Delhi District Court
Narayan Bahadur vs M/S Dic India Ltd on 1 March, 2024
DLCT130033572017
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI,
No.F-24(-117-)/Lab./SD/2017/4622
Dated 03.03.2017
POIT NO. 46/2023
OLD POIT No. 687/2017
Workman
Sh. Narayan Bahadur S/o Sh. Puran Bahadur,
Aged 46 years, Mobile No. 9990700897,
R/o H.No F-24 2-A, DLF City Phase I,
Gurgaon Haryana.
Vs.
The Management of
1) M/S DIC India Ltd.
A 122/123, Okhla Industrial Area Phase II
New Delhi.
2) M/S DIC India Ltd,
Transport Depot Road Kolkata,
West Bengal-700088.
Date of Institution : 12.04.2017
Date of presentation : 16.03.2023
before this court
Date of Arguments : 22.02.2024
Date of Award : 01.03.2024
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AWARD
1. 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 workman Sh. Narayan Bahadur
S/o Sh. Puran Bahadur, aged - 46 years is
entitled to be regularized in service from the
initial date of his joining i.e. 16/03/2010 and if
so, to what relief is he entitled and what
directions are necessary in this respect?"
2. Statement of claim has been filed by the workman
wherein the workman averred that the management is a big
company registered under the companies Act 1956 having
its various branches in Delhi, Noida and its Head office
situated at Kolkata and the management has also having its
World Corporate Office in Toiko Japan. It is further
averred that the workman is employed as a Driver in the
management and in the beginning he used to bring Mr.
Sameer Bhaumik, former M.D. in official vehicle from his
home to office and to drop him from office to his home and
later he used to do the same job for Mr. Nobuyuki Miyaki,
Chief Officer Strategy and Planning. It is further averred
that Mr. Nobuyuki had also given a letter of Excellency to
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the workman as he performed his duty diligently, sincerely,
and with utmost honesty. The workman was receiving the
salary directly from the management. It is further averred
that the workman has been working with the management
since 16.03.2010 as a Driver and initially his salary was
Rs. 6800/- p.m. and 10 hours duty was assigned to him in a
day and at present he is drawing salary of Rs.14,600/- p.m.
At the time of engagement of the workman, the
management/company was known as Coates of India
Limited New Delhi and in the year 2004 the name of the
company was got changed to DIC India Limited, having its
office at 7, DLF, Shivaji Marg, Industrial Area, Moti
Nagar, New Delhi and now presented at A-122/123, Okhla
Industrial Area, Phase-II, New Delhi. The management is
dealing in the business of manufacturing and sales of
Printing Inks in all over the world. It has been further
averred by the workman that apart from the job of driver,
the workman was also assigned field job i.e. Bank Work as
well as other works like visiting in the Excise Offices,
Electricity Offices, Telephone Offices on behalf of the
management. It is further averred that the workman is in
continuous services of management since last 7 years and
several times requested management to provide him the
appointment letter as well as wages according to the
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provision of Industrial Dispute Act, but in vain. It is
averred that the workman has been working with the
management for the last 7 years and has not provided him
salary since May 2016, thus, is entitled to the wages and
remuneration according to the Section 2 (aaa) as well as 2
(rr) of the I.D. Act, but the management has not
deliberately provided him the same and indulged in
harassing the workman, which tantamounts to adopting
unfair labour practice. It is further averred that workman
apprised to the management and sent legal demand notice
dated 07.12.2015 and 19.02.2016, sent through registered
post to the management at their Delhi and Noida office.
The workman again on 10.03.2016 sent another legal
demand notice to the Kolkata Office through registered
post dated 18.03.2016 which was duly received in Kolkata
office, but none of the notices were replied or complied
with.
3. The workman through this claim prayed that his services
be regularized with the management since the initial day of
his appointment i.e. 16.03.2010 on the post of Driver with
all service benefits and other allowances with continuity of
service and full back wages alongwith all consequential
benefits either monetary or otherwise. Workman further
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prayed that he be also provided appointment w.e.f. his
joining the management.
4. Written Statement was filed by the management wherein
it has contended that the Management has contested that
there has never been any Employee-Employer relationship
by and between the Management and the Claimant/ Driver
as he was providing independent driving services to Mr.
Nonuyuki Miyake in his personal capacity Reliance in this
regard has been placed on the case of Punjab National
Bank v. Ghulam Dastagir, 1978 (2) SCC, Page 358.
5. Management has also contested the territorial jurisdiction
as the Management does not have any establishment within
the territorial jurisdiction of this Tribunal. It is contended
that the Management has been operating from its office at
C-55, A and B, Phase-II, Noida - 201305, District-Gautam
Buddha Nagar, Uttar Pradesh; whereat the Managing
Director of the Company also holds his office.
6. It has been further contended that the workman was a
casual and contingent Driver whose services were availed
by Mr. Nobuyuki independently and was accordingly paid
month on month basis, based on the personal services
rendered by him for which monthly bills were raised and
payments made thereon by Mr. Nobuyuki. Thus, there is no
employer- employee relationship by and between the
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workman and the management. Mr. Nobuyuki when left
India had provided letter dated 29.04.2016 recommending
the services of the workmen as an excellent driver
especially for Japanese People. However, he was never
employed by the management.
