Delhi District Court
Between The vs The on 22 August, 2015
IN THE COURT OF SH. RAMESH KUMARII, PRESIDING OFFICER, LABOUR
COURT NO. IX, KARKARDOOMA COURTS: DELHI
Unique Case ID No. 02402C0183492006
ID No. 73/06 (old), 273/14 (new)
Date of institution 29.03.2006
Date of receiving of present case by way of transfer 07.05.2014
Date of Award 22.08.2015
BETWEEN THE WORKMAN
Smt. Urmila R/o S152/30, Andrenjganj, Road No. 3, Indra Camp, Delhi.
AND
THE MANAGEMENT OF
All India Institute of Medical Sciences, Ansari Nagar, New Delhi, through Director.
AWARD
1 By this award I shall dispose off statement of claim of workman as filed by her
directly before the court under Section 2A of the Industrial Disputes Act, 1947 against the
management on the ground that her services were illegally terminated by the management.
2 Brief facts stated by the workman in her statement of claim are that she was
appointed as Sanitary Attendant in the Dr. R.P. Centre, AIIMS on daily wages, vide letter
dated 18.07.03 for a period of three months by the management and thereafter, she
continued to work till 30.11.05 i.e. for about two and a half years continuously when her
services were terminated in December, 2005. It is further stated that the management is a
premier hospital of Delhi having thousands of employees and the workman worked to the
entire satisfaction of the management and never gave any chance of complaint but she was
time and again pressurized by the management to resign and take her full and final dues.
However, the workman refused to do so. It is further stated that the workman is a widow
ID No. 73/06 (old), 273/14 (new) 1/23
having three small children and the management continued to adopt its unfair labour
practices and she was time and again pressurized to resign. It is further stated that the
management in continuation of their pressure tactics stopped paying her salary in May
2005 and when the workman approached the authorities in this regard she was again asked
to resign and take her full and final dues. The management did not pay her salary for seven
months i.e. till November 2005 and forced her to starvation. It is further stated that
ultimately vide memo dated 01.12.05 the services of the workman were illegally
terminated and when she demanded her salary for the last seven months, she was asked to
come on some other day. Thereafter, after her repeated request, she was issued a cheque dt.
05.12.05 for Rs.22,995/ being the salary for the months of May 2005 to November 2005
(seven months). It is further stated that thereafter, the workman vide her letter dt. 10.01.06
requested the management to reinstate her. However, her request was not accepted but
other workmen who are junior to her are still working in the management. It is further
stated that the services of the workman were terminated without issuing any chargesheet
or conducting any domestic enquiry and she was not even paid any compensation at the
time of termination of her services and the termination of the services of the workman is
illegal and unjustified and amounts to unfair labour practice. It is further stated that the
workman is unemployed since her illegal termination and she is a widow and has three
small children and is on the verge of starvation. In these circumstances, the workman has
prayed that this Hon'ble Court be pleased to reinstate the workman with full back wages
and continuity of service and all other consequential benefits.
3 The management has contested the present case and filed written statement thereby
taking preliminary objections that the claimant has filed the present false, frivolous and
vexatious claim against the management, just to harass management and to get undue
advantage and the same is a gross abuse of process of law. It is further submitted that the
ID No. 73/06 (old), 273/14 (new) 2/23
claimant has not come with clean hands before this Hon'ble Court and has suppressed
material facts mentioned herein below and as such the claim of the claimant is liable to be
dismissed with cost. It is further stated that the claimant is not a workman as per the
provisions of Industrial Disputes Act and as per the claim of the claimant, the claimant was
engaged with the management as daily wager for specific period on compassionate ground
to enable her to tide over the situation due to sudden demise of her husband and further the
same was temporary arrangement dehors the rules and as the claimant has been engaged on
daily wages basis, the contract whereof starts with the start of the day and ends with the
end of the day, therefore, the claimant has no right or lien to the post. It is further stated
that AIIMS is a creation of statute enacted by the parliament called AIIMS Act, 1956 and
objects and functions of its creations have been provided therein itself, which goes to show
that the AIIMS is not carrying on any activity which are analogous to or can be termed as
business, manufacturing or trade. It is stated that the AIIMS is an institute of National
importance and has been established to obtain the self sufficiency in the medicine field and
further to carry out the research activities in medicine and as such AIIMS is not an industry
under the I.D. Act and as such the provisions of Industrial Dispute Act are not applicable to
the management and as such the jurisdiction of the Hon'ble Tribunal is specifically barred
and as such the present claim before the Hon'ble Tribunal is not maintainable and is liable
