Delhi District Court
Id No.308/2016 & Old Id No:174/2014, Sh. ... vs . M/S Department Of Forests.. on 30 January, 2020
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IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT
ROUSE AVENUE COURTS, NEW DELHI
INDUSTRIAL DISPUTE BETWEEN :
ID No.308/2016 & Old ID No:174/2014
Sh. Kishori Lal S/o Sh. Sarru
R/o House No:C1, WHS, Kirti Nagar,
New Delhi110015
C/o All India and General Mazdoor Trade Union (Regd.2566),
170, Bal Mukand Khand, Giri Nagar, Kalkaji, New Delhi110019 .....Workman
V/s
Management of M/s Department of Forests,
Government of Madhya Pradesh,
C1, WHS, Kirti Nagar,
New Delhi110015 ....Management
Date of receipt of Reference : 28042014
Date of Final Arguments : 23012020
Date of Award : 30012020
AWARD
1. The Deputy Labour Commissioner (WD), vide its order
No.F.3(11)/Ref/WD/Lab/2014/761, dated 22042014, referred the present industrial
dispute of workmanherein with the above mentioned management to the Labour
Court with the following terms of reference:
"Whether the disengagement of Sh. Kishori Lal S/o Sh. Sarru from service by
the management vide order dated 19092013 is illegal and/or unjustified and if so, to
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what relief is he entitled and what directions are necessary in this respect ?"
2. Notice of the reference was issued to the Workman and he had filed the
Statement of Claim. Brief facts as stated in the statement of claim are that the
Workman has been working with the Management as a "Chowkidar" since December
1987 and his last drawn wages was Rs.7722/ per month. During his service tenure
the workman never gave any chance of any type of complaint to the management. The
management never gave him the legal facilities like leave book, salary slip, weekly
off and yearly leave, overtime, travel allowance, house rent, tea allowance etc,
regarding which he has made oral complaint to the management but all in vain.
3. It is averred by the workman in his statement of claim that Chief Forest
Officer of management passed an order dated 23072013 that the employees who are
working with the management continuously for the last 20 years, will be given special
allowance of Rs.2500/ per month apart from his salary. It is stated that a dispute
regarding the demands of the workman is going on in the office of the Regional
Labour Office due to which management got annoyed with the workman and
pressurized the workman to take back the said disputes from the office of Labour
Office to which workman objected. On this the management got annoyed and without
any reason terminated the services of the workman on 17092013 without paying him
his earned wages w.e.f. 01082013 to 17092013, which against the section 25 F of
the Industrial Dispute Act.
4. It is submitted by the workman that he was allowed a room in the Depot
premises of the management by the management and the management pressurized the
workman to vacate the said room and on 16092013 the management also
misbehaved with the family members of the workman, police was called by dialing
100 number by workman, but the matter was amicably got settled by the police,
however, on 17092013 at 1 pm, without any reason the workman was terminated by
the management.
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5. The workman stated to have sent a written demand letter to the management
through registered A/D & speed post on 17092013 and demanded his earned wages
with reinstatement in the services without all benefits but the management did not
reply to the demand notice of the workman and also did not take him back on the
services.
6. It is averred that the workman filed a complaint to the Labour Office but their
the management has refused to take back the workman on duty, therefore, the present
reference has been sent to the court. It is stated that the termination of the Workman
by the Management is illegal and he is unemployed. The Workman has claimed
relief of reinstatement with full back wages and all other consequential benefits.
7. Notice of the statement of claim was issued to the Management. Management
filed its written statement and in its written statement the management has raised
preliminary objection that the management is not covered within the definition of
"industry" as defined under Section 2(j) of the Industrial Disputes Act. It is stated
that the workman was a daily wager and he was not appointed or regularized,
therefore, when the services of the claimant were not required he was informed
about the same and his all wages were paid to him. It is stated that the claimant was
given notices/letters informing him that no work is required from him and he was
directed to vacate the government premises occupied by him. It is submitted that
since the workman was engaged as daily wagers and not against any sanctioned post,
therefore, he was not entitled to legal facilities such as ESI, PF, weekend and yearly
leave, bonus etc which are paid to the regular employees. The claimant was being
paid minimum wages under the Minimum Wages Act along with all other benefits
which are applicable to him.