7. Management has also contested that the Management has a
Human Resource Policy, as per which, they engage Service
Providers and Contractors to execute a variety of economic
activities such as Housekeeping. Security, Pantry and the
like are outsourced from Service Providers and the Service
Provider ensures complete statutory compliance of all
Employment Laws. It has been further contended by the
management that a similar offer was made to the workman,
but due to his adamant stand with regard to employment
only with the Company and not through a Service Provider,
the alleged industrial dispute has arisen, though, a large
number of similarly situated persons migrated to the rolls
of Service Providers and Contractors, thereby ensuring
continued employment with full statutory protection. Rest
of the contentions of the statement of claim were also
denied.
8. Rejoinder was filed on behalf of the workman wherein all
objections raised in the preliminary objections have been
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denied by the workman and reiterated and affirmed the
contentions made in his claim filed by him.
9. On the basis of pleadings of the parties, following issues
were framed by Ld. Predecessor vide order dated
17.07.2018:-
(i) whether there existed no relationship of
employer & employee between respondent and
claimant? OPM
(ii) whether this Court has no territorial
jurisdiction to entertain the present claim? OPM
(ii) as per the term of reference.
(iii) Relief.
10. Perusal of file reveals that vide order dated 24.02.2021, on
the application of the management additional issues were
framed in the present case which are as follows:
a) Whether there exist no relationship of
employer and employee between respondent and
claimant? OPM
b) Whether this Court has no territorial
jurisdiction to entertain the present claim? OPM
c) Whether the industrial dispute raised by the
claimant has been validly espoused as per the
Industrial Disputes Act, 1947? If not, the legal
consequences thereof? OPM
d) As per terms of reference.
e) Relief.
11. To prove his case, the workman examined himself as WW-
1 and filed his affidavit Ex. WW1/A in lieu of his
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examination in chief. He relied upon document Ex. WW1/1
to Ex. WW1/12. Workman in his evidence also examined
Sh. Surender Bhardwaj, Executive member of Delhi
Labour Union as WW-2, who tendered his evidence by
way of affidavit Ex. WW2/A and relied upon document Ex.
WW2/1. Both the workman witnesses were duly cross-
examined by ld. AR for the management. Thereafter,
workmen evidence was closed.
12. To prove its case, the management examined one Sh. Amit
Kumar Chowdhury, Senior Executive of the management
as MW-1 who filed his affidavit Ex. MW1/A in lieu of his
examination in chief. MW-1 was duly cross-examined by
ld. AR for the workman and thereafter management
evidence was closed and matter was kept for final
arguments.
13. Final arguments have been heard at length from both
parties.
14. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents
proved during evidence as well as written arguments filed
by the management.
15. My issue wise findings are:-
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(1) Whether there exists no relationship of
employer and employee between respondent and
claimant? OPM
16. The onus to disprove the relationship of employer-
employee between the workman and the management rests
upon the management.
17. The workman contended that since 16.03.2010, he has
been employed by the management as a Driver, starting
with an initial salary of Rs. 6,800/- per month. Initially, at
the beginning of his job, the workman used to drive the
former M.D., Mr. Sameer Bhaumik, from his home to the
office and vice versa. Later, he was responsible for driving
Mr. Nobuyuki Miyaki, Chief Officer of Strategy and
Planning, from his home to the office and vice versa.
Besides his duties as a driver, the workman was tasked
with performing other duties, such as conducting bank-
related work and visiting excise, electricity, and telephone
offices on behalf of the management. His salary was
directly provided by the management. It is further noted
that the company, originally named M/s Coates of India,
was subsequently renamed M/s DIC India Ltd. At the time
the dispute was raised, the workman was drawing a salary
of Rs. 16,200/- per month. He claimed to have been
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working continuously for the past 6 years with the
management.
18. On the other hand, the management disputed the employer-
employee relationship with the workman, stating that he
had been providing independent driving services to Mr.
Nobuyuki Miyake in his personal capacity and was
compensated by him on a month-to-month basis. He
functioned as a casual and contingent driver, being
compensated on a monthly basis for the personal services
rendered after submitting monthly bills. Moreover, the
management highlighted its H.R. policy, according to
which they engage service providers and contractors to
perform a range of economic activities on behalf of the
company, such as housekeeping, security, pantry services,
and similar tasks, all outsourced to well-established service
providers with whom the management claims to maintain a
legal, valid, and proper agreement. Consequently,
according to the management, there is no employer-
employee relationship between the workman and the
management as alleged by the claimant.
19. In order to ascertain the issue of issue of employer-
employee relationship the AR for the management has
placed reliance upon the judgment of BHEL v. Mahendra
Prasad Jakhmola, (2019) 13 SCC 82 wherein the Hon'ble
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Supreme Court has laid down certain factors and
parameters for the purpose of ascertaining the employer-
employee relationship. They are as follows:
"24. We may hasten to add that this view of the
law has been reiterated in Balwant Rai Saluja v.
Air India Ltd. [Balwant Rai Saluja v. Air India
Ltd., (2014) 9 SCC 407 : (2014) 2 SCC (L&S)
804] , as follows : (SCC pp. 437-38, para 65)
"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.
As regards extent of control and supervision, we
have already taken note of the observations in
Bengal Nagpur Cotton Mills case [Bengal
Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC
635 : (2011) 1 SCC (L&S) 16] , International
Airport Authority of India case [International
Airport Authority of India v. International Air
Cargo Workers' Union, (2009) 13 SCC 374 :
(2010) 1 SCC (L&S) 257] and Nalco case
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[NALCO Ltd. v. Ananta Kishore Rout, (2014) 6
SCC 756 : (2014) 2 SCC (L&S) 353] ."
