Delhi District Court
Sh. Rajeev Kr. Rai S/O Sh. Ram Naresh Rai vs M/S. Directorate Of Extension ... on 1 July, 2015
IN THE COURT OF SHRI NARINDER KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER : LABOUR COURT-XIX
KARKARDOOMA COURTS : DELHI.
LIR No. 376/12
Unique Case ID No. 02402C0 241802012
Sh. Rajeev Kr. Rai S/o Sh. Ram Naresh Rai
C/o Bhartiya Krishi Karamchari Sangh
Room No. 95, Barracks No. 1/10
Jam Nagar House
Shahjahan Road, New Delhi ...........Workman
Versus
M/s. Directorate of Extension Department of Agriculture
Krishi Vistar Bhawan, Pusa
New Delhi - 110012 ..........Management
Date of institution of the case : 22.08.2012
Date of passing the award : 01.07.2015
Ref. No. F.24(111/12)/SWD/Lab./3568-dated 22.06.12
AWARD
On 22.06.2012 vide order no.F.24(111/12)/SWD/Lab./3568,
the Govt. of NCT of Delhi referred to this court for adjudication an
industrial dispute, under Industrial Disputes Act, 1947 (hereinafter referred
to as the Act) between the parties named above. Terms of reference read
as under:-
"Whether services of Sh. Rajeev Kumar Rai S/o Sh.
Ram Naresh Rai have been illegally and/or
unjustifiably terminated by the management, and if
yes, to what relief is he entitled?"
Case of workman :
2. In the statement of claim filed by claimant, it has been alleged that
LIR No. 376/2012 1 of 19
he was employed with management as a Mali (gardener) on daily wages
w.e.f 15.06.98, but his services were terminated on 23.10.05. He is
alleged to have performed his duty regularly, with artificial break on 2nd
Saturday of every month. The work of Mali is stated to have been
assigned to some fake contractor with a view to exploit the claimant
herein. As further alleged by the claimant, since neither the contractor
had any licence nor management got itself registered to engage contract
labour, the work of Mali would not be assigned to any contractor.
As per claim of the claimant, when he was working with the
management w.e.f 15.06.98 and he had completed more than 240 days in
each of the calender year, the management should have served him with
one months notice or paid him wages for one month in lieu of notice and
also compensated him, but the management violated provisions of section
25 (F) of Industrial Dispute Act. Therefore, the management illegally
terminated services of the workman. Accordingly, workman has prayed
that he is entitled to reinstatement with full back wages, continuity of
services and consequential benefits.
Version of management:-
3. In its written statement management has raised preliminary
objection to the maintainability of the present claim on the ground that this
court has got no jurisdiction as the expression " Appropriate Govt." in
respect of management as per section 2 (a) of Industrial Dispute Act is the
Central Govt., reason being that management is controlled by Ministry of
LIR No. 376/2012 2 of 19
Agriculture, Central Govt. Further, it has been pleaded that there being no
Industrial dispute between the parties herein, the claimant has no locus
standi. Further, it has been pleaded that claimant has not come to the
court with clean hands.
On merits, management has claimed that claimant was engaged in
the year 1998 as daily wage labourer/casual labourer, and not as a Mali,
in the office of the management, on" as and when required basis". As
further pleaded by the management, Central Administrative Tribunal in
some other case directed the management to revise list of casual
labourers. Thereafter, the management proceeded to re-engage those
persons as and when work of casual nature became available, as per
their seniority position in the revised list prepared by the management.
Name of the claimant in the seniority list exists at serial no.6.
Management has further pleaded that recruitment on daily wages having
been made only for works of casual, seasonal and intermittent in nature,
regular posts cannot be created and as such claimant cannot be
employed on regular basis. In this regard management has referred to
judgments dt. 13.02.01 and 09.01.01 passed in the petition filed by Sh.
Hari Dass and Sh. Ashok Kumar, to engage them only when the work of
casual nature becomes available. In the brief facts of the case in the WS,
management has given details of the period when the claimant was
engaged by management for casual work.
