Delhi District Court
Rakesh Panwar And Ors vs Irrigation And Flood Control ... on 17 February, 2024
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref: F.24(57)/207/Co-1/ND/15/LAB/319
Dated 27.06.2016
CNR No. DLCT13-11468-2016
POIT NEW NO.: 08/2023
OLD ID NO. 9278/2016
Workmen
Sh. Rakesh Panwar, S/o Sh. Gyan Singh and 8
Others (As per Annexure-A)
represented by Delhi Flood Control Mazdoor Union
House No.4, Gali No.1, Karkardooma Village,
Delhi-110092.
Vs.
The Management of
(i) The Chief Engineer, Zone I, Irrigation and
Flood Control Department, Govt. NCT Delhi.
4 th Floor, ISBT Building, Kashmere Gate,
Delhi-110006,
Now at : LM Bandh Office,
Complex, Krishan Kunj, Delhi-110031.
(ii) M/s AJBJ Solution, H. No. 2050, Pahar Ganj,
New Delhi
Also at
BW 34-D, Shalimar Bagh, Delhi.
Date of Institution : 28.09.2016
Date of presentation : 10.03.2023
before this court
Date of Arguments : 12.02.2024
Date of Award : 17.02.2024
AWAR D
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1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
parties named above for adjudication to this Tribunal with following
terms of the reference:-
"Whether the workmen Sh. Rakesh Panwar
S/o Sh. Gyan Singh & 8 Others as per the
Annexure 'A' are entitled for reinstatement
with full back wages w.e.f. 11.02.2015 and
regularisation on their services under the
Principal Employer from their initial date
of employment; if so, to what relief are they
entitled and what directions are necessary
in this respect?"
"Whether the workmen Sh. Rakesh Panwar
S/o Sh. Gyan Singh & 8 Others as per the
Annexure 'A' are entitled for regular pay
and scale at par with their counterparts as
per notification dated 10.11.2000; if so, to
what relief are they entitled and what
directions are necessary in this respect?"
2. Statement of claim has been filed on behalf of the
workmen wherein workmen have stated that Shri Rakesh Panwar
s/o Gyan Singh & 8 Ors were appointed as Khalasi/Chwokidar
through contractors. The details of workmen is given in Annexure-A
as follows:
S.N Name & Fathers Name Post DOB Date of Monthly
joining Wages
1 Rakesh Panwar S/o Gyan Khalasi/Chowkidar 10.10.1994 01.07.2012 9048
Singh
2 Satish Kumar S/o Virender Khalasi/Chowkidar 01.01.1987 15.06.2012 9048
Kumar
3 Jamuna Prasad S/o Shriram Khalasi/Chowkidar 07.08.1989 18.12.2012 9048
4 Vikash S/o Ram Phal Khalasi/Chowkidar 10.02.1990 13.07.2013 9048
5 Raj Singh S/o Ramesh Khalasi/Chowkidar 12.12.1991 19.07.2013 9048
6 Monti Kumar S/o Rishi Pal Khalasi/Chowkidar 02.10.1993 05.11.2011 9048
POIT NEW NO.: 08/2023 Page 2 of 38
Singh
7 Papu S/o Roop Kishore Khalasi/Chowkidar 01.01.1982 05.05.2011 9048
8 Zamal S/o Mohd. Suleman Khalasi/Chowkidar 01.01.1976 06.2010 9048
9 Sachin Kumar S/o Rishi Pal Khalasi/Chowkidar 25.12.1992 01.01.2013 9048
Singh
3. It is the case of the workmen that the work done by them is of
permanent nature only contractors were being replaced / changed
from time to time and they are possessing requisite qualification as
per recruitment Rules for the post of Chowkidar / Khalasi and they
are performing same and similar duties and are getting regular pay
scale and other benefits. It is further the case of the workmen that
they have been terminated by the management w.e.f. 11.2.2015
without giving any notice, notice pay, retrenchment compensation
and Bonus as per provisions of ID Act 1947. That the conduct of the
management is in contravention to the provisions of ID Act 1947
and comes under the definition of Unfair Labour Practice as per ID
Act 1947. It is further the case of the workmen that that Government
of Delhi, Labour Department issued a notification to the extent that
contract labour who are performing work of permanent and
perennial in nature as being performed by the regular employee or
directly employed by the principal employer then such workmen are
entitled for the same benefit at par with regular counterpart
workman. It is further the case of the workmen that neither the
contractor nor the principal employer have obtained labour license
from the Labour Department as per provisions of Contract Labour
(Regulation & Abolition) Act 1970. It is further the case of the
workmen that there are sanctioned posts of khalasi/ Chowkidar with
the management which have fallen vacant due to retirement,
POIT NEW NO.: 08/2023 Page 3 of 38
regularization, death and promotion and hence regularization of
workmen can be considered against said vacancies. That as per the
CPWD Manual-III those workmen who had put in 240 days in
calendar year are entitled for regularization on their respective post.
It is further the case of the workmen that other workmen such as
wiremen, Khalasi etc. who are working through contractor under the
same management have been paid arrears of wages calculated on
regular pay scales from the initial date of employment inasmuch as
the arrears have been paid as per the directions of the Hon'ble
Tribunal and this Hon'ble Court and said orders were implemented
by the Respondent department and the services of junior employee
to the Claimants have been regularized by the Respondent
department. That the conduct of the Respondent is completely in
contravention to Rule 25 (v) of Contract Labour (Regulation &
Abolition) Rule 1971 as it has wrongfully and illegally terminaited
the services of the workmen w.e.f. 11.02.2015 without complying
with the provisions of Section 25F of Industrial Disputes Act 1947..
