Delhi District Court
Smt. Kiran Bala W/O Late Shri Som Dutt vs Hotel Corporation Of India Ltd on 26 August, 2014
IN THE COURT OF SHRI SANJAY SHARMA :
PRESIDING OFFICER LABOUR COURTXIX (EAST) :
KARKARDOOMA COURTS : DELHI
LIR No. 847/2011
UNIQUE CASE ID NO. 02402C0 015222011
1. Smt. Kiran Bala W/o Late Shri Som Dutt
2. Smt. Mala Devi W/o Late Shri Baiju
3. Smt. Roop Kala W/o Late Shri Chhaddi Lal
4. Smt. Sunita W/o Late Shri Bishan Singh
5. Smt. Sheela Devi W/o Late Shri Rohtash Mahajan
6. Smt. Babita W/o Late Shri Sunil
C/o Delhi Labour Union
Aggarwal Bhawan
GT Road, Tis Hazari,
Delhi - 110 054 ......Workman
Vs
1. Hotel Corporation of India Ltd.
Through its Managing Director,
Transport Annex Building
AirIndia Complex, Old Airport,
Santacruz East, Mumbai - 400029
2. Chefair Flight Catering
Through its Dy. General Manager - Operations
Centaur Hotel, IGI Airport,
Gurgaon Road,
New Delhi - 110 037 ......Management
LIR NO. 847/2011 Page 1 of 13
Date of institution : 07.3.2011
Date of reserving judgment : 11.8.2014
Date of Passing of Award : 26.8.2014
Reference No. F.24(352/10)/SWD/Lab/75277530 dt. 23.11.2010
A W A R D
Having satisfied regarding existence of an industrial
dispute between the parties, the Dy. Labour Commissioner,
Government of NCT of Delhi in exercise of powers conferred by
section 10(1)(c) and 12 (5) of the Industrial Disputes Act, 1947
(hereinafter referred as 'Act') with Labour Department Notification
No. F1/31/616/ESTT./2008/7458 dated the 3rd March 2009, referred
the present dispute to this Labour Court for adjudication with the
following terms of reference:
"Whether services of Smt. Kiran Bala W/o
Late Shri Som Dutt and 5 Ors. whose
details are given in Annexure "A" have
been illegally and/or unjustifiably
terminated by the Management, and yes, to
what relief are they entitled?"
2. Notice of reference was sent to the workmen who filed
their statement of claim while submitting that their husband (since
deceased) were permanent and regular employees of the
management and that they all were taken into job by the
LIR NO. 847/2011 Page 2 of 13
management on compassionate grounds as Handy Woman after the
death of their respective husband. They alleged that they were
assigned duties as daily wagers though they all should have been
taken by the management on regular basis. They further alleged that
they filed a Writ Petition (Civil) bearing No. 2003/98 in the Hon'ble
High Court of Delhi claiming the relief of 'Equal Pay for Equal
Work' and for regularization of their services and the said petition
was disposed of vide order dt. 18.5.2010 vide which it was observed
that the petition is not maintainable as the workmen should
approach the Labour Court for relief.
It was alleged that after passing of the said order, the
management issued a letter dt. 04.8.2010 informing the workmen
regarding termination of their services with immediate effect. It
was also alleged that no notice or notice pay was given nor any
service compensation was offered or paid to the workmen while
terminating their services. They sent a demand notice dated
06.8.2010 to the management but it did not respond and
subsequently the conciliation proceedings also failed. Hence,
through this claim the workmen have prayed that the management
be directed to reinstate their service with continuity and full back
wages and all consequential benefits.
LIR NO. 847/2011 Page 3 of 13
3. The management has contested the claim and had
filed detailed written statement submitting therein that Chefair
Flight Catering (Management No. 2) is a Unit of Hotel Corporation
of India Limited(Management No. 1). It was submitted that the
claimants were engaged temporarily and extension was granted to
them from time to time as per requirement and none of them was
appointed against permanent vacancy. It was also submitted that the
engagement of the claimants was being continued due to the
directions passed by the Hon'ble High Court of Delhi vide order dt.
29.4.1998 to maintain status quo in respect of their service. Other
allegations made in the claim were specifically and categorically
denied.
4. Workman filed the rejoinder where in he reinstated
his claim and countered the allegations made by the management.
On the basis of the pleadings of the parties, following issues were
framed on 31.10.2011:
1. Whether this Court has jurisdiction to
entertain and adjudicate the present
dispute?
