Delhi District Court
Sh. Jai Parkash vs M/S. Bses Rajdhani Power Limited on 6 October, 2015
IN THE COURT OF SH. SANJEEV KUMAR
PRESIDING OFFICE R LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No.184/15 (491/08)
IN THE MATTER OF
Sh. Jai Parkash
C/o. Sh. Satish Katara Advocate,
R Block, 14C, Dilshad Garden,
Delhi : 95.
...........Workman
Versus
M/s. BSES Rajdhani Power Limited,
Through : Chairman
BSES Bhawan, Nehru Place,
New Delhi19.
............Management
DATE OF INSTITUTION : 23.09.2008
DATE OF ARGUMENTS : 12.08.2015
DATE OF AWARD
: 06.10.2015
A W A R D
1. The workman has filed a complaint against the
ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 1 out of 21
management of M/s. BSES Rajdhani Power Limited before Dy.
Labour Commissioner with the submission to reinstate him with
back wages and continuity of service. The matter was agitated in
the Labour Department but no positive result had come out as such
the reference was made to the Labour Court vide reference No. F.
24(1272)07/Lab./922024 Dated : 05.09.08 referred an industrial
dispute between the above mentioned parties with the following
terms of reference :
"Whether Sh. Jai Parkash was
engaged by erstwhile Delhi Vidyut
Board, temporary for a particular
work for specific period and was
disengaged on the completion of work
by the management of M/s. BSES
Rajdhani Ltd. or his services have
been illegally and/or unjustifiably
terminated by the management; and if
so, to what relief is he entitled?"
2. Notice of the reference was issued to both the parties,
the workman filed his statement of claim alleging that he joined
service as Junior 'Mistry' work charge basis w.e.f. 14.09.01 as
ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 2 out of 21
DVB/BRPL initially for a period of six month which was kept on
being extended and he completed 240 days of service and
management deducted his PF. On 01.07. 2002 Delhi Vidut Board
ceased to exist and new entity M/s. Delhi Power Supply Co. Ltd.,
GENCO,BSES and NDPL were created to take over its
functions,staff establishments etc. A list of Junior Work Mistry
was prepared with their date of appointment in which his name
appeared at Sr. no. 19. It is further alleged that Dy. Secretary
(power) vide order dt.30.07.02 had allocated his posting in west
under BRPL and respondent refused to post him along with other
employees despite direction of P. Secretary power vide D.O. No. F11(06)/2003 power/ 06 dt.21.01.2003. Thus his services was terminated in violation of section 25F ID.Act. He filed a writ petition in the High Court but same was withdrawn to raised dispute in ID Act. He sought relief of reinstatement with full back wages.
3. Reply to the claim filed by the management in which management has denied the contents of claim as incorrect. Management has alleged that main issue regarding payment of past liability with regard to employees who could not become part ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 3 out of 21 of any orgnazation in pending before Supreme Court in SLP no. 11664/2006. It is further alleged that the petitioner was never an employee of management. He was engaged on work charge basis/temporary basis for a particular work i.e. civil construction in division west for a specific time by erstwhile DVB without following any selection procedure and without any appointment letter. Later on work which he was engaged was completed and as such his service was not required and he was duly communicated regarding the same vide letter dt.06.08.2002. He was appointed for limited duration for completion of specific work and thus termination of his service is covered u/s 2 (oo) (bb) of ID Act. It is further alleged that the chairman of DVB incidentally holding the post of Power Secretary had regularized the appointment of one of the employee against R & P regulation and same has been quashed by High Court vide its judgement dt.08.04.2003 and it was further directed that any workman who are initially appointed on work charged basis thereafter could not be considered in future for permanent absorption against regular vacancies.
4. On merit it is stated that workman has never competed 240 days in a year with respondent as it came into ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 4 out of 21 existence on 01.07. 2002. Further it is reiterated that workman was employed by erstwhile DVB for specific work and after completion of work his appointment came into end. He was intimated about this vide letter dt.06.08.2002 and his termination is not a retrenchment in view of section 2(oo)(bb) of ID Act and provision of section 25F of ID Act is not applicable.