20. This tribunal has gone through this judgment. The facts and
circumstances differ in the aforesaid judgment than the
present case at hand. The said case pertains to the issue of
employer-employee relationship in context of principal
employer and workmen in the presence of an intermediary
i.e. contractor. However, in the present case, there is no
intermediary as such, the management has assured the
nature of relationship with the workman is of mere
"independent service provider". However, despite the
difference in the nature of relationship, the fundamental
principles of ascertaining employer-employee relationship
will not be materially altered, and will be applicable based
on the peculiar facts and circumstances of each case.
21. The AR for the Workman has placed on record the
judgement of Hon'ble Delhi High Court in Union Bank of
India v. Mujahid Qasim, 2020 SCC OnLine Del 1960
wherein the Court after discussing several judgements has
extensively laid down the factors in respect to the issue of
employer-employee relationship. They are as follows:
"49. In the light of the above decisions, the
factors which are to be considered, to determine
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as to whether an employer-employee
relationship exists would inter alia, include:
(a) who is the appointing authority;
(b) who is the pay master;
(c) who can select and dismiss;
(d) how long does the alternative service last;
(e) the extent of control and supervision;
(f) the nature of the job, e.g., whether it is
professional or skilled work;
(g) nature of the establishment;
(h) the right to reject;
(i) who can take disciplinary action;
(j) whether there is continuity of service;
(k) whether the person was fully integrated into
the employer's concern (integration test);
(l) who organizes the work, i.e., supplies tools
and materials; and
(m) who exercises control on when and how the
work is to be performed."
22. The judgment of Mujahid Qasim (supra) holds more
relevance in the present case as it also dealt with a similar
issue, wherein the management contended the worker
(Driver) as an independent service provider working only
for the employees of the management, and that the
management bank had no relationship whatsoever with the
workman therein.
23. Keeping in view the factors laid down in BHEL (supra)
and Mujahid Qasim (supra), this tribunal has to assess if
the workman is an employee of the management of M/s
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DIC India Ltd., or he was merely providing independent
services in his personal capacity to the officials of M/s DIC
India Ltd.
24. The workman, in support of his claim, relied on
Ex.WW1/1, which is the attendance record for the periods
March 2010 to August 2010, December 2010 to January
2011, January 2014 to April 2014, July 2015, and January
2016 to March 2016, detailing his working hours, which
has been countersigned by the concerned official of the
management. In his cross-examination, the workman
clarified that the attendance record was maintained by him,
and the MD also used to countersign the same. He further
deposed that while providing services to the management,
he used to submit a statement, i.e., Ex. WW1/M1, which is
a detailed breakdown of salary for the month of April 2016
in the name of Mr. Narayan for attending the services of
Mr. Nobuyaki Miyake, including Salary, Overtime
allowances, Conveyance allowances, and food allowances.
Consequently, a voucher is prepared, i.e., Ex. WW1/M-2
contains the wage slip in the name of Mr. Narayan as
"Driver's Wages" for the month of April 2016 of Rs. 14160
for attending the car used by Mr. Nobuyaki Miyake, and
the same is also signed by the concerned officer.
Thereafter, he was paid through cheques such as Ex.
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WW1/M-3, which is the cheque dated 25.04.2016 issued
by Mr. Nobuyaki Miyake to the workman for the payment
of Rs. 14160. He also deposed that it is the company that
used to approve his payment for services and initially he
was paid via cash, and thereafter via cheque issued by Mr.
Nobuyuki Miyake on a month-to-month basis.
25. Documents related to the salary payment made on behalf of
the management of M/s DIC have been placed on record.
Ex. WW1/5 is a payment slip dated 05.04.2011 for Rs.
14410 in the name of the management of M/s DIC India
labeled as "Pvt. arrangement casual driver salary + Over
time/Night Conveyance / Dinner Expense for March 2011",
and Page 3 of Ex. WW1/5 details the salary breakdown for
"Mr. Narayan - March 2011". This documentation includes
the salary breakdown as salary, overtime allowances,
conveyance allowances, and food allowances, indicating
that the workman received several allowances from the
management in addition to his wages. In his cross-
examination, the workman also stated that his payments
included not only hourly wages but also compensation for
overtime hours worked, transportation to go home when
working late as per the attendance sheet, and meal
expenses. This suggests that the workman was given a
fixed salary on a monthly basis sometimes directly from
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the concerned officer and sometimes from the
management. The management has not disputed the
authenticity of these documents, nor suggested in their
Written Statement, Affidavit, Cross-examination, or during
the course of arguments that the documents submitted by
the workman to the court records are false and fabricated.
26. Furthermore, the workman deposed in his cross-
examination that at the beginning of his engagement with
the management of M/s DIC India, he used to drive Mr.
Samir Bhaumik, Managing Director, from 16.03.2010 to
26.05.2014, and thereafter he drove Mr. Nobuyuki Miyake,
a Japanese senior manager, from his residence to the
factory in Noida. He also used to pick up Mr. Samir
Bhaumik from his residence in Gurgaon to the factory in
Noida and to the Delhi office of the management at 7 DLF
Moti Nagar Industrial Area. The management witness also
confirmed that after the retirement of Mr. Samir Bhoumik,
the claimant drove the car allotted to Mr. Miyaki, whose
residence was in Delhi, whereas Mr. Bhoumik's was in
Gurgaon. This indicates that the workman's role was not
confined to serving any single official in a personal
capacity but, despite changes in the officials of the
management, the workman consistently worked with the
management.
