Delhi District Court
Through vs M/S Skygourmet Catering Pvt. Ltd on 11 October, 2018
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT - XIX
DWARKA COURTS : NEW DELHI
LIR No: 3998/16
Sh. Kishan Lal
S/o Sh. Heera Lal
R/o: Vill. Sikron, Post Phatepur Taggar,
Teh. Balanghar, Distt. Faridabad, Haryana
Through
Airport Employees Union (Regd.)
BTR Bhawan, 13A, Rouse Avenue,
New Delhi - 110002
....CLAIMANT
VERSUS
M/s Skygourmet Catering Pvt. Ltd.
Indira Gandhi International Airport Complex
Office: International Airport Approach Road,
New Delhi - 110037
Through its General Manager
....MANAGEMENT
Date of institution of the case : 14.03.2012
Date of passing the Award : 11.10.2018
A W A R D
1.A reference dated 27.02.2012 was received for adjudication by this Court which was sent by Dy. Labour Commissioner, under Section 10(1)(c) and 12(5) of I.D.Act, read with Notification no. F.1/31/616/ESTT./2008/7458 dated 03.03.2009, on a complaint filed by Claimant against the Management, wherein the following reference was to be LIR No: 3998/16 Page 20 of 20 answered: "Whether services of Sh. Kishan Lal s/o Sh. Heera Lal have been illegally/ and or unjustifiably terminated by the management, and if yes, to what relief is he entitled?"
2. Notice of reference was issued to Claimant after which the Claimant had appeared and filed his statement of claim, claiming therein, that he had joined the management's establishment with effect from 01.07.2007 and at the time of his termination (date of termination 13.01.2012), he was working as Team Member "C" (Operations) with his last drawn salary as Rs. 7,100/. It was further stated that the claimant was sincere and hardworking and there was no complaint of any nature regarding his performance. It was further stated that he was given performance linked incentive of Rs. 800/ with effect from 01.07.2007. It was further stated that vide letter dated 01.06.2011, he was promoted as Team Member - B (Production) and his contract was renewed till 31.03.2014 and without any charge sheet or any domestic inquiry, his services were terminated.
It was further stated that Management is in Air catering business and the nature of business is permanent and perennial in nature, however, the Management with malafide intention had issued only "fixed term appointment letters" to all the workmen with a term of three and half years or for one year. It was further stated that the Management had been taking work for 1416 hours without any overtime LIR No: 3998/16 Page 20 of 20 payments as well as no conveyance was provided to the workers. It was further stated that in case the workman got hurt at the workplace, there was no provision for an immediate medical treatment and due to all these factors, the workers were forced to form their Union on 10.10.2009. It was further stated that thereafter the Management had summoned its workers from Chennai, Mumbai, Benguluru and Hyderabad to terminate the services of Union workers and leaders and from May 2010 onwards the Management had started terminating the services of President, General Secretary and so on.
It was further stated that by using the word "fixed term appointment", the Management was only depriving the workman of the protection given in Section 25F, 25G, 25H and 25N of the I.D.Act 1947.
It was further stated that Management was not inclined to absorb the workmen of the establishment in permanent capacity as then it had to pay them higher wages as compared to the temporary staff and to avoid all these financial and statutory obligations, the Management had with malafide intent, issued letters of fixed term appointment to all the workers.
It was further stated that the workmen of Management establishment through their Union had raised an Industrial Dispute No. 247 of 2010 regarding illegality of LIR No: 3998/16 Page 20 of 20 this "fixed term Appointment" method and the matter was still pending. It was further stated that management with the sole aim of discouraging and threatening the workers from joining "Workers Union" and further to discourage them from filing of court cases, started terminating/ suspending the workers who had either joined "Workers Union" or filed court cases for enforcement of their rights.
It was further stated that appointment letter to the workman was issued by Director (HRD) of the establishment but the termination letter was issued by Senior Human Asset Manager, who was inferior in designation to the Director (HRD) and as per the settled principles of law, the termination letter could have been issued only by the appointing authority and on the said ground also, the termination was illegal and unjustified.
It was further stated that after termination of the service of workman, the workman had sent a demand notice to Management to which it did not file any reply. It was further stated that the workman had also preferred a statement of claim before Asst. Labour Commissioner/ Conciliation Officer, however, the management had not participated in the said conciliation proceedings, hence, the Jt. Labour Commissioner had referred the matter through reference to this Court.