8. It is stated by the management that the claimantherein was engaged in
intimidating and beating the guards of the depot after drinking alcohol and he even
misbehaved with the superior officers, therefore, a police complaint was made against
him on 27042013 and 07102013. The management has denied the allegations of
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the workman as alleged in the statement of claim. Management prayed for dismissal
of the claim of the claimant.
9. In his rejoinder to the written statement of the management the workman has
reiterated the contents of the statement of claim and controverted the averments of
management.
10. From the pleadings of the parties the following issues were framed for the trial
of the case:
1. Whether the management is not an industry within the definition of Section
2(j) of the I.D. Act, if so, its effect ? OPM.
2. Whether the claim of the claimant is not maintainable in view of the
preliminary objection No:1(b) taken by the management in the written
statement ? OPM
3. Whether the workman was engaged with the forest depot, government of M.P.
New Delhi on daily wages basis as Labourer and not against any sanctioned
post, if so, its effect ? OPM
4. Whether the claimant was served notices/letters dated 14052013, 0106
2013, 17092013 and 19092013 informing them that no work was required
from them and they were directed to vacate th premises, if so, its effect ? OPM
5. Whether the claimant has not come to the court with clean hands and has
suppressed the material facts ? OPM
6. Whether the services of the workman have been terminated by the
management illegally and unjustifiably ? OPM
7. Whether the workman is entitled to the relief claimed in the statement of
claim ? OPW
8. Relief
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11. Workman has examined himself as WW1 and filed his evidence by way of
affidavit Ex.WW1/A. Workman has reiterated the whole contents of his statement of
claim in his evidenciary affidavit Ex. WW1/A. Workman has during the examination
inchief has relied upon and exhibited documents i.e. Ex. WW1/1 to Ex. WW1/6 and
Mark "A" (Colly 161 pages). AR of the management has also cross examined the
WW1.
12. The management has examined Sh. Vijay Prakash Tripathi as MW1 who has
filed his evidence by way of affidavit Ex.MW1/A. In his evidenciary affidavit MW1
has reiterated the contents of written statement. He relied upon the documents i.e. Ex.
MW1/1 is the photocopy of service I'Card (OSR). Photocopy of Punchnama dt. 14
012012 is Ex.MW1/2(OSR). Photocopy of Punchnama dt. 03042013 regarding
refusing to accept the wages is Ex.MW1/3(OSR). Photocopy of punchnama dt. 2604
2013 regarding misbehave and abuse, is Ex. MW1/4(OSR). Photocoply of notice
dt.03082013 regarding vacating the government premises is Ex.MW1/5 (OSR).
MW1 has been cross examined by the AR of the workman.
13. The management has also examined Sh. R.C. Panday as MW2, Sh. B.N. Pant
as MW3, Sh. Chandra Shekhar Shukla as MW4 and Sh. Haider Abbas Naqvi as
MW5. All the above witnesses of the management have also been cross examined by
the AR of the workman except MW3 ( who has not appeared for his cross
examination after tendering his evidenciary affidavit).
14. I have heard the argument of Authorized representative of the workman as
well as of management and perused the record. My findings on the issues are as
under:
15. ISSUE NO. 1 "WHETHER THE MANAGEMENT IS NOT AN INDUSTRY
WITHIN THE DEFINITION OF INDUSTRY UNDER S.2(j) FO THE I.D.
ACT? OPM"
And
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ISSUE No.2 : Whether the claim of the claimant is not maintainable in view of the
preliminary objection No.1(b) taken by the management in the Written Statement ?