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27. Additionally, the workman has placed on record payment
slips dated 09.04.2011 (Ex. WW1/3), along with a bill for
a payment of Rs.1514 towards the purchase of driver
uniforms in the names of Mr. Uday and Mr. Narayan, for
two shirts and two pants. The management witness
admitted during his cross-examination that an amount of
Rs. 1514 was paid to Mr. Sunil Khanna for the purchase of
uniforms, and the particulars are mentioned in the bill. He
also conceded that the uniform bore the logo of M/s DIC
India Ltd. The workman recorded in his cross-examination
that the management of DIC also made payments for
challans incurred during the course of employment. He
stated, "it is correct that when I was driving the car as
driver, the police may have challaned me for traffic
violation. Initially, I used to make payment with regard to
the challan received for traffic violation but the same was
submitted to the officer concerned of account department
of the management namely Sh. Damuji, Sh. Sunil Khanna
who would then make the payment to me against traffic
challans."
28. It is undisputed that the vehicle the workman used to drive
was provided by the management, belonged to the
management, and its maintenance was also borne by the
management. The workman filed Ex. WW1/2, where Page
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3 is the vehicle registration certificate in the name of DIC
India Limited. Documents related to the car's maintenance
from ORIX Auto Infrastructure Services Limited were also
placed on record. The Repair Order dated 22.01.2014 at
Page 2 of Ex. WW1/2, with the customer name listed as
"DIC India Ltd.," matches the vehicle E.V. number in the
registration certificate and bears the signature of Narayan
as the Authorized Representative, indicating the
management authorized the workman for the upkeep and
maintenance of the vehicle.
29. On the other hand, the management has not submitted any
documents to support their contention. Notably, the burden
of proof that no employer-employee relationship exists
between the workman and the management, and that the
workman was simply an independent service provider, lies
with the management. The management only submitted an
affidavit from Sh. Amit Kumar Chaudhary. The
management has not examined the concerned officials with
whom the workman was alleged to be working in his
personal capacity. Moreover, even the contract agreement
for an "independent service provider" has not been placed
on record by the management. The management could have
produced their officials in rebuttal to show that the
workman was engaged in their personal capacity. The said
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officials cannot be produced by the workman instead those
officials being the employees of the management should
have been brought before this tribunal in support of their
claim before this tribunal.
30. The Hon'ble Delhi High Court in Mujahid Qasim (supra)
has analyzed the employer-employee relationship in the
following manner, which is also relevant to the present
case. The relevant portion of the judgement is as follows:
"51. By applying the above tests, analyzing the case
laws cited, and perusing the documents on record, as
also the findings of the CGIT, there is no doubt that
an employer-employee relationship exists between
the Bank and the drivers. This is clear from an
analysis of the documents placed on record which
establishes the following facts:
(a) All Respondents were working as drivers with
various Executives of the Petitioner Bank.
(b) At the time of appointment, the biodata of the
drivers was submitted to the Bank, which was
thereafter forwarded to the personnel administrative
division of the Bank, located in the Head Office at
Mangalore.
(c) The salary for the drivers was being reimbursed
by the bank to the Executives concerned, by means
of vouchers.
(d) The drivers have served in the Bank for several
years.
(e) The drivers did not merely work for the
Executives, but also did various other sundry jobs
such as collection/delivery of
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documents/packets/parcels/items/equipment from
various locations for the Bank.
(f) Expenses incurred by them were reimbursed by
the Bank.
(g) The Bank has issued letters confirming the
salaries earned by the drivers.
(h) The Bank has facilitated the driving license being
obtained by the drivers, by issuing them certificates
that they are working in the Bank. The text of one
such certificate is set out below:--
"This is to certify that Sh. Naresh kumar, s/o
Sh. Daya ram is an employee of our bank.
He is working with us since last four years.
As per our records he is residing at D-5/103,
Tisra Pusta, Vijay Colony, new Usman Pur,
Delhi-110053.
This certificate is issued in his specific
request as he has to produce for making
driving license.
We confirm the same."
(i) The vouchers issued by the Bank for the
monthly payments to the drivers, mention the
particulars as "amount drawn for
reimbursement of driver" or the "amount paid
to the driver. Reimbursed" @ page 120, 121 of
the paper books "cash paid to Surinder on
account of car driver salary month of May 2006
by AGM" @ page 124; etc.
(j) Copies of logbooks showing the details of
travel of the car, petrol consumed, purpose etc.
52. The above facts have been gleaned from the
large number of documents placed on record and
cannot be disputed by the Bank.
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53. The documents on record also show that the
drivers have not been exclusively used for the
executives of the Bank but have also been
serving the Bank in various roles including
picking up parcels, computers, running errands,
claiming reimbursements, taking delivery of
cars and other sundry jobs. Further, the Bank
has given them letters and certificates, repeatedly
confirming that they are the drivers of the Bank
for issuance of licenses and for renewal of driving
licenses. The initial appointment was also made
after confirmation with the Head Quarters of the
Bank. Complete reimbursement of salaries and
well as expenses of the drivers has been given by
the Bank. A logbook also has been maintained to
supervise their day-to-day movements and
activities.
