Delhi District Court
Sh. Raj Kumar S/O. Sh. Ram Chander vs Junior Engineer on 26 September, 2015
IN THE COURT OF SH. RAJEEV BANSAL
PRESIDING OFFICER INDUSTRIAL TRIBUNAL
KARKARDOOMA COURTS, DELHI
I.D. No 56/12
Unique I.D. No.02402C0147082012
Sh. Raj Kumar S/o. Sh. Ram Chander,
R/o. H.No.1096, Village & P.O. Bawana
Delhi110039. Workman
Versus
1. Junior Engineer, Department of Canal
Govt. of Haryana, Canal Rest House,
Siraspur, Delhi110042.
2. Superintendent Engineer, Department of Canal
Govt. of Haryana, 3, Shyam Nath Marg,
Delhi110054. Managements
Date of institution 23.05.2012
Date of reserving award 26.09.2015
Date of award 26.09.2015
Ref : F.24/ID.(419)/11/NWD/(81)/12. Lab./555155 dated 27.03.2012.
A W A R D
1. Govt. of NCT of Delhi vide order no. F.24/ID.(419)/11/NWD/
(81)/12. Lab./555155 dated 27.03.2012 sent this reference to this Tribunal
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in the following terms:
"Whether an employeremployee relationship existed
between the management and Sh. Raj Kumar S/o. Sh.
Ram Chander; and if so, whether his services have
been illegally and/or unjustifiably terminated by the
management; and if so, whether he is entitled for
regularization on the post of " Beldar" and if yes,
from which date, and what directions are necessary in
this respect?"
2. In pursuance of reference, statement of claim has been filed on
behalf of the workman, wherein it is stated that he has been employed as
daily wages Beldar in the month of MayJune, 1996 and was assigned job.
He stated that his name has been duly entered in the muster roll from the
year 1996 itself and that he has been performing his duty with utmost
sincerity and honesty. It is stated that vide notification dt. 01.10.2003,
Govt. of Haryana framed a policy for regularization of daily wages
employees. It is stated that according to the said policy a daily wages
employee, who has completed three years of service as on 30.09.2003 or
having worked for 240 days in each year and who was in service on
30.09.2003, is entitled to regularization. It is stated that the applicant
fulfilled all these conditions and has completed about 13 years of
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continuous service but instead of regularising his services, the
management illegally and arbitrarily terminated his services in the month
of 23.11.2010, without serving any notice to him. It is stated that the
workman served a legal notice dt. 14.06.2011 to the management but no
action was taken by the management. It is stated that the workman then
approached the Conciliation Officer (Labour) and thereafter, the order no.
F.24/ID.(419)/11/NWD/(81)/12. Lab./555155 dated 27.03.2012 was
passed, referring this dispute to this Tribunal for adjudication. It is prayed
that necessary directions be given to the respondent to take the petitioner
back in service with further directions to regularise him from the date of his illegal termination i.e 23.11.2010 with back wages for the intervening period.
3. Management contested the claim of the workman and filed written statement, wherein it is stated that the workman has suppressed material facts. It is stated that no cause of action has arisen in favour of the workman to file the present petition. It is stated that the petitioner was employed temporarily on muster roll and there is no master servant relationship between the parties. It is stated that the workman was hired I.D. No.56/12 Raj Kumar vs. Department of Canal Page 3 of 16 from time to time on purely temporary basis as per requirement of particular work by the department. It is stated that workman has never worked with the management continuously. It is further stated that Govt. of Haryana has issued a notification regarding withdrawal of policy of regularization of services of daily wages workers, which were issued earlier in 1997, 1999, 2003 and 2004. It was denied that the name of the workman was entered in the muster roll from the year 2003. It is stated that petitioner worked on daily wage basis since 1998 but never worked for more than 240 days in a Calender Year. It was stated that workman left the work on daily wage basis on his own and was not interested to continue the work in the department. Receipt of legal notice was denied. On these grounds, dismissal of the claim petition was sought.
4. Rejoinder was filed by the workman, wherein averments made by the management in written statement were denied and the averments made by the workman in the statement of claim were reiterated.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 03.12.12.
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1. Whether claimant is workman as defined under Section 2 (s) of Industrial Disputes Act ? OPW
2. Whether present dispute is an Industrial Dispute as defined in section 2 (k) of Industrial Disputes Act ? OPW
3. Whether reference is without jurisdiction as per preliminary objections of written statement? OPM
4. As per terms of reference.
6. Workman filed his own affidavit by way of evidence, which he proved as Ex.WW1/A, wherein he reiterated the contentions made by him in the statement of claim. In his crossexamination he stated that he was deputed as a contractual labour in the management as daily wager and that no appointment letter was issued by the management at the time of his engagement. He also stated that presently he was doing casual labour work and was earning about Rs.3,0004,000/ per month. No other witness was examined on behalf of the workman and workman evidence was closed.