OPM
The definition of Industry as provided in Section 2(j) of the Industrial Disputes
Act, 1947 reads as : "Industry" means any business, trade, undertaking, manufacture
or calling of employers and includes any calling, service, employment, handicraft, or
industrial occupation or avocation of workmen;"
In the land mark judgement of the Hon'ble Supreme Court, Bangalore Water
Supply and Sewerage Board V/s A. Rajappa and Ors., decided on 21.2.1978 and
7.4.1978 the 7 judge bench of the Hon'ble Supreme Court considered pros and cons
of the definition of Industry, referred earlier pronouncements and decided the scope of
definition of Industry under the Industrial Disputes Act, 1947. It was laid down
1. Where (I) Systematic activity (II) Organised by Cooperation between employer
and employee (III) For the production and/or distribution of goods and services
calculated to satisfy human wants and wishes (inclusive of material things or
services geared to celestial bliss i.e. making on large scale or Prasad or food is an
industry)
2. Absence of profit motive or gainful objective is irrelevant, be the venture in the
public, joint, private or other sector.
3. If the nature of activity is with special emphasis on employer, employee
relationship and true focus is functional.
4. If the organisation is trade or business, it will be covered by the definition of
Industry though organisation is philanthropic.
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With this judgement, besides manufacturing activity, professions such as
Attorney, activities like Clubs, Educational Institutions, Cooperatives, Research
Institutes, and Charitable Projects were also covered. Respective category of
professions, clubs, cooperative etc. may qualify for exemption from the definition of
Industry. As held by the Hon'ble Supreme Court in this judgement, if no employees
are entertained but in minimal matters, marginal employees are hired without
destroying the nonemployee character of the unit.
Even in case of sovereign functions if there are units which are Industries and
which are substantially severable then they were considered to be falling within the
ambit of definition of Industry. Constitutional and competitively enacted legislative
provisions removing certain activities from the scope of the Act, which otherwise are
likely to be covered by the interpretation of Industry, were held to be out of ambit of
the definition of Industry.
The Hon'ble Supreme Court held that in deciding whether an enterprise is an
industry, the absence of profit motive or gainful objective is irrelevant. The Hon'ble
Supreme Court also held that whether the venture is public/joint or private or other
sector is also irrelevant. The Hon'ble Apex Court also observed that absence of
capital does not qualify an enterprise for exemption from the scope of Section 2(j) of
the Act.
The Hon'ble Supreme Court also observed that welfare economic activities
undertaken by the Government or statutory bodies not being sovereign functions are
covered by the definition of Industries. The judgement also brought research
institutes, educational institutions, hospitals, professions like attorney, cooperative
societies, clubs, philanthropic enterprises, performing business functions within the
definition of Industry. Charitable Institutions make no profits but hire the services of
employees as in other like businesses.
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The interpretation of the definition of Industry by the Hon'ble Supreme Court
brought a large ambit of activities under the definition of Industry. A large number of
institutes, particularly, charitable institutes, universities approached the Union of India
for an amendment in the definition of Industry and accordingly Industrial Disputes
Act, was amended in the year 1982. Sub section 2 of Section 1 of the Amendment Act
states that the Act shall come into force on such a date as the Central Government
may, by notification in the Gazette, appoint. However, although the Act has amended
the definition of Industry in 1982, the amended provision is not brought into force.