2. As per terms of reference.
LIR NO. 847/2011 Page 4 of 13
5. All the six workmen led her evidence and examined
themselves as WW1 to WW6, i.e. Smt. Kiran Bala as WW1, Smt.
Mala Devi as WW2, Smt. Roop Kala as WW3, Smt. Sunita as
WW4, Smt. Sheela as WW5 and Smt. Babita as WW6, and closed
their evidence. The management examined Shri SK Dikshit -
Asst. ManagerTime Office, as MW1 and closed its evidence.
6. I have heard Shri Rajiv Agarwal - Ld. AR for
workmen and Shri VP Gaur Ld. AR for the management and have
carefully gone through the record. My issue wise findings are as
under:
ISSUE NO. 1:
7. Ld. AR for the Management has challenged the
validity of the present reference while submitting that M/S Chefair
Flight Catering is a unit of Hotel Corporation of India Limited
which is a wholly owned and subsidiary company of Air India
Limited and is controlled by Ministry of Civil Aviation , Govt. of
India and as such the appropriate government to refer the dispute
Central Government, whereas the present reference has been made
by the Govt. of NCT of Delhi and is, thus, beyond jurisdiction . In
reply, Ld. AR for workmen submitted that since Delhi has not yet
achieved the status of a State and is still a Union Territory,
LIR NO. 847/2011 Page 5 of 13
therefore, it does not make any difference whether a reference is
made by the State Government or the Central Government.
8. In my view, the argument put forward by Ld. AR for
workman is correct as in case of Union Territory, both the State and
the Central Government are competent to refer the dispute. Even
otherwise, the challenge to the reference cannot be made before this
Court as it is the province of only the Hon'ble High Court which
can quash the reference on any ground in writ jurisdiction . Hence,
this issue is decided in favour of the workmen and against the
management.
ISSUE NO. 2/Reference :
9. It is an undisputed fact that all the workmen in the
present claim were given appointment by the management on
compassionate grounds due to the demise of their husband on
various dates. It is also not disputed that they were appointed from
time to time for limited period of 40 days since their initial
appointment and till they were discharged from services finally vide
order dt. 04.8.2010.
10. It is also an admitted fact that all the workmen had
earlier approached the Hon'ble High Court in writ jurisdiction for
LIR NO. 847/2011 Page 6 of 13
regularization of service which was dismissed vide order dt.
18.5.2010, a copy of which has been placed on record as
Ex.WW1/5. However, they were given a liberty to approach the
appropriate fora for any relief for which they may claim to be
entitled.
11. It has been held in the said order by the Hon'ble High
Court that "the instructions of Government of India on which the
petitioners therein placed reliance were not applicable to the
present management and the rules of Air India and HCIL are not
shown to contain any provisions for compassionate appointment".
Reliance was placed on the judgment delivered in Umesh Kumar
Nagpal Vs. State of Haryana (1994) 4 SCC 138, wherein it was
held that the provisions for compassionate appointment have
necessarily to be made by the rules or by the executive
instructions issued by the Government or the public authority
concerned; employment cannot be offered by an individual
functionary on an adhoc basis.
12. In the said order, the Hon'ble High Court further relied
upon the decision in Indian Drugs and Pharmaceuticals Pvt. Ltd.
LIR NO. 847/2011 Page 7 of 13
Vs. Workmen , Indian Drugs and Pharmaceuticals Pvt. Ltd.
(2007) 1 SCC 408, wherein the respondents were appointed on
purely casual and daily rate basis for reasons that they were dependents of employees dying in harness. Subsequently, the Union started pressing for regularization of such employees; on reference, the Labour Court held that for the reason of having continued for a long time they were entitled to regularization ; the High Court directed that such employees though not entitled to regularization would continue in service till their superannuation and be paid wages like regular employees. The Supreme Court, however, held that such persons had no right to the posts and rules of recruitment cannot be relaxed and the Court/Tribunal cannot direct regularization of temporary appointees de hors the rules nor can it direct continuation of service of a temporary employee.
13. Further, the judgment of the Hon'ble Supreme Court in IG (Karmik) & ors. Vs. Prahlad Mani Tripathi (2007) 6 SCC 162 was also relied upon wherein it was held that the appointment on compassionate ground is given only for meeting immediate hardship faced by family of the deceased due to death of bread earner; when appointment is made on compassionate ground it LIR NO. 847/2011 Page 8 of 13 should be kept confined only to the purpose it seeks to achieve.
