Delhi District Court
Ms. Kiran vs Office Of Exucutive Engineer Pwd on 14 February, 2025
IN THE COURT OF MS RITU SINGH, DISTRICT JUDGE &
ADDITIONAL SESSIONS JUDGE PRESIDING OFFICER
LABOUR COURT - IV, ROUSE AVENUE COURTS
COMPLEX, NEW DELHI
LIR No. 1744/2022
DLCT DLCT13-004805-2022
Claimant:
Smt. Kiran D/o Sh. Shiv Lal
W/o Sh. Sh. Sagar
R/o K-1/8, Main Gawri Road, Ghonda,
Delhi 110053
.........Claimant
vs.
1. Office of Executive Engineer (PWD)
KKD Court Division,
M231, Under Akshardham Mandir Flyover
Near Metro Pillar No. 50,
Noida More, Delhi 110091
2. Office of the Assistant Engineer,
Karkardooma Court, Sub-Division,
M-2314, ITI, Vivek Vihar, Delhi
..........Managements
Date of Institution : 13.09.2022
Date of Argument : 03.02.2025
Date of Award : 14.02.2025
AWARD
01. Vide this Award, this Court shall decide the Industrial
Dispute which was referred by Deputy Labour Commissioner,
East District, Govt of NCT of Delhi, Vishwakarma Nagar, Jhilmil
colony, Shahadra Delhi 110095 on a complaint filed by the
claimant against the Managements, vide reference no.
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 1 /36
F.24(03)/Lab/E/2022/354 dated 05.09.2022 u/s 10(1)(c) and 12
(5) of The Industrial Disputes Act, 1947, wherein the following
reference was to be answered :-
"Whether there existed employer-employee relationship between
claimant Smt. Kiran D/o Sh. Shivlal and the management of M/s
PWD, and, if so, whether her services were terminated illegally
and /or unjustifiably by the management and if so, to what relief
is she entitled and what directions are necessary in the respect?"
THE CLAIM OF THE CLAIMANT
02. The claimant Mrs. Kiran has asserted in her statement of
claim that she had been working continuously with Public Work
Department (PWD) since 15 years from 2007, as Computer
Operator (Out Source) in its different office and her last drawn
salary was Rs.24,362/- and that during the course of her service,
she always performed her duty sincerely and always abide the
lawful directions of the management. It is stated by the claimant
in her statement of claim that on 26.06.2021, she informed her
management about her maternity leave via hand written letter and
after availing it, on 29.12.2021 she had joined office, as per
instructions of Smt. Neeru Thakaran, Inspecting Officer, Labour
Office at Sub. Division Branch, M-2314, PWD, ITI, Vivek Vihar,
Delhi and that Mr. Rajender Kumar (Executive Engineer, PWD)
refused to pay the maternity leave period salary to her and that
she raise objections against the illegal act of Mr. Rajender Kumar
and she had made complaint before Smt. Neeru Thakaran and
vide order No. IO/E&NE/maternity/ 2022/1051 dated
28.04.2022, the maternity leave salary was released to her on
28.07.2022. It is stated that claimant was terminated from her
service on the instruction/order of Mr.Rajender Kumar
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 2 /36
(Executive Engineer). It is stated that claimant has lodged
complaint before PS Pandav Nagar, Delhi regarding sexual
harassment against the then Mr. Rajender Kumar (Executive
Engineer, PWD) and departmental enquiry was also initiated
against him and on the said complaint, one FIR No.235/2022,
Under section 354/354A, 328/376/506 IPC was registered at
Police Station Bhajanpura and the said case was pending before
the court concerned at Karkardooma Court, Delhi on the
recommendation of the Ministry of Labour, Employment, Govt.
of India vide its Notification dated 31.07.2002, prohibited
employment on the contract basis on the post of Khalashi etc.
The claimant has claimed that her employment with PWD should
have been regularized on the said post and that all the benefits
should have to be given to her i.e. Diwali Bonus, increments,
graduate, EPF, PF and equal salary of the permanent worker of
the Department, losses of salary and unemployed period benefit,
salary and the claimant should be reinstate/permanent/regularized
on her said post. It is stated by the claimant in her statement of
claim that after her illegal and unlawful termination, she has
filed the representation with the Labour Office and thereafter
filed her industrial dispute against the management at the office
of Dy. Labour Commissioner, District East, Vishwakarma Nagar,
Jhilmil Colony, Delhi-110095 and the Labour Office has issued
the failure report in the present case vide letter dated 04.09.2022.
It is stated that claimant was continuously harassed by the
management and Mr.Rajender Kumar the then Executive
Engineer, PWD and that her salary was not given to her since
May 2022 till date and that management of PWD has neither
given any cogent reason for her illegal termination or held any
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 3 /36
enquiry against her and also had not given any show cause notice
to her and management has also not allowed her to join service,
which is against the provisions of section 25 F of ID Act, 1947. It
is stated that after her termination, the claimant has been jobless
and despite several efforts, she had not been able to get any
service. It is stated that management has deliberately and
intentionally and without complying with the provisions of law,
unlawfully terminated her from her service and hence the action
of the management is illegal, void, uncalled for, without issuing
any notice against all norms of administrative and labour law and
that the claimant since then is jobless and suffering with mental
agony and harassment that the management is under the legal
obligations to comply with the provisions of law of land.
VERSION OF MANAGEMENTS IN ITS REPLY
03. Notice of the statement of claim of the claimant was
issued to all the three managements and pursuant to the services
of the notice, the management no.1, 2 & 3 had appeared before
the Court and filed their separate written statements. In written
statement/ statement of defense of management no. 1 & 2
(PWD), it has been stated that no computer operators have been
engaged by PWD directly and they are engaged and removed by
the contractor itself and the claimant was engaged through
contractor M/s Vikas Electric Corporation, B-1444, 3 rd Floor,
Shastri Nagar, Delhi vide Agreement No.55/EE/KKD Court/
PWD/2020-21 dated 25/01/2021 which had stipulated date from
27/01/2021 and that the said agreement was closed on
31/01/2022, vide letter 54 (79)/K.K.D.C.M. (N231) /PWD
/D.S./271 dated 31/01/2022 and that the period of that tender had
completed and it has been claimed that the service of the
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claimant was not required in sub-division M-2314, ITI, Vivek
Vihar, Delhi and through the Agency named M/s Vikas Electric
Corporation, B-1444, 3rd Floor, Shastri Nagar, Delhi was
conveyed to the new agency named M/S Parshant Construction
Co., C-4/5, Kabir Nagar, Delhi-110094 vide office letter no.54
(79)/K.K.D.C.M. (N231)/PWD/2021-22/373 08/02/2022 of
management no. 1 & 2 (PWD). It is stated in statement of
defense of management no. 1 & 2 (PWD) that claimant was
deputed through e-tendering process by an Agency so there is no
direct appointment by the management on regular seat or
recruitment through any open competitive examination/
competition or any examination conducted by the PWD, Govt. of
NCT of Delhi on the vacant seat, however the payment released
to the claimant as per the terms and condition of the Agreement.