Based on the judgement of Bangalore Water Works by the Hon'ble Supreme
Court the following activities have been considered 'Industry' by various Courts;
Public Works Department of Government (State of Punjab V/s Hari Dass & Anr,
1999)
Doordarshan (All India Radio V/s Santosh Kumar, 1998)
Tata Sports Club (Ratilal B Ravji V/s Tata Sports Club & Anr., 1997)
Research Institute (Central Council for Research in Ayurveda and Siddha V/s Central
Government Industrial Tribunal & Anr, 2010
Constitutional Bench of five judges in State of UP v. Jai Bir Singh {2017 (3)
SCC 311} held that a caveat has to be entered on confining 'sovereign functions' to
the traditional so described as 'inalienable functions' comparable to those performed
by a monarch, a ruler or a nondemocratic government. The Bangalore Water Supply
case seem to have confined only such sovereign functions outside the purview of
'industry' which can be termed strictly as constitutional functions of the three wings
of the State i.e. executive, legislature and judiciary. The concept of sovereignty in a
constitutional democracy is different from the traditional concept of sovereignty
which is confined to 'law and order', 'defense', 'law making' and 'justice
dispensation'. In a democracy governed by the Constitution the sovereignty vests in
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the people and the State is obliged to discharge its constitutional obligations contained
in the Directive Principles of the State Policy in Part - IV of the Constitution of India.
From that point of view, wherever the government undertakes public welfare
activities in discharge of its constitutional obligations, as provided in partIV of the
Constitution, such activities should be treated as activities in discharge of sovereign
functions falling outside the purview of 'industry'. Whether employees employed in
such welfare activities of the government require protection, apart from the
constitutional rights conferred on them, may be a subject of separate legislation but
for that reason, such governmental activities cannot be brought within the fold of
industrial law by giving an undue expansive and wide meaning to the words used in
the definition of industry. (Article by Parita Goyal in INTERNATIONAL JOURNAL
OF LEGAL DEVELOPMENTS AND ALLIED ISSUES VOLUME 4 ISSUE 2
March 2018 www.ijldai.thelawbrigade.com)
It was held in Chief Conservator of Forest & Anr vs. Jagannath Moruti
Kondhare (1996) I LLJ 1223 (SC) that the scheme of work undertaken by the Forest
Department could not be regarded as a sovereign function of the state. Therefore,
Forest Department is an industry.
In the present case it will be very necessary to refer to the Order dated
28.08.2018 vide which the Ld. Court of Ms. Richa Sharma (Civil Judge 01[West] Tis
Hazari) disposed of the application of the plaintifftherein (workmanherein). The
matter pertained to the Civil Suit titled "Kishori Lal v. Madhya Pradesh Government
Forest Timber Depot" CS SCJ No. 9619/2016 wherein the plaintifftherein who is the
workmanherein had sought injunction against the defendant No.1therein who is the
managementherein from the unauthorised eviction from the quarter in the depot
premises. The said suit was consequently held infructuous and dismissed vide order
dated 28.08.2018. Subsequently in the matter titled "Sh. Kishori Lal v. Estate Officer
Madhya Pradesh Bhawan New Delhi" in PPA case No. 01/19 the Hon'ble Court of
the District Judge (West) Tis Hazari Courts vide its order dated 30.03.2019 while
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upholding the order of eviction of the Estate Officer had given finding that the
appellanttherein who is the workmanherein had occupied the public premises
unauthorisedly for about five years. It has already been stated by the management
herein that it has imitated proceedings to recover the rent from the workmanherein.
Be that as it may. As per the paragraph No.5 of the Order dated 28.08.2018 of the Ld.
Court of Ms. Richa Sharma (Civil Judge 01[West] Tis Hazari) the management
herein conceded that it is the Forest Timber Depot of Govt. of Madhya Pradesh which
is engaged in the business and trade of sale of timber through auction and other modes
approved by the concerned authorities from time to time. Thus by the very own
admission of the managementherein it can be said that the managementherein is an
"industry" as per the definition under the I.D. Act. Apart from that the management
herein in its own document (complaint / note dated 07.10.2013) the timber goods
worth Rs.12 Crore "market value" were kept in the depot. This adds to the weight of
the argument of the workman that the managementherein comes under the definition
if "industry" as per S.2(j) of I.D. Act.