That the present workmen are entitled for, reinstatement with full
back wages w.ef. 11.02.2015 and regularization in their services
under the Principal Employer from their initial date of employment.
They are also entitled for regular pay and allowances as is being
paid to the regular workmen. That the workmen prayed to pass an
pass an award in respect of Shri Rakesh Panwar S/o Sh Gyan singh
and 8 others as per Annexure-A for reinstatement of their services
with full back wages w.e.f. 11.02.2015 and regularization on
services from their initial date of employment and also to grant them
POIT NEW NO.: 08/2023 Page 4 of 38
regular pay and allowance at par with regular counterparts as per
notification dated 10.11.2000.
4. The management no. 1 filed Written Statement, wherein it
has taken objections that there is no relationship between the parties
i.e. workman and management; the management hired the private
agency to arrange the casual labours from time to time as and when
required for various work and it has not appointed or terminated the
services of the workmen hence the purpose for reinstatement and
other benefits claimed by the workmen does not arise and they are
not entitled for reinstatement with full back wages. The mangement
has been falsely involved in this muddy and scandalized litigation as
it has no role to appoint or terminate the workmen hence there is no
question to reinstate the workmen. That the claim of workmen is
false, fabulous, vexatious and baseless and the same suffer from
concealment and misrepresentation of facts and same has been filed
without any cause of action.
5. Rejoinder has been filed by the workmen, wherein all
objections raised in the preliminary objections have been denied and
the contentions made in the statement of claim are reiterated and
affirmed.
6. Perusal of file reveals that though the management no. 2 was
ordered to be summoned. However, vide order sheet dated
05.09.2018, ld. AR for the workmen informed the court that
management no. 2 is not existing or having office as on that date on
the given address as the proprietor of the said management had died
due to cancer and submitted that workmen do not wish to press their
POIT NEW NO.: 08/2023 Page 5 of 38
claim against the management no. 2 i.e. M/s AJBJ Solutions, House
no. 2050, Paharganj, New Delhi. Separate statement of ld. AR for
the workmen was recorded to this effect and it is ordered that
management no.2 in the instance order of reference stands given up
by the workmen in the present case.
7. After completion of pleadings, the following issues were
framed by the Ld. Predecessor on 05.09.2018.
"i. Whether there exists relationship of employer &
employee between the workman and the management
no. 1? OPW
ii. Whether the claim of the workmen has been
properly espoused by the Union? OPW
iii. As per terms of reference. OPW
iv. Relief.
8. Before proceedings further in the present matter, it would be
pertinent to mention here that earlier in the present reference No
Dispute Award dated 23.01.2019 was passed by my ld. Predecessor,
as the workmen neither filed their affidavits in evidence, nor did
they come forward to depose in the matter, despite affording number
of opportunities. However, on 15.05.2019, workmen moved an
application thereby seeking setting aside of the No Relief Award
dated 23.01.2019. Thereafter, vide order dated 15.03.2021, No
Dispute Award dated 23.01.2019 was set aside and the present case
was restored, thereby granting workmen to tender their evidence.
9. To prove their case, the workmen namely Sh. Rakesh Panwar,
Papu, Monti Kumar, Raj Singh, Vikas, Sachin Kumar, Zamal and
POIT NEW NO.: 08/2023 Page 6 of 38
Jamuna Prasad examined themselves as WW-1 to WW-8 and
tendered their evidence by way of affidavits Ex. WW1/A to Ex.
WW8/A. They also relied upon document Ex.WW1/1. The
workmen, after duly tendering of their evidence, were cross-
examined by the ld. AR for the Management.
10. Per contra, the management no. 1 examined one Sh. Satish
Kumar, who happens to be Executive Engineer (I&FC) of the
management no. 1 and filed his affidavit in lieu of examination-in-
chief as Ex. MW-1/A. He tendered his evidence and relied upon
document Ex. MW1/1 to Ex. MW1/4. Thereafter he was duly cross-
examined by the ld. AR for the workmen.
11. Final arguments have been heard at length as advanced by
counsels for both the parties.
12. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents proved during
evidence.
13. My issue wise findings are:-
Issue No. 1:
"i. Whether there exists relationship of employer &
employee between the workman and the management
no. 1? OPW
14. The AR for the workmen argued that the workmen concerned
were engaged by the management No. 1 as Khalasi/Chowkidar
through various contractros, including management no. 2 w.e.f. the
POIT NEW NO.: 08/2023 Page 7 of 38
dates as mentioned in Annexure A as mentioned above and had
worked continuously and uninterruptedly till 11.02.2015 when their
services were stood terminated without assigning any reason. It is
contended that the job against which the workmen were working is
of permanent and perennial in nature. The management has
knowingly with mala-fide intention engaged contractors to avoid
rights and liabilities towards the workman concerned. The said
contractors are a mere sham, bogus and camouflage, it is the
Management No. 1 who maintained the ultimate supervisions and
control over the workmen concerned. It is also argued that the
engagement of the workers through so-called contractors is for
monetary gains as the claimant workers are provided much less
wages than the regular employees and the same is discriminatory in
terms of wages and other conditions of employment. Such an
engagement of the workmen through different contractors is with
malicious intent and amounts to unfair labour practice.