Management has denied that claimant was assigned to any
LIR No. 376/2012 3 of 19
contractor during the year 1998 or that services of claimant were
terminated w.e.f 23.10.05. Further, it has been pleaded by management
that task of house keeping including maintenance and upkeep of garden
has been outsourced to different agencies as per Govt. rules by uploading
tender notice on website. The claimant worked up to 28.03.06.
Management has denied that name of the claimant is to be treated at
serial no. 1 as claimed by the claimant. Further it has been pleaded that
the claimant did not complete 240 days' period in a calender year, as
pleaded by the management.
Rejoinder:-
4. In his rejoinder, the claimant has denied that the appropriate
govt. with respect to Industrial dispute is the Central Govt. Claimant has
alleged that status of National Capital Territory of Delhi being of Union
Territory, the dispute has been properly referred by Govt. of NCT of Delhi.
On merits, workman has alleged that he was not a party to
the decision delivered by Central Administrative Tribunal. As further
alleged, an industrial dispute cannot be entertained by Central
Administrative Tribunal as per section 28 of the Administrative Tribunal
Act 1985.
On the point of seniority list, claimant has alleged that he
having been initially appointed in the year 1998 and the others having
been appointed in the year 2002, counting the date of seniority from the
date of initial appointment, others cannot said to be senior to him and
LIR No. 376/2012 4 of 19
management cannot discriminate with him.
Points for determination:-
5. From the pleadings of parties, following issues were framed
vide order dated 25.02.13:-
1. As per terms of reference.
2. Whether the present claim is not maintainable under the
Industrial Disputes Act?
3. Relief
Evidence:-
6. In order to prove his case claimant has kept himself in witness box
as WW-1 .
On the other hand, management has examined Sh. R.G.Hatwar its
Joint Director as MW-1.
Discussion
Issue no. 1 & 2(As per terms of reference) and (Whether the present claim is not
maintainable under the Industrial Disputes Act?)
7. Both these issues are interconnected and as such are being taken
up together.
At the outset, it may be mentioned that Ld. AR(M), in the course of
arguments did not press the preliminary objection raised in the WS that
the management is not an 'industry'.
8. Contention raised on behalf of the workman is that reference
made by Govt. of NCT, Delhi is a valid reference. In this regard, reference
has been made to decision in Sports Authority of India vs Kamgar
LIR No. 376/2012 5 of 19
Union, WP(C) No. 6010 of 2002 decided by our own Hon'ble High Court
on 25.11.2004, to submit that the management herein is though a body
under the control of Central Government, Govt. of NCT, Delhi is
competent to make reference under the Industrial Disputes Act. In support
of his submission, Reference has also been made to decision in National
Buildings Construction Corporation Ltd., New Delhi vs MK Jain and
others 1981 Lab. I.C. 62.
In National Buildings's case (supra), power of the Lieutenant
Governor of Delhi to refer, under Section 10, a dispute to the Labour Court
was questioned on the ground that the Central Government was the
appropriate authority to make the reference.
It was held that no exception could be taken to the order of
reference, even if it be assumed that Central Government was the
appropriate Government, inasmuch as the distinction between Central
and the State Governments in relation to the Union Territory in our
constitutional framework is rendered illusory. In the case of a Union
Territory, the Central and State Governments merge and it is immaterial
whether an order of reference is made by one or the other.
In the case of Management of LRS Institute vs Devender
Kumar 2013 LLR 359, the respondent therein was engaged as a plumber
with the petitioner on daily wages and granted extension on the basis of need of the work.
Therein, the question of competence of the Govt. of NCT of LIR No. 376/2012 6 of 19 Delhi in making reference of industrial dispute where the industry was under the control of the Central Govt., came to be decided. While relying on decision in MCD vs Mahavir, 2002 (95) FLR 974, Hon'ble Judge of our own Hon'ble High Court observed that even if strictly speaking the appropriate government to make reference of an industrial dispute is Central Government, a reference can be made by the Administrator of Union Territory or his delegated authority.