04. The management no. 1 & 2 (PWD) has stated in its
statement of defense that complaint was made against the
claimant that she came late in office and remained absent from
the duties, without intimation as complained by the then
Executive Engineer to the agency M/s Vikas Electric
Corporation, B- 1444, 3rd Floor, Shastri Nagar, Delhi on
26/06/2021 and that her last drawn salary was Rs. 24,362/-. It is
stated that on 28/06/2021, she informed her office about her
maternity leave by her hand written letter and thereafter, on
29.12.2021, she joined her office on the over order/instructions
of Smt. Neeru Thakaran, Inspecting Officer, Labour Office at
Sub. Division Branch, M-2314, PWD, ITI, Vivek Vihar, Delhi
and that there is no payment due to her as per agreement
provision and that the claim is afterthought, superfluous,
fabricated and is not tenable. It is stated that the complaint of
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 5 /36
sexual harassment of the claimant has been closed vide Office
order no. e.in.sa/p/41(23)/2021/2446 dated 28/08/2022 as per the
recommendation of Internal Committee of PWD vide letter
no.s/v/va/South-M/125E/113 dated 22/04/2022 and all claims in
present case are after thought and false and denied.
05. Management no. 3 in its hand-written single page
reply has denied that it had terminated the claimant and further
asserted that it had not engaged claimant or any new workman,
during its tender/contract period with management no.1 & 2
(PWD). Management no. 3 has further asserted that PWD had
itself removed the claimant herein from services, even before
stipulated date of beginning of the contractual job on the pretext
of non-requirement of computer operator at the said Sub-
Division of PWD.
ISSUES
06. Vide order dated 04.02.2023, the following issues
were framed in view of pleadings of the parties and the
reference:-
1. In terms of reference.
2. Relief
EVIDENCE OF CLAIMANT
07. In order to prove the case, the claimant appeared as
witness WW1 and filed her evidence affidavit Ex. WW-1/A
wherein she reiterated the contents of statement of claim on
solemn affirmation. Besides this, she had also placed on record
the documents from Ex. WW1/1 to WW1/22 and the documents
are:-
I) Authority letter dated 23.11.2022 is EXB.WW-1/1.
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 6 /36
ii) Copy of letter dated 01.08.2019 along with minutes of meeting are
EXB.WW-1/2 Colly.
Iii) Copy of office order dated 08.08.2019 is EXB.WW-1/3.
iv) Copy of office order dated 15.10.2019 is EXB.WW-1/4.
v) Copy of letter dated 17.10.2019 is EXB.WW-1/5.
vi) Copy of joining report in R/o Smt. Kiran is EXB.WW-1/6.
Vii) Copy of letter dated 28.06.2021 in regard to the maternity leave is
EXB.WW-1/7.
Viii) Copy of E-mail is EXB.WW-1/8.
ix) Copy of complaint made to Delhi Commission for Women is
EXB.WW-1/9.
x) Copies of I Card of deponent are EXB.WW- 1/10 Colly.
xi) Copy of letter regarding engagement of contractual employees is
EXB.WW-1/11.
Xii)Copy of letter EXB.WW-1/12. Dated 28.06.2021 is Ex. WW1/12
xii) Copy of letter dated 24.08.2021 is EXB.WW-1/13.
Xiv) Copy of letter dated 03.02.2022 is EXB.WW-1/14
xv) Copy of letter dated 09.03.2022 is EXB.WW-1/15
xvi) Copy of letter dated 08.02.2022 is EXB.WW-1/16.
Xvii) Copy of letter dated 28.04.2022 is EXB.WW-1/17.
Xviii) Copy of notice dated 09.03.2022 is EXB.WW-1/18.
Xxi) Copy of complaint dated 27.09.2022 is EXB.WW-1/21. Yardena Court,
Delhi-12002
xix) Copy of departmental 20.08.2022 is EXB.WW-1/19.
xx) Copy of order dated 04.09.2022 is SEXB.WW-1/20.
Xxii) Copy of Aadhar card of deponent is EXB.WW-1/22.
08. Claimant was cross-examined by Ld. ARs for the
management no.1 & 2, though AR for management no. 3 had
opportunity to cross-examine but he did not avail the same. As
per submissions of AR for the claimant, claimant evidence was
closed vide order dated 11.07.2023.
09. Thereafter, matter was listed for evidence of both the
managements.
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 7 /36
EVIDENCE OF MANAGEMENT No.1 & 2
10. The management no.1 & 2 (PWD) has examined
MW1 Sh. Brajesh Kumar Sharma, who filed his affidavit by way
of evidence as Ex.MW1/A, reiterating the factual contents of the
written statement of management no. 1 on solemn affirmation.
MW1 also relied on the documents exhibited Ex. M1W1/1 to Ex.
M1W1/6. This witness was cross-examined by AR for the
claimant.
EVIDENCE OF MANAGEMENT No.3
11. The management no.3 has also examined M3W1 Sh.
Prashant Aggarwal, who filed his affidavit by way of evidence
Ex.M3W1/A, reiterating the factual contents of the written
statement of management on solemn affirmation and hes relied
upon the documents Ex. MW3/A (Colly). This witness has also
been cross-examined by AR for the claimant.
12. Managements evidence was closed vide order dated
09.01.2024.
13. Thereafter, matter was listed for final arguments.
Written submissions and judgment were filed on behalf of
claimant and on behalf of the management no. 1 & 2 (PWD).
Same has been perused. This Court has heard the detailed final
arguments addressed by AR for the claimant and ARs for all
managements and thoroughly perused the record and documents
on record.