5. Workman file rejoinder to WS in which he denied the contents of WS as incorrect and reiterated the contents of claim as true and correct. He alleged that he was to work upto 14.03.03 as per sanction accorded by competent authority and was transferred to present management under transfer scheme but his service was retrenched by management on 06.08.2002 quite prior to date of sanction. After unbundling of erstwhile DVB on 01.07.2002 the staff were transferred to BSES Rajdhani Power Ltd. i.e. DISCOM II on "as is where is" basis as per transfer scheme rule 2001 and he had become employee of the company with continuity of service. If his previous service is counted than same is more than 240 days hence his termination is illegal and violated of section 25F of ID Act. He further alleged that he has not sought regularization.
6. After completion of the pleadings, the following ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 5 out of 21 issues have been framed on 06.05.2009 :
1. Whether workman was illegally terminated by the management?
2. Whether Workman was temporary employee and his employment came to an end by efflux of time as provided Under Section 2 (oo) & (bb) of the ID Act is applicable and if so, to what effect?
7. In order to prove its claim, the workman has examined himself as WW1 and filed his evidence through affidavit vide Ex. WW1/A and also rely upon documents Ex. WW1/1 to WW1/3 and mark A. He was cross examined by the AR for the management at length on different aspects.
8. On the other hand, to disprove the claim petition of the workman the management led its evidence of R.C. Kataria as MW1 through an affidavit vide Ex. MW1/A. He relied upon document( mentioned in affidavit as EXDW1/1 and DW1/2 ) but marked as mark A & B. He was also cross examined by the AR for the workman.
9. After conclusion of the evidence, I have heard the ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 6 out of 21 arguments from both the parties. It is argued by Ld. ARW that from the testimony of workman it is proved that workman has worked with the management from 14.09.2001 to 06.08.2002 thus continuously for more than 240 days in a year hence his termination by management without any notice, chargesheet and domestic inquiry is illegal and in violation of section 25F of ID Act. Hence he is entitle to reinstatement with full back wages and continuity of service.
10. On the other hand Ld. ARM has argued that workman was appointed for specific work and for fixed period and after completion of work workman was disengaged hence his termination is not a retrenchment in view of section 2(oo) (bb) of ID Act therefore workman is not entitle to any relief.
11. I have heard the argument and gone through the material on record. My issue wise findings are as under : ISSUE NO. 1 & 2
Whether workman was illegally terminated by the management & Whether Workman was temporary employee and his employment came to an end by efflux of time as provided ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 7 out of 21 Under Section 2 (oo) & (bb) of the ID Act is applicable and if so, to what effect?
12. Since both the issue are interlinked I shall decide both the issue together. It is argued by Ld. AR for management that workman was engaged on contractual basis on account of exigencies of work for a particular work by DVB and on completion of that particular type of work is engagement stand over. Therefore workman was disengaged and his termination is not a retrenchment in view of section 2(oo) (bb) of ID Act.
13. On the other hand Ld. ARW has argued that workman has worked for more than 240 days in a year in erstwhile DVB and as per scheme of transfer he was transferred to BSES RPL but he was not given joining hence his termination is illegal and is in violation of section 25F of ID Act.
14. The workman in his evidence led by way of affidavit Ex.WW1/A also deposed almost same facts as stated by him in his statement of claim. He has deposed that he joined DVB on 14.09.2001 for a period of six month which was extended time to time and last extension was upto 11.11.2002. He has relied upon list of employees who were engaged as junior work mistry/A.L.M ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 8 out of 21 (work Charge) civil dept. as WW1/1. Gazzate notification dt. 30.07.2002 issued by Department of Power GNCT regarding allocation of employees alongwith annexute V. As per annexture V of said notification workman whose name is at sr. no. 23 was allocated west District. WW1/3 is copy of Delhi Electricity Reform (transfer scheme) Rules, 2001.
According to rule 6 of said rules the personnel were divided into 5 groups based on the principal of "as is where is"
and since workman was allocated west district he was allocated BSESRPL.
15. He denied the suggestion that he was not an employee of BSES. He produced the attendance register mark A in the cross examination on the asking of management.