In all progressive societies there exists the desire to extend equality before the
law between government as a legal entity and as an employer and the citizen who has
suffered damages as a result of official action. The modern welfare state is
increasingly embarking on varied activities indistinguishable from those performed by
private persons. Where government runs a factory operating machinery employing an
army of servants , where it builds houses or tracts patient in hospitals , the concept of
equality requires that it should be at par with private employers.("A CRITICAL
STUDY ON SOVEREIGN AND NON SOVEREIGN FUNCTION OF THE STATE
UNDER ARTICLE 300 OF INDIAN CONSTITUTION" by A. HASHIKA and R.
DHIVYA in International Journal of Pure and Applied Mathematics Volume 120 No.
5 2018, 20532071).
Taking into account the functions of the managementherein it can be inferred
that the managementherein is an "industry" under the definition as per 2(j) of the I.D.
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Act. Thus this Issues no.1 & 2 are decided in favour of the workman and against
the management.
16. ISSUE No.3 :
"Whether the workman was engaged with the forest depot, government of M.P. New Delhi
on daily wages basis as Labourer and not against any sanctioned post, if so, its effect ? OPM"
ISSUES No:4
"Whether the claimant was served notices/letters dated 14052013, 01062013, 17092013
and 19092013 informing them that no work was required from them and they were directed
to vacate th premises, if so, its effect ? OPM"
ISSUE No:5.
"Whether the claimant has not come to the court with clean hands and has suppressed the
material facts ? OPM
ISSUE NO:6
"Whether the services of the workman have been terminated by the management illegally and
unjustifiably ? OPM
ISSUE NO:7.
"Whether the workman is entitled to the relief claimed in the statement of claim ?OPW
All the abovesaid issues shall be disposed of together.
In his crossexamination the workman has admitted that:
"It is correct that I am not having appointment letter. ......I was getting
wages vouchers. It is correct that I am not having salary slip. No interview was held
by the management for the post at the time of appointment. ... It is correct that no
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application was invited by the management for the post. It is correct that I did not
give any application for the post. It is correct that I was not interviewed for the post.
It is correct that no procedure was followed for my appointment."
In RBI v. S. Mani, (2005) 5 SCC 100, it was held that in law, 240 days of
continuous service by itself does not give right to claim of permanence.
In "Secretary, State of Karnataka V. Umadevi {[2006 (4) SCC 1} it has been
held:
45. While directing that appointments, temporary or casual, be regularized
or made permanent, the courts are swayed by the fact that the person concerned
has worked for some time and in some cases for a considerable length of time. It is
not as if the person who accepts an engagement either temporary or casual in
nature, is not aware of the nature of his employment. He accepts the employment
with open eyes. It may be true that he is not in a position to bargain not at arm's
length since he might have been searching for some employment so as to eke out
his livelihood and accepts whatever he gets. But on that ground alone, it would not
be appropriate to jettison the constitutional scheme of appointment and to take the
view that a person who has temporarily or casually got employed should be directed
to be continued permanently. By doing so, it will be creating another mode of
public appointment which is not permissible. If the court were to void a contractual
employment of this nature on the ground that the parties were not having equal
bargaining power, that too would not enable the court to grant any relief to that
employee. A total embargo on such casual or temporary employment is not possible,
given the exigencies of administration and if imposed, would only mean that some
people who at least get employment temporarily, contractually or casually, would
not be getting even that employment when securing of such employment brings at
least some succour to them. After all, innumerable citizens of our vast country are
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in search of employment and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an employment. It is in that
context that one has to proceed on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing from it. In other words,
even while accepting the employment, the person concerned knows the nature of
his employment. It is not an appointment to a post in the real sense of the term. The
claim acquired by him in the post in which he is temporarily employed or the
interest in that post cannot be considered to be of such a magnitude as to enable the
giving up of the procedure established, for making regular appointments to
available posts in the services of the State. The argument that since one has been
working for some time in the post, it will not be just to discontinue him, even
though he was aware of the nature of the employment when he first took it up, is
not one that would enable the jettisoning of the procedure established by law for
public employment and would have to fail when tested on the touchstone of
constitutionality and equality of opportunity enshrined in Article 14 of the
Constitution.