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ARGUMENTS OF CLAIMANT:-
14. The claimant has stated in her claim statement that
she had continuously and uninterruptedly worked at different
offices of PWD for continuous 15 years, since 2007 as 'computer
operator' (outsourced) under different contractors and that she
was illegally terminated on 10.02.2022 at instance of the then
Executive Engineer PWD, without any notice and as result of
victimization and she has given the details of her work profile
during 15 years of her employment with management no. 1 & 2
(PWD). It has been contended that considering the 15 years long
period of service of claimant in PWD, during which contractors
kept changing and no appointment letter was issued to claimant
by any contractor as she was actually employee of PWD as
substantive control and supervision was in management no. 2
(PWD).
ARGUMENTS OF MANAGEMENTS No.1 & 2:-
15. On the other hand, Ld. AR for the management no.1
& 2 (PWD) has stated that claimant was employee of contractor
and only engaged in management no.1 & 2 (PWD) through
contractor on out-source basis and she has no concerned with
management no.1 & 2 (PWD) and therefore, present claim is not
maintainable against the management no.1 & 2 (PWD) and has
prayed that the claim be dismissed against the management no.1
& 2 (PWD).
ARGUMENTS OF MANAGEMENTS No.3:-
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 9 /36
16. Ld. AR for the management no.3 has argued that the
present claim of the claimant is not maintainable as claimant was
never termianted by the management no.3, instead claimant had
not been appointed by management no. 3 and there is no
employee-employer relation between claimant and management
no. 3 and that she was employee of previous contractor under
management no.1 & 2 (PWD) and that present claim of claimant
be dismissed against the management no. 3.
17. The issue-wise findings of this Court are as under:-
ISSUE NO. 1
1 In terms of reference
18. The issue referred to this Court for adjudication vide
reference no. F.24(03)/Lab/E/2022 dated 05.09.2022 can be
bifurcated in following questions:-
"Whether there existed employer-employee
relationship between claimant Smt. Kiran D/o Sh. Shivlal and the
management of M/s PWD?
&
"Whether the services of the claimant were
terminated illegally and /or unjustifiably by the management ?"
19 The onus to prove the first part of the issue no.1
regarding employer-employee relationship between the claimant
and the management no.1 & 2 (PWD), rests on the claimant.
20. The claimant has stated in her claim statement that
she had continuously and uninterruptedly worked at different
offices of management no.1 & 2(PWD) for 15 years since 2007
as 'computer operator' (outsourced) through different contractors
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 10 /36
and that she was illegally terminated on 10.02.2022 and she has
given the details of her work profile during 15 years of her
employment with management no. 1 & 2 (PWD) which is as
under:-
Sl. No. Period Office address
1. 2007-2008 PWD District Division office at B-14, Sarai Kale Khan,
2. 2008-2009 PWD District Division office at M-253(E),
Ground Floor, MSO Building,
3. 2009-2010 PWD office Zone-IIIrd, 3rd Floor, MSO Building
4. 20010-2012 PWD office Zone-IV, 5TH Floor, MSO Building
5. 2012-2016 PWD Sub-Division, M-4411, Malviya Nagar,
New Delhi
6. 2016-2021 PWD Sub-Division, M-231 (KKD Court), Akshardham
7. 29.12.2021 to PWD Sub-Division, M-2314 ITI, Vivek Vihar, Delhi
10.02.2022
21. The management no. 1 & 2 (PWD) in its written
statement/statement of defense has not specifically denied the
claim of the claimant that she had worked at different offices of
PWD as computer operator (outsourced), continuously for period
of 15 years since 2007 as claimed. The version of management
no. 1 & 2 (PWD) instead is that all computer operators in PWD
are engaged and removed by contractor and computer operators
are not engaged directly by PWD. Further, M1W1 Sh. Brajesh
Kumar Sharma has deposed on same lines in his evidence
affidavit Ex. M1W1/A that claimant Ms. Kiran was engaged
through contractor M/s Vikas Electric Corporation for period of
contract as per the terms of agreement No. 55/EE / KKD /
Court/PWD 2020-21 dated 25.01.2021 and it has been further
asserted by management no.1 & 2 in its reply that after aforesaid
agreement with M/s Vikas Electric Corporation was completed
and closed vide completion certificate dated 31.01.2022,
subsequently, a new tender for providing out-sourced staff, i.e.
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 11 /36
computer operators, LDCs and other staff were issued and
awarded vide agreement no.79/EE/KKD/Court Division /PWD /
2021-22/01374 to M/s Prashant Construction Co. and that the
new contractor M/s Prashant Construction Co. was informed
through Ex. M1W1/4 letter dated 08.02.2022 bearing No.
54(79)/KKD/COURT (M-231) /PWD /2021-22/373 of Executive
Engineer, Karkardooma Court (M-231) PWD, which is Ex.
MW1/4, that services of computer operator was not required at
Sub-Division M-2314 of PWD, at ITI Vivek Vihar, Delhi.
22. The claimant has reiterated her claim in her evidence
affidavit Ex. WW1/A that she was working continuously and
uninterruptedly with management 1 & no.2 (PWD) for 15 years
since 2007 as computer operator (out sourced), through different
contractors and to substantiate her claim she has relied on copy
of identity cards issued to her in year 2012, 2013, 2017 & 2019
which are Ex. WW1/10 (Colly). Perusal of Ex. WW1/10 (Colly)
shows that copy of identity cards clearly reveals that she was
working under same designation/post of 'Computer Operator',
during the entire period of her engagements over 15 years at
different offices of PWD, GNCT, Delhi. The management no. 1
& 2 (PWD) has admitted in its written statement that fact of
continuous 15 years of service of claimant as computer operator
(out-sourced), at its different offices in Delhi is a matter of record
and thus there is no denial by management no. 1 & 2 (PWD) to
the claim of claimant that she had worked uninterruptedly as
under PWD at same post of computer operator (out sourced) for
15 years since 2007 till her termination on 10.02.2022, through
contractors.
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 12 /36
23. Thus, the the undisputed facts are that for 15 years
since 2007 till her discharge on 10.02.2022, claimant has
continuously worked at the same post as 'Computer Operator'
(out-sourced) under PWD, at its different offices in Delhi through
different contractors and that during this period contractors kept
changing while she continued to work at same post, in different
offices of PWD at Delhi which proves the continuity of services
of claimant under PWD over 15 years, as well as the fact of
continuous and perennial nature of the job. It is relevant to note
that the requirement as well as engagement of 'computer
operator' at various offices, Sub-Divisions of PWD had
continued even during period from 2021-22, except Sub-Division
M-2314, as is evident from agreement no. 79/EE/KKDCourt
Divn.PWD/2021-22/01374'.