16. On the other hand MW1 R.C. Kataria in his testimony EXMW1/A has deposed that workman was never an employee of Management. He was engaged on temporary basis for a particular work and work was completed so his service was no longer required hence he was communicated in this regard wide letter dt. 06.08.02 EXDW1/2 (which is mark A in evidence ) MW1 In his cross examination admitted that ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 9 out of 21 workman was posted in the DVB as per document WW1/1 and was Work Charge employee. He was posted under Executive Engineer (civil) West
17. On analyzing testimony of witnesses it is evident that in crossexamination no suggestion has been given to the workman that document EXWW1/1 to WW1/3 are forged and fabricated documents. Thus WW1/1 to WW1/3 proved that workman joined erstwhile DVB on 14.09. 2001 and bifurcation of DVB he was order to be posted in west district which falls within the area taken over by management hence he was employed in management. The MW1 also admitted in his crossexamination that workman was posted in the DVB as per document WW1/1 and was Work Charge employee. He was posted under Executive Engineer (civil) West.
Thus From the testimony of MW1 and WW1 undisputed fact came out that claimant was working in erstwhile DVB since 18.05.11 and was posted in the west District under transfer scheme of employee of erstwhile DVB employee and his job was extended up to 14.03.2003.
18. The workman has clearly admitted that he was initially appointed for six month which was extended time to time ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 10 out of 21 and last extension was till 14.03.2003 which means workman appointment was for fixed term extended time to time and his last extension was up to 14.03.2003.
19. The contention of the management is that since workman was appointed for fixed term therefore his termination is not retrenchment as per section 2 (oo)(bb) ID Act.
Relevant Section 2 (oo) (bb)of the I. D.Act, 1947 is reproduce as under: "retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include -
(a) xxxx
(b) xxxx or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) xxx
20. Therefore, in view of section 2(oo )(bb), therefore I am agree with the contention of Ld. ARM that even if workman ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 11 out of 21 contract of job was not renewed by the management after expiry of the fixed term of service, same would not be retrenchment. In this regard, I rely upon the judgement Punjab State Electricity Board and Anrs. vs. Sudesh Kumar Puri AIR 2007 SC (Supp) 647.
The fact of this case was that the workmen were appointed as meter reader on contract basis on payment of Rs. 1/ per meter and the contract was renewed on two occasions and after the expiry of the contract period their service were dispensed with.
The workmen challenged their termination. The Labour Court and the High Court held that the workers were the workman had completed more than 240 days within 12 months, therefore their services were illegally terminated and directed them to reinstate with back wages, however Supreme Court over turn the decision.
Relevant para of judgement is reproduced as below:
7. At the outset, it has to be noted that the decision in Steel Authority's case (supra) has absolutely no relevance so far as the present dispute is concerned. That relates to a case of contract labour. Present dispute is not a case of that nature. On the contrary, it appears from the materials placed on record that there was an agreement governing engagement. The payment was made per meter reading at a ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 12 out of 21 fixed rate and there was no regular employment ever offered to any of the respondents. The provisions of Section 2(oo)(bb) of the Act clearly applies to the facts of the present case.
8. Section 2(oo)(bb) reads as follows :
"2(oo) retrenchment means the termination by the employer of the service of a work man for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include
(a).....
(b)......
(bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being termi nated under a stipulation in that behalf con tained therein; or"
9. The material on record clearly established that the engagement of the respondent was for specific period and conditional. It appears that on the appointment of regular meter readers, the engagement has been dispensed with. The contracts clearly governed the terms of engagement.
10.Above being the position, the orders passed by the Labour Court and the High Court are clearly untenable and are quashed. In two cases the concerned respondents have been engaged again on contractual basis. It shall not be construed ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 13 out of 21 that we have expressed any opinion on such subsequent contractual engagement."
21. Now reverting back to the case. According to AR of workman vide notification dt.30.07.12 EXWW1/2 with annexture V he was posted the workman in west which comes in the area of management after taking distribution work by management. Hence management was liable to give joining to the workman being employee of erstwhile DVB in view of abovesaid notification and rule 6 of Delhi Electricity Reform (transfer scheme) rules which says that the personnel were divided into 5 groups based on the principal of "as is where is". dt.30.07.12. Since he was not given joining by the management hence his termination is illegal
11. MW1 has admitted in the para 7 of his affidavit EXMW1/A that service of the workman was never extended to management and he was only given salary from 01.07.2002 to 6.08.2002 which means management has never given joining to the workman as alleged by workman thus violated provision of rule 6 of Delhi Electricity Reform (transfer scheme) rules. Thus workman's service was terminated prior to expiry of fixed his term of service i.e.14.03.2003.
