claimant was employed as part-time Aaya from 13-6-97 for a period of three months on a salary of Rs. 1500/- per month. It was denied that the claimant had reported for duty on 1-7-98.
9. It was further submitted by the management that the management was running Preparatory School which was a separate activity and not covered under the Delhi School Education Act. All other averments made in the claim were denied.
10. In replication, the work-woman denied that she was appointed part-time Aaya only for three months. 5
11. On the pleading of the parties, the following issues were framed by my Ld. Predecessor:-
1. Whether services of the workman (sic) were terminated illegally and/or unjustifiably?
2. Relief.
12. The work-woman examined herself as WW1 who also filed her affidavit Ex. WW1/A. The management examined its Headmaster as MW1/1 who also filed his affidavit Ex. MW1/A.
13. Both the parties filed their written arguments. I have heard Ld. AR for parties and have gone through the relevant record and written arguments. My findings on the issues above are as follows:-
14. ISSUE No. 1
The work-woman in her affidavit stated on oath 6 that she was appointed in the school as Aaya on 30-5-96 and she was removed from job on 15-5-98. In her cross- examination, work-woman admitted that she had given application for appointment which is Ex. WW1/M1 dt. 13- 6-97. She claimed that she was not given any appointment letter but she admitted her signatures on the appointment letter Ex. WW1/M2 which is also dt. 13-6-97. She clarified that she was not given the copy of the letter Ex. WW1/M2 at the time of her appointment but her signatures were taken on it. She reiterated again that she was appointed again on 30-5-96.
15. In her further cross-examination, the work-woman stated that her interview was taken by Mrs. Suman Nath, Principal on 30-5-06 on the basis of her application for employment. She admitted that no interview letter was sent to her at her residential address. She claimed that she had come to know about the employment through 7 newspaper in the month of February, 1996. She denied that she had ever performed duty of Aaya though she claimed that she was appointed as Aaya. She claimed that her duty was to obtain the signatures on the circulars and she used to work as a Peon and not Aaya. She admitted that in her notice Ex. WW1/1 she had not insisted that her duties of Peon performed should also be mentioned in the notice.
According to her, Poonam Manju and Durga with one more were working as Aaya in the Nursery Room and duty hours were from 7.00 a.m. to 4.00 p.m.
16. In her cross-examination, the work-woman admitted that she did not have any proof to show that she was employed in the school on 30-5-96 and she continuously work up to 15-5-98. According to her, her salary was increased to Rs. 1600/- per month after one year but no letter regarding increment was issued to her. She admitted that she was not given any leave except holidays. She 8 admitted that no deduction towards PF was made from her salary, but denied that PF was not deducted because she was employed on part-time basis and for a period of three months. She admitted that she had never given in writing to the management for the deduction of the PF. She denied that she was not a regular employee and was employed for the Nursery wing of the school only for three months as Aaya.
17. Apart from the notice and its postal receipts, the work-woman placed on record photocopy of 'In and Out Register' which are coll. Ex. WW1/E. She claimed that the originals of Ex. WW1/E were in the custody of Sh. Parmod, Accountant of the school and she had taken those photocopies of Ex. WW1/E from Mr. Suri, who was In- charge at relevant time. According to her, Ex. WW1/E was usually prepared by Mr. Kapoor, who was a Clerk in the School. She denied that there was no Clerk by the 9 name of Mr. Kapoor working in the school. She denied that Ex. WW1/E was fabricated by her. She admitted that she was not aware if the school authorities had put any stamp/signatures on the Ex. WW1/E.
18. The work-woman has also placed on record two photos which are Ex. WW1/F. In her cross-examination, she deposed that the photo was taken on the holiday and there was no staff member of the school in the said photo. According to her, some one known to her and Manju had taken the photograph during winter vacation in the year 1996. She admitted that no permission was taken before taking the photographs.