7. On behalf of the management, affidavit of Sh. Subhash Malik, I.D. No.56/12 Raj Kumar vs. Department of Canal Page 5 of 16 Sub Divisional Officer, was filed and the affidavit was proved as Ex.MW1/A in which the contentions as made by the management in written statement were reiterated.
8. Ld. Counsel for the workman has argued that the claimant has worked continuously with the management and his services were terminated by the management. He stated that the management had formulated a scheme in the year 2003 for regularization of daily wage employees but the services of the claimant were terminated in the year 2010, without regularising his services. It is stated that the muster roll filed by the management is not in continuation and information has been withheld by the management. Written submissions were also filed on behalf of the workman, wherein it is stated that the muster roll filed by the management are manipulated documents. Reliance has been placed on the judgment of Hon'ble High Court in the case of State vs. Ashok Kumar WP (C) No.3326/12 dated 02.09.2015 whereby an award passed by the Labour Court in a similar matter was upheld. Another judgment in the case of State of Haryana vs. Sahib Singh dated 17.10.2012 passed by the Hon'ble I.D. No.56/12 Raj Kumar vs. Department of Canal Page 6 of 16 High Court has been relied upon.
9. Per contra, Ld. Counsel for management argued that the claimant was only a contractual employee and contractual employees cannot claim regularization in view of constitution bench judgment in the case of Uma Devi AIR 2006 SC 1806. He stated that the policies of regularization issued from time to time were withdrawn by Govt. of Haryana in the year 2007 itself. He further argued that the claimant never completed 240 days in any calendar year and as such the claimant was not regularised. He stated that since the claimant was a contractual employee, his services came to an end after efflux of time and the same does not amount to retrenchment and is protected by section 2(oo) (bb) of Industrial Disputes Act. He placed reliance on the judgement MCD vs. Mahesh passed by Hon'ble Delhi High Court on 03.11.06 Ram Prakash vs. Delhi University 2009 (2) AD Delhi 235 and Bhav Nagar Municipal Corporation vs. Salim Bhai Umar Bhai Mansoori AIR 2013 SC 2762. He also filed written submissions on behalf of the management.
10. I have heard both the sides and have perused the records of the I.D. No.56/12 Raj Kumar vs. Department of Canal Page 7 of 16 case. My issuewise findings are as under.
11. Issue no.1 Whether Claimant is workman as defined u/s 2(s) of Industrial Disputes Act?
12. It is not disputed that the claimant has worked with the management. Section 2(s) of the Industrial Disputes Act inter alia provides that 'workman' means any person, employed to do any manual or unskilled work. According to the management, the claimant was doing work of casual nature with the management on contractual basis. There is no distinction in the statute that a person appointed on contract basis will be outside the purview of the definition of the word 'workman'. Since, employment of the claimant with the management is not disputed and the claimant was doing manual or unskilled work with the management, he would be covered by the definition of the word 'workman' u/s 2(s) of Industrial Disputes Act. This issue is accordingly decided in favour of the workman and against the management.
13. Issue no.2 I.D. No.56/12 Raj Kumar vs. Department of Canal Page 8 of 16 Whether present dispute is an industrial dispute as defined in section 2(k) of the Industrial Disputes Act?
14. Section 2(k) of the Industrial Disputes Act defines 'industrial dispute' to inter alia mean any dispute or difference between employer and workman connected with the employment or non employment. Since, it has already been held that the claimant is a 'workman' within the meaning of section 2(s) of Industrial Disputes Act, the present dispute relates to employment or non employment of the claimant as employment of the claimant with the management is not disputed. Accordingly, the present dispute would be an 'industrial dispute' within the meaning of section 2(k) of Industrial Disputes Act. This issue is thus also decided in favour of the workman and against the management.
15. Issue no.3 Whether reference is without jurisdiction as per preliminary objection of the written statement.
16. Six preliminary objections were raised by the management in its written statement i.e. suppression of facts; non joinder/mis joinder of I.D. No.56/12 Raj Kumar vs. Department of Canal Page 9 of 16 parties; no cause of action; relationship of employeremployee; dispute being not industrial dispute and no regularization in view of Uma Devi's judgment. It has not been stated by the management as to what facts were suppressed by the claimant. The claimant has worked with the management and hence it cannot be said that it is a case of mis joinder of parties. It also cannot be said that no cause of action arose in favour of the claimant as the claimant had worked with the management. The issues regarding industrial dispute and employer employee relationship thus also do not arise. As such issue no.3 is also decided in favour of the claimant.
17. Issue no.4 As per terms of reference.
Terms of reference are as under: "Whether an employeremployee relationship existed between the management and Sh. Raj Kumar S/o. Sh. Ram Chander; and if so, whether his services have been illegally and/or unjustifiably terminated by the management; and if so, whether he is entitled for regularization on the post of " Beldar" and if yes, from which date, and what directions are necessary in this respect?"