54. Therefore, irrespective of whichever test is
applied, whether it be the control test, or the
integration test or any of the other tests, the
above facts clearly show that the functions
performed by the drivers was integral to the
everyday working of the bank. The documents
establish the existence of employer-employee
relationship and that the drivers were the
employees of the Bank. They were not retained
through an independent contractor and that is not
even the case of the Bank. The Bank's case that
the drivers were exclusively working for
Executives is also negated, as it has been
proved, on record, that the drivers would
continue to remain in the same place
irrespective of the transfer or retirement of the
Executive and they would be placed under
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different Executives or the incumbent. The case
of the Bank that they were employees of the
Executives is thus belied.
55. Hence, in view of the above facts and
discussion, this Court has no doubt that the
drivers were the employees of the Bank."
31. The workman has provided ample evidence of his long-
standing engagement with the management since 2010,
receiving his salary and various allowances such as food,
travel, overtime, festival, and conveyance allowances
directly from the management. Despite the change of
management officials, the workman continued to remain
with the management, performing the work of driving the
vehicles provided and maintained by the management. The
uniforms provided also bore the management's logo, not
any individual officials. His duties extended beyond
driving, including the maintenance of cars on behalf of the
management. Even the traffic challans incurred during the
course of employment were borne by the management. The
workman maintained throughout that he had been working
since 2010 with the management and not personally with
Mr. Nobuyuki Miyake and only after the direction of the
management did the workman work with Mr. Nobuyuki.
Meanwhile, the management failed to produce
documentary evidence to support their claim of the
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workman being an "independent service provider," nor did
they present any contract agreement to this effect. Despite
claiming to maintain proper agreements as per their HR
policy for engaging service providers, no such agreement
was submitted. This tribunal, therefore, cannot accept the
management's version based solely on their assertions,
especially when the workman has placed on record
sufficient material to show his engagement with the
management. In view of the above discussion, this tribunal
is of the opinion that the workman is an employee of the
management. Hence this issue is decided in favour of the
workman and against the management.
Issue No. 2:
Whether this court has no territorial
jurisdiction to entertain the present claim?
OPM
32. The management has contended that this tribunal does not
have jurisdiction to entertain the present claim as the
workman was posted only in the management's office in
Noida and that management does not have any office
situated in Delhi except its depot with which the claimant
had no relation. Reliance is placed upon the judgement of
J. Balaji v. Hindu, 2023 SCC OnLine Del 5352, and
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Eastern Coalfields Ltd. v. Kalyan Banerjee, (2008) 3
SCC 456.
33. On the other hand the workman had argued that the
management indeed had its office in Delhi and in support
of the same he has also placed on record an Action Taken
Report dated 26.08.2016 filed by the Labour Inspector
pursuant to the complaint made by the Workman. This
tribunal has perused this document wherein the concerned
Labour Inspector had visited the office of management of
M/s DIC India Ltd on the address as given A - 122/123
Okhla, industrial area, phase 2, New Delhi on 21.07.2016.
It has been recorded that after receiving complaints from
the workman Narayan, the concerned Labour Inspector had
visited the aforesaid address of the management wherein
after investigation it was found that the employees and
other officials of the management failed to show the
relevant documents asked by the said Inspector. Notably,
the said report has been prepared by the Labour Inspector
and has not been disputed by the management anywhere,
therefore, this tribunal does not have any reasons to
disbelieve the contend stated therein. It clearly suggests
that at the time of raising the present industrial dispute the
management indeed had its office based in Delhi. It is the
case of the management that they have entirely shifted their
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company from its Delhi office to Noida. However the
management, despite having onus to prove this issue, has
not placed any document in support of its claim that the
management has completely closed down in Delhi and has
been entirely shifted to Noida. Therefore, in the absence of
any documentary evidence placed on record by the
management, the aforesaid report prepared by the
concerned Labour Inspector this tribunal is of the opinion
that the management indeed had its office at the time of
raising the present dispute, therefore, this has territorial
jurisdiction to entertain the present claim.
Issue no. 3:
Issue No. 3: Whether the industrial dispute
raised by the judgement has been validly
espoused as per industrial disputes act, 1947?
If not legal consequences thereof? OPM
34. The management has contended that the present dispute
was not properly espoused by the union, as the claim
before the conciliation officer was filed in an individual
capacity without any union involvement. This implies that
at the time of making the reference, there was no espousal
of the present dispute by any union whatsoever.
Furthermore, it is also contended that the union which
passed the resolution/espousal regarding the present
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dispute lacks representative character, as the present
dispute has not been espoused by the recognized union of
DIC India Ltd. Additionally, the management has placed
reliance upon the judgments of the Hon'ble Supreme Court
in Bombay Union of Journalists v. 'Hindu' Bombay,
(1962) 3 SCR 893; Workmen v. Dharam Pal Prem
Chand, (1965) 3 SCR 394; and Workmen of Indian
Express Newspaper Pvt. Ltd. vs. The Management of
Indian Express Newspaper Pvt. Ltd.
35. The workman has argued that the claim of the workman
has been properly espoused by the union. He has placed
reliance upon Ex. WW2/1, wherein the Delhi Labour
Union passed a resolution to support the industrial dispute
pertaining to the workman against the management of DIC
for the regularization of his services from his initial date of
joining. As far as the question of espousal at the time of
making the reference is concerned, the workman has
argued that no such contention was raised before the
conciliation officer at the time of making the reference by
the management. Once the appropriate government has
decided that a case is an industrial dispute and refers the
same to the concerned labour court/tribunal, there is an
assumption that the said dispute has been properly
espoused by the union. Reliance is placed upon the
POIT NO. 46/2023 Page 26 of 45
DLCT130033572017
judgment of the division bench of the Hon'ble Kerala High
Court in K.M. Mangalam Publications (India) Pvt. Ltd.
vs. Saju George, W.A. No. 964 of 2020, decided on
01.12.2020.