Hence a prayer was made that an award be LIR No: 3998/16 Page 20 of 20 passed directing the management to reinstate the workman with full back wages as well as continuity of service and all other consequential benefits.
3. Notice of the statement of claim was sent to the Management which was duly served upon it and Management had also appeared and contested the statement of claim on merits by filing its WS, wherein, it was contended that workman was appointed in service on fixed term contractual basis and his services came to an end on the completion of his fixed tenure of employment. It was further stated that the nature of business of Management was uncertain, as such the company could not have a fixed workforce of permanent workmen and due to the fixed term employment of the workman herein, it should not have vested any right in him to seek continuation or absorption in service of company on the expiry of his fixed term employment. It was also stated that the workman had duly accepted the fixed term appointment and the said acceptance had not vested any right in him to seek continuation or absorption in service of the company on the expiry of his fixed term employment of three years.
Regarding other paras which were either not specifically admitted or essentially and purely constituted matter of record, same were denied by it as incorrect.
4. Workmen had also filed his replication to the said LIR No: 3998/16 Page 20 of 20 written statement wherein he had denied the contents of WS as wrong and reiterated the contents of their statement of claim as correct.
5. Vide order dated 15.02.2013, ld. Predecessor of this Court was pleased to frame the following issues :
1. As per terms of reference.
2. Relief.
6. In order to discharge the onus of proving the issues, the workman had appeared as his own witness and filed in evidence, his examination in chief by way of affidavit Ex. WW1/A wherein he had reiterated the contents of his statement of claim on solemn affirmation. Besides this, he had also placed on record the following documents :
1. copy of appointment letter dated 01.07.2007 is Ex. WW1/1;
2. performance linked incentive letter dated 01.07.2007 is Ex. WW1/2;
3. copy of increment letter dated 01.04.2008 is Ex. WW1/3;
4. copy of the increment letter dated 01.06.2009 is Ex. WW1/4;
5. promotion letter dated 01.06.2011 is Ex. WW1/5;
6. copy of letter dated 13.04.2011 asking the workman to appear before the Performance Appraisal Committee is Ex. WW1/6;
LIR No: 3998/16 Page 20 of 207. renewal letter of fixed term contract dated 27.04.2011 as Ex. WW1/7;
8. notice dated 29.04.2011 extending the fixed term contract upto 31.03.2014 as Ex. WW1/8;
9. complaint filed against Management before Labour Commissioner is Ex. WW1/9;
10. copy of government gazette notification/ order dated 10.10.2007 is Ex. WW1/10;
Though documents Ex. WW1/8 and Ex. WW1/9 did find their mention in the affidavit Ex. WW1/A. However, same were never tendered by the workman on record.
During his cross examination conducted by ld. AR for management, it was admitted by him that he was appointed by the Management with effect from 01.07.2007, however, it was denied by him as wrong that initially he was appointed on a fixed term contract for a period of six months on trial basis for a period of six months after which he was to be confirmed in the services for a period of three years. He had no knowledge about the contents of his appointment letter regarding his employment on contract basis as he was not conversant with the English language though he could have signed in English. He had no knowledge about the contents of document Ex. WW1/A. It was stated further by the witness that it was only during his fight for regularization along with other employees that he came to know about his fixed term contract appointment with the management. However, again it was stated by him that he came to know LIR No: 3998/16 Page 20 of 20 about his fixed term employment only on 12.01.2012 when his services were terminated by the management. No termination letter was stated to have been issued to him by the management.
It was admitted by the witness that business of management was that of catering meals to different airlines whereas other companies were also dealing in the same business. However, he had no knowledge if there were any certified Standing Orders in force applicable to the employees of the management. His appointment as Team Member "C" as well as existence of other categories "A" and "B" out of which only the employees of Category "A" were to be treated as the permanent employees of the management, were all such facts as were admitted to be correct by the witness.