19. On the other hand MW1, in his affidavit stated on oath that he was working as Headmaster with the management and that the work-woman had applied against the post of Aaya vide application dt. 13-6-97 and she was 10 employed on temporary basis as part-time Aaya for a period of three months vide letter Ex. MW1/1 (Ex. WW1/M2). He also added that the services of the work-woman came to an end automatically on the expiry of the her employment on 12-9-97.
20. In his further cross-examination, MW1 deposed that there was only one 'In & Out Register' of the staff and explained that in fact there were two registers of 'in & out' of staff and one was for nursery staff and one other was for school staff and the similar was case with attendance register and wages register. He admitted that the gate of the school was common and building was also common. He also admitted that two separate accounts are maintained, one for senior wing of school and other for running nursery school and P.F. Accounts of both schools were different.
11
21. In his further cross-examination, MW1 admitted that he cannot produce the 'in and out' register for the period of July, 1996 to May, 1998 and explained that as per practice the said register was destroyed after three months though there was no such resolution passed by the society. He denied that there was no practice of destroying 'in & out' register after expiry of three months. He admitted that he had brought the record of nursery wing and not of senior wing. He admitted that he had brought the register of primary section pertaining to part-time employees and the same did not consist names of full time employees. According to him, the payment of wages register brought by him was also of part-time employees and not full time employees. He could not tell whether Santram, Manju, Poonam, Durga and Surender were part-time employees or full time employees of nursery section.
22. In his further cross-examination of MW1 deposed 12 that the duty for part-time employees was from 7.00 a.m. to 12.00 noon and for full time employees was from 8.00 a.m. to 2.00 p.m. He denied that the claimant was appointed with the management on 30-5-96 and that she had worked in the school continuously up to 15-5-98. He denied that the claimant had come to join duty on 6- 7-98 after summer vacation and that she was debarred from duty. He admitted that in the photograph safai karamchari, aayas and workmen could be seen. According to him in the second photograph brother of Shridhan the Account Assistant was also seen, who was not employee of the school. Regarding two others persons visible in the photograph, he claimed that they were not the employees of the school. He could not tell if Durga was full time or part- time employee. He claimed that Ex. WW1/E was not the record maintained by the school. He denied that Chowkidar of the school had prepared Ex. WW1/E. 13
23. In his further cross-examination, MW1 admitted that Manju and Poonam were working with the management as Aayas in December, 1996 and added that Nirmala was not working at that time. He denied that all the four aayas used to mark their attendance on the same register.
24. In his further cross-examination, MW1 produced the payment of wages register and deposed that as per record, in August, 1996 salary was paid to 10 employees out of which five were Security guards, one sweeper and three peons and one attendant. He produced the wages register of the employees of nursery school. He claimed that there was only one wages register for the employees of senior school and admitted that there was no entry in respect of payment of salary to drivers, helpers, gardeners and aayas etc. He explained that Aaya were not appointed in the senior school and drivers, helpers gardeners and security people were hired through the Contractor. He 14 could not tell, how many people were employed by the management as Helper, driver, gardener and security men in August, 1996.
25. In his further cross-examination, MW1 admitted that the names of Manju, Poonam (aayas) and Surnider (Helper) were not mentioned in the register. He denied that the records were fabricated. He admitted that in the wages register from July to December, 1996 the names of four employees Ram Dhini, Ram Kewal, Kusum and Ramwati were not there.
26. He could not tell who was maintaining the wages register.
27. In his further cross examination, on seeing the record, MW1 again deposed that on 10-7-97 only one aaya i.e. Nirmala was employed. He denied that on 15 10-7-97 the management terminated the services of the claimant.
28. In his further cross-examination, MW1 deposed that the services of the claimant were not terminated as she was appointed for three months on Ad-hoc basis and after expiry of that period her removal from the service was automatic. He admitted that the foundation society had not passed any resolution for part-time/Ad-hoc appointment of the claimant. He could not tell after expiry of the period of the claimant any further part-time aaya was employed or not. He denied that signatures of the claimant were obtained on blank application and appointment letter.