to be rejected. It is further stated that in view of the fact that the AIIMS is not a Hospital
simplicitor, and is engaged in patient care, teaching and research activities, and is running a
Hospital only as a part of its various objects and running a hospital is not a predominant
object character. It is further stated that the predominant character and object of the AIIMS
is to carry out research in the field of medicine, so as to obtain self sufficiency in field of
medicine and AIIMS is controlled by the Central Govt. and is engaged in public welfare
activities and as such engaged in sovereign functions. On merits, it is stated that the
ID No. 73/06 (old), 273/14 (new) 3/23
claimant was engaged with the management as a daily wager for specific period on
compassionate ground to enable her to tide over the situation due to sudden demise of her
husband and further the same was a temporary arrangement till such time the regular
arrangement is made and the same was dehors the rules. It is denied that claimant had
worked continuously for a period of two and half year up till 30.11.2006 as alleged. It is
further stated that the services of the claimant were required in the exigencies of services
and was engaged as and when required. It is denied that the claimant was time and again
pressurized by the management to resign and take full and final dues as alleged or that the
management adopted any unfair labour practice or that the management stopped paying the
salary of the claimant in May 2005 as alleged. It is also denied that the claimant
approached the authorities in this regard when she was again asked to resign and take her
full and final dues and it is stated that as the claimant had never been employed as regular
appointee, therefore, there is no question of resignation, demanded from the claimant. It is
also denied that the management did not pay her salary for 7 months i.e. till November,
2005 and forced her to starvation, as alleged. It is also denied that the other workman, who
are junior to the claimant are working as alleged and it is stated that the claimant was a
daily wager, therefore, there was no question of issuance of any chargesheet or holding
any inquiry. All other averments of statement of claim were denied word by word and it is,
therefore, prayed that the claim of the claimant is liable to be dismissed and may kindly be
dismissed.
4 The workman did not file any rejoinder and my Ld. Predecessor has framed the
following issues vide order dated 01.11.2006:
1 Whether Management is not covered within Section 2 (j) of Industry? OPM
2 Whether the services of Workman have been terminated illegally and/or
unjustifiably by the Management? OPW
ID No. 73/06 (old), 273/14 (new) 4/23
3 Whether Workman is entitled for reliefs for reinstatement, payment of full
back wages, continuity of service and all other consequential benefits?
5 After the framing up of the issues, matter was fixed for workman evidence. The
workman examined herself as WW1. The workman did not examine any other witness and
Ld.AR for workman closed workman evidence. On the other hand the management
examined Sh. Dharam Shastri, Principal Private Secretary (R.P. Centre) of the
management, as MW1 and it is a matter of record that Ld.AR for management filed an
application on 27.04.12 stating that MW1 Sh. Dharam Shastri has retired on 31.12.11,
hence he could not be appeared for his further cross examination. The said application of
the management was allowed my Ld. Predecessor of this court by observing that
"However, the evidence of Sh. Dharam Shastri shall not be discarded in total and if
anything is in the favour of the workman in his evidence, that shall be read to that extent
but hall not be read in favour of the management". Thereafter, the management examined
Sh. K.K. Vaid, Sr. Administrative Officer of the management, as MW2. The management
has also examined one other witness i.e. Sh. Razi Jawaid, Administrative Officer of the
management, as MW3. The management has not examined any other witness and Ld.AR
for management closed management's evidence. After conclusion of evidence of both the
parties matter was fixed for final arguments.
6 Ld. AR for both the parties have filed written arguments. I have perused the same.
In support of his case Ld. AR for workman has relied upon judgment titled as Bangalore
Water Supply & Sewerage Board, Etc. Vs A. Rajappa and others, Civil Appeals Nos.
753754 (T) of 1975, dated 21.02.1978.
7 On the other hand Ld. AR for management has relied upon following judgements:
A On the aspect of industry:
i Physical Research Laboratory Vs K.G. Sharma, 1997 (4) SCC 257
ID No. 73/06 (old), 273/14 (new) 5/23
ii Ex. Engineer (State of Karnataka) Vs. V.K. Soma Setty 1997 (5) SCC 434
iii Gajanan Maharaj Sansthan Vs. Gajanan Karamchari Sangh 2002 (6) SCC 175
iv State of Gujarat Vs. Pratamsingh 2001 (9) SCC 713
v Bharat Bhawan Trust Vs. Bharat Bhawan Artists 2001 (7) SCC para 1012
vi Director food and supplies Vs Gurmit Singh 2007 (5) SCC 727 (delay in reference
of dispute after 9 years)
vii State of U.P. Vs Jai Bir Singh (Five Judges decisions) 2005 (5) SCC 1 at para 45
& 46 case referred to larger Bench for reconsideration of the judgement in the case of
Bangalore Water Supply and Sewerage Board Vs. A. Rajappa 1978 (2) SCC 213.
viii Management of Safdarjung Hospital Vs. Kuldip Singh 1970 (1) SCC 735
ix University of Delhi Vs M/s Ram Nath, 1964 (2) 703
x AIIMS Vs Raj Singh pending in Supreme Court.