15. The AR for the Management No. 1 argued that there has
never been any employer and employee relationship between them
and the workmen as the workmen concerned have never been
employed directly under Management No. 1. It has been contended
on behalf of the management no. 1 that they have had no direct
contact with any of the claimant workers at any time. Their services,
payments of wages, and other conditions were directly overseen by
the respective contractors, and not by the Management no. 1. It is
further contended that the job against which workmen were posted
is not of permanent and perennial in nature as claimed by the
workmen concerned. In addition to this, as per the agreement
POIT NEW NO.: 08/2023 Page 8 of 38
between the management no. 1 and Management no. 2, the latter is
responsible for compliance with all provisions related to
employment, including wages, P.F., ESI, Bonus, and leave for the
workmen concerned.
16. The present case consist of an intermediary between the
workmen and the management no. 1. The workmen have stated that
the said intermediary are not genuine and merely sham and
smokescreen so as to keep the workers away from their rights
arising out of an employer and employee relationship with
management no. 1. Therefore, this case needs an assessment as to
who is the real employer in respect to the workmen concerned.
17. On this aspect, there are several case laws which have laid
down certain parameters for establishing the employer employee
relationship. The parties to the dispute have placed reliance uponee
the judgement of the constitution bench of the Hon'ble Supreme
Court in Steel Authority of India Ltd. & Ors. vs National Union
Water Front WOrkers & Ors AIR 2001 SC 3527 has held that,
105. An analysis of the cases, discussed above,
shows that they fall in three classes;(i) where
contract labour is engaged in or in connection
with the work of an establishment and
employment of contract labour is prohibited
either because the Industrial adjudicator/Court
ordered abolition of contract labour or because
the appropriate Government issued notification
under Section 10(1) of the CLRA Act, no
automatic absorption of the contract labour
working in the establishment was ordered; (ii)
where the contract was found to be sham and
nominal rather a camouflage in which case the
contract labour working in the establishment of
POIT NEW NO.: 08/2023 Page 9 of 38
the principal employer was held, in fact and in
reality, the employees of the principal employer
himself. Indeed, such cases do not relate to
abolition of contract labour but present instances
wherein the Court pierced the veil and declared
the correct position as a fact at the stage after
employment of contract labour stood prohibited;
(iii) where in discharge of a statutory obligation
of maintaining canteen in an establishment the
principal employer availed the services of a
contractor and the Courts have held that the
contract labour would indeed be the employees of
the principal employer.
18. The issue involved in SAIL (Supra) was regarding automatic
absorption of contract labour in the event the appropriate
government issued notification under Section 10(1) of the CLRA
Act. It has been clarified in this case that outsourced workers do not
become automatically entitled for their absorption in the
establishment of principle employer pursuant to the abolition of
contractual work by way of issuance of notification by the
appropriate Government. However, it is also noted that once the
contractual work is abolished, the workers working through
contractors will be given preferences for their employment in the
establishment of principal employer and the later would also give
certain relaxations in terms of age, requisite qualification among
other things to them. This is one of the instances of contractual
engagements among principal employers, contractors and
outsourced workers.
19. There are also cases where such a contractual arrangement is
entered into by the parties for the purpose of escaping from the
rights and liabilities arising out of employer employee relationship.
POIT NEW NO.: 08/2023 Page 10 of 38
20. The Courts in such situations are duty bound to pierce the veil
by assessing the facts and circumstances as well as the evidence
placed on record as to who is the real employer as far as workers are
concerned. The Hon'ble Supreme Court for ascertaining the real
nature of contractual arrangement have laid down certain para
meters in Balwant Rai Saluja vs Air India Ltd 2014(9) SCC 407.
The relevant portion of the judgement is as follows:
"52. To ascertain whether the workers of the
Contractor can be treated as the employees of the
factory or company on whose premises they run the
said statutory canteen, this Court must apply the test of
complete administrative control. Furthermore, it would
be necessary to show that there exists an
employeremployee relationship between the factory
and the workmen working in the canteen. In this
regard, the following cases would be relevant to be
noticed.
...........
62 . A recent decision concerned with the employer employee relationship was that of the NALCO case (supra). In this case, the appellant had established two schools for the benefit of the wards of its employees. The Writ Petitions were filed by the employees of each school for a declaration that they be treated as the employees of the appellant-company on grounds of, inter alia, real control and supervision by the latter. This Court, while answering the issue canvassed was of the opinion that the proper approach would be to ascertain whether there was complete control and supervision by the appellant therein. In this regard, reference was made to the case of Dhrangadhra Chemical Works case (supra) wherein this Court had observed that:
14. The principal which emerges from these authorities is that the prima facie test for the determination of the POIT NEW NO.: 08/2023 Page 11 of 38 relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p.23 in Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd., (1952) SCR 696 "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question"." *
65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia,
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision, i.e. whether there exists complete control and supervision." In Chief Engineer, Thermal Power Station, GEB vs Workmen & Ors, Special Civil Appeal No. 16912 of 2005 decided on 31.08.2017, Hon'ble High Court of Gujarat upheld the test applied by the industrial tribunal to arrive at a finding of whether the contract is sham and bogus. The relevant paragraph reads as under:-
On reading the award, it comes out that so as to decide the issue whether the contract is genuine or camouflage or sham and bogus and whether the contract is merely name lender and so as to reach to the final conclusion with regard to the dispute referred POIT NEW NO.: 08/2023 Page 12 of 38 by appropriate Government, learned Tribunal examined, analyzed, evaluated and appreciated the documentary and oral evidence available on record in 8 segments i.e. under 8 broad heads namely viz.