Accordingly, in LRS Institute's case (supra), Hon'ble Court has held that in a case where reference was made by Government of NCT of Delhi, such a reference could not be said to be a reference which was not made by an appropriate authority.
In Indian Tourism Development Corporation, New Delhi vs Delhi Administration and Ors. 1982 (61) FJR 139, Hon'ble Court clearly enunciated the principle that Lt. Governor or Administration of Union Territory of Delhi would discharge functions and powers of the State Government under the Industrial Disputes Act, 1946 and powers of the kind to make reference stood delegated to the State Government under Section 39 of the Notification. Even earlier to this, this view was followed by a Division Bench of our own Hon'ble High Court in the case of M/s Lila Separator Pvt. Ltd. vs The Secretary (Labour), Delhi Administration & Ors. 1981 (43) FLR 170. Reference may also be made to the judgment in Apparel Export Promotion Council Vs Presiding Officer, Industrial Tribunal No. 1 and Ors. 2002 (3) LLJ 511.
LIR No. 376/2012 7 of 19 Applying the aforesaid settled law to the present case, although the industry-management herein is under the control of the Central government, the reference of the Industrial dispute herein made by the Govt. of NCT, Delhi cannot be said to be a reference not made by an appropriate authority.
9. On merits, as noticed above, claim of the claimant is that he was employed as a Mali on 15.6.1998 but the management terminated his services w.e.f. 23.10.2005. On the other hand, management has denied that the claimant was employed as Mali. As per plea of the management, the claimant was engaged as a casual labourer/daily wage labourer on "as and when required basis", during the year 1998.
In his affidavit, claimant has testified that initially he was employed as Mali and he performed his duties continuously for 240 days, with one artificial break on second Saturday and that his services were terminated w.e.f. 23.10.2005 without any notice, notice pay or compensation . He has further testified that persons junior to him have been retained and regularized arbitrarily without any reason .
Claimant has further testified that the seniority list prepared by the management has been arbitrarily prepared without taking into consideration seniority. At the same time, he has testified that as per the seniority list prepared by the management, his name figured at Sr. No. 6 but even as per this list persons shown at Sr. No. 1-5 were junior to him.
10. Workman has proved demand notice dt. 19.9.2011 LIR No. 376/2012 8 of 19 Ex.WW1/1 sent by him to the management. Reply Ex.WW1/2 to this notice received from the management is dt. 25.10.2011. In Ex.WW1/1 the claimant asked the management for his reinstatement in service with full back wages and also continuity in service, on the aforesaid version of illegal termination of his service w.e.f. 23.10.2005, although he was in employment of the management, on daily wages w.e.f. 15.6.1998 and was performing duties with some artificial break .
Ex.WW1/2 is reply from the management to the demand notice Ex.WW1/1. In this reply, management claimed to have employed the claimant as casual labourer and not as a Mali, and that too on daily wages, as and when his services were required by the office.
Management further pleaded that as per terms and conditions of casual labourer, a person on daily wages may not be recruited for work of regular nature and further that recruitment on daily wages may be made only for work which is of casual or seasonal or intermittent in nature for which regular post cannot be created. Therefore, response of the management was that workman cannot be accommodated on regular basis in the office.
11. It is in cross-examination of claimant that no appointment letter was issued to him. Although he stated to have approached the management as per instructions of Employment Exchange, he admitted to have not placed on record any Employment Exchange card. However, he admitted in his cross-examination that he was engaged as a daily wages LIR No. 376/2012 9 of 19 labourer w.e.f. 15.6.1998.
12. On the other hand, MW1 Shri RG Hatwar, Joint Director of the management has testified in his affidavit Ex.MW1/A that the claimant was engaged as daily wages labourer, on "as and when required basis", during the year 1998. He has further testified that the claimant was not engaged as a Mali.