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18. By the above terms of reference, this tribunal has been called upon to decide existence of employeremployee relationship between the parties; illegality and/or unjustifiability of termination of services by the management; and his entitlement for regularization on the post of Beldar.
19. So far as the first question as to whether the relationship between the claimant and the management was that of employeremployee is concerned, in issue no.1 and 2 it has been held that the claimant had worked with the management and, therefore, relationship of employer employee existed between the management and the claimant.
20. So far as the question of illegal and/or unjustifiable termination of services of claimant by the management is concerned, it is not in dispute that the claimant was working on daily wage basis with the management. No letter of engagement has been filed on record by either side to show as to what was the nature of engagement of the claimant. Admittedly, the claimant was engaged on daily wage basis from time to time by the management, meaning thereby that the claimant was engaged on short term contracts from time to time. Ex. MW 1/4 is the details of working I.D. No.56/12 Raj Kumar vs. Department of Canal Page 11 of 16 days of the claimant according to which he worked for 45 days in the year 1998; 26 days in the year 1999; 208 days in the year 2000; 104 days in the year 2001; 95 days in the year 2002; 114 days in the year 2003; 104 days in the year 2004; 78 days in the year 2005; 104 days in the year 2006; 104 days in the year 2007 and 78 days in the year 2008. These details show that the claimant was not employed continuously with the management. Section 2(oo) of the Industrial Disputes Act defines retrenchment to mean termination of service of a workman by the employer for any reason whatsoever. However, subsection (bb) saves termination of services as a result of non renewal of contract, from the rigors of this section. In other words, if a contract of service is not renewed by the employer on efflux of time for which such contract is made, the same would not amount to retrenchment. Since, the claimant was engaged from time to time for short term contracts by the management and finally he was not engaged again after efflux of time of the last such contract, such non renewal of contract would be outside the purview of the word 'retrenchment' defined by section 2(oo) of Industrial Disputes Act and hence, it cannot be said I.D. No.56/12 Raj Kumar vs. Department of Canal Page 12 of 16 that services of the claimant were illegally or unjustifiably terminated by the management, more so when it is not the case of the claimant that his juniors have been retained by the management as no such pleading or names have been mentioned by the claimant in the statement of claim filed by him.
21. The next term of reference is to decide the entitlement of the claimant for regularization on the post of Beldar. According to the claimant, the management had formulated a scheme in the year 2003 for regularization of casual employees, according to which a person completing 240 days in each of the three calender years without a break of more than one month shall be entitled for regularization. The working days of the claimant, as extracted above, show that the claimant has not rendered 240 days in any calender year, what to speak of three calender years. It is the case of the management that all the schemes of 1997, 1999, 2003 and 2004 of regularization were withdrawn by the management on 25.04.2007 in view of the Gazette Notification of Haryana Government to this effect. Letter dated 25.04.07 was proved as Ex. MW 1/2 and the Gazette Notification was proved as Ex. MW 1/3. When the scheme of I.D. No.56/12 Raj Kumar vs. Department of Canal Page 13 of 16 2003 for regularization has already been withdrawn by the Government of Haryana alongwith other schemes for regularization and the claim for regularization has been staked by the claimant in view of the scheme of 2003, no relief qua regularization can be given to the claimant. Even otherwise, it has already been noted that the claimant never fulfilled the condition of having worked for more than 240 days in three calender years in 2003. As such it is to be held that the claimant is not entitled for regularization as Beldar.
22. Reliance has been placed by the claimant on the judgment of the Hon'ble High Court in the case of Ashok Kumar (supra). Facts of the said case are distinguishable and thus do not apply to the present case. In the said case the management had not produced the muster roll to dispute that the said claimant had not worked for 240 days continuously in any calender year whereas the said claimant had produced copies of muster roll to show that he had worked for more than 240 days every year. In this background the directions of the labour court for reinstatement with full back wages were affirmed by the Hon'ble High Court. I.D. No.56/12 Raj Kumar vs. Department of Canal Page 14 of 16
23. As noted previously, in the present case the management has placed on record the muster rolls to show that the claimant has not worked for 240 days in any calender year, this clinching piece of evidence distinguishes this case from the case of Ashok Kumar.
24. Same was the position in the case of Sahab Singh (supra).
25. Ld. Counsel for the claimant stated in the written submissions that the muster roll is a manipulated document and hence no reliance be placed on it. The argument is bereft of merit. First of all no such suggestion was put to the management witness that the muster roll, being produced by the management, is a manipulated document. Secondly, no documentary evidence contrary to the evidence produced by the management by way of muster roll, was produced by the claimant to upset the claim of the management that the claimant has not worked for 240 days in any calender year. In the absence of any such evidence, the evidence of muster roll cannot be lightly brushed aside.
26. In the net result, it is found that the claimant is not entitled to any relief in the facts and circumstances of the case. The reference is I.D. No.56/12 Raj Kumar vs. Department of Canal Page 15 of 16 answered accordingly in the above terms.
27. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal.
On 26.09.2015 (RAJEEV BANSAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
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