Letter Ex. WW1/M1 was though stated to be never issued to the witness, however, he had admitted his signatures at point 'A' thereon. It was deposed further by the workman that management was paying performance linked incentive to its employees but all employees were not getting the same and only the employees with good performance were paid the said incentive. It was again denied by him as wrong that aforesaid incentive was paid by the management to all of its employees being part of their CTC (cost to company). Though he had further denied that management had stopped paying him the incentive with effect from LIR No: 3998/16 Page 20 of 20 01.06.2010, however, the merger of the said incentive in the basic pay and HRA was admitted to be correct by him. He had no knowledge about the management running into losses for more than last three years. Suggestion with respect to his leveling false allegations against the management pertaining to its adoption of malafide and unfair labour practices was denied by him as wrong. It was also denied by him that management had clearly informed him at the time of his initial appointment that he was appointed purely on fixed term contract basis and that he had accepted the said employment only after fully understanding the terms and conditions stipulated in his appointment letter.
It was also denied by him that he had leveled false and baseless allegations assailing his termination or appointment which was purely on fixed term contract basis. It was further denied by him as wrong that he had falsely testified in his affidavit that in order to avoid its liability to pay higher wages to its permanent employees, management had never intended to absorb all the workmen in the establishment in the permanent capacity.
He had no knowledge if the employees in other establishments as well, such as TAJ Sats Air Catering Ltd, Ambassador Sky Chef and Oberoi Flight Catering etc. were also appointed on fixed term contract basis or not.
LIR No: 3998/16 Page 20 of 20The suggestion regarding his being not a member of any Union was also denied by him as wrong.
It was further denied by him as wrong that he had falsely mentioned in his affidavit that due to his raising an industrial dispute for regularization or for joining the worker's union, his services were terminated by the management. It was again denied by him that case bearing ID No. 671 of 2010 stood disposed of as settled between the management and Union. The suggestions regarding his false testimony regarding the termination/ suspension of the workers who were the members of the Union or had filed court cases or that the incompetency of Senior Human Assets Manager to issue the termination letter to him were again denied by him as wrong.
It was however admitted to be correct by the workman that he was called upon by the management to appear before the performance evaluation committee on 18.04.2011. However, it was denied by him that the said committee had recommended nonextension of his fixed term employment. The authenticity and correctness of the letter Ex. WW1/7 was admitted to be correct by the witness. However, he had denied his knowledge regarding the contents of notice Mark A and B allegedly posted by the management at its notice board. Again the suggestion regarding his unsatisfactory performance at work as LIR No: 3998/16 Page 20 of 20 adjudged by the Performance Evaluation Committee in November 2011 was denied by him as wrong.
He had no knowledge if the management had regularized 362 employees who were initially employed on fixed term contract. Other formal suggestions were also denied by him as wrong and incorrect whereas letter Ex.WW1/M2 pertaining to the termination of his service was admitted to be correct by him.
His family was stated to be consisting of his wife, three children aged 3 years, 4 years and five months and his father. His monthly expenditure was stated to be Rs. 1,000 - 2,000/ per month, however, suggestion regarding his gainful employment was denied by him as incorrect.
7. In rebuttal, management had examined Sh. V.Ranga Rao, working with it as Sr. Manager (HR) who had placed on record, his examination in chief by way of affidavit Ex. MW1/A reiterating the stand of management as contained in its written statement on solemn affirmation. Besides this, he had also placed on record the following documents :
1. staff performance report pertaining to the present workman dated 18.04.2011 is Ex.
MW1/1;
2. copy of notice dated 31.10.2011 relating to renewal of fixed term contract is Ex. MW1/2 and copy of notice dated 16.11.2011 is Ex. MW1/3;
LIR No: 3998/16 Page 20 of 203. staff performance report dated 25.11.2011 is Ex. MW1/4;
4. certified copy of resolution dated 23.04.2010 passed by the board of directors of the management is Ex. MW1/5;
5. chart of meals and flights catered by the Management is Ex. MW1/6;
6. Another list of fixed term employees who were subsequently appointed as permanent employees is Ex. MW1/7;
7. list of Team 'A' members appointed by the management is Ex. MW1/8;
8. list of employees who were subsequently appointed on permanent basis is Ex. MW1/9;
9. list of fixed term employees confirmed with effect from 01.04.2.014 is Ex. MW1/10;
10. Auditor's report/ balance sheets of management for various years Ex. MW1/11 to Ex. MW1/13 and Ex. MW1/15 and Ex. MW1/16;
11. List of team members employed since 2005 till 2013 is Ex. MW1/14;
12. copy of order dated 30.11.2007 passed under Sec. 5(2) of the Industrial Employment (Standing Orders) Act 1946 is Ex.MW1/17;
During his cross examination conducted by ld. AR for workman, it was deposed by MW1 that he was working with the management for the last about 10 years and was appointed as Senior Manager. Management was stated to be operating its business in Delhi since 2005 and was in LIR No: 3998/16 Page 20 of 20 the business of catering food, meals for different airlines like Indian Airlines, Jet Airways, Air Asia, Oman Air, Spice Jet, Indigo and Zoom Air. The working of the management was stated to be continuous in nature, however, it was volunteered by him that it kept on fluctuating in terms of the volume. The workmen were used to be reemployed after expiry of their fixed term employment as per their requirement. He could not tell as to how many workmen were employed along with the present workman. He did not know if any workman was allowed to work after expiry of his term without extension of his future term. The witness could not tell the exact date of joining of workman with the present management or if it was 01.01.2000.