B Central Govt. is Appropriate Govt. u/s 25 of the AIIMS Act:
i Standing Conference of Public Enterprises Vs. Govt. of NCT 2009 (93) DRJ, 616
ii Delhi High Court decision in Raj Pal Vs AIIMS dated 25.08.2014.
C. On the aspect of back wages:
i U.P. State Brassware Corporation Vs. Uday Narain 2006 (1) SCC 479
ii M.D. Bala Sahib Vs. Kashinath Ganpathi 2009 (2) SCC 288
iii Kendriya Vidayalaya Sanghthan Vs S.C. Sharma 2005 (2) SCC 363.
D. On the aspect of reinstatement:
i State of Haryana Vs. Rani Devi 1996 (5) SCC 308
ii PSEB Vs. Darbara Singh, 2006 (1) SCC 121
iii Batala Cooperative Sugar Mill Vs. Sowaran Singh, 2005 (8) SCC 481.
8 Record perused. On perusal of record my issuewise findings are as follows:
ID No. 73/06 (old), 273/14 (new) 6/23
ISSUE NO. 1
9 Initially the burden to prove this issue was upon the management but it is a matter of
record that after framing up of the issues the management had moved an application for
shifting the burden of the issue to the workman, which was allowed vide order dated
06.02.08 and accordingly, the onus to prove issue no.1 was shifted to the workman and this
issue was also treated as a preliminary issue. The workman has filed her affidavit
Ex.WW1/A on industry issue and she was crossexamined by Ld.AR for management on
24.08.08 and thereafter, Ld. AR for workman closed workman evidence on industry issue
on 24.08.08 itself and matter was fixed for management's evidence on industry issue on
13.08.08. However, it is a matter of record that on 24.04.09 it was informed that the order
dated 06.02.08 was reviewed by the court of Ms. Sujata Kohli, Ld. POLCII, KKD Court
vide order dated 24.10.08 in ID No. 310/06 titled as Ram Niwas Vs M/s All India
Institute of Medical Sciences and copy of that order was filed on record, according to
which "industry" issue should not be treated as a preliminary issue but should be decided
along with other issues and as such Ld.AR for workman made a prayer to file fresh
affidavit of the workman covering all the issues and matter was again fixed for workman's
evidence for 10.07.09. The workman has accordingly filed her affidavit Ex.WW1/B and
she was cross examined by Ld.AR for management on remaining issues.
10 The workman in her crossexamination denied the suggestion that AIIMS is not
carrying on any education or research work or that main object of the management is to
carry on research and to impart education so as to obtain self sufficiency in medical field or
that hospital is only a small part of object of the management. This witness further
admitted that patients to AIIMS are sent only by way of reference of difficult cases and
denied the suggestion that AIIMS is not running any buses or that buses are of contractors
or that they are not belonging to AIIMS. This witness further admitted that staff of AIIMS
ID No. 73/06 (old), 273/14 (new) 7/23
pays their fair individually for travel by the buses and further denied the suggestion that
management is not charging Rs.2.5 lacs for neuro surgery from a single patient and for
heart surgery or that they are charging less than Rs.2.5 lacs. This witness further admitted
that there is general ward also in AIIMS and also that the doctor who visits general ward
for treatment only goes to the private wards also. This witness further admitted that in
private wards charges special because of special facilities and denied the suggestion that
AIIMS is not charging Rs.250 for ultra sound and Rs.750/ for C.T. Scan, Rs.30003500/
for MRI and Rs.250/ for XRay facility or that they are charging less than the above
amount. This witness further denied that the amount stated by her charged by AIIMS for
heart surgery and nuro surgery and ultra sound and other facilities above mentioned are
charged only for the equipments and consumables or that the charges do not include the
doctor's fee or that one OPD card continues for the entire treatment. This witness further
deposed that Rs.10/ are also charges for a new card if patient shows himself to another
doctor and denied the suggestion that she has deposed falsely with regard to the new OPD
card being prepared for a new doctor. This witness further admitted that doctor does not
charge any fee separately in the OPD at any point of time and denied the suggestion that
hospital is not having a canteen of its own or that hospital is not earning any profit. This
witness further deposed that she cannot say whether revenue generated by the activities of
the management is going to Central Govt. or being projected to the Central Govt. budget
sanctioned by it. This witness further denied the suggestion that AIIMS is engaged only in
public welfare activities or that management is not carrying any activities which can be
termed as business, manufacturing and trade. This witness further denied that the
management is not an industry or that management is not charging any service charges
from the patients regarding treatment.