24. It is pertinent to analyse whether claimant herein
was engaged "through a contractor' or 'by a contractor' for work
of establishment of management no. 1 & 2 (PWD) for
consideration of question whether there was employer-employee
relationship between claimant and management no. 1 & 2 (PWD)
in view of distinction drawn in landmark judgment of Steel
Authority of India & Ors vs National Union Water Front Workers
& Ors AIR SCW 3574 2001 LAB I. C 3656 2002, wherein
Hon'ble Supreme Court has has clarified that 'where workman is
hired in or in connection with the work of an establishment by
the principal employer through a contractor, the contractor
merely acts as an agent so there will be master and servant
relationship between the principal employer and the workman ',
but when workman is hired in or in connection with the work of
an establishment by a contractor, a question might arise whether
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 13 /36
the contractor is a mere camouflage and relevant para of
abovesaid judgment is reproduced herein:-
"By definition the term contract labour is a species of
workman. A workman shall be so deemed when he is hired
in or in connection with the work of an establishment by or
through a contractor, with or without the knowledge of the
principal employer. A workman may be hired: (1) in an
establishment by the principal employer or by his agent
with or without the knowledge of the principal employer;
or (2) in connection with the work of an establishment by
the principal employer through a contractor or by a
contractor with or without the knowledge of the principal
employer. Where a workman is hired in or in connection
with the work of an establishment by the principal
employer through a contractor, he merely acts as an agent
so there will be master and servant relationship between the
principal employer and the workman. But where a
workman is hired in or in connection with the work of an
establishment by a contractor, either because he has
undertaken to produce a given result for the establishment
or because he supplies workman for any work of the
establishment, a question might arise whether the
contractor is a mere camouflage as in Hussainbhai Calicuts
case (supra) and in Indian Petrochemicals Corporations
case (supra) etc.; if the answer is in the affirmative, the
workman will be in fact an employee of the principal
employer; but if the answer is in the negative, the workman
will be a contract labour."
25. The analogy of above said judicial precedent
squarely applies to the present case in view of categorical
admission of the management no.1 & 2 (PWD) that claimant
was engaged 'through contractor', as stated in reply to claim no.
8 in its statement of defense. Even it is admitted position that the
management no.1 & 2 (PWD) used to engage staff, through
contractors on outsource basis, which fact is also evident from
agreement bearing Serial no. 79/EE/KKDCourt Divn.
PWD/2021-22/01374 of PWD with management no. 3 issued by
Executive Engineer, KKD Court, PWD (M-231) for providing
out-sourced staff in circle office M-231, Division Office M-231
and its Sub-Division offices. Even contractor Prashant Aggarwal
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 14 /36
(M3W1) had admitted in Court on behalf of management no. 3
(M/s Prashant Construction Co.) in his cross-examination that he
had merely extended the services of existing employees, already
working in PWD, for his contract period of 2021-22 with PWD
for other offices/divisions, except for Sub-Division M-2314 of
PWD. Admittedly, no fresh appointment letters or any
termination letter was issued by any of such contractors to and
even contractor had no power to allocate or assign any such
workman to other establishment other than PWD, so as to
support inference that there were employees of contractors and
not of PWD.
26. It is also relevant to note that in Director General of
Works (CPWD) vs Laljeet Yadav & Ors W. P (C) 2540/2021
dated 02.04.2024, where one of plea of CPWD was that
workmen therein were employed through contractor, Hon'ble
High Court of Delhi has upheld the award passed by the Labour
Adjudicator by holding that where the workman is employed
through contractor, there exits indirect control of principal
employer over such workman and that there exists employee-
employer relation between such workman and said management
and the relevant extract of said judgment is reproduced here:-
"There is no dispute about preposition of law that initial
onus to prove relationship of employee and employer is
always on the workmen/claimants but the said relationship
has been virtually admitted by the Management in its reply
as well as evidence adduced on record in the instant case. It
is appropriate to mention here that the Management has
come with a specific plea that the workmen in the present
case are directly not the employee of the
Management/CPWD but that of the contractor/s to whom
contracts were awarded from time to time since the time of
engagement of the workmen. Itis appropriate to refer to the
statement of MW1 M.P. Sharma sole witness examined by
the Management who has admitted in his cross
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 15 /36
examination that workmen concerned were continuously
employed even though contractor/s kept on changing from
time to time. He has also admitted that no notice of
termination was given to the workmen, as the workmen
were the employee of the Contractor at the relevant time.
At this stage it is worthwhile to emphasise that every
contractor who is awarded contract for performing certain
work/job, is required to assist & answerable to the
Principal Employer and in such a way, the Principal
Employer exercises direct control in certain regards over
the contractor/s and indirect control over the workmen so
engaged by the said contractor, as is clear from the Scheme
of the Act. Thus, there existed relationship of employee and
employers between the workmen and Management."
25. Placing reliance upon the testimony of the
petitioner's witness regarding contination of the
rerspondent's services, the learned Court below concluded
that the respondent workmen were in continuous
employment of the petitioner entity and despite change in the contractors, the same workmen were working with the entity, therefore establishing continuous nature of the services.
27. Further, Ld. AR for claimant has contended that the pretext of her engagement through contractors is only an eye- wash to escape its legal liabilities and in support of these averments, AR for workman has pointed out that claimant was never issued any appointment letter or even termination letter by any of the contractors, during these 15 years of her uninterrupted and continuous engagement at different offices of PWD, through contractors. It is relevant to note that that M3W1 Prashant Aggarwal Proprietor of management no. 3 i.e. M/s Prashant Construction Co., had categorically admitted in his cross- examination that he had merely 'extended' the services of out- sourced employees at different offices of PWD, in pursuance of the contract with PWD, except for the post of computer operator for Sub-Division M-2314 of PWD, due to letter dated 08.02.2022 Ex. M1W1/4 received from Executive Engineer (C) KKD LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 16 /36 Complex, PWD (M-231), M3W1 Sh. Prashant Aggarwal had further voluntarily admitted that he had not terminated the services of claimant and further has admitted that claimant was earlier working in Sub-Division-IV (M-2314) PWD and relevant part of his cross-examination is as under:-
"I had extended the services of the outsourced employees for the contract of PWD except Sub Division IV (M2314) of PWD. It is wrong to suggest that the outsourced staff/employee are neither deployed not terminated from service by my agency. At this stage, witness is shown Ex. M3W1/1. I have seen and read the document. It is correct to suggest that the name of the claimant Smt.Kirna has not been mentioned in the aforesaid document (Vol. Claimant Kiran was already employed at Sub-Division-IV (M-2314) of PWD and I have not terminated her services. I have been working with the PWD under various contracts awarded to my agency since last 15-16 years. It is correct to suggest that during my previous contracts award by PWD and during this period there were no complaints against claimant Kiran."