36. The workman, to prove the proper disposal of the present
case, has placed on record Ex. WW2/1, which is the
resolution passed by the Delhi Labour Union in the
meeting held on 8 January 2024. The resolution
unanimously supports the industrial dispute pertaining to
the workman Uday Chaudhary against the management of
M/s DIC India Ltd for the regularization of his service as a
Driver from the initial date of joining with all
consequential benefits. The said resolution bears the
signature of the general secretary and is also signed by the
workman concerned. He deposed during his cross-
examination that Sh. Kanhai and Sh. Narayan Bahadur
enrolled themselves as members of his union in the year
2019 and he can bring documents in this regard. He stated
that a meeting was held on 8 January 2024, and the case of
the workman was espoused therein. From the perusal of the
court records, it depicts that the cause of the workman was
supported by the Delhi Labour Union during the course of
the present proceedings.
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DLCT130033572017
37. The Hon'ble Supreme Court in Bombay Union of
Journalists v. 'Hindu' Bombay, (1962) 3 SCR 893,
opined that if the dispute was initially an individual dispute
and continued to be such until the date of the reference by
the Government of Bombay, it could not be converted into
an industrial dispute by support subsequent to the
reference, even of workmen interested in the dispute. It
was already held that subsequent withdrawal of support
would not take away the jurisdiction of an Industrial
Tribunal. On the same reasoning, subsequent support
would not convert what was an individual dispute at the
time of reference into an industrial dispute. The resolution
of the Indian Federation of Working Journalists, assuming
it has any value, would not be sufficient to convert what
was an individual dispute into an industrial dispute.
38. However, in the subsequent judgment of the Hon'ble
Supreme Court in Workmen v. Dharam Pal Prem
Chand, (1965) 3 SCR 394, while observing that the ruling
of Bombay Union (supra) is inapplicable to the facts and
circumstances therein, observed there is no hard and fast
rule or any universal application or test for industrial
adjudication. Instead, the industrial tribunal/labour courts
were supposed to be pragmatic based on the peculiar facts
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DLCT130033572017
and circumstances of each case. The relevant portion of the
judgment is as follows:
"12. It is well-known that in dealing with industrial
disputes, industrial adjudication is generally
reluctant to lay down any hard and fast Rule or
adopt any test of general or universal application.
The approach of industrial adjudication in dealing
with industrial disputes has necessarily to be
pragmatic, and the tests which it applies and the
considerations on which it relies would vary from
case to case and would not admit of any rigid or
inflexible formula. There is no doubt that the
limitations introduced by the decisions of this Court
in interpreting the effect of the definition prescribed
by Section 2(k) of the Act were based on such
pragmatic considerations. It may also be conceded
that if the dismissal of an individual employee
working in an establishment in Delhi is taken up by
the union of workmen in a place away from Delhi,
that would clearly not make the dispute an industrial
dispute. Section 36 of the Act which deals with the
representation of parties, incidentally suggests that
the union which can raise an individual dispute as to
a dismissal validly, should be a union of the same
industry. Generally, it is the union of workmen
working in the same establishment which has passed
the impugned order of dismissal. But in a given case,
it is conceivable that the workmen of an
establishment have no union of their own, and some
or all of them join the union of another
establishment belonging to the same industry. In
such a case, if the said union takes up the cause of
the workmen working in an establishment which has
no union of its own, it would be unreasonable to
POIT NO. 46/2023 Page 29 of 45
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hold that the dispute does not become an industrial
dispute because the union which has sponsored it is
not the union exclusively of the workmen working in
the establishment concerned. In every case where
industrial adjudication has to decide whether a
reference in regard to the dismissal of an industrial
employee is validly made or not, it would always be
necessary to enquire whether the union which has
sponsored the case can fairly claim a
representative character in such a way that its
support to the cause would make the dispute an
industrial dispute. "Industry" has been defined by
Section 2(j) of the Act and it seems to us that in
some cases, the union of workmen working in one
industry may be competent to raise a dispute about
the wrongful dismissal of an employee engaged in an
establishment belonging to the same industry where
workmen in such an establishment have no union of
their own, and an appreciable number of such
workmen had joined such other union before their
dismissal. In fact, the object of trade union
movement is to encourage the formation of larger
and bigger unions on healthy and proper trade
union lines, and this object would be frustrated if
industrial adjudication were to adopt the rigid Rule
that before any dispute about wrongful dismissal
can be validly referred under Section 10(1) of the
Act, it should receive the support of the union
consisting exclusively of the workmen working in
the establishment concerned."