14. On the strength of the above judgments, it was observed by the Hon'ble High Court in Ex.WW1/5 that notwithstanding the absence for any rule for compassionate appointment, the petitioners were given compassionate appointment on a adhoc/temporary basis. The same however, does not entitled the petitioners to regular appointment on compassionate grounds. Moreover, more than 20 years have since passed. There is no element of crises or tiding over today.
15. The above observations of the Hon'ble High Court go to the root of the matter. It is pertinent to mention here that since 29.4.1998 till 04.8.2010, the services of these workmen were continuing only on the basis of the orders of the Hon'ble High Court as status quo was directed to be maintained regarding their service. The fact remains that the workmen have failed to show any rule of the management regarding appointment on compassionate grounds and as such they cannot claim regular appointment on that basis as a matter of right. On one hand, regularization has not been claimed by the workmen and on the other hand, the same cannot be granted by this Court being the province of Industrial Tribunal as LIR NO. 847/2011 Page 9 of 13 per Schedule III of the Industrial Disputes Act. The workmen never applied for regular appointment through the process of the management and merely because they have served for a long period from time to time on temporary/adhoc basis would not give them any right to be reinstated, in view of the judgment in Indian Drugs and Pharmaceuticals Limited (supra).
16. The case of the management had been that none of the workmen worked for a continuous period of 240 days in the 12 months preceding their termination prior to the order of the Hon'ble High Court granting status quo to their services dt. 29.4.1998. The workmen have also failed to produce any evidence in the present claim to show that prior to 29.4.1998 they had worked for 240 days in continuation . They have claimed the relief on the premises that they had worked continuously for 240 days prior to 18.5.2010 when their services were finally discharged after the dismissal of the Writ Petition . The interim orders passed by the Hon'ble High Court protecting their services cannot come to their rescue as it was obligatory on the part of the management to keep them on their payroll, in view of the order.
17. Ld. AR for the workmen advanced the arguments on LIR NO. 847/2011 Page 10 of 13 the premise that the workmen have been retrenched in contravention of Section 25F of the ID Act as MW1 admitted that while terminating their services the management neither offered nor paid any notice pay in lieu of notice or service compensation . He also admitted that the management never issued any memo or charge sheet nor held any inquiry against the workmen before terminating their services. He further admitted that the nature of work of Handy Man is of permanent nature and the management require such workers as long as the management is in the business of catering. He also admitted that no seniority list was displayed on or before terminating the services of the workmen . He presumably laid emphasis on the term "termination". However, the term used in the letter dt. 04.8.2010 is "discharged". Ld. AR for management contended that the services of the workmen were discharged on coming to an end of the period of fixed term appointment which was not renewed and as such sought benefit under Section 2 (oo) (bb) of the ID Act.
18. It is, thus, clear that the nature of services of the workmen were totally temporary and for a period of 40 days at a time with regular intervals and as such were on fixed term basis which were discharged on completion of the period and therefore, LIR NO. 847/2011 Page 11 of 13 would not fall within the definition of 'retrenchment' in view of the exception of Section 2(oo)(bb) of the ID Act. Further more, it is reiterated that their initial appointment was only on compassionate grounds which was made without provision of any rule and was only a temporary measure. It has been held by the Hon'ble Apex Court in Indian Drugs and Pharmaceuticals Limited (supra) that the Court/Tribunal cannot direct continuation of service of a temporary employee. Thus, even if the nature of job of the workmen was of permanent in nature and the workers junior to the workmen were continued in service, the workmen cannot as a matter of right call for reinstatement without approaching through proper rules of recruitment and as such are not entitled to reinstatement. Therefore, their services cannot be said to have been terminated illegally. This issue is accordingly decided in favour of the management and against the workmen .
Relief :
19. In view of the discussion made herein above, the workmen are not entitled to reinstatement. Nevertheless, they had been working with the management and rendered their services for almost 20 years though on the directions of the Hon'ble High Court, LIR NO. 847/2011 Page 12 of 13 hence it would be just and appropriate that they are granted a compensation of Rs.50,000/ each which shall be paid to them by the Management within 30 days from the publication of this Award failing which it shall carry an interest @ 9% per annum till the date of actual payment.
The reference is answered accordingly. Copy of award be sent for publication and case file be consigned to Record Room. ANNOUNCED IN OPEN COURT ON 26th day of August 2014 (SANJAY SHARMA) PRESIDING OFFICER LABOUR COURTXIX KARKARDOOMA COURTS, DELHI LIR NO. 847/2011 Page 13 of 13