28. Ld. AR for claimant has also argued that control & supervision over her job, was directly under office of PWD and to substantiate this claim, claimant has relied on following documents (i) letter Ex.WW1/3 vide which directions were issued by Executive Engineer (C), PWD regarding specific duties and work to be performd by her, (ii) work allocation and assignment of duties to claimant was also directly controlled by officers of PWD, as reflected from letter Ex. WW1/5 issued by Executive Engineer (C), KKD Court Division M-231 PWD, GNCT (iii) that application for leave were to be applied by claimant to Executive Officer, M231, PWD as reflected from letter dated 28.06.2021 Ex. WW1/7, which bears endorsement of office of Executive Engineer, KKD Division M-231 PWD (iv) claimant was given training by management no.1 & 2 (PWD) for LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 17 /36 proper discharge of her duties and work, as reflected from Ex. WW1/2. These documents have not been disputed by management no. 1 and management no. 2 (PWD).
29. The management version that there was no direct employee-employer relationship of claimant with management is also belied by documentary evidences produced by claimant, that is Ex WW1/6 which shows that she reported directly to PWD Officers, after availing leave and that her leave application Ex. WW1/1 were also submitted to Executive Engineer/PWD for sanction and not to concerned contractor and these documents sufficiently indicate towards substantive control and supervision of management no.1 & 2 (PWD) over working and service conditions of claimant. Further, Ex. WW1/5 shows that work allocation to claimant was made through Executive Engineer (C )KKD Court Division, which again goes on to show direct control of management no.1 & 2 (PWD) over services of claimant and she also used to receive training from PWD which is evident from Ex. WW1/2 and Ex. WW1/3. This establishes direct over-sight of management no.1 & 2 (PWD) over claimant and negates the narrative of management no.1 & 2 (PWD) that claimant was 'contractor's employee'.
30. Even economic control particularly, decision regarding payment of maternity benefits and monetary benefits to be paid as per recommendation of Committee on sexual harassment of PWD was exclusively in hands of management no.1 & 2 (PWD), though these payments were made by contractor on directions of officer of PWD which is evident from Ex. WW1/3 and office order dated 13.07.2022 of Executive Engineer (Civil),KKD Complex (M-231). Also management no.
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 18 /361 & 2 (PWD) has failed to substantiate its claim that appointment and termination of claimant or her allocation/assignment was within absolute control of contractor or management no.3 as it has not produced tender notices, contract of agreement, attendance record muster roll, invoices so as to assess the claim of the management no.1 & 2 (PWD) that it had no control over appointment or assignment or termination of the claimant.
31. In Ajay Pal Singh vs Haryana Warehousing Corp Civil Appeal No. 6327/2014 the Hon'ble Supreme Court of India has held that:-
"21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees."
32. Also, the copy of contract agreement of PWD with contractor M/s Vikas Electric Corporation or subsequent contractor M/s Prashan Construction Co has not been produced, which were relevant for throwing light upon nature of contractor's role in controlling and supervising work of claimant concerned and that of management no. 1 & 2 (PWD) or its officer like Executive Engineer, AE & JJ, in taking work from contract employees, so as to assess the degree of control and supervision of the contractor over the claimant.
33. Thus, in terms of ratio in Steel Authority of India & Ors vs National Union Water Front Workers & Ors (Supra), the employment of claimant under direct supervision, control and training by management no.1 & 2 (PWD) through contractor, establishes master-servant relation of management no. 1 & 2 LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 19 /36 (PWD) with workman and thus, belies the claim of management no.1 & 2 (PWD) that claimant was merely employee of contractor and establishes employer-employee relation between management no1 & 2 (PWD) and claimant. Accordingly, in light of the foregoing observations and judicial precedents, this Court holds that the claimant has been able to establish that she was employee of management no.1 & 2 (PWD) and accordingly, this part of issue no.1 is decided in favour of the claimant and against the management no.1 & 2 (PWD).
34. The second part of issue no. 1, as per terms of reference is as under:-
"Whether the services of the claimant were terminated illegally and /or unjustifiably by the management ?"
35. The onus to prove this part of issue no. 1 was on the claimant.
36. The claimant's claim is that after serving the management no. 1 & 2 (PWD), at its different offices for 15 years as computer operator (outsourced), her services were terminated on 10.02.2022 on instructions of the then Executive Engineer, PWD and she had stated in her cross-examination that she had lastly worked with management on 10.02.2022 and this deposition of claimant that she had worked with management no.1 & 2 (PWD) till 10.02.2022, has not been specifically disputed or controverted by management no. 1 & 2 (PWD) in her cross-examination or in the management evidence.
38. The management no. 1 & 2 (PWD) has taken plea that claimant was deputed at office of PWD through contractors and that she was deputed through contractor M/s Vikas Electric Corporation at Sub-Division M-2314 of PWD, ITI Vivek Vihar, LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 20 /36 Delhi and that the agreement with erstwhile contractor M/s Vikas Electric Corporation was actually completed on 31.01.2022 and subsequently, the management had issued fresh tender for providing outsourced staff i.e. for Computer Operators, LDCs, Messangers and MTS in various offices and Sub- Divisions of PWD, including its Sub-Division M-2314 which was awarded vide agreement no. 79/EE/KKDCourt Divn. PWD/2021-22/01374 to management no. 3 i.e. M/s Prashant Construction Company and that subsequently vide Ex.MW1/4 that is letter bearing Serial No. 54 (79) /KKD CM(NZ31) /PWD / DS/373 dated 08.02.2022 of management no. 1 & 2 (PWD), management no. 3 was informed that there was no requirement of Data Entry Operator at Sub-Division M-2314 of management no.1 & 2 (PWD). Sh. Prashant Aggarwal, contractor of management no. 3 was examined as M3W1 and he has stated on solemn affirmation in his evidence affidavit Ex. M3W1/A that above said tender was awarded to him by management no.1 & 2 (PWD) and he has relied on Ex. MW3/1 (Colly), which includes letter bearing Sr. No. 54(79) KKD Court M(M-231) Di.S/2021- 22/367 dated 07.2.2022, which shows that agreement between the management no.1 & 2(PWD) and the management no.3 was already concluded before 07.02.2022. M3W1 has further stated in his evidence affidavit Ex. M3W1/A that he was informed by PWD only thereafter vide its letter dated 08.02.2022 that no Data Entry Operator was required at its office at Sub-Division M-2314, ITI Vivek Vihar, PWD, Delhi and M3W1 Sh. Prashant Aggarwal has specifically admitted in his cross-examination that claimant was working as Data Entry Operator under previous contractor at Sub-Division M-2314, ITI Vivek Vihar, PWD, LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 21 /36 Delhi and he has categorically admitted in his cross-examination before Court that 'he had only extended the services of out- sourced employees for contract of PWD, except for office of Sub-Division M-2314 of PWD.