11 MW1 Sh. Dharam Shastri was crossexamined by Ld.AR for workman on this issue
ID No. 73/06 (old), 273/14 (new) 8/23
and in crossexamination MW1 Sh. Dharam Shastri deposed that he has written on the
basis of his own knowledge in his affidavit Ex.MW1/A in para 14 that management is not
an industry. This witness further deposed that he has no knowledge that Sh. Mukul Gupta,
the present AR had contested a case titled as AIIMS Vs Raj Singh in the year 2006 in the
Hon'ble High Court of Delhi before Division Bench wherein, it has been decided by
Hon'ble High Court of Delhi that AIIMS is an industry. This witness further denied the
suggestion that averments in para 14 of Ex.MW1/A to the effect that management is not
an industry has been written to misguide the court.
12 This is the entire evidence concerning this issue. The cross examination of WW1
shows that the workman has tried her best to prove that the management is an industry but
testimony of the workman could not prove this fact nor Ld.AR for workman could not
impeach the testimony of MW1. However, Ld. AR for workman in support of his
contention has relied upon judgement of the Hon'ble Supreme Court of India in case title
Bangalore Water Supply & Sewerage Board, Etc. Vs A. Rajappa and others (supra)
wherein, it was held that in para III (a) "The consequences are (i) professions; (ii) clubs;
(iii) educational institutions; (iv) cooperatives; (v) research institutes; (vi) charitable
projects and (vii) other kindred adventures, if they fulfill the triple tests listed in I (supra)
cannot be exempted from the scope of S. 2 (j)".
13 It was further held in this judgement in para 123
"....................................................................................................................................
Hospital facility, research products and training services are surely services and hence
industry".
14 Ld. AR for workman has also relied upon the judgement of the Hon'ble High Court
of Delhi in the case of AIIMS Vs Raj Singh (DB) wherein, "it has categorically been held
that the AIIMS is an industry" and stated that the said judgment has not been overruled by
ID No. 73/06 (old), 273/14 (new) 9/23
the Hon'ble Supreme Court and as such issue no.1 be decided against the management.
15 On the other hand in order to prove that management is not an industry, Ld.AR for
management has relied upon judgement in case title Physical Research Laboratory V.
K.G. Sharma, AIR 1997 SC 1855 wherein, the Hon'ble Supreme Court, after taking into
consideration the Bangalore Water Supply judgment has held that "from the nature and
character of its activity carried on by Physical Research Laboratory, it cannot be said to
be an undertaking analogous to business or trade. It is further held that it has not been
engaged in a commercial industrial activity and it cannot be described as an economic
venture or a commercial enterprises. It has been further held that PRL is not an industry
even though it is carrying on the activity of research in a systematic manner with the help
of its employees as it lacks that element which would make it an organization carrying on
any activity which can be said to be analogous to carrying on of a trade or business."
16 Ld.AR for management further relied upon judgement in case title Executive
Engineer (State of Karnatka) V. K. Somasetty & Ors. (1997) 5 SCC 434 wherein, the
Hon'ble Supreme Court has held as under:
".....It is now well settled legal position that the Irrigation Department and
Telecommunication Department are not an industry within the meaning of definition under
the Industrial Dispute Act as held in "Union of India V. Jai Narain Singh" and in "State of
H.P. Vs. Suresh Kumar Verma". The function of the public welfare of State is a sovereign
function. It is the constitutional mandate under the Directive Principles that the Govt.
should bring about welfare State by executive and legislative action.".
17 It was submitted by Ld.AR for management that the judgement passed by the
Hon'ble High Court of Delhi in case title AIIMS Vs. Raj Singh, holding AIIMS as
"industry" is under challenge before the Hon'ble Supreme Court of India and the
judgement in case title Bangalore Water Supply & Sewerage Board, Etc. Vs A. Rajappa
ID No. 73/06 (old), 273/14 (new) 10/23
and others (supra) is also pending for reconsideration before the Hon'ble Supreme Court
of India and therefore, the said judgments cannot be considered at all in the present case.
This court is of the opinion that the law declared in the judgement title Bangalore Water
Supply & Sewerage Board, Etc. Vs A. Rajappa and others (supra) still continues to be
binding and hence this court has to apply the same. Therefore, this court is very much
convinced with the judgement title Bangalore Water Supply & Sewerage Board, Etc. Vs
A. Rajappa and others (supra) as relied upon by Ld.AR for workman and accordingly, it is
held that the management is an "industry" as defined under Section 2 (j) of Industrial
Disputes Act. Judgements relied upon by Ld.AR for management on industry issue are not
applicable. Issue no.1 is decided in favour of the workman and against the management.