29. Ld. AR for the work-woman has referred to Secretary, Haryana State Electricity Board Vs. Suresh & Ors. 1999 LAB I.C. 1323 in which it was observed that The equality clause in the Constitution does not speak of 16 mere formal equality before the law but embodies the concept of real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation and is thus consequently an essential ingredient of social and economic justice. The security clause in the Constitution has been equated to mean that the people of the country ought to be secured of socio-economic justice by way of a fusion of Fundamental Right and Directive Principles of State Policy. Socialism ought not to be treated as a mere concept or an ideal, but the same ought to be practised in every sphere of life and be treated by the law Courts as a constitutional mandate since the law Courts exists for angel of the society. As a matter of fact the socialistic concept of society is very well laid in Part III and Part IV of the Constitution and the Constitution being supreme, it is a bounden duty of the law courts to give shape and offer reality to such a concept.
17
30. By way of written arguments, it is submitted by Ld. Ar for work-woman that on 1-8-03 an application was moved in the court seeking the management to produce attendance register , In-Out Register, Wages Register, Cash Book from 30-5-96 to 15-5-98 list of appointment of IVth Class Employees, copy of rules and regulation vide which management society running the school, and bye-laws and the court on application had directed that those documents were relevant for deciding the controversy and the management was directed to produce the record in original but that record was not produced.
31. MCD Vs. Rajender Singh Negi and another 2003 LLR 294 has been relied on in which it was held that when the MCD failed to produce the record as directed by the Labour Court, the award of the Labour Court can not be challenged on the ground that the work-woman had not worked for 240 days.
18
32. Referring to a copy of 'in and out' register Ex. WW1/E it is submitted that the same was not a fabricated document because the claimant stated that original of the same was in custody of Sh. Parmod and that she had taken these photocopies of Mr. Suri.
33. By way of written arguments, Ld. AR for work- woman has tried to point out some contradiction in the cross-examination of MW1 which in fact are no contradiction but are only explanatory. It is pointed out that MW1 was not a competent person to give statement before the court without any resolution of society as principal of the school was also not competent to direct him to depose as a witness.
34. By way of written arguments, it is further submitted by Ld. AR for the work-woman that MW1 did 19 not produce 'in and out' register for the period of July, 1996 to May, 98 and that the record produced by him pertained to nursery wing and not to senior wing.
35. Ld. AR for the work-woman has relied on Niranjan Cinemas, Allahabad Vs. Allahabad Cinema Karamchari Sangh I.I.L.J, U.P. 1953, 324 in which it was held that security of service is of vital importance from the point of view of workers and no device which amounts to an encroachment on the rights of the workers in view of the proved facts of a particular case can have the sanction of an industrial tribunal in the field of industrial relations.
36. Ld. AR for work-woman has also referred to Jaswant Sugar Mills, Meerut Vs. Badri Prasad & Ors. AIR 1967 S.C. 513 in which it was held that to be a permanent workman within the definition, it is not necessary that the workman should be engaged throughout 20 the year.
37. On the other hand, Ld. AR for the management pointed out that Ex. WW1/E was not the record of the management because WW1 in her cross-examination deposed that it was usually prepared by Mr. Kapoor who was a Clerk in the school but to MW1 it was suggested that the same was prepared by the Chowkidar. It is also submitted that MW1 duly proved that in December, 1996 Manju and Poonam were working with the management as Aayas and Aayas were not employed in Senior School but in Junior School and MW1 produced the wages register in respect of Aayas according to which only four employees were in the nursery wing between July, 1996 to December 1996 and as per record the claimant was employed on 13-6-97.
38. It is further pointed out by AR for the 21 management that the claimant in her cross-examination admitted that she had given the application for employment and the appointment letter had her signatures. It is submitted that the application for employment and appointment letter were dt. 13-6-97 but the work-woman claimed that she had seen advertisement in February, 1996 and she was interviewed on 30-5-96 and added that her signatures on Ex. WW1/M1 and Ex. WW1/M2 were taken when she was appointed.