39. The relevant facts which can be culled out from oral testimony of parties, documentary evidence placed on record and the admitted facts are:-
(a) the claimant had been working as computer operator (out-
sourced) with management no1 & 2 (PWD) since 2007 and she had lastly worked as computer operator (out-sourced) at Sub- Division M-2314 of management no.1 & 2 (PWD), uptil 10.02.2022;
(b) that after 31.01.2022 the tender was issued by management no. 1 & 2 (PWD) for engaging staff, including Computer Operators, for its various offices/Sub-Division, including its Sub- Division M-2314 and this tender was awarded to management no.3 (M/s Prashant Aggarwal Co.) vide agreement no. 79/EE/KKDCourt Divn. PWD/2021-22/01374 by 07.02.2022.
(c) it was only thereafter that management no. 3 (contractor) was informed by management no.1 & 2 (PWD) vide Ex. M1W1/4 vide its letter dated 08.02.2022 bearing Sr. No. 54(79) / KKDCourt M(AM-231)/PWD/2021-22/373 of Executive Engineer (C) KKD Court Complex, (M-231) PWD, Delhi that no Data Entry Operator was required at its Sub-Division 2314, ITI Vivek Vihar, Delhi;
(d) pursuant to receipt of letter dated 08.02.2022 from Executive Engineer (C), PWD, management no.3 (contractor) had admittedly not extended services of present claimant at the post of computer operator at Sub-Division, M-2314 of PWD, though LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 22 /36 the services of previous employees (outsourced) of PWD, including all the computer operators at Circle Office M-231, Division Office M-231 and Sub-Division, M-2311, M2312 & M-2313 was extended by management no.3, as per the admission of M3W1.
40. Thus, evidently, management no1 & 2 (PWD) had notified requirement of computer operator for its Sub-Division M-2314, for period from 2021-22 through tender and also proceeded to award this tender for engaging computer operator at its Sub-Division M-2314, to management no.3 vide agreement no. 79/EE/KKDCourt Divn.PWD/2021-22/01374, but it is only thereafter that for unexplained and unknown reasons, the management no. 1 & 2 (PWD) had withdrwan its previously notified requirement of computer operator at its Sub-Division M-2314 vide its subsequent letter dated 08.02.2022, Ex. M1W1/4. It is admitted fact that it was due to this letter dated 08.02.2022 Ex. M1W1/4 of management no.1 & 2 (PWD) that the services of the claimant as computer operator at Sub-Division M-2314 were not further continued and it resulted in her discharge/termination from services of management no.1 & 2 (PWD).
41. Evidently, vide letter dated 08.02.2022 Ex M1W1/4 of management no.1 & 2 (PWD) the requirement of computer operator was withdrawn in respect of only one Sub-Division M-2314 of PWD (where admittedly the claimant had been working as computer operattor (outsourced)) and importantly, the said requirement was withdrawn after the management no.1 & 2 (PWD) had already notified through tender and awarded it to management no.3 for engaging computer operator at its aforesaid LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 23 /36 Sub-Division vide agreement no. 79/EE/KKDCourt Divn.PWD/2021-22/01374. Moreover, it is pertinent to record that aforesaid letter Ex. M1W1/4 of management no. 1 & 2 (PWD) is absolutely silent regarding the circumstances or the reasons due to which the requirement of Data Entry Operator/computer Operator was withdrawn subsequently and reasons as to why such office order was issued only in respect of Sub-Division M-2314 of PWD, though the requirement of Data Entry Operator/computer operators had continued in other Sub- Divisions/ Offices of PWD. Further, the action of management no.1 & 2 (PWD) in withdrawing the requirement of computer operator only at its Sub-Division M-2314 has to be analysed in backdrop of sexual harassment complaint which was filed earlier by the claimant against the then concerned Executive Engineer (PWD), Delhi. Therefore, from conspectus of the facts of the case discussed above, it appears that aforesaid act of the management no. 1 & 2 (PWD) was inteded at victimization of the claimant and was therefore, unfair labour practice on part of the management no1. & 2 (PWD).
42. It is also pertinent to note herein that the act of management no. 1 & 2 (PWD) in issuing letter dated 08.02.2022 Ex. M1W1/4, which ultimately resulted in discharge of the claimant from service of management no.1 & 2 (PWD), is apparently in contravention of sprit of office order issued vide Circuler/letter no. F.19(01) /2014 /S-IV/223-224 dated 16.02.2015 of Special Secretary (Services), Services Department, Branch-IV, GNCT, regarding employees engaged through contractor, whereby all the Heads of Department under GNCT, were specificially informed that:-
LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 24 /36"The Government of N.C.T of Delhi would like to take a view on the existing policy/regarding status of contractual employees engaged in various departments and organization under this Government.
Therefore, services of Contractual employees engaged by the departments should NOT be terminated till further instructions in the matter, if any terminations are likely to be take place, the same should be stopped till further orders."
43. It has been settled principle of law that abrupt termination of even employees, engaged through contractor without prior notice or explanation and without fair hearing to the employee, violates fundamental principles of natural justice as held in Jaggo vs Union of India & Ors (SLP (C) No. 5580 of 2024 by Hon'ble Supreme Court of India and the relevant extract of the aforesaid judgment is re-produced herein:-
"The abrupt termination of the appellants' services, following dismissal of their Original Application before the Tribunal, was arbitrary and devoid of any justification. The termination letters, issued without prior notice or explanation, violated fundamental principles of natural justice. It is a settled principle of law that even contractual employees are entitled to a fair hearing before any adverse action is taken against them, particularly when their service records are unblemished. In this case, the appellants were given no opportunity to be heard, nor were they provided any reasons for their dismissal, which followed nearly two decades of dedicated service."