ISSUE NO.2
18 The onus to prove this issue was upon the workman and the workman was required
to prove that her services have been terminated illegally and/or unjustifiably by the
management. The contention of the management in written statement is that the claimant is
not a workman as per the provisions of Industrial Disputes Act as she was engaged with the
management as a daily wager for specific period on compassionate ground and as such the
claimant is not entitled to any relief. On perusal of record it is revealed that no such issue
has been framed nor Ld.AR for management despite taking defence in written statement
pressed either at the time of framing up of issues or thereafter till the time of conclusion of
management's evidence, that issue of "daily wager" be also framed but since evidence on
this issue has been led by both the parties, this controversy is being decided and this court
is of the opinion that even if the claimant was a daily wager, she is duly covered within the
definition of section 2 (s) of the Industrial Disputes Act. I have perused the section 2 (s) of
the Industrial Disputes Act, which reads as under:
"Workman" means any person (including an apprentice) employed in any industry
ID No. 73/06 (old), 273/14 (new) 11/23
to do any manual, unskilled, skilled technical, operational, clerical or supervisory work for
hire or reward, whether the terms of employment be express or implied, and for the
purposes of any proceedings under this Act in relation to an industrial dispute, includes
any such person who has been dismissed, discharged or retrenched in connection with, or
as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led
to that dispute, but does not include any such person
(i) .........................................................................................
(ii) ......................................................................................
(iii) ....................................................................................
(iv) ..................................................................................."
19 Coming now to evidence part. MW1 Sh. Dharam Shastri admitted in his cross
examination that services of the workman with the management is continued since July
2003 to November 2005 and there is no break in service. He also admitted that the
workman worked with the management since May 2005 to November 2005 continuously.
Further, MW2 Sh. K.K. Vaid also admitted that the management kept on paying monthly
salary to the workman from August 2003 to April 2005 and further admitted that the
workman kept on working as Sanitary Attendant from 18.07.03 to 30.11.05. Further,
MW3 Sh. Razi Jawaid also deposed in his cross examination that the workman had work
with management continuously after 18.10.03 to 30.11.05. The testimonies of MW1,
MW2 and MW3 itself prove that the workman had been working with the management
continuously and the management had been paying salary to the workman from August
2003 to April 2005 on monthly basis. It means that the workman had been put in 240 days
of continuous service with the management in every year. Since it has been proved on
record that the claimant had been working with the management continuously w.e.f. July
2003 to November 2005, this court is of the opinion that the claimant is a "workman"
under section 2 (s) of the Industrial Disputes Act.
ID No. 73/06 (old), 273/14 (new) 12/23
20 Now coming to next aspect as to whether the services of the workman were
terminated by the management illegally and unjustifiably or not. The claim of the workman
is that the management continued to adopt its unfair labour practices and she was time and
again pressurized by the management to resign and in continuation of their pressure tactics
stopped paying her salary in May 2005 and when she approached to the authorities in this
regard she was again asked to resign and take her full and final dues and ultimately vide
memo dated 01.12.05 the services of the workman were illegally terminated. On the other
hand the management in written statement has stated that the services of the workman were
rightly terminated and the same is very much legal and justified.
21 Now coming to evidence part. The workman in crossexamination admitted that late
Sh. Inderraj was working with the management on temporary status and also that he has
applied to the management for engagement with the management vide application
Ex.WW1/1 which bears her signatures at point A. This witness further admitted that she
was engaged with the management for three months in view of her application
Ex.WW1/M1 and also admitted that before expiry of three months she again moved an
application Ex.WW1/M2 which bears her signatures at point A, for extension of her
engagement with management. This witness further admitted that thereafter she again
moved applications for further extension of her engagement with the management vide
application Ex.WW1/M3, WW1/M4 & WW1/M5 which bears her signatures at point A.
This witness denied the suggestion that management has never pressurized him for
resignation or to take full and final dues or that she herself refused to receive the payment
or that management has never adopted any unfair labour practice and has never pressurized
her. This witness further denied that management has not stopped paying her the salary in
May, 2005 or that she has never approached the authority regarding her unpaid salary.
However, she has admitted that she has never written any letter to the management
ID No. 73/06 (old), 273/14 (new) 13/23
regarding her stoppage of salary and further denied the suggestion that she herself refused
salary therefore, she did not approach the management and she has not demanded any
unpaid salary. This witness further admitted that all of her salary for seven months were
paid but after her termination. This witness denied the suggestion that as and when she
approached the management for the salary the same was paid or that no junior to her
continued working with the management even after her termination or that she has been
engaged for three months at stretch at a time or that she was never engaged continuously
and was engagement for three months at a stretch always. This witness further admitted
that she has no such letter to show that she had been engaged continuously for more than 3
months except the letters she has filed on record and also admitted that she was engaged
with the management because of loss suffered by her family to due to death of her
husband. This witness further denied the suggestion that she is not entitled for
reinstatement and back wages and her termination is legal.