(1) Activities/business of the principal employer (2) genuine need or requirement of engaging contract labour (3) length of continuous and uninterrupted service of workman (4) nature of work done by the workmen i.e. whether the work is perennial in nature or intermittent (5) who has in fact, supplied the labour force to the principal employer, meaning thereby, whether service of the workmen were made available to the principal employer by the labour contractor after making recruitment (6) extent of supervision and control of the workmen by the principal employer (7) whether the workers do the labour work to produce goods or service for business of the principal employer and (8) whether the provisions of the Act (The Contract Labour (R&A) Act, 1970) relating to registration and licence etc. are complied with."
21. At the outset, during the course of arguments, it has been conceded by both the parties that the appropriate government has duly issued notification u/s 10 of CLRA Act, thereby abolishing the certain categories of contractual employment in the year 2004 and 2007. It is also conceded by both the parties that the said abolishment covers the nature of work being performed by the workmen concerned i.e. Khalasi/Chowkidar. Hence, there is no POIT NEW NO.: 08/2023 Page 13 of 38 dispute that by virtue of the aforesaid notification that the work of Khalasi/Chowkidar can only be extracted by the management in the regular and permanent aspect. Meaning thereby it is established that the nature of work which is being performed by the workmen is of permanent and perennial nature.
22. The AR for the workmen have relied upon the judgment of Hon'ble Delhi High Court in Vijay Kumar & Ors. v. Union of India & Ors. WPC 18013/2004, wherein the workmen were given the relief of automatic absorption pursuant to the abolition of contractor labour by the appropriate government under the u/s 10 of CLRA Act. This tribunal has gone through this judgement and is of the opinion that this judgement will not be applicable to the present set of workers. In the said case, the relief was granted to the workmen based on the protection given by the Sail (supra) to the set of workers who were directed to be absorbed in the establishment of principal employer after abolition of CLRA Act following the judgment of Air India Statutory Corp v. ULU, 1997 SCC (L&S) 134 4. The judgment of Air India (supra) was overruled by the Hon'ble Supreme Court in Sail (supra) holding it to be a bad precedent. The relevant portion of the said judgment is as follows:
6. Before this Court, it is not disputed that the judgment of the Supreme Court in Air India ultimately came to be prospectively overruled by a Constitution Bench in Steel Authority of India v.
National Union Waterfront works & Ors.4. For the purposes of deciding the issue that falls for determination here, the Court deems it apposite to extract the following paragraphs from the decision of the Constitution Bench: -
POIT NEW NO.: 08/2023 Page 14 of 38"125.The upshot of the above discussion is outlined thus:
3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-
section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
4) We overrule the judgment of this Court in Air India case [(1997) 9 SCC 377 : 1997 SCC (L&S) 1344] prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India case [(1997) 9 SCC 377 : 1997 SCC (L&S) 1344] shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers POIT NEW NO.: 08/2023 Page 15 of 38 of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
7. It is evident from the aforesaid observations as entered that while the decision in Air India was overruled, the Supreme Court proceeded to invoke its powers of prospective overruling. However, while doing so, it significantly provided that any judgments or orders rendered by an industrial adjudicator or court in favour of contract labourers based on the dictum of Air India and pronounced prior to the date when judgment was delivered in Steel Authority would not be reopened, reviewed or modified. Undisputedly, the judgment rendered inter partes here was pronounced prior to the Constitution Bench rendering its decision in Steel Authority. The decision of the Court rendered on the earlier writ POIT NEW NO.: 08/2023 Page 16 of 38 petition of the petitioners thus stands specifically saved by virtue of the declaration as made by the Constitution Bench."
23. Therefore, this judgment will not be of any help to the case of the workmen for automatic absorption as the workmen therein are protected by the Sail (supra) judgement which as an abundant caution prescribed that the cases decided as on the date of decision of the Sail judgment after following the judgment of Air India (supra) will not be reopened as the Sail (supra) judgment will have a prospective effect.
24. In the present case, the workmen were engaged in the establishment of management no. 1 in the year 2010-12. The management no. 1 has neither disputed the service particulars of the workmen concerned nor even cross-questioned them with respect to their date of joining in their cross-examination. Therefore, this tribunal does not have any reason to disbelieve the service particulars (date of joining) as provided by the workmen. Based on their service particulars,the workmen engaged in the establishment of management no. 1 for performing the permanent and perennial nature of work of Khalasi/Chowkidar in 2010-12 i.e. after the abolition of the contractual labour by the appropriate government in the year 2004 and 2007. The management no. 1 has failed to justify as to why despite the abolition of contractual labour for Khalisi/Chowkidar, the management no. 1 resorted to engaging the workmen on contract basis through various intermediaries. The management no. 1 stated that the workers were engaged on muster roll basis for casual work from time to time by the respective POIT NEW NO.: 08/2023 Page 17 of 38 contractors. The management no. 1 has conveniently sidestepped and failed to answer as despite such abolition of contract labour by appropriate Government under what provision/rules, they were empowered to violate the directions of appropriate government and went ahead engaging the workmen on outsourced basis.