44. Also, in Shripal & Anr vs Nagar Nigam, Ghaziabad Civil Appeal No. 8157 of 2024 Hon'ble Supreme Court of India has held that contractual/ temporary engagement where work is permanent in nature, is not favoured under Indian Labour Law and relevant part of judgment is as under:-
"15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records--despite directions to do so
--allows an adverse inference under well-established LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 25 /36 labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement.
45. It has been held in Ajay Pal Singh vs Haryana Warehousing Corp (Supra) that any workman who had been continuous services of the management cannot be terminated without compliance of conditions stipulated in Section 25F of ID Act and the relevant extract of the judgment is reproduced herein:-
22. Section 25F of the Industrial Disputes Act, 1947 stipulates conditions precedent to retrenchment of workmen. A workman employed in any industry who has been in continuous service for not less than one year under an employer is entitled to benefit under said provision if the employer retrenches workman. Such a workman cannot be retrenched until he/she is given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice apart from compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. It also mandates the employer to serve a notice in the prescribed manner on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
If any part of the provisions of Section 25F is violated and the employer thereby, resorts to unfair trade practice with the object to deprive the workman with the privilege as provided under the Act, the employer cannot justify such an action by taking a plea that the initial appointment of the employee was in violation of Articles 14 and 16 of the Constitution of India.
46. Thus, in view of observation in above-cited judicial precedents as well as office order dated 16.02.2015 of Special Secretary (Services), Services Department, Branch-IV, GNCT, LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 26 /36 Delhi, this Court is of the considered opinion that the claimant was terminated illegally, unjustifiably and even mala-fidely from the services of management no.1 & 2 (PWD). Accordingly, this second part of the issue no. 1 is decided in favour of the claimant and against the management no. 1 & 2 (PWD).
47. Since the management no. 3 had not appointed the claimant herein, therefore, no question of illegal termination by management no. 3 arises.
ISSUE NO. 2.
Relief
48. The claimant herein has sought the relief of reinstatement in the service with full back wages along with the continuity of service and all the consequential benefits. The term "reinstatement" has not been elucidated in the Industrial Disputes Act, 1947. The Shorter Oxford English Dictionary, Vol. II, 3rd Edition stated that, the word "reinstate" means to reinstall or reestablish (a person or thing in a place, station, condition etc.); to restore to its proper and original state; to reinstate afresh and the word "reinstatement means the action of reinstating; reestablishment. "As per Black's Law Dictionary, 6th Edition, "reinstatement" means 'to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed'.
49. In the case titled as Tapash Kumar Paul Vs BSNL & Anr, and reported as of JT 2014 (7) SC 589, the Hon'ble Supreme Court has held that the court may either award the compensation or order for reinstatement in the cases which do not fall within the five categories as described by the Hon'ble Supreme Court in LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 27 /36 the aforesaid judgment. The relevant portion of this judgment is reproduced as under:
"It is no doubt true that a Court may pass an order substituting an order of reinstatement by awarding compensation but the same has to be based on justifiable grounds viz.(i) where the industry is closed; (ii) where the employee has superannuated or going to retire shortly and no period of service is left to his credit; (iii) where the workman has been rendered incapacitated to discharge the duties and cannot be reinstated and/or; (iv) when he has lost confidence of the Management to discharge duties. What is sought to be emphasized is that there may be appropriate case on facts which may justify substituting the order of reinstatement by award of compensation, but that has to be supported by some legal and justifiable reasons indicating why the order of reinstatement should be allowed to be substituted by award of compensation. In the instant matter, we are not satisfied that the appellant's case falls in to any of the categories referred to hereinbefore which would justify compensation in lieu of reinstatement. We thus find no justification for the High Court so as to interfere with the Award passed by the Tribunal which was affirmed even by the single Judge, but the Division Bench thought it appropriate to set aside the order of reinstatement without specifying any reasons whatsoever, as to why it substituted with compensation of a meager amount of Rs.20,000/ to the appellant."
50. Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 discussed the concept of reinstatement as under:
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money..... The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi- judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 28 /36 plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." (emphasis supplied).
51. It was held by Hon'ble Supreme Court of India in JAGGO vs Union of India & Ors (SLP (C) No. 5580 of 2024 of Hon'ble Supreme Court of India has held that engaging workers on temporary basis for extended period contravenes international labour standards and is unfair and relevant part of the judgment is reproduced herein:-
"In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."
52. It has been settled law that the industrial adjudicator under the Industrial Dispute Acts enjoys wide power for granting relief which would be proper under a given circumstances and Hon'ble Supreme Court of India has held in Hari Nandan Prasad and Another vs. Employer I/R to Management FCI (2014) 7SCC 190, that the power conferred upon Industrial Tribunal and Labour Court by the Industrial Dispute Act is wide and that the Act deals with LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 29 /36 Industrial Dispute, provides for concilation, adjudication and settlement and regulates the right of the parties and the enforcement of the Awards and the settlement. Thus, the Act empowers the adjudicating authority to give relief which may not be permissible in common law or justified under the terms of the contract between the employer and the workman While referring to the judgement of Bharat Bank Limited vs Employers of the Bharat Bank Limited reported in (1950) LLJ 921, the Hon'ble Supreme Court of India has held that in settling the dispute between employer and workman, the function of the Tribunal is not confined to adminstration of justice in accordance with law and it can confer rights and privileges on either party, which it considers reasonable and proper, though these may not be within the terms of any existing agreement.
53. In the case at hand, this Court has already observed in Issue no. 1 herein above that the claimant was engaged by managements no.1 & 2 (PWD) through contractor and therefore, applying the analagy of the judgment of Hon'ble Supreme Courrt of India in Steel Authority of India & Ors vs National Union Water Front Workers & Ors (Supra) and other judicial precedents cited herein above, this Court has already held that claimant herein was employee of management no. 1 & 2 (PWD) and she was illegally and unjustifiably discharge from her services, as a result of unfair and unjusified action of management no. 1 & 2 (PWD).
54. The principle of law which emerges from analysis of judicial precedents is that grant of reinstatement LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 30 /36 with full back wages is the normal rule when termination is found to be illegal and mala fide and reliance in this regard is also placed on judgment of Anoop Sharma Vs. Executive Engineer, Public Health Division No.1 Panipat (2010) 5 SCC 497. Similarly in Hindustan Tin Works Pvt. Ltd. Vs. Employees of Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC 80, wherein Hon'ble Supreme Court of India had held that relief of reinstatement with continuity of service can be granted when termination of service is found to be invalid.