It has been held in "Nand Kumar vs State Of Bihar" { CIVIL APPEAL NO.
2835 /2014 decided on 25 February, 2014}
20. We have heard learned counsel for the parties. We have also perused the
records placed before us. We find that the status of the appellants was continuing to
be as daily wagers. They cannot be treated as permanent Government employees.
They all worked as employees of the Board. We have also found that no steps were
followed by the Board to safeguard the service of these appellants. We have not
been able to find out whether any advertisement was issued by the Government to
regularise them.......
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21. Therefore, in the light of the said provision, we do not find that the
Committee of Secretaries can be faulted in treating the daily wage employees on a
different footing and deciding for removal of their services.
22. We have consciously noted the aforesaid decisions of this Court. The
principle as has been laid down in Umadevi (supra) has also been applied in
relation to the persons who were working on daily wages. According to us, the daily
wagers are not appointees in the strict sense of the term 'appointment'. They do not
hold a post. The scheme of alternative appointment framed for regular employees
of abolished organisation cannot, therefore, confer a similar entitlement on the
daily wagers of abolished organisation to such alternative employment. [See Avas
Vikas Sansthan v. Avas Vikas Sansthan Engineers Association (2006 (4) SCC
132)]. Their relevance in the context of appointment arose by reason of the concept
of regularisation as a source of appointment. After Umadevi (supra), their position
continued to be that of daily wagers. Appointment on daily wage basis is not an
appointment to a post according to the rules. Usually, the projects in which the
daily wagers were engaged, having come to an end, their appointment is necessarily
terminated for want of work. Therefore, the status and rights of daily wagers of a
Government concern are not equivalent to that of a Government servant and his
claim to permanency has to be adjudged differently.
Held in Himanshu Kumar Vidyarthi v. State of Bihar [1997 IV ADSC 196]:
"Admittedly, they were not appointed to the post in accordance with the
rules but were engaged on the basis of need of the work . They are temporary
employees working on daily wages. Under these circumstances, their
disengagement from service cannot be construed to be a retrenchment under the
Industrial Disputes Act. The concept of "retrenchment" , therefore, cannot be
stretched to such an extent as to cover these employees. The learned counsel for the
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petitioners seeks to contend that in the High Court, the petitioners did not contend
that it is a case of retrenchment but termination of their services is arbitrary. Since
they are only dailywage employees and have no right to the posts, their
disengagement is not arbitrary."
Although by way of definition of workman u/s 2 (s) of the Industrial
Dispute Act "daily wage" worker also falls within the definition of workman it
cannot be said that daily wagers have all the rights and duties which are
available to the regular employees of the management. My view also get support
from the case of State of Haryana vs Jasmer Singh ( 2015) 4, SCC 458 , Hon'ble
Supreme Court had held that:
"The respondents, therefore, in the present appeals who are employed on
daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily rated workers are not required to possess the qualification prescribed for regular workers, nor do they have to fulfill the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirement for selection are not as rigorous. There are also provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of regular pay scale of the regularly employed.
Therefore in view of the judgment of State of Haryana vs Jasmer Singh ( 2015) 4, SCC 458, it is clear that daily wage workers cannot claim the same pay scale facility, as that of the regular employee, therefore, the ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..
16contention of Ld Advocate for the workman that workman was not being provided the same facility as that of the regular employee, is not acceptable.
Undisputedly, the petitioner was a daily wager. The daily wagers have no right to the post in view of (Himanshu Kumar Vidyarthi v. State of Bihar) and 1993 (1) AWC 172 (Bipin Bihari Srivastava v. District Judge, Basti) because appointment of daily wagers are made by not complying or observing the procedural formalities in consonance to any rules, regulations or by observing the procedures prescribed for the recruitment. The engagement of daily wager commences in the morning and conies to an end in the evening of every day. There is a contractual deployment for every day. It is upto the employer to allow to continue the employment or disengage the daily wager at any time in absence of work. The daily wager has no right or protection under Article 311 of the Constitution of India. (State of Assam S. Kanak Chandra Dutla); 1998 LIC 1088 (AP) para 16 (Jagdev v. State of U.P.) and 1999 (82) FLR 76 para 8 & 10 (Channey Lal v. Director Malaria Research Centre, New Delhi).