25. Even otherwise, the workmen have pleaded the arrangements between the management no. 1 and various contractors are sham and bogus and in this respect they have relied upon the documents placed on record by the management itself. Ex. MW1/1 (colly) includes the requisition put forth by the management no. 1 for engaging Khalsi/Chowkidar. As per which the number of workers to be employed, their duration of employment as well as the rates as per which they were to be paid were all decided by the management no. 1. Likewise, at page 56 of MW-1/2 (colly) are the attendance record of the workmen which shows that their attendance was also maintained, verified by the management no. 1 and their salaries based on their attendance were also verified by the concerned Jr. Engineer/Asst. Engineer of the management no.1. Further the management witness i.e. MW-1 in his cross-examination has stated it to be correct that the diesel payment made and issued by JE or that JE used to check the consumption of diesel so that same is regularly and correctly consumed and that JE used to recover any shortcoming of diesel after making complaint to the contractor. He further admitted that JE verifies the bill of the contractor and thereafter release the payment to the contractor. This suggests that the contractors were merely acting as an agent, though the workmen were performing the predominant work of the management no. 1.
POIT NEW NO.: 08/2023 Page 18 of 3826. Management No. 1 contends that the concerned workmen are merely outsourced workers, and there exists no employer-employee relationship between them. On the other hand, the management witness himself admitted in his cross-examination that they do not have the licence/registration certificate as mandate under the provisions of under the Contract Labour (Regulation & Abolition) Act, 1970. Neither they have placed on record the licence, if any was obtained by the so called intermediaries at the time of the engagement of the workmen concerned. The division bench of Hon'ble High Court of Gujarat in Gujarat Mazdoor Panchayat vs State of Gujarat (1992) II LLJ 1486 Guj has held that :-
(4) Even though the principal employer may be registered employer under the Act and the concerned contractor may be licensed contractor under the Act, his licence may not cover the activity which is carried on by the contract labour.
(5) Even though principal employer may be registered employer under the Contract Labour Act and the contractor may be having a valid licence to employ contract labour, under the Contract Labour Act, for a given activity, still licence issued to him may not cover exact number of permissible employees employed by him meaning thereby, number of permissible employees under the license may be less than number of employees actually employed and qua such excess number of employees, protective umbrella of licence would not be available to the contractor so far as the activity covered by the licence is concerned.POIT NEW NO.: 08/2023 Page 19 of 38
27. So the crux of both the judgment i.e. Air India and Sail is that now the rights of the present workmen will be government by the Sail (Supra) and it was to be seen as to whether the workmen are covered by para 3, 4, 5 and 6 of the judgment (supra). Admittedly, now automatic absorption as per para 3 & 4 is not made in the present case because, there is no existing right in the favour of the workmen on the date when the notification u/s 10 of CLRA Act was issued. Now, it is to be seen whether contract is genuine or not and if the case of the workmen falls in para no. 5 then there will be automatic absorption otherwise as per para no. 6, there can be only preference to the existing workmen by the management. In the present matter, the court has found out that the case has been duly covered within the clause 5 of judgment Sail (supra) passed by Hon'ble High Court. Therefore, in view of the settled position of law, as well as the documentary and oral evidence placed upon record, this Tribunal is of the view that the Management no. 1 has not complied with the provisions of the CLRA Act, which they claim to be governed with as no registration certificate and license under CLRA Act has been placed upon record. Further, in the present matter as there is overwhelming evidence to arrive at a finding that the workmen are in fact employees of the Management No. 1. Their attendance were maintained by the management no. 1, the amount of their salaries were to be verified by the concerned officers of the management no. 1 based on their attendance record. The number of days for which the workmen were supposed to work as well as the number of people required to perform the said duties were also ultimately decided by the management no. 1. Even POIT NEW NO.: 08/2023 Page 20 of 38 though, the management no. 1 has placed on record their few letters/communications between itself and various contractors. However, the original contract entered between the management no. 1 and the contractors duly signed by both the parties (management no. 1 and the contractors) have not been brought on record to support their contention. Therefore, this Tribunal holds that the contract arrangement between the Management No. 1 and its various contractors is mere sham, nominal and camouflage to deny the employment benefits to the workmen. The workmen whose details are given in the table above are in fact employees of Management No. 1. This tribunal further holds that their was no genuine contract between the management no. 1 and its contractors. Therefore, these issues i.e. issue no. 1 is decided in favour of the workmen and against the management no.1.
ISSUE NO: 2 ii. Whether the claim of the workmen has been properly espoused by the Union? OPW
28. The AR for the Management has contended that the present dispute of the workman has not been properly espoused by the union, hence, the same is not maintainable in the present form.