55. In present case, the claimant was admittedly in service of management no.1 & 2 (PWD) as computer operator (outsourced), through different contractors, since 2007 and was engaged to perform job of intergal nature of updating computer data and related functions and had served at the same post for 15 years in management no.1 & 2 (PWD), before her termination on 10.02.2022. Therefore, in light of legal position discussed hereinabove and considering that the case of the claimant does not fall in any of the categories as mentioned by Hon'ble Supreme Court in the case of Tapas Kumar Paul Vs. BSNL & Anr. (Supra), this Court holds that the claimant is entitled to reinstatement in service of the management no.1 & 2 (PWD) it same post (under same category) in the same Sub-Division or any other Office/Division/ Sub-Division of management no1 & 2 (PWD0.
56. Regarding the issue of payment of back wages to the workman, in G.M. Haryana Roadways Vs. Rudhan Singh (2005) 5 SCC 591, it was held that :
"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 31 /36 service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calender year."
57. The Hon'ble Supreme Court of India in case titled as Novartis India Ltd. vs. State of West Bengal (SLP (C) No.21254/2007) was pleased to hold that:
"This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972."
58. In Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and another, [(2007) 1 SCC 491], it was held :-
"46. We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of Respondent 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of Respondent 1 was in any manner stigmatic. In the decision in M.P. SEB v.LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 32 /36
Jarina Bee 2 this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the industrial adjudicator has not given any finding on unemployment."
59. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs Kishan Devi And Bhagwati Devi, (2007) IIILLJ 55 Del has held as under:
"5. It is now settled law that even if the termination of a person is held illegal, the Labour Court is not supposed to direct reinstatement along with full back wages and the relief can be moulded according to facts and circumstances of each case. The Court has to adopt a pragmatic approach and take into account the allegations made by the work- women, the nature of contribution by the work-women to the industry, the time gap and averments made about the unemployment and proof of unemployment as the relevant factors to be considered in such cases. The Labour Court can allow compensation to a workman instead of reinstatement and back wages. Undisputably, both the work- women were considered as part-time employees by the Tribunal. Both were working for two hours per day for cleaning and sweeping of floors. Obviously, the rest of the time of the day was being utilized by the work-women for similar work at other places. They could not be said to be unemployed in the sense as of a full time worker is rendered unemployed.
60. In Kendriya Vidyalaya Sangathan and Anr. v. S.C.Sharma, (2005) 2 SCC 363, the Hon'ble Supreme Court of India had observed as under:
"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard".
61. The Hon'ble High Court of Delhi in case titled as Indian Hydraulic Industries Pvt. vs. Kishan Devi And Bhagwati Devi, (2007) IIILLJ 55 Del has also held as under:
"7. In the present case looking into the fact that the LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 33 /36 respondents were part-time employees working only for two hours a day and had absented from duty of their own, I consider it a fit case where compensation should have been awarded by the Labour Court instead of reinstatement and back wages. I consider that a compensation of Rs. 36,000/- to each workman shall meet the ends of justice. The writ petition is allowed to this extent and the relief granted by the Labour Court is modified and it is directed that in lieu of reinstatement and back wages, a compensation of Rs. 36,000/- be paid to the each work-woman. This amount has already been paid to the respondents asper record, under the directions of this Court. No order as to costs."
62. The Hon'ble Supreme Court of India in case titled as Rajasthan State Road Transport vs Phool Chand (D) (2018) 18 SCC 299 has held as under:
"It is necessary for the workman in such case to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee".
63. The Hon'ble Delhi High Court in the cases titled The Commissioner, Kendriya Vidyalaya Sangathan v. Dr. Dharmendra Singh, 2016 SCC Online Del 4718, has held as under:-
"44. So far as grant of back wages is concerned, it depends upon case to case. The issue of payment of back wages on reinstatement of a workman has been discussed by this court in LPA No.24/2013 titled "Delhi Transport Corporation v. Sarjeevan Kumar" decided on 21st January, 2013, the legal proposition in this regard was enunciated as under:-
(i) Payment of full backwages is not automatic on Labour Court/Tribunal granting reinstatement of workman.
(ii) The same principle is equally applicable in case an order of dismissal is set aside by the Labour Court/Tribunal on the ground of non-compliance of Section 25F of the I.D. Act.
(iii) The Labour Court/Tribunal shall give reasons for determining the specified quantum of backwages.
(iv) The burden is on the workman to show that he is entitled to full backwages or to a reasonable backwages and he is not gainfully employed during the period he was not in service of the management.LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 34 /36
(v) Once materials are placed by workman on the above, the burden shifts on to the Management to disprove such claim.
(vi) In the event, the Labour Court/Tribunal fails to give any reason to quantify backwages, the High Court can go into the said issue and decide on on quantum.
64. The claimant in her statement of claim as well as in his affidavit Ex.WW1/A deposed that she is unemployed since the date of her illegal termination, despite her best efforts to find job and the management no1. & 2 (PWD) has not been able to show that the claimant herein is gainfully employed elsewhere, by summoning relevant witnesses or proving the documents, as per law. Therefore, this Court is of the considered opinion that the claimant is, also entitled to back wages @ 50 % of her last drawn salary from date of her termination (i.e. 10.02.2022) till date of this Award.
65. Thus, this Court holds that the claimant is entitled to reinstatement in services of the management no. 1 & 2 (PWD) on the same post (under same category), in same or any other Sub- Division/ Division/Office of management no.1 & 2 (PWD), in which she was working on the date of her termination as well as to back wages @ 50 % of last drawn salary, from the date of her termination (i.e. 10.02.2022) upto the date of this Award.
66. Further, management no.1 & 2 (PWD) is directed to ensure compliance of office order dated 16.02.2015 of Special Secretary (Services), Services Department, Branch-IV, GNCT, Delhi, in respect of services of claimant.
67. Issue no.2 is disposed off, in terms of aforesaid directions.
68. Management is directed to pay the abovesaid amount accrued in favour of claimant within three months from the date of publication of award. If the management fails to pay LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 35 /36 the amount within the time stipulated, the accrued amount shall carry interest @ 8% per annum from the date of accrual and till the final payment is made.
69. The reference is answered accordingly. Award is passed accordingly. Let copy of this Award be sent to the Labour Commissioner, for publication as per law.
File be consigned to the Record Room.
Digitally signedRITU by RITU SINGH Date:
SINGH 2025.02.14 17:30:20 +0530 (RITU SINGH) District Judge, POLC-IV/RADC, New Delhi/14.02.2025 LIR No. 1744/2022 Kiran vs Office of Executive Engineer (PWD) Page No. 36 /36