Delhi District Court
Singh And Others vs . EngineerInChief, Cpwd; That The ... on 31 August, 2012
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 494/09
Date of Institution of the case : 19.09.2007
Date on which reserved for Award : 30.08.2012
Date on which Award is passed : 31.08.2012
Unique ID no. 02402C0631372007
Sh. Arvind Kumar, S/o Shri Babu Ram,
C/o K8, Jahouri Pur,
Kanhiya Vihar, Delhi110094. .................Workman
Versus
(i) The Executive Engineer
P.W.D. Electrical Division4,
M.S.O. Building,
New Delhi.
(ii) M/s Shakti Electricals
The Executive Engineer,
P.W.D. Electrical Division4,
M.S.O. Building,
New Delhi. ...............Managements
AWARD
The workman Sh. Arvind Kumar, raised an industrial
I.D. No. 494/09 Page 1 out of 12
dispute regarding the termination of his services by the managements
of M/s The Executive Engineer, PWD Electrical Division4, MSO
Building, New Delhi and M/s Shakti Electricals. Direct statement of
claim was filed by the workman in the court. In the statement of
claim, it is stated by the workman that he was engaged as wireman
through the contractor M/s Saroj Electrical w.e.f., 01.05.2001 under
the management of Electrical Division4, P.W.D., M.S.O. Building,
New Delhi on contract basis to execute the maintenance works of the
above management no.2 at College of Business Study, Avinash
Chadda Senior Secondary School, Kiran Vihar, Senior Secondary
School etc., and at present he was working with the contractor M/s
Shakti Electrical Works under the same management mentioned
above in the same place; that the workman had not been paid
minimum wages as prescribed by the appropriate authority from time
to time; that the case of regular employment of the workman had been
filed before the Hon'ble Delhi High Court and the said case referred
to Central Advisory Labour Board formed by Ministry of Labour,
Govt. of India; that on the recommendations of the said Board, the
Ministry of Labour, Govt. of India vide its notification dated
31.07.2002 prohibited employment on the contract basis on the post
of operator and the workman so employed were to be regularized on
the said post; that the Director General (Works), CPWD issued
I.D. No. 494/09 Page 2 out of 12
necessary instructions in this regard to all the concerned officers for
implementation of the said notification; that as per the letter dated
18.12.2001 from Government of India Ministry of Labour vide No.
U23013/15/2001/LW, Dated 18.12.2001 such contract workmen are
entitled for all the benefits at par to the regular workman and in the
same Division also workmen are working on the same post, which is
as follows:
"That CPWD is responsible for carrying out various
public works for the Central Govt. including
maintenance of the building owned by the Central
Govt. and equipments, Plants, Lifts, Substations etc.
within these buildings/complexes and a substantial
number of contract workers have been employed for
maintenance work as Lift Operator, DG Set Operator,
Pump Operator, AC Operator, AC Mechanic,
Electrician, Wireman and Khalasi etc..These workers
carry out the work under the direct control and
supervision of the officer of PWD and engagement of
contractor is a sham mechanism to deprive the worker
of their legitimate rights as regular workman; that the
contractor only disburses the wages. The works are of
permanent and perennial nature, highly technical and
I.D. No. 494/09 Page 3 out of 12
sufficient duration. These works were in existence in
the past and likely to continue in future. There is,
therefore, full jurisdiction to engage regular permanent
workman in these job".
That as per the Gazette notification issued by the
Govt. of Delhi (NCTD) Labour Department Vide No.