29. On this aspect, the Division Bench of Hon'ble Kerala High Court in the matter of Mangalam Publications (India) Pvt. Ltd. v. Saju George, W.A. No. 964 of 2020, decided on 01.12.2020 and held:-
"7... There is no doubt about the fact that the workman was a member of the concerned WA No.964/2020 union.POIT NEW NO.: 08/2023 Page 21 of 38
According to the workman, the cause of the workman was undertaken by the union even at the initial stage. Apparently, there was no objection from the side of the management during the relevant time. Thereafter, the matter was considered and ultimately the dispute had been referred for consideration by the Tribunal. Once a reference had been made at the instance of the union, it is not open for the management to contend at this stage of the proceedings that the cause of the workman had not been espoused by the union."
30. It is clarified in this judgment that the issue of espousal has to be taken at the very initial date i.e. before the conciliation officer. Once the dispute has been referred to the tribunal, it is assumed that the appropriate government has duly applied its mind while referring the matter before this tribunal. The management has not shown through any documentary evidence that they have contended on the issue of espousal when the matter was pending before the conciliation officer.
31. Moreover, the present dispute has been raised on behalf of nine workmen which itself shows that this dispute is not an individual dispute, but a collective demand of nine workmen working in the establishment of the management no. 1. Further, it is also reiterated that the Industrial Disputes Act is a labour welfare legislation. Therefore, the present case being a collective dispute, between workmen and the management very well fall within the definition of Industrial Dispute, hence, no separate espousal is required. Hence, this issue is decided in these terms.
Issue no. 3:
POIT NEW NO.: 08/2023 Page 22 of 38As per terms of reference"
"Whether the workmen Sh. Rakesh Panwar S/o Sh. Gyan Singh & 8 Others as per the Annexure 'A' are entitled for reinstatement with full back wages w.e.f. 11.02.2015 and regularisation on their services under the Principal Employer from their initial date of employment; if so, to what relief are they entitled and what directions are necessary in this respect?"
"Whether the workmen Sh. Rakesh Panwar S/o Sh. Gyan Singh & 8 Others as per the Annexure 'A' are entitled for regular pay and scale at par with their counterparts as per notification dated 10.11.2000; if so, to what relief are they entitled and what directions are necessary in this respect?"
32. The AR for the workmen has contended that the services of the workman were illegally terminated by the management without complying the provisions of Section 25F, G and H of the I.D. Act. On the other hand, the AR for the management no. 1 has argued that they had neither appointed nor terminated the services of the workmen as they are merely the principal employer.
33. This tribunal has come to the finding on the fact that the workmen concerned are indeed employee of the management no. 1. It is also undisputed that their services stood terminated w.e.f. 11.02.2015. Now, it is upon the management no. 1 to comply with the provisions of Section 25 F, G and H of the I.D. Act, while dispensing with the services of the workmen concerned. The workmen have pleaded that the provisions of Section 25 F, G and H of the I.D. Act were not complied with by the management no. 1.
POIT NEW NO.: 08/2023 Page 23 of 38The management no. 1 in its defence has also failed to place any documentary record to show its compliance under I.D. Act. The management witness i.e. MW-1 in his cross-examination also showed his lack of knowledge if the workmen concerned have been replaced by another set of workers. It is a well settled position of law that the provisions contained in Section 25F(a) and (b) are mandatory and termination of service of workmen, without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative as held by the Hon'ble Supreme Court in Devinder Singh vs. Municipal Council, Sanaur, AIR 2011 SC 2532. The relevant portion is as follows:
"19. Section 25 couched in negative form. It imposes a restriction on the employer's right to retrench a workman and lays down that no workman employed in any industry who has been in continuous service for not less then one year under an employer shall be retrenched until he has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or he has been paid wages for the period of notice and he has also been paid, at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by notification in the Official Gazette.
20. This Court has repeatedly held that the provisions contained in Section 25F(a) and (b) are POIT NEW NO.: 08/2023 Page 24 of 38 mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2(oo) without giving one month's notice or pay in lieu thereof and retrenchment compensation is null and void/illegal/inoperative."
34. On the aspect of 25 G the division of Patna High Court in Gaffar and Ors. vs Union of India (UOI) and Ors., 1983(31)BLJR282 have highlighted the importance of Rule 77 of I.D Rules and failing to implement the same renders the termination/retrenchment illegal. The relevant portion of the judgement is reproduced below:
"4. The Rule 77 of the Industrial Disputes (Central) Rules, 1957 which is mentioned below requires preparation and publication of a list of all workmen in the concerned category at least 7 days in advance:
Maintenance of seniority list of workmen--The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a Notice Board in a conspicuous place in the premises of the Industrial Establishment at least seven days before the actual date of retrenchment.
This provision has been included in the Rules so that the object of Section 25G of the Industrial Disputes Act may be effectively achieved. The Industrial rule relating to retrenchment of 'last POIT NEW NO.: 08/2023 Page 25 of 38 come, first go' where other things are equal has been recognised for long and affords a healthy safeguard against discrimination. The principle was given statutory recognition by amendment of the Act in 1953. The Rule 77 was framed with a view to facilitate a retrenched workman to verify that he is not being discriminated against otherwise it may be impracticable for him to collect relevant information and' enforce his right. The minimum time of seven days allowed for this purpose is not unnecessarily long, for the workman should get an adequate opportunity to scrutinize the correctness of the seniority list before he is thrown out Viewed from this angle, it should be held that the requirement mentioned in Rule 77 is mandatory and its violation renders an order of retrenchment illegal."