The daily wagers" engaged without any written appointment order could be terminated without any written order also in view of Magarsen v. State of U.P. and Ors. 2002 (2) AWC 1712.
In State of U.P. v. Labour Court Haldwani and Ors. 1999 (81) FLR 319, it was held that the engagement of daily wager in the Irrigation Department comes to an end every evening. Refusal to employ him from a particular day, his disengagement was not under the provision of Section 25F of Industrial Disputes Act. It was observed in para 6 of the above case as below: "Employment to government service in the Irrigation Department is regulated by statutory rules. Presently, the respondent No. 2 was not employed in accordance with the rules. For engaging a person casually on day to day basis the statutory rules are not required to be followed under which the posts have to be advertised and only the best from the market have to be picked up keeping in view ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..
17reservation provided from certain classes. Thus, every eligible person has an opportunity to participate in the recruitment process. This is not so in the case of daily wager in whose case even regularisation regarding age, medical fitness, character roll etc. are not observed. Therefore, daily and casual workers who are engaged in disregard of all rules cannot be allowed to enter government service through the back door and the Labour Court cannot be allowed to be used as a legal means for such back door entry. The anomalous situation that the impugned award creates can be seen from the fact that till before his alleged retrenchment the respondent No. 2 was on engagement from day today. The impugned award makes him a permanent employee with the necessary consequence that he would have to be paid salary for all the 365 days as regular employee and the other benefits of regular employment can also not be denied to him. Thus, the award put him, in as much better position that he was before the alleged retrenchment. Such a result is not conceived."
The daily wagers muster roll employees cannot be regularised unless the posts are in existence or the vacancies are available To entertain the claim for regularisation means to provide appointment to a post after regularising the service of an employee. The position of daily wager is entirely different inasmuch the daily wager holds no post in view of 2003 AIR SCW 3382 (State of Haryana and Anr. v. Tilak Raj and Ors.); (Madhyamik Shiksha Parishad v. Anil Kumar Mishra) (para 4 & 6); 1996 (9) SCC 34 (State of U.P. v. U.P. Madhyamik Shiksha Parishad Shramik Scinch and Ors.) (para 3 and 4); as well as 1995 (Supp) (4) SCC 49 (State of Orissa v. Dipti Matapatra).
The daily wagers are deployed on temporary assignment only and not on sanctioned post and completion of 240 days work by daily wager can not attribute status of a casual workman under Industrial Disputes Act and as such does not create ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..
18a right to regularisation in view of (Madhvamik Shiksha Parishad v. Anil Kumar Mishra and Ors.) It will be very relevant to add that the present case is not merely a case of disengagement of the daily wagers, it is essentially a matter of "misconduct on part of the workmenherein and the matter being reported to the police as well. In the present case the managementherein has adduced various documents regarding the 'misconduct' of the workmanherein:
1. Ex. MW1/2 : Panchnama regarding the incident dated 14.01.2012 thereby asserting that workman Sh. Kishori Lal and Sh. Naresh Kumar refused to follow the instructions / directions to go to Civil Line Office.
2. Ex. MW1/3 : Panchnama regarding incident dated 03.04.2013 thereby asserting that Sh. Goti Ram and Sh. Naresh Kumar refused to accept their remuneration / payment pertaining to March 2013. It also mentioned that they had not worked due to mass leave and had worked only for 6 and 5 days respectively.
3. Ex. MW1/4 : Panchnama regarding incident dated 26.04.2013 thereby asserting that workman Naresh Kumar under the influence of liquor had abused Sh. Ram Chandra Pandey and Sh. Mohan Lal. This was also reported to the police.