DLC/CLA/Lab./2000/157 dated 10.11.2000 such contract workman
are entitled for all the benefits at par to the regular workman and in
the same division regular workman are working on the same post; that
the service of the workman has been illegally and forcefully
terminated by the management on 24.04.2007 and workman was
brutally assaulted by the management by D.C. Sharma, P.N. Pandey
and Haridutt Sharma; that a criminal complaint filed by the workman
in this regard before D.C.P. Office and Commissioner of police
because the management was trying to kill the workman and
forcefully terminated the service of the workman with the collusion of
the contractor; that when the workman demanded minimum wages
and other service benefits from managements, management refused to
give service benefits and stated people are doing job only Rs. 1200/
yet we are paying to you Rs. 1700/; that the management with the
collusion of contractor i.e. M/s Shakti Electrical are violating the
directions of the Hon'ble High Court as directions given i.e. in the
I.D. No. 494/09 Page 4 out of 12
Writ Petition No. 8741/1998 stated that the service of these contract
workers shall not be substituted with other contract workers i.e. if the
respondents require to employ contract workers in the jobs assigned
to these contract workers, then they will not place the present contract workers with fresh contract workers; that the vacant sanctioned post are available with the PWD for absorption of this employee as he has been doing the work for years together and the same is of perennial nature the benefit at par to the regular workman and in the same division regular workmen are working on the same post; that the workman mentioned above has completed more than 240 days of continuous work in each year under the above management; that the workman is entitled for wages as according with regular workman on the principal equal work to equal pay which has been violated by the management because management never paid equal wages to the workman from the appointment till termination hence the workman is entitled for recovery of arrears which is due upon the management; that there is a direct link between the principal employer and the workman; that the workman is entitled to equal pay for equal work as per the judgment of Hon'ble Supreme Court in the matter of Surender Singh and others Vs. EngineerinChief, CPWD; that the work of the workman is of permanent and perennial nature and of sufficient duration so therefore, the workman is entitled for regular, permanent, I.D. No. 494/09 Page 5 out of 12 employment of the job according to the para a (f) of the Circular Notification published by the Govt. of Delhi (NCTD) Labour Deptt. vide No. DLC/CLA/Lab/2000 dated 10.11.2000; that the workman is entitled to be reinstatement against the same post he is working under the principal employer in view of the notification of Ministry of Labour referred to herein above as the workman fulfills all the eligibility criteria and meets the requirement of the said notification of Ministry of Labour; that the sudden severance of the relationship by the management without payment of any statutory dues amounts to hire and fire which is not sustainable in the eye of labour jurisprudence; that the action of the management is an unfair labour practice on the part of the management; that the termination of the service of the workman by the management was in utter disregard of the fundamental rights guaranteed under Article 14, 16 and 21 of the constitution and the law laid down by the Hon'ble Supreme Court in this regard; that at the time of retrenchment the management did not comply with section 25F of the Industrial Disputes Act, 1947; that the workman made his best efforts but could not succeed to get any alternative gainful employment at this stage, after the expiry of long period spend with the management; that he is unemployed since the date of his termination, hence he has claimed reinstatement with full back wages and other consequential benefits.
I.D. No. 494/09 Page 6 out of 12 Notice of filing of the statement of claim was sent to the managements who have appeared and contested the claim filed by the workman by filing their written statements. In the written statement filed by the management no. 1 it has taken the preliminary objections that the claimant has filed the false, frivolous, motivated claim against the respondent; that the claimant has never been the employees of the respondent (Department), therefore, no valid reason for the claimant's appointment/regularization of service in the department; that it is submitted that for the appointment against any vacant post with the management there is regular procedure based on the notified recruitment rules for the purpose; that the workmen through the statement of claim in question has attempted to circumvent the regular procedure of appointment; that the attempt on part of workmen is grossly malafide; that he is misusing the legal verification of eligibility criteria and screening from amongst the other eligible person, which is against the law. On merits it is submitted that the workmen have been engaged by the contractor and the workman is not appointed by the respondent no.1; that hence the claim of the workman for regularization and equality with permanent employees of the management is not correct; that moreover, the claim of the regularization of the service of casual/MR/HR/contractual labour has been rejected by the Hon'ble Supreme Court in the matter of I.D. No. 494/09 Page 7 out of 12 Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors; that it is denied that the workman had not been paid minimum wages as prescribed by the appropriate authority from time to time, as no complaint has been made by the applicant before the respondent no.1 or the designated labour officer; that the reference of Hon'ble High Court case and orders of Delhi Labour Department of NCT of Delhi as mentioned is not applicable; that there arose no question of any alleged termination by the respondent no.1 as the claimant is in the employment of the contractor only and the termination if any was to be made by the contractor and the respondent no.1 has no role to play regarding engaging/removal of workmen by the contractors; that there is no question of any alleged collusion between the respondent no.1 and the contractor and the claimant has wrongly and malafidely filed the present claim against the respondent no.1; that so far as the said writ petition is concerned, the claimant is not entitled to any relief and the said citation has no applicability to the case of the claimant; that for the appointment against any vacant post with the management; that there is regular procedure based on the notified recruitment rules for the purpose; that the workman through the statement of claim in question has attempted to circumvent the regular procedure of appointment; that he is misusing the legal verification of eligibility criteria and screening from amongst the other eligible person, which I.D. No. 494/09 Page 8 out of 12 is against the law; that the claimant has been engaged by the contractor and those workman are not employees of the PWD/respondent no.1 ; that it is not correct that the contract executed between the respondent no.1/PWD and contractor is to deny the aforesaid workmen their legitimate dues; that PWD awards contracts to the approved contractors after calling the tenders and there has been no illegality by the PWD/respondent no.1; that since there was no employer and employee relationship, the question of termination and then reinstatement does not arise, nor there is any violation of fundamental rights as wrongly pleaded by the claimant; that there has been no violation of any provisions of law by the respondent no. 1/PWD. All other allegations are denied. Hence, it is prayed that the claim be dismissed.