35. The similar view was also taken by the Hon'ble Supreme Court of India in Harjinder Singh vs. Punjab State Warehousing Corporation, AIR 2010 SC 1116. In view of the admitted position and the mandate of the law, this tribunal holds that the services of the workmen were terminated in complete violation of Section 25 F, G and H of the I.D. Act.
36. The AR for the workman have argued that once the termination is held to be illegal the normal relief is to award reinstatement with continuity in service and full backwages. He placed reliance upon the judgement of Hon'ble High Court in Delhi Transport Corporation vs Ram Kumar And Another, 1982 (44) FLR 356 wherein it was held that once the termination is held to be illegal and unjustified, the normal rule is to award reinstatement POIT NEW NO.: 08/2023 Page 26 of 38 with full backwages and continuity in service except when the workman is gainfully employed coupled with receiving wages equivalent to his last drawn salary at the time of his illegal termination. The Para 14 of the aforementioned judgement is as follows:
"......The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his service was unjustified he would normally be entitled to reinstatement with full back wages expecting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure, See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha MANU/SC/0369/1979 :
(1980)ILLJ137SC. Thus if the employer wishes to show that workman gainfully employed he must establish and prove that fact; no presumption of being gainfully employed can be raised. It is not dispute that no evidence has been led or even shown on the record by the appellant which shows that workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement because as said in Panitole Tea Estate case. "If his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule."POIT NEW NO.: 08/2023 Page 27 of 38
37. Further, reliance upon case of Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors., Civil Appeal No. 6767/2013 decided on 12.08.2013 wherein the Hon'ble Supreme Court has held that onus to prove that the gainful employment shifts to the management once the workman has pleaded that he/she is not gainfully employed elsewhere. The Para 33 of the aforementioned judgement is as follows:
"33 (iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."POIT NEW NO.: 08/2023 Page 28 of 38
38. The Hon'ble Delhi High Court in the case of Municipal Corporation of Delhi vs. POIT & Anr., W. P. (C) 6024/1999 awarded reinstatement once the services of the workman were found to be terminated in contravention to Section 25G of the I.D. Act. The relevant para is reproduced below:
"In the present case, the MCD has not been able to produce evidence to show that while terminating services of the Respondent workman it complied with the requirements of Section 25G ID Act. Mr. Rajiv Aggarwal, learned counsel for the workman submitted that the workman is in dire need of employment and in such circumstances the award of compensation would not be an adequate remedy. Given the difficulty in obtaining employment, the submission on behalf of the workman appears to be justified. In a case like this, lumpsum compensation in lieu of reinstatement cannot be an adequate or satisfactory remedy for Respondent No. 2 workman.
39. Some of the workmen have pleaded in their statement of claim that they remained unemployed since the date their illegal termination. The management no. 1 has also failed to place any evidence on record to show that the workmen are gainfully employed elsewhere. In the absence of any evidence that the workmen are gainfully employed elsewhere, this tribunal can not assume the same. Moreover, no exceptional circumstances or situations were advanced by the AR for the management as to why this tribunal should deviate from the normal rule of reinstatement and continuity in service and back wages once the termination is POIT NEW NO.: 08/2023 Page 29 of 38 held to be illegal. In the present case, admittedly the workmen have not worked from the date of their illegal termination in the establishment of management and some of them have also disclosed in their affidavit that they were unemployed only for 2-3 years after their illegal termination. It suggests that some of the workmen might be working somewhere else, but it does not suggest that they have secured the employment. However, the management cannot be allowed to take premium of their own wrong doings. Hence, the interest of justice will be met if the workmen are granted reinstatement and continuity in service with 10 % backwages. In view of the aforementioned reasons, this tribunal holds that the workmen workmen concerned whose particulars are given above are entitled for reinstatement along with continuity in service and 10 % backwages with all consequential benefits.
40. Now dealing with the regularization aspect of the case, the workmen representative have argued that the management has committed unfair labour practice as enumerated in Section 2 (ra) read with item 10 of Fifth Schedule of the Industrial Disputes Act and further submitted that employing the workmen on regular and permanent post of Khalasi/Chowkidar and treating them as mere temporary workman and to continue them for several years with the object of depriving the status of permanent workmen amounts of unfair labour practice as regularizing their services would mandate the management no. 1 to pay the salary in regular payscale to the workmen.
41. This tribunal has considered all the material on record as well as legal submissions of the parties and is of the opinion that this POIT NEW NO.: 08/2023 Page 30 of 38 tribunal has power to regularize the services of the workman in the light of the judgment of Hon'ble Supreme Court titled as Chief Conservator of Forest and Anr., (1996) 2 SCC 293, the judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. of Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796. The relevant portion of the aforesaid judgement is reproduced below:
"28. The decisions relied upon by the learned counsel for the respondents in Ajaypal Singh (supra), ONGC (supra) and Umrala Gram Panchayat (supra), also leave no manner of doubt that the Supreme Court has specifically observed that the prohibition laid down for regularization in Uma Devi (supra) does not apply to industrial adjudication and that the Industrial Tribunal has the power to direct regularization of services in cases where pursuant to unfair labour practices, employees have been made to render services for long periods of time on causal basis for work that should ordinarily be done by regular employees."
........