39. Meaning thereby, the support of the union has to be
considered based on the facts and circumstances of each
case, and there should not be any straight-jacket formula
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for deciding whether or not the dispute falls under the
category of an industrial dispute as defined under Section
2(k) of the I.D. Act. In the present case, there is nothing on
record to show that any objection/plea was raised when the
matter was pending before the conciliation officer. In fact,
no plea pertaining to espousal was mentioned in the written
statement filed before this tribunal. It was only after the
management moved an application that the issue pertaining
to espousal was framed when the case was at the stage of
workmen's evidence. It is also noteworthy that no
amendment has been made to the written statement to
incorporate a plea of espousal. In the absence of any
plea/objection made in the written statement on behalf of
the management, the evidence led by both parties on the
issue of espousal cannot be considered. Moreover, when
there is no plea/objection by the management on the issue
of espousal, the workman is not required to prove the
undisputed facts. The parties to the dispute are only
required to prove the disputed facts and not the undisputed
facts. When the plea/objection regarding espousal was
raised by the management, the workman examined the
executive member of the Delhi Labour Union and also
placed on record Exhibit WW2/1, that is the resolution
passed in support of the workman for the regularization of
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DLCT130033572017
his service as a Driver with effect from his initial date of
joining. Furthermore, it cannot be ignored that any
plea/objection regarding espousal must be raised at the first
instance itself. The Hon'ble Division Bench of the Kerala
High Court in Mangalam (Supra) observed the following:
"7... There is no doubt about the fact that the
workman was a member of the concerned WA
No.964/2020 union. 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."
40. Notably, the management has failed to place any document
on record to show that they had contended on the issue of
espousal when the matter was pending before the
conciliation officer. It is required to raise this issue at the
first instance itself so that if there is any technical
objection, it would have been resolved right then and there.
Moreover, the need for espousal has to be considered at the
time of making the reference and not before or after the
reference is made. Yet, when no such objection was raised
POIT NO. 46/2023 Page 32 of 45
DLCT130033572017
by the management before the conciliation officer, the
workmen cannot be burdened to prove espousal in the
absence of objections by the management. At this stage of
final arguments, the cause of the workmen has been
supported by the Delhi Labour Union and is properly
espoused by them. This tribunal is of the opinion that
merely because nothing has been placed on record by the
workmen to show that the Union had espoused its cause at
the time of making a reference to this tribunal/labour court,
this case cannot be put to a halt. More so when the worker
was never asked to prove the same until the time of
workmen evidence stage before the Ld. Labour
court/tribunal.
41. Further, it can also be seen from the court records that a
union, namely the Delhi labour union, has indeed espoused
the cause of the workmen. Now, if the workmen are told at
this stage that this does not amount to espousal for the
purpose of section 2(k) of the I.D. Act and the case is
disposed of in these terms, then the worker will be
eventually resorted to raising another industrial dispute
with the Delhi Labour Union between the same parties and
cause of action. This will not only amount to the wastage
of judicial resources and time but would also lead to the
multiplicity of litigation merely on the technicalities of
POIT NO. 46/2023 Page 33 of 45
DLCT130033572017
espousal. Therefore, this tribunal is of the opinion that the
case of the workmen has been espoused by the union and
will also be qualified as proper espousal in the peculiar
facts and circumstances of the present case where the
management itself failed to object to the issue of espousal
at the time of the dispute when it was pending before the
conciliation officer as well as at the time of making
reference to the Ld. tribunal/labour court. Therefore, this
tribunal is of the opinion that the present case has been
properly espoused by the union of the workman. Hence,
this issue is decided in favor of the workman.
Issue no. 4:
Issue No. 4: As per terms of reference
42. Before proceedings further it has to be kept in mind
that during the course of argument, it has been brought
to the knowledge of this tribunal that termination as
alleged by the workman/cessation of the service of the
petitioner as per management, is under challenge and
thus releief any can be granted to the workman till the
time he has alleged he was working under management
ie. 29.04.2016.
43. The AR for the Management has argued that the case of the
workman for regularization of his services is not
maintainable in view of the judgement of the Hon'ble
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DLCT130033572017
Supreme Court in Secretary, State of Karnataka Vs.
Uma Devi reported as AIR 2006 SC 1806 wherein the
Hon'ble Court has dealt with casual and contingent
Employees. It has held that if it is a contractual
appointment, the appointment comes to an end at the end
of the contract. If it were an engagement or appointment on
daily wages or a casual basis, the same would come to an
end when it is discontinued. Similarly, a temporary
employee cannot claim to be made permanent on the
expiry of his term of appointment. It has also clarified that
merely because a temporary employee or a casual wage
worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed in
regular service or made permanent merely on the strength
of such continuance. If the original appointment was not
made by following due process of selection as is envisaged
by the relevant Rules, it is not open to the Court to prevent
regular recruitment at the instance of employees whose
period of employment has come to end or of ad-hoc
employees who, by the very nature of their appointment,
had not acquired any right. Hence, the law is well settled
that a daily wager, temporary or contractual employee
cannot demand regularization of his services. Further
reliance is also placed upon the judgements of Vibhuti
POIT NO. 46/2023 Page 35 of 45
DLCT130033572017
Shanker Pandey vs. State of Madhya Pradesh & Ors.,
AIR 2023 SC 832, Desh Deepak Srivastava vs. Delhi
High Court & Anr.
44. The representative of the workman argued that the action
of the management by non-regularising the services of the
workman constitutes an unfair labor practice under Section
2(ra) read with item 10 of the Fifth Schedule of the
Industrial Disputes Act, as the management has employed
workman for performing the permanent and perennial
nature of work of Driver, treated him as merely an
"independent service providers", and continuing this
practice for years with the intent of denying them
permanent status constitutes unfair labor practice. It is
because regularizing their services would require the
management to pay salaries at the regular pay scale.
Reliance is placed upon the judgment of the Hon'ble
Supreme Court titled as Chief Conservator of Forest and
Anr., (1996) 2 SCC 293, and the judgment of the Hon'ble
Delhi High Court titled as Project Dir. Dept. of Rural
Development v. Its Workmen, 2019 SCC OnLine Del
7796, in support of their argument.