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22. I do not find force in the contention of Ld. ARM that since service of workman was for fixed term & was terminated on 06.08.2002 vide letter no. O.D/DC(W)11/020206.02.2002 mark A(mentioned as DW1/2 in affidavit of management) thus his termination would be covered u/s 2(oo)(bb) of ID Act and same would not be retrenchment. In my view since workman served was expired 14.03.2003 as evident from document EXWW1/1 hence termination of workman before expiry of said fixed term would not be covered under section 2(oo)(bb) of ID Act. Admittedly workman was not given joining by the management and his service was terminated by the management vide letter dt. 06.08.2002 (mark B) hence it is proved that workman service was terminated prior to expiry of fixed term. Hence, his testimony prior to expiry of fixed period was illegal
23. The another contention of the AR for management that he was assign for particular work which was completed is not tenable as management has led no evidence that what specific work was assigned and when same was completed. He worked from 14.09.2001 to 06.08.2002 which comes out to 327 days . It is not the case of the management that their was any break in service ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 15 out of 21 during this period hence he has continuously worked for more than 240 days in a year. Hence in my view termination of workman prior to expiry of term for which he was appointed i.e. 14.03.2003 was illegal termination done in violation of section 25F of ID Act and his termination is not covered with in the definition of section 2(oo)(bb) of ID Act. Hence both issue no.1 &2 decided against the management.
ISSUE NO. 3
24. Ld. AR for workman has claimed reinstatement with full back wages and consequential benefits. On the other hand Ld. ARM has argued that even if workman termination was illegal due to fixed term of his employment he is not entitle to reinstatement.
25. It is settled law that even in case of illegal termination also reinstatement is not automatic. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 16 out of 21 Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman............"
In Municipal Council, Sujanpur Vs. Surinder Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 17 out of 21 granted automatically".
In Vinod Kumar & others vs Salwan Public School & others WP (C)5820/2011 dt.17.11.2013 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case.
26. Recently, in Recently in W.P. (C) 780/2001 titled as N.K. Joshi versus M/S Modern Bakeries (India) Ltd. & Anrs. dt. 31.07.2014 Hon,ble Justice Vibhu Bhakru has uphold the grant of compensation in a case where termination of workman has held to be illegal. The relevant para 10 is reproduced as below:
"10. It is a trite law that the relief of reinstatement with back wages would not necessarily follow even if the dismissal of an employee from his services is held to be illegal. The relief of reinstatement and back wages is not an automatic remedy in case termination of an employee is turned down as illegal. In certain cases, compensation instead of ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 18 out of 21 reinstatement would be an appropriate relief. The exact nature of relief and remedy would depend upon the facts and circumstances of the case. There are various factors that need to be considered in evaluating the relief to be granted to a workman, including length of service of employee, manner and method of appointment, permanent or temporary employment, the period since dismissal of the services etc. The Supreme Court in the case of Jagbir Singh v. Haryana State Agriculture Mktg. Board: (2009) 15 SCC 327 examined catena of decisions and held as under: "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
Xxxx xxxx xxxx xxxx xxxx
17. While awarding compensation, a host of factors, inter alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances."
27. Now reverting back to the case, the workman was employed with the management on 14.09.2001 and was terminated ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 19 out of 21 from service on 06.08.2002 thus he has worked for about 11 month. Ex. WW1/1 proved that workman appointment was for fixed period which was to expire on 14.03.2003. Hence, his appointment was temporary and workman was only entitle to work for 7 month after which his term would have expired automatically if not renewed. Hence it would not be appropriate to order reinstatement and compensation would be appropriate relief. In my view he would be entitle to wages for those three month four days. Thus in my view he would be also entitle to compensation for illegal termination. Neither party has mentioned what was the salary of workman at the time of his termination. Hence same cannot be decided, therefore, in my view considering facts I grant lumpsum compensation of Rs. 1, 25,000/ (One lac Twenty Five Thousand only) as retrenchment compensation in lieu of retrenchment, back wages and other consequential benefits. Reference is answered accordingly. The management is directed to pay the awarded compensation within 30 days from the date of publication of award, if the management fail, the management would be liable to pay interest @ 8% per annum on the awarded amount. The claim is answered accordingly. ID No.184/15 Jai Parkash Vs. BSES Rajdhani Power Ltd. Page No. 20 out of 21
28. The copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. The claim is answered accordingly. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in Open Court on this 6th October, 2015.
(SANJEEV KUMAR) Additional District & Sessions Judge Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
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