39. It is further pointed out by Ld. AR for management that the claimant claimed that she was appointed as Aayas but in her cross-examination denied that she ever performed the duties of Aaya and developed a new story that she was employed as a Peon. It is submitted that the claimant changed her stand because she might have realized that if she had shown appointment as Aaya on 30-5-96 she might loss the case because the 22 school is closed for summer vacation on 15th May every year and service could not have been required during summer vacation. It is submitted that the work-woman admitted that she had no proof to show that she was employed with the school on 30-5-96. It is also pointed out that claimant admitted that P.F. was not deducted from her salary and no letter regarding increment was issued to her whereas P.F. for other employees was deducted.
40. Ld. AR for the management has relied on Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and another 2004 (103) FLR 192 in which it was held that mere filing of an affidavit and giving his own statement before Labour Court is not sufficient evidence to prove said fact that he had worked for more than 240 days in the previous year. It was held that even if period in question for which muster roll not filed by employer is taken in to account it could not be held that 23 workman had worked for 240 days.
41. Municipal Council, Sujanpur Vs. Surinder Kumar 2006 II LLJ 768 has also been relied on to contend that it was for the workman to prove that he had worked for 240 days with the management. Manager R.B.I., Bangalore Vs. Mani & Ors. 2005 (105) FLR 1067 (S.C.) has also been referred to for the purpose.
42. The work-woman has not produced any of her co- worker to substantiate the claim that she was appointed on 30-5-96. She claimed that her interview was taken on 30- 5-96 and she was appointed on the same day and at that time her signatures were obtained on the application Ex. MW1/1 and the appointment letter Ex. MW1/2. Both are dt. 13-6-97 and it cannot be believed that her signatures on these two documents were obtained on 30-5-96. The salary to the workman must have been disbursed on the strength of 24 these two documents and under no circumstances the salary for the period in between 30-5-96 to 13-6-97 could have been avoided.
43. The so called attendance register coll. Ex. WW1/E is not at all a reliable document because the work-woman has taken contradictory stand as to who used to prepare and keep it in custody. Still further the attendance for the month of November, 1997 and December, 1997 is marked in respect of the claimant only whereas the attendance for other months is marked coll. with other employees. The manner in which Ex. WW1/E is kept in itself raised doubt about its authenticity. The work-woman also changed her stand and from the post of Aaya she claimed that she was performing the duties of a Peon. The application Ex. MW1/1 and the appointment letter Ex. MW1/2 show that the claimant was appointed as Aaya and she cold not have been appointed for senior wing of the school. The 25 management produced the record pertaining to the nursery wing of the school in which name of the claimant was not found any where. The non production of the other record by the management is fully justified because the record was ordered to be produced on 3-11-03 and the record pertained to the year 1996 to 1998. It was not the duty of the management to preserve the record for such a long period.
44. Ld. AR for the work-woman has contended that MW1 in his cross-examination admitted that there were 8-9 Class IVth employees but in the wages register names of four employees were mentioned and names of Manju, Poonam and Surinder were not mentioned. It is submitted that the register was clearly fabricated and the original register should have been produced.
45. I do not agree with the contentions of Ld. AR for 26 the work-woman. It was for the workman to prove that she was in continuous employment of the management from 30-5-96 to 15-5-98 for claiming that her services were terminated in violation of Section 25 F of the I.D. Act.
46. The work-woman has failed to discharge her burden. The documents filed by her are not reliable. The photographs Ex. WW1/F do not make her employee of the school and I am of the considered opinion that the services of the work-woman has not been terminated illegally and/or unjustifiably.
47. The issue is decided accordingly in favour of the management and against the work-woman.
48. RELIEF In view of my findings on the issue above, I hold that the the work-woman is not entitled to any relief and 27 no directions are necessary in this respect.
49. The reference is answered accordingly. Copy of this Award be sent to Secretary (Labour), Govt. of NCT, Delhi.
Announced in the open court (R.K.JAIN)
Dt.9-5-07 Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi
28