Delhi District Court
Sh. Vikrant Sharma vs M/S. Adecco Flexione Workforce ... on 29 July, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LC 1311/16 (Old No. DID 53/10).
Unique ID No.02402C0148092010.
IN THE MATTER OF:
Sh. Vikrant Sharma,
S/o Sh. Bal Kishan Sharma,
C/o Shops & Commercial Workers Union Regd. 780,
Ballimaran, Delhi110006.
R/o 1/2014C, Ram Nagar, Shahdara, Delhi32.
..............Workman
Vs.
M/s. Adecco Flexione Workforce Solution Ltd.
39, Ist Floor, Pusa Road, Karol Bagh,
New Delhi110005.
............. Management
DATE OF INSTITUTION : 26.05.2010.
DATE ON WHICH AWARD RESERVED : 29.07.2016.
DATE ON WHICH AWARD PASSED : 29.07.2016.
A W A R D :
1.This is a direct industrial dispute filed by the workman under Section 10(4A) of the Industrial Disputes Act, 1947 (hereinafter referred as "the Act") for reinstatement with continuity of service and full back wages.
2. Claimant's case is that he had started working with the LC 1311/16. 1/10 management as Counter Salesman since 21.07.06 at the last drawn salary of Rs.7,774/ per month. His duty was to show items to the customers and to educate them about their use. His service was terminated illegally vide letter dated 10.02.10, which was received by him on 11.02.10. Against termination, he sent management demand notice dated 25.03.10 by registered post asking it to withdraw the termination letter and to pay the earned wages from 21.11.2009 to 10.02.10. The notice went unreplied. He is unemployed since termination.
3. Written statement is to the effect that claimant was engaged by the management as Retail Sales Executive w.e.f. 21.07.06 on contract basis for 12 months at a consolidated salary of Rs.7,228/ per month. Simultaneously, he was provided the appointment letter and terms and conditions of the employment, which were duly received and accepted by him. His service automatically came to an end on 26.12.2009 due to expiry of contract. His salary to the tune of Rs.7,228/ is lying with it unpaid, for which the management had already prepared a cheque, but the claimant did not appear for collection.
4. Following issues were framed on 08.10.2010: a. Whether the management proves that it is not a industry and, therefore, no dispute LC 1311/16. 2/10 arises for consideration?
b. Whether the workman proves that he was an employee under the management and that he was illegally terminated on 26.12.2009.
c. What relief.
5. In order to substantiate the case, the claimant tendered his affidavit in evidence as Ex. WW1/A mentioning all the facts stated in the statement of claim. He relied upon following documents : i. Ex. WW1/1 termination letter.
ii. Ex. WW1/2 is employment dated 21.07.06.
iii. Ex. WW1/3 demand notice dated 25.03.10.
iv. Ex. WW1/4 are postal receipts vide which demand notice was sent to the management.
v. Ex. WW1/5 is his salary slip for January, 2009 issued by the management.
6. The management examined its Regional Manager Compliance as MW1, who deposed that claimant was engaged by the management as Retain Sales Executive w.e.f. 21.07.2006 on fixed term contract on a salary of Rs.6648/ per month. The term of appointment was 12 months. The claimant had accepted the terms and conditions of his employment. His contract was extended from time to time. He further deposed that the management is engaged in the business of supply of workforce to different establishments as per their requirements. In the same LC 1311/16. 3/10 way, the claimant was posted by the management with M/s. World Space Inc. which has already filed for bankruptcy protection in US Court after failing to obtain new financing. That company stopped all marketing activities in India and hence service of the claimant was no more required by the company. Due to closure of M/s. World Space Inc., the contract of employment of the claimant could not be extended and hence it came to an end due to efflux of time on 26.12.2009. An amount of Rs.7,228/ of the claimant is still outstanding towards it which it is ready to pay.
7. Ld. ARW did not appear to argue the case.
Issue No. a.
8. Ld. ARM argued that the management was in the business of supplying manforce to other companies. Claimant was appointed by the management and his services were deputed as Retail Sales Executive to M/s. World Space Inc. The management itself was not engaged in any business or manufacturing activities and hence it is not an industry.
On the other hand, it is mentioned in statement of claim and deposed by WW1 that he was appointed by the management as Counter Salesman and his services were deputed to M/s. World Space Inc. by the management. The management used to deduct PF and ESI subscription from his salary.
LC 1311/16. 4/109. Admittedly, the management was engaged in the business of supplying of manforce to other companies. For that, it used to recruit the employees, used to pay them salary, used to deduct PF and ESI from salaries and in this way it was engaged in a systematic activities and hence it is an industry covered under Section 2(j) of the Act in view of Bangalore Water Supply and Sewage Board Vs. Rajappa (1978) ILLJ 349SC wherein it was held that the Horticulture Department was an industry because it was passing the triple test for determining whether a particular establishment is "industry" or not. The triple test is whether (a) systematic activity; (b) organized by cooperation between employer and employee (the direct and substantial element is commercial); (c) for the production and / or distribution of goods and services calculated to satisfy human wants and wishes. Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. It further held that true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer -employee relations. So this issue is also decided against the management and in favour of the workman.