"61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing POIT NEW NO.: 08/2023 Page 31 of 38 agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
42. The Constitution Bench of the Hon'ble Supreme Court in the case of Bidi, Bidi Leaves' and Tobacco Merchants Association vs. The State of Bombay, Civil Appeals Nos. 415 to 418 of 1960 decided on 15.11.1961 has held that the tribunal has the power to create new rights and liabilities upon the employer. The relevant portion of the judgment is reproduced below:
"15. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms POIT NEW NO.: 08/2023 Page 32 of 38 of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay it has been repeatedly held that the jurisdiction of Industrial Tribunals is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide:
Rohtas Industries, Ltd. v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna Electric Supply Workers' Union ).
43. Further, the Hon'ble Supreme Court in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 has observed the following with regarding to the practice of using Secretary, State of Karnataka and others vs. Umadevi and others, appeal (civil) 3595-3612 of 1999, decided on 10.04.2006 as a tool to further exploit the services of the worker and not regularizing the services of the workmen concerned.
"7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued.
Though this Court has emphasised that incumbents should be appointed on regular basis POIT NEW NO.: 08/2023 Page 33 of 38 as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1)
(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra).
Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The POIT NEW NO.: 08/2023 Page 34 of 38 employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."
44. In view of the judgements above, this tribunal is duty bound to rectify the practice of unfair labour practice as resorted by several managements by employing the workmen as merely outsourced worker.
45. Attention is drawn towards the cross-examination of the management witness (MW-1) dated 24.08.2023, he admitted that since 01.06.1989, 848 workmen were regularised by the management no. 1 after getting the posts sanctioned. The witness volunteered that they were on muster roll with the department. He further admitted it to be correct that as and when the workmen were retiring, we shifted to contractual workmen and that so many posts are vacant because the persons had retired and they have not been filled.
He also admitted that regular employees are being paid much more i.e. the regular salary and contractual employees are being paid as per Minimum Wages Act of Delhi government. He further conceded that work of both the categories are same.
POIT NEW NO.: 08/2023 Page 35 of 3846. Based on the evidence placed on record as well as the testimonies of the parties, it is evident that the concerned workmen were appointed by the management no. 1 as outsourced workers under the pretext of contractors despite having several sanctioned post of Khalasi/Chowkidar vacant in their establishment. It is also established that these workers were performing the same work as were performed by their regular and permanent counterparts working on the post of Khalasi/chowkidar and were paid their wages in regular payscale as opposed to the workmen concerned who were paid minimum wages. It cannot be disputed that the job they were performing was permanent and perennial in nature when the management had a regular and permanent post for the said category and that the appropriate government has abolished the contractual labour for the present categories of the workmen. The management has not disputed that the workers do not fulfill their requisite qualifications or that their work and conduct are not satisfactory. This tribunal has failed to understand that despite the workman performing the same work as being performed by the regular counterparts for the post of Khalasi/chowkidar and having satisfactory work and conduct yet the services of the workmen were engaged on daily wage basis as opposed to granting permanent employment.
47. In view of the admitted position and the material on record, this tribunal holds that the management has clearly committed an unfair labour practice by employing the workmen on a muster roll daily wage basis for performing the permanent nature of work of Khalasi/chowkidar and continued them for numerous years with the POIT NEW NO.: 08/2023 Page 36 of 38 intent of depriving them of the status and privileges of a regular and permanent employee. This view is supported by the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra), Sheo Narayain (Supra) Project Director (supra), wherein the Hon'ble Supreme Court of India as well as Hon'ble Delhi High Court has held that employing workers as temporary workers for long periods and denying them the status and salary of a regular employee amounts to an exploitative and unfair labor practice. This is because giving them the status and privileges of a permanent employee would require the management to pay the workman a salary higher than the one fixed under the Minimum Wages Act.
48. In these circumstances, this tribunal holds that the workmen are entitled to be regularized in service on the post of Khalasi/chowkidar w.e.f their respective date of initial appointment with 10 % backwages (on the basis of no work no pay) with all consequential benefits, either monetary or otherwise. The workmen concerned are also entitled to the difference of arrears on the principle of equal pay for equal work w.e.f. their initial date appointment onwards. Hence, the terms of reference are answered in favour of the workman and against the management.
Issue No. 4: Relief
49. To sum up the findings arrived above, this tribunal holds that the management no. 1 has clearly contravened Section 25 F, G and H of the I.D. Act, while illegally terminating the services of the concerned workmen. In view of the same workmen concerned are entitled for reinstatement along with continuity in service and 10 % POIT NEW NO.: 08/2023 Page 37 of 38 backwages with all consequential benefits. It is further held that the workmen are entitled for regularisation in service on the post of Khalasi/chowkidar w.e.f their respective date of initial appointment with all consequential benefits, either monetary or otherwise. The workmen concerned are also entitled to the difference of arrears on the principle of equal pay for equal work w.e.f. their initial dates appointment onwards. The management is directed to implement the award within 60 days of its publication with an interest @ 8 % per annum from the date of terms of reference i.e. 27.06.2006 to till the final payment is made. The award is passed accordingly.
50. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Digitally
signed by
AJAY AJAY GOEL
Date:
Announced in the open Tribunal GOEL 2024.02.19
11:30:09
on this 17.02.2024. +0530
(Ajay Goel)
POIT-I/RADC,
New Delhi.
POIT NEW NO.: 08/2023 Page 38 of 38