22 MW1 was cross examined by Ld. AR for workman and in cross examination
MW1 deposed that it is in his knowledge that the workman was working at R.P. Centre in
July 2003 and the management had not issued any appointment letter to the workman. This
witness further deposed that the workman firstly worked with the management for about 3
months and thereafter, on application of the workman her services were extended for
another 3 months and the same was extended for 3 months from time to time and lastly she
worked with the management till 30.11.2005. This witness further deposed that the
workman gave applications seeking appointment on compensatory basis vide
Ex.WW1/M1 to WW1/M5 and so, the management firstly permitted the workman to
work with the management vide Ex.WW1/1 and the management also issued the letter
Ex.WW1/2. This witness admitted that vide Ex.WW1/3 the management in continuation
of memo dt. 13.01.2004 extended the sanction of employment to the workman for a period
ID No. 73/06 (old), 273/14 (new) 14/23
upto 31.12.2004 and further admitted that the management extended the employment of the
workman from 01.01.2005 to 31.11.2005 vide document Ex.WW1/4. This witness further
admitted that the facts stated in para 16 of his affidavit Ex.MW1/A that "the claimant was
engaged for a period of 3 months at a stretch", though letter Ex.WW1/3 and WW1/4
shows that the services of the workman were extended for one year and 11 months at a
stretch respectively. This witness further admitted that services of the workman with the
management is continued since July 2003 to November 2005 and there is no break in
service. This witness further admitted that management was giving salary per month and
also admitted that the workman worked with the management since May 2005 to
November 2005 continuously. This witness further admitted that the management was
sanctioning the leaves of the workman and she was availing the same in the same manner
as the leaves of permanent employees of RPS Centre and also admitted that the workman
was doing shift duty in the same manner as the other permanent employees were doing.
This witness further admitted that fact mentioned in para 18 of Ex.MW1/A that the
workman herself did not come to take her salary, has been wrongly mentioned in his
affidavit Ex.MW1/A. This witness further deposed that the workman was working as
Sanitary Attendant (Daily Wager) during her period of service and the work of Sanitary
Attendant (Daily Wager) was to attend the patients in the wards, to mend their beds, taking
the patients to the clinic, to take the trolleys here and there in the hospital. This witness
further deposed that he did not know if the attendance record for the month of December,
2005 is tampered or not but it is correct that slip is pasted in column no.1 and in column
no.3 and on the slip pasted in column no.3, name of Smt. Shakuntala is written.
23 MW2 Sh. K.K. Vaid was crossexamined by Ld.AR for workman and in cross
examination MW2 admitted that the workman worked with the management from
18.07.03 to 30.11.05 and also admitted that she was given extension w.e.f. 01.01.05 to
ID No. 73/06 (old), 273/14 (new) 15/23
30.11.05 at one stretch. This witness further admitted that the management kept on paying
monthly salary to the workman from August 2003 to April 2005 and also admitted that the
workman kept on working as Sanitary Attendant from 18.07.03 to 30.11.05. This witness
admitted that sanitary attendant having temporary status are working at present in the
department R.P. Centre, AIIMS. This witness further admitted that most of the employees
as mentioned in Ex.MW2/X1 are presently working with the management as permanent
today and services of the present workman were terminated on the recommendations of
DOPT. This witness further admitted that no charge sheet was issued to the present
workman prior to her termination and further deposed that he cannot tell if any
compensation was given to the workman at the time of her termination. He also cannot say
if the management has kept other workmen in place of the present workman, of the same
status after her termination in R.P. Centre, AIIMS.
24 MW3 Sh. Razi Jawaid was crossexamined by Ld.AR for workman and in cross
examination MW3 deposed that he did not know how long workman had done work with
the management continuously. He also cannot say without going through record if
workman had done work with the management from 18.07.03 to 30.11.05. After going
through the record MW3 deposed that workman had done work continuously with
management from 18.07.03 to 18.10.03 and she was given extension at the break of three
months. This witness further deposed that the workman had work with management
continuously after 18.10.03 to 30.11.05 and she was kept on casual basis. Ld. AR for
workman put a question to this witness that the job of Sanitary Attendant is of permanent
nature, to which MW3 admitted that the job of Sanitary Attendant is of permanent nature.
25 This is the entire evidence concerning issue no.1. The services of the workman were
terminated by the management vide letter Ex.MW1/1, which is a letter issued by
Department of Personnel & Training Estt. (C) Section. It is an admitted position on record
ID No. 73/06 (old), 273/14 (new) 16/23
that the workman was being paid salary on monthly basis from August 2003 to April 2005
and she kept on working as Sanitary Attendant from 18.07.03 to 30.11.05 and sanitary
attendant having temporary status are working at present in the department R.P. Centre,
AIIMS and most of the employees as mentioned in Ex.MW2/X1 are presently working
with the management as permanent today. It is also an admitted position that the husband
of workman Late Sh. Inder Raj kept on working with the management from 1993 to 2003
as daily wager and on temporary status. From all these facts it is clear that the management
used to appoint the employees as a daily wager for such a long period to deprive them of
various legal benefits despite the fact that the post hold by the employees was of permanent
nature and therefore, this court is of the opinion that such conduct on the part of the
management tantamounts to unfair labour practices.