4. Ex. MW1/5 : Letter dated 03.08.2013 to Sh. Goti Ram vide which the said workman was given last warning to vacate the premises.
5. Ex. MW4/3 : Panchnama regarding the incident dated 14.01.2012 thereby asserting that workman Sh. Kishori Lal and Sh. Naresh Kumar refused to follow the instructions / directions to go to Civil Line Office.
6. MARK A - is the payment voucher of Rs.5,552/ to the workman Sh. Kishori Lal also bearing the receipt of the said amount by the said workman.
ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..
197. Ex. MW4/4 : Letter dated 22/03/2013 regarding the workmen Sh. Goti Ram, Sh. Naresh Kumar and Sh. Kishori Lal cautioning them regarding the gate of the premises.
8. Ex. MW4/5 : Complaint against workmen Sh. Goti Ram, Sh. Naresh Kumar, Sh. Ajay and Sh. Kishori Lal and their wives that on 16/09/2013 the mobile of the Sh. Ram Chanra Pandey (complainant) as snatched by the all the said persons and he was also beaten up by them. Police complaint was also made against all the abovesaid persons.
9. Ex. MW4/6 : Letter of cancellation of the duty roaster of the workman Sh. Naresh Kumar.
10. Ex.MW4/7 : Letter dated 19/09/2013 of warning to workman Kishori Lal to vacate the premises.
11. Mark B : Complaint dated 19/09/2013 to the Commissioner of Police Delhi regarding the injury sustained by Sh. R.C. Pandey. Also mentioning the incident of stone pelted on Sh. Shukla on 04.09.2013.
12. Ex. MW4/8 : Complaint dated 07.10.2013 stating the incidents dated 16.09.2013 and 19.09.2013.
13. Many other complaints of abusive behaviour of the workmen.
The stand of the managementherein is that this is a case of "disengagement" of the workman due to his grave misconduct. The judgments cited hereinabove have amply laid down the principle that that a daily wager works at the choice and inclination of the employer and that the length of service is immaterial. The mange herein has been able to discharge its burden and prove its version. The management has also initiated criminal action by way of police complaints and also civil actions to recover the dues from the workmen. In the matter titled "Sh. Kishori Lal v. Estate Officer Madhya Pradesh Bhawan New Delhi" in PPA case No. 01/19 the Hon'ble ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..
20Court of the District Judge (West) Tis Hazari Courts vide its order dated 30.03.2019 while upholding the order of eviction of the Estate Officer had given finding that the appellanttherein who is the workmanherein had occupied the public premises unauthorisedly for about five years. It has already been stated by the management herein that it has imitated proceedings to recover the rent from the workmanherein.
In view of the discussion made above, the Issues No. 3, 4, 5, 6 & 7 are decided in favour of the management and against the workman. No relief is made out in favour of the workman. Requisite number of copies of the Award be sent to the competent authority for necessary compliance. File be consigned to Record Room.
Announced in the open court. ( VEENA RANI )
Dated:30012020 Presiding Officer Labour Court
Digitally
Rouse Avenue Courts,New Delhi
signed by
VEENA VEENA RANI
Date:
Judge Code : DL0271
RANI 2020.02.05
13:03:29
+0530
ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..
21IN THE COURT OF Ms. VEENA RANI, PRESIDING OFFICER LABOUR COURT, ROUSE AVENUE COURTS: NEW DELHI ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..
30012020
Present : Sh. Anil Rajput, AR for the workman.
Sh. V.K. Shukla, AR for the management.
Vide my separate detailed order the claim of the workman is dimissed. Requisite number of copies of the order be sent to the concerned authority. File be consigned to Record Room.
Announced in the open court.
Dated:30012020 ( VEENA RANI ) Presiding Officer Labour Court Rouse Avenue Courts,New Delhi Judge Code : DL0271 ID No.308/2016 & Old ID No:174/2014, Sh. Kishori Lal Vs. M/s Department of Forests..