In the Written Statement filed by the management no. 2, it is stated that the present claim as framed and filed is a gross abuse and misuse of process of law and legal machinery; that there is no cause of action in favour of the workman and against the management for filing the present statement of claim; that the workman filed the present statement of claim with malafide intention and ulterior motive to extract money from the management; that the workman was working with the management no.2 on the basis of contract for service and not for the contract of service. On merits it is submitted I.D. No. 494/09 Page 9 out of 12 that the workman was working as work for contract basis and has already received his full and final dues and nothing is due upon the workman; that the workman is not entitled for any benefit as alleged; that the answering management never terminated the services and never threatened to the workman; that when the contract of the management no.2 was expired, the services of the workman was automatically over/finished; that the workman never completed 240 days of service with the answering management as alleged; that no arrears or any other dues are pending against the answering management. All other allegations are denied by the management no. 2 and it is prayed that the statement of claim be dismissed.
In rejoinders to the Written Statements of management nos. 1&2, all the averments of the management nos.1& 2 are denied and that of Statement of claim are reaffirmed by the workman.
On the pleadings of the parties, vide order dated 02.07.2008 the following issues were framed: (1)Whether the claimant was workman under the management no.1?
(2)As per terms of reference.
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case, workman himself appeared as WW1, filed his evidence by way of affidavit Ex.WW1/A. In his I.D. No. 494/09 Page 10 out of 12 affidavit, he has reiterated all the averments of his statement of claim. He has relied upon the documents Exts.WW1/1 and WW1/2.
After examining himself, the workman has closed his evidence, on record.
In support of its defence, the management no.1 has led the evidence of MW1 Sh. B.R. Pasi, Executive Engineer (Elect.) PWD Elect. Maintenance Division Government of Delhi of the management no.1, who has tendered his evidence by way of affidavit Ex.MW1/A in his examination in chief in the management evidence on behalf of the management no.1, on record. In his affidavit he has reiterated all the averments of the written statement of the management no.1.
However, during the pendency of the case for cross examination of the MW1 on behalf of the workman during which an application has been moved on behalf of the management no.2 for setting aside the order dated 22.10.2010 closing the cross examination of the workman on the part of the management no.2, on record, along with affidavit by way of evidence of the MW Sh.Kamal Kumar, Proprietor of the management no.2 in management evidence of the management no.2, the workman has been absent as also there has been no appearance on his behalf on the several dates of hearing fixed in this regard, on record and the case has been fixed for appearance of the workman even by way of a final I.D. No. 494/09 Page 11 out of 12 opportunity/further proceedings for the dates fixed. However, the workman has not been present in the instant proceedings on the last several dates of hearing fixed in the same nor has there been any appearance on his behalf on the same, on record and the case was fixed for passing of award vide order dated 30.08.2012.
In view of the workman having not appeared in the instant Statement of claim on the last several dates of hearing fixed in the same, on record, it is apparent that the workman is not entitled to any relief in the same.
The award is passed accordingly. Ahlmad is directed to send six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in the open court on 31.08.2012 (Chandra Gupta) Presiding Officer Labour CourtX Karkardooma Courts, Delhi.
I.D. No. 494/09 Page 12 out of 12