26 Further, it is admitted position on record that the workman was appointed with the
management as daily wager but this court is of the opinion that since the workman had
been working with the management continuously since July 2003 to November 2005 i.e.
for about 2 years and 5 months, the workman cannot be deprived of protection provided
under section 25 F of the Industrial Disputes Act. MW1 admitted that management did not
offer the salary of the month of May, 2005 to November, 2005 after completion of service
of each month of duties and also admitted that fact mentioned in para 18 of Ex.MW1/A
that the workman herself did not come to take her salary, has been wrongly mentioned in
his affidavit Ex.MW1/A. This testimony of MW1 also proves the assertion of the
workman that when she did not give her resignation, the management stopped paying her
salary and ultimately, terminated her services vide letter Ex.MW1/1. Therefore, keeping in
view the fact that since the management did not issue any charge sheet to the workman
prior to terminating her services and also keeping in view that since the workman had been
working with the management continuously since July 2003 to November 2005 i.e. for
ID No. 73/06 (old), 273/14 (new) 17/23
about 2 years and 5 months and also keeping in view that since the management had been
adopting unfair labour practices, this court is of the opinion that the services of the
workman were terminated illegally and unjustifiably by the management on 01.12.05 in
violation of section 25 F of the Industrial Disputes Act. Issue no.2 is decided in favour of
the workman and against the management.
27 As far as contention of Ld.AR for management that AIIMS is controlled by the
Central Government and as such present reference has wrongly been made by the Govt. of
NCT of Delhi is concerned, on perusal of record it is revealed that the present claim has
been filed by the workman directly before the court u/s 2 A of the Industrial Disputes Act
and there is no reference received to the court from the concerned Labour Department.
Even otherwise no such issue has been framed nor Ld.AR for management has ever
pressed that issue with respect to territorial jurisdiction be also framed. It is further
revealed that the management has not taken specific plea in its written statement that the
management is controlled by the Central Govt. and as such this court has no jurisdiction to
entertain the present case. The management has also not led any evidence to prove its
contention. Therefore, in these circumstances, this contention of Ld.AR for management is
having no force. Judgements relied upon by Ld.AR for management on this contention are
not applicable.
ISSUE NO.3
28 Now coming to the relief part. The workman has claimed that she is unemployed
since the date of termination of her services and therefore, she has made a prayer that she
be reinstated in service with full back wages and all other consequential benefits. On the
other hand, on the aspect of reinstatement Ld. AR for the management has relied upon the
judgment in case titled as "State of Haryana V. Rani Devi, 1996 AIR (SC) 2445 wherein,
the Hon'ble Supreme Court has held as "the scheme of compassionate appointment cannot
ID No. 73/06 (old), 273/14 (new) 18/23
be extended to all sort of employees. If the scheme regarding appointment on
compassionate ground is extended to all sorts of casual, adhoc employees including those
who are working as appreciate, then such scheme cannot be justified on constitutional
grounds."
29 Ld.AR for management has further relied upon judgement in case title "Guru Teg
Bahudar Hospital V. Kamlesh, 2006(1) AD (Delhi) 493 wherein, the Hon'ble High Court
has held as "Respondent was not selected by Department Selection Committee. She was
appointed on leave vacancy as a daily wager. Respondent can't be regularized otherwise there will be violation of rules."
30 Ld.AR for management has further relied upon judgement in case title Punjab State Electricity Board V. Darbara Singh, 2006 AIR (SC) 387 wherein, the Hon'ble Supreme Court has held as "On expiry of conditional and specific period appointment, reinstatement with back wages, improperappointment of respondent as peon on daily wage with a condition that in case regular employee joins the service, service of respondent would be terminated without notice disengagement of respondent's service as per the terms of appointment term of appointment very clearly states that engagement of claimant was for specific period, conditional and on appointment of a regular employee, his engagement comes to an end. Relief granted by Labour Court and High Court is not maintainable."
31 Ld.AR for management has further relied upon judgement in case title Amit Yadav V. Delhi Vidyut Board, 2000(86) DLT 517 wherein, the Hon'ble High Court of Delhi has held as "when the right to continue on the post is purely contractual for a fixed period, such a right would come to an end on expiry of such period. In the instant case, the appointment of the petitioners is purely adhoc and contractual for a period of six months contracts ended by efflux of time. Held petitioners cannot claim right to remain on the ID No. 73/06 (old), 273/14 (new) 19/23 post beyond the contract period and the right to remain on the post beyond the contract period and the right to remain on the post comes to an end on expiry of the contract period. Order of termination valid."