Issue No. b.
10. It has been deposed by WW1 that he was appointed by the management on 21.07.06 at the last drawn salary of Rs.7774/ per LC 1311/16. 5/10 month. His service was transferred to M/s. World Space Inc. by the management. He admitted in cross examination that his service was terminated by M/s. World Space Inc. Pvt. Ltd. on 10.02.10 vide letter dated 11.02.10 which was received by him. His termination was without any notice and without notice pay and retrenchment compensation.
On the other hand, ld. ARM argued that claimant was not a permanent employee of the management. It is reflected by appointment letter dated 21.07.06 that claimant was a contractual employee of the management and was appointed for a fixed period of 12 months. As per standard terms of employment, right was given to the management to further extend the contract. The terms further provided that the employment of the claimant shall come to an end upon the elapse of terms of employment. The claimant had admitted those terms and had signed the appointment letter. He further submitted that M/s. World Space Inc. could not run its business in India properly and went into losses and hence filed a petition in US Court for obtaining bankruptcy protection. The claimant was posted with M/s. World Space Inc. and after cessation of business of that company, there was no work with the management and hence the employment of the claimant came to an end after elapse of contract period.
11. WW1 admitted that Ex. WW1/2 was his appointment LC 1311/16. 6/10 letter which he had signed after going through terms and conditions. He further admitted that his appointment was only for 12 months. Further admission is that he was posted by the management in M/s. World Space Inc. India Pvt. Ltd. The appointment letter also provides in clause No. 1 that the claimant's employment was only for a period of 12 months. It is mentioned in Standard Terms of Employment that the claimant was being appointed by the management only for 12 months, but it was reserving right to extend / renew the temporary employment for such period or periods as may be necessary. There is a termination clause. As per that clause, the employment may be terminated by three ways - 1. By claimant, 2. By company or 3. Upon elapse of terms of employment. It is the admitted case of both parties that the termination of service of claimant was not within 12 months for which the claimant was appointed. So, there is no breach of any condition of appointment letter by the management in terminating his service. Though , there is no letter vide which the term of employment was extended, but it is the admitted case of both parties that claimant remained working with the management even after elapse of first 12 months. That means his contract was extended by the management. His service was terminated w.e.f. 26.12.2009 after elapse of extension period. Claimant's case is that management had posted termination letter to him on 10.02.10 which he had received on 11.02.10. In fact, he had worked with LC 1311/16. 7/10 management till 20.02.10. There is nothing mentioned in termination letter which may suggest that it is dated 10.02.10. It is correct that it is undated but it is mentioned that services of the claimant shall stand terminated w.e.f. 26.12.2009 after closing of office hours. Those words suggest that the letter is prior to 26.12.2009. So, the claimant is definitely wrong to say that termination letter is dated 10.02.10. In order to prove that he had received the termination letter on 11.02.10, the claimant did not exhibit or mark any document. There is a photostate copy of courier receipt issued by a courier company, namely, Trackon in which name of the consignor is mentioned as Dept I.T.D.S. Those words do not suggest that the letter was consigned to Trackon by the management. Name of consignee is totally illegible and does not suggest, at all, it to be of the claimant. Even if it is presumed that the courier receipt has been duly proved by the claimant that does not suggest that any letter was sent by the management through M/s. Trackon to the claimant. Even if, it is presumed that any letter was sent by the management to the claimant, there is nothing on the file which may give a single clue that the said letter was termination letter.
In Mukhiya Karpyapalak Adhikari, U.P. Khadi Tatha Gramodyog Board Karmit Anubhag, Lucknow & Anr. Vs. Santosh Kumar, 2011 LLR 1235, the claimant was appointed as a Peon on 01.04.2003 on contract basis. Subsequently, an order LC 1311/16. 8/10 came to be passed against him on 26.02.2004 by which his service was terminated w.e.f. 05.07.2004. Hon'ble Apex Court held that the engagement of an employee on contract basis does not vest any right in him for regular appointment. In the case in hand, the claimant was also appointed initially for 12 months on contract basis. The contract kept on renewing due to the consent of both the parties. The service of the claimant was deputed to M/s. World Space Inc., which, as per the newspaper report Ex. MW1/1, has applied to the US Court for bankruptcy protection as it failed to obtain new finances due to which it stopped all marketing activities in India by mid 2007. Due to closure of business of World Space Inc., the management could not renew its contract with that company and due to that reason, it did not renew its contract with the claimant which ultimately came to an end on 26.12.2009. So, termination of service of the claimant was not by the management and rather, it was due to efflux of time and is covered under Section 2(oo)(bb) of the Act. In view of the above discussion, this issue is decided in favour of the management and against the claimant.
Issue No. c.
12. Consequent to decision on issue No. b, it is held that the claimant is not entitled to any relief. Statement of claim is dismissed. Award is passed accordingly. Parties to bear their LC 1311/16. 9/10 own costs.
13. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 29.07.2016. POLCXVII/KKD, DELHI.
LC 1311/16. 10/10