In his further cross examination, he had stated that there were no fixed vacancies of workmen in the Management. It was further admitted by him that services of workmen were terminated as per the recommendation of the Appraisal Committee which comprised of HOD(s) of Management who used to give its report to Manager (HR) of the management. It was also admitted by the witness that workman was advised to improve his work and conduct vide letter Ex. WW1/7.
Certain procedures were stated to be followed by Appraisal Committee to apprise the workman or the employee, however, he could not tell as to when such LIR No: 3998/16 Page 20 of 20 Appraisal Committee was constituted for the first time or how many meetings it had held from the date of its inception till 2011. Records of meeting were stated to have been retained by the management, however, he could not tell as to services of how many workmen were terminated on the basis of reports of such Appraisal Committee before the year 2011 nor he could tell if there was any Appraisal Committee in existence prior to 2011.
Witness could not remember if any complaint was received by the management about work and conduct of the workman. However, it was not stated to be a hard and fast rule that a workman with unsatisfactory performance would not have been promoted to the higher post. No departmental inquiry was conducted for termination of the services of a fixed term employee after completion of his term of employment. It was also admitted to be correct by him that some workmen had filed a case against the management for their regularization through their Union. It was denied as wrong by the witness that only those workmen had been terminated from their services who were petitioners in the said case or were members of the Union. Workman's Union was stated to be operational within the management company who had also filed the said case, however, it was denied by him as wrong that the present workman was pressurized to leave the worker's Union and upon his refusal to do so, his services were terminated. It was stated further LIR No: 3998/16 Page 20 of 20 by him that there was no fixed term as three years for fixed term contract.
Copy of the standing orders of management was stated to be already placed on record, however, he could not remember as to when the application for certification of the standing orders was filed by the management or when the same were actually certified. He had admitted the receipt of order dated 28.08.2012 passed by the Labour Commissioner directing the management to remove provision of FTC from its standing orders.
It was though volunteered by him that Airport Employees Union had filed an application before Certifying Officer for modification of the standing orders. Other formal suggestions were also denied by him as incorrect. Thereafter, management's evidence was also closed.
In the light of the aforesaid testimony of the parties appearing on record, my issue wise findings are as under : Issue no. 1. As per terms of reference -
Whether services of Sh. Kishan Lal s/o Sh. Heera Lal have been illegally/ and or unjustifiably terminated by the management, and if yes, to what relief is he entitled?
From the language of the issue itself, it is clear LIR No: 3998/16 Page 20 of 20 that onus to prove the same was upon the workman. Needless to state that workman was initially appointed for a fixed term vide his appointment letter Ex. WW1/1 as a Team Member "C" (Operations) and was later on promoted to Team Member 'B' as well. It is not in dispute that the workman had not only received increments from the management who had also got his employment contract renewed from time to time, however, on the basis of the evidence available on record, document Ex. WW1/7 becomes a document of prime importance which is letter dated 27.04.2011 pertaining to renewal of fixed term contract of the workman, wherein the management despite having observed that performance of the workman was rated below average by Performance Evaluation Committee, it was pleased to extend the contract of his employment for a further period of three years till 31.03.2014. It was also stated in the said letter that the performance of workman was liable to be reevaluated after six months and his further confirmation in service for the remaining period of employment shall be subject to positive improvement in his performance and in the eventuality of nonimprovisation of his performance, the contract shall come to an automatic end. Other terms and conditions of his employment as contained in the letter of appointment dated 01.07.2007 were to remain unchanged and he was continued to be governed by the same.