32 Ld.AR for management has further relied upon judgement in case title Ajay Kumar Sharma V. The Presiding Officer, Labour Court & Ors., 2006 (133) DLT 24 wherein, the Hon'ble High Court has held as "It were an management or appointment on daily wages or casual basis, the same would come to an end it was discontinued. A temporary employee could not claim to be made permanent on the expiry of his terms of appointment. Merely, because a temporary employee or casual worker was continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed in regular service or made permanent."
33 Ld.AR for management has further relied upon judgement in case title 2006 (II) LLJ, 722, State of Karnataka Versus Uma Devi & Ors. wherein, the Hon'ble Supreme Court has held as "Thus it is clear that adherence to the rule of equilty in public employment is a basis future of our constitution and since the rule of law is the core of our constitution, a code would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with requirements of Article 14 Read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment this court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee."
34 Ld.AR for management has further relied upon judgement in case title Deepak Sharma & Ors. Vs. Hardayal Public Municipal Library & Ors. wherein, the Hon'ble High ID No. 73/06 (old), 273/14 (new) 20/23 Court of Delhi has held that "the appointments in question have been made hastily against non existence posts and that too without any budgetary sanction, without any sanction of posts, and were made for extraneous consideration........ and the same were illegal appointments and has rightly annulled by the respondent library........ in view of the facts that the appointments have been annulled by the respondent library rightly, the petitioners are also not entitled for arrears of the salary."
35 Ld.AR for management has further relied upon judgement 2006(V) S.L.T. 450, the Hon'ble Supreme Court has observed as "In case the respondent appointed only a a daily wage earner and not as a permanent employee of the appellant. Respondent cannot claim any right to post in question. No right accrued to him to claim any benefit and as such reinstatement in service with continuity in service and back wages cannot be granted to the workman."
36 Ld.AR for management has further relied upon judgement in case title Batala Cooperative Sugar Mill Vs. Sowaran Singh, 2005 (8) SCC 481, wherein the Hon'ble Supreme Court held as "Workman engaged on casual basis on daily wages for specific work and for specific period. Termination of service of, if retrenchment. Held such workman cannot be said to have been retrenched in view of Section2 (oo) (bb). Direction to reinstate workman with back wages by courts below cannot be maintained." 37 On the aspect of back wages Ld.AR for management has relied upon judgement in case title U.P. State Brassware Corporation Ltd. Vs. Udey Narain Pandey, 2006 (I) SCC 479, wherein it has been held that "the onus to prove that the claimant remained unemployed during the interregnum period is upon the claimant and the claimant has to establish to what extent he was unemployed during the interregnum period and to what extent he has suffered in pecuniary terms, as he has not discharge the onus, therefore, the ID No. 73/06 (old), 273/14 (new) 21/23 claimant has no foundation to make such a claim and he is not entitled for any back wages." In the present case also, the claimant has miserably failed to discharge his onus, qua unemployment and as such the claimant is not entitled to any back wages." 38 Ld.AR for management has further relied upon judgement in case title M.D. Bala Sahib Desai Sahkari Ltd. Vs. Kashinath Ganpathi Kambale cited as 2009 Vol.II, SCC 288 wherein, the Hon'ble Supreme Court has held that "it is now well settled by Catena of decisions of this court that having regard to the principles contained in section 106 of the Indian Evidence Act, the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof has wrongly been placed upon the appellant........... We are fully satisfied that in the facts and circumstances of the case back wages should not have been awarded to the respondent workman........... We are, therefore, of the opinion that in this case no back wages should have been awarded in favour of the respondent."
39 There is no cross examination of the workman by Ld.AR for management as to whether she is gainfully employed somewhere else. Hence, it is presumed that the workman has remained unemployed during all these period. Therefore, judgements relied upon by Ld.AR for management on the aspects of reinstatement and back wages are not applicable. Since the present dispute is pending between the parties since 29.03.06 i.e. for about more than 9 years and since both the parties have lost faith in each other, reinstatement of the workman in service would not be in the interest of both the parties and the compensation in lieu of reinstatement would be a better option. Therefore, in these circumstances, this court hereby grants compensation to the workman to the extent of 50% of minimum wages of an unskilled worker whichever is higher from the time to time w.e.f. 01.12.2005 i.e. date of termination of services of the workman up to the date of award, in lieu of reinstatement, back wages and all other consequential benefits. The management is ID No. 73/06 (old), 273/14 (new) 22/23 directed to release this aforesaid payment to the workman within a period of one month from the date of publication of the award, failing which this amount shall carry a simple interest @ 8% per annum from the date of award till realization. 40 A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
PRONOUNCED IN OPEN COURT (RAMESH KUMARII)
ON 22.08.2015 PRESIDING OFFICER:
LABOUR COURTIX/
EAST/KARKARDOOMA COURTS:
DELHI
ID No. 73/06 (old), 273/14 (new) 23/23