45. This tribunal has considered all the material on record as
well as legal submissions of the parties and is of the
opinion that this tribunal has power to regularize the
POIT NO. 46/2023 Page 36 of 45
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services of the workman in the light of the judgment of
Hon'ble Supreme Court titled as Chief Conservator of
Forest and Anr. (supra), the judgment of Hon'ble Delhi
High Court titled as Project Dir. Dep. Of Rural
Development v. Its Workmen, (supra). 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 agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the POIT NO. 46/2023 Page 37 of 45 DLCT130033572017 parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
46. 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 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 POIT NO. 46/2023 Page 38 of 45 DLCT130033572017 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)."
47. 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 Uma Devi (supra) 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 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 POIT NO. 46/2023 Page 39 of 45 DLCT130033572017 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 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)."
48. Hence, the reliance of the management on the judgments of Uma Devi (supra) to argue that this tribunal does not have the power to regularize the services of the workman concerned is misplaced in law. Notably, the Hon'ble POIT NO. 46/2023 Page 40 of 45 DLCT130033572017 Supreme Court in Chief Conservator of Forest (supra) and Hon'ble Delhi High Court in Project Dir. Dep. Of Rural Development (supra) and the Constitution Bench of the Hon'ble Supreme Court in Bidi Leaves (supra) clearly establish that Industrial Tribunals possess wide ranging powers, which include power to create new rights and liabilities, alter terms of employment, and impose new obligations on employers in the interest of social justice and industrial peace. Furthermore, the Hon'ble Supreme Court in Sheo Narain Nagar (supra) highlights the misuse of the Umadevi (supra) to further perpetuate exploitative employment practices, rather than adhering to its true spirit, which emphasizes on regular employment. This Tribunal, therefore, is not only empowered but also obligated to rectify such injustices by regularizing the services of workmen who have been subject to unfair labor practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
49. In the present case, it cannot be disputed that the workman had been performing the permanent and perennial nature of work as a Driver, having worked from the year 2010 to the year 2016, as evidenced by the documentary evidence placed on record by the workman. He had worked for POIT NO. 46/2023 Page 41 of 45 DLCT130033572017 about 6 long years with the management continuously. It has not been disputed by the management that the workman does not possess the requisite qualifications required for performing the work of a Driver. The workman cannot be treated as personal drivers of the officials but as an employee of the management. The workman had been performing the duties throughout the year on a daily basis and was also given overtime allowances and leave encashment in this regard. This further suggests that the management had been utilizing the services of the workman throughout the year.
50. Even though the management has argued that the services of the workman were engaged merely in the exigencies of work, it has failed to place any order of the management in this regard or explain the exigency that arose. The management witness has confirmed that the work of Driver is continuing with the management. The workman cannot be made to work on a temporary basis at the whims and fancies of the management. The management, having deployed the workman, bears certain responsibilities towards its employees. Despite working for the past 6 long years, the services of the workman were not regularized by the management. The management has failed to place any documentary evidence to show the reason for the non-
POIT NO. 46/2023 Page 42 of 45DLCT130033572017 regularization of the services of the workman. Therefore, in view of the position and the material on record, this tribunal holds that the management has clearly committed unfair labor practice by employing the workman for performing the permanent and perennial nature of work of a Driver and treating him merely as an independent service provider, continuing this for years with the objective of depriving him of the status and privileges of a regular and permanent employee. This also finds support from the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra), wherein the Hon'ble Supreme Court of India held that employing workers on a temporary basis for long periods and denying them the status and salary of a regular employee amounts to unfair labor practice, as giving them the status and privileges of a permanent employee would require the management to pay the workman higher than the one fixed under the Minimum Wages Act.
51. It has also been brought to the notice of this tribunal that the services of the workman have been dispensed with by the management w.e.f. April 2016 and undisputedly he has not been working with the management since then. In this regard, the workman has raised an industrial dispute for his illegal termination and the same is pending before the POIT NO. 46/2023 Page 43 of 45 DLCT130033572017 concerned Labour Court/Tribunal. In these circumstances, this tribunal holds that the workman, Shri Narayan Bahadur, is entitled to be treated as regularized in service on the post of Driver w.e.f. 16.03.2010 in the regular pay scale. And as far as the benefits of regularization in post termination from April 2016 is concerned, the same subject to the outcome of the termination dispute pending before the concerned Labour Court/Tribunal. Hence, this issue is decided in favor of the workman and against the management.
Relief:
52. In view of my findings on the foregoing issues, this tribunal holds that the workman, Shri Narayan Bahadur, is entitled to be treated as regularized in service on the post of Driver w.e.f. 16.03.2010 in the regular pay scale till 29.04.2016. And as far as the benefits of regularization in post termination from 29 April 2016 is concerned, the same subject to the outcome of the termination dispute pending before the concerned Labour Court/Tribunal. The management is directed to implement the award within 60 days of its publication, failing which the management will be liable to pay interest at the rate of 8% per annum from the date of terms of reference i.e. 03.03.2017 to its realization. The award is passed accordingly.
POIT NO. 46/2023 Page 44 of 45DLCT130033572017
53. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Digitally signedAJAY by AJAY GOEL Date: Announced in the open Tribunal 2024.03.02 on this 01.03.2024. GOEL 15:04:24 +0530 (Ajay Goel) POIT-I/RAD, New Delhi POIT NO. 46/2023 Page 45 of 45