As per the case of management, in view of the LIR No: 3998/16 Page 20 of 20 Appraisal Report Ex. WW1/1 and Ex. WW1/4, it had decided to call an end to the services of the workman. Interestingly, the letter Ex. WW1/7 containing the factual assertion regarding judgment of workman's performance below average and recommendation of Performance Evaluation Committee not to renew the fixed term contract is dated 27.04.2011, whereas, the document wherein such recommendation was made, pertained to 25.11.2011 i.e., after about 7 months of execution of Ex. WW1/5.
A perusal of the record further revealed that the recommendations as contained in Ex. MW1/4 were required to be signed by at least three persons if not by all five and was further subject to the approval of G.M of the Unit or Unit Head, however, Ex. WW1/4 had only been recommended by two persons whose names and designations were also not clear and it was not containing the signatures of approval either by G.M. or the Unit Head where the workman was employed.
Similarly in document Ex. MW1/1 which was dated 18.04.2011 i.e., immediately before the issuance of letter Ex. WW1/7 to the workman, the said performance appraisal was signed by three persons but no recommendation of any kind whatsoever was made therein, nor, the same was ever approved by the G.M or the Unit Head.
LIR No: 3998/16 Page 20 of 20It shall be further pertinent to mention here that MW1 during his cross examination had categorically stated that he could not remember if there was any complaint received against the present workman of any nature whatsoever, nor it is the case of management set up before this Court that at any time before or after issuance of the letter Ex. WW1/7, it had apprised the workman about the shortfalls, nonperformance either related to the work of the workman or related to his conduct while on job, nor even factors or parameters in respect of which, the improvement in performance was expected by the management was ever conveyed by it to the workman concerned. Neither any such defence had been taken up by the management before this Court nor it has been established or pleaded on record by it.
It has also not been clear as to on what basis the Appraisal Committee was constituted or had evaluated the performance of the workman because not even a single complaint or adverse comments either from any coworkers or superior officers of the workman have been placed on record by the management to show that either he was not behaving properly with his coworkers and superiors or that his performance was not up to the optimum mark. So far as the document Ex. WW1/7 is concerned, it does not find any mention of any specific area or field either with respect to the conduct of workman towards his fellow employees or any LIR No: 3998/16 Page 20 of 20 dereliction in discharge of his official duty where improvement was sought by the management.
Hence, I find support in the contention of AR for workman that it was only because of the workman's participation in the Union activities and filing of a general demand case for regularization, that the management had got annoyed from him and had decided to terminate the services of workman on one pretext or the other and ultimately had chosen to terminate him by making the alleged report of Performance Appraisal Committee as basis for the same.
Therefore, I have no hesitation in holding that this act of management was unjustified and totally uncalled for and not in conformity with the legal norms as laid down in the labour laws as well as various pronouncements of Hon'ble Higher Courts. Therefore, the issue is answered in affirmative and decided in favour of workman and against the management.
Issue no 2 Relief : In view of my findings to issue no. 1, it is hereby held that the workman shall be deemed to be in employment with the management till 31.03.2014 and shall be entitled to receive all emoluments and benefits up to the said period including full back wages and all consequential benefits from the date of alleged LIR No: 3998/16 Page 20 of 20 termination of his services till the date his renewed contract could have come to an end by efflux of time.
Besides this, the workman shall also be entitled to recover/receive compensation of Rs. 1,00,000/ from the management for his mental and financial sufferings due to unjustified termination of his job. The aforesaid benefit be provided to the workman within a month from the date of publication of the Award failing which this amount shall also carry an interest of 8 percent per annum.
Statement of claim as filed by claimant is allowed in the said terms. Reference also stands answered accordingly. Copy of the award be sent to the Labour Commissioner for publication. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
DATED: 11.10.2018
LOKESH Digitally signed by
LOKESH KUMAR SHARMA
KUMAR Date: 2018.10.18 17:12:28
SHARMA +0530
(LOKESH KUMAR SHARMA)
ADDL. DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER - LABOUR COURT XIX
DWARKA COURTS : NEW DELHI
LIR No: 3998/16 Page 20 of 20