As regards period of employment of the claimant with the management, in para No. 5 of the affidavit MW1 has testified that he was engaged as Casual Labourer as follows :
S. No. From To Number of Days 1. 08.6.1998 30.6.1998 19 2. 01.7.1998 31.7.1998 24 3. 03.8.1998 31.8.1998 21 4. 01.9.1998 29.9.1998 21 5. 05.10.1998 30.10.1998 21 6. 19.2.2001 28.2.2001 7 7. 01.3.2001 1 8. 05.3.2002 20.3.2001 16 9. 26.9.2002 30.9.2002 3 10. 01.10.2002 30.10.2002 20 11. 07.11.2002 02.12.2002 24 12. 05.3.2003 20.3.2003 16 13. 03.8.2005 31.8.2005 19 14. 01.9.2005 30.9.2005 19 15. 03.10.2005 31.10.2005 24 16. 06.12.2005 19.12.2005 10 17. 23.2.2006 28.2.2006 4 18. 01.3.2006 28.3.2006 17 LIR No. 376/2012 10 of 19
Workman has not led any evidence to rebut the period of his employment with the management as casual labourer as depicted in the table.
As testified by MW1, services of the claimant herein were not terminated on 23.10.2005 and that he actually worked with the management up to 28.3.2006.
Workman has not brought on record any document to suggest that his services were terminated on 23.10.2005 and not on 28.3.2006 or that he never served the management after 23.10.2005.
13. From the material available on record, this court finds that claimant was engaged by the management, from time to time, for casual work during the period as described in the table reproduced above. Claimant has failed to prove that he worked with the management as a Mali.
14. Although the claimant has testified to have worked with the management for a period of 240 days, he has failed to prove that he worked continuously for a period of 240 days in the year preceding the date of termination i.e. 2005.
15. Rather, management has proved that the claimant worked as a casual labour from time to time and for the last time, he so worked for a period of seven days during the period from 01.03.2006 to 28.03.2006. Workman has failed to prove that his services were terminated by the management on 23.10.2005, as claimed by him.
LIR No. 376/2012 11 of 19 It has come in evidence that management is involved in the work of technology generated by State Agricultural Universities and Research Institutions to farmers and it is the main work of the management. In the year 1998, admittedly there were about 450 employees enrolled with the management. Those employees included regular and casual workers. According to MW1, attendance register was maintained by the management only in respect of attendance of regular employees. As regards attendance of casual employees, their attendance record was maintained by general section of the management. MW1 further stated in his cross-examination that no casual employee of the management is regularized.
There is nothing on record to suggest as to what was the number of workmen in employment of the management in the year 2005. In the given situation, when workman has failed to prove on record that he has been in continuous service for a period of 240 days in the year preceding 28.03.2006, provisions of Section 25F or 25 N do not come into application. Therefore, this court does not find any contention raised on behalf of the workman that this is a case of breach of provisions of section 25 F of the Act.
16. On behalf of the workman, it has been submitted that even if a workman fails to prove service for a continuous period of 240 days in the year preceding the termination of his services, he would be entitled to other rights available under the Act like Sections 25 G and H of the Act, LIR No. 376/2012 12 of 19 but herein the management committed breach of these two rights and as such the workman is entitled to the relief prayed for. In support of this contention, reference has been made to decision in Raj Singh vs PO, Labour Court-VIII Delhi, reported in 2003 VI AD (Delhi) 578; Delhi Cantonment Board vs Central Govt. Industrial Tribunal & Ors 2006 (88) DRJ 75 DB; and HD Singh vs Reserve Bank of India & Ors. 1985 (4) SCC 201.
17. In Delhi Cantonment Board vs Central Govt. Industrial Tribunal& Ors 2006 (88) DRJ 75 DB, it was observed as under:-
"In service law there is an important difference between a temporary employee and a permanent employee. A permanent employee has a right to the post whereas a temporary employee does not, vide State of UP vs Kaushal Kishore Shukla (1991) I SCC 691. However, there is no such distinction between a permanent employee and a temporary employee (whether a probationer, casual, daily wage or adhoc employee).
In HD Singh vs Reserve Bank of India & Ors. decided on September 10, 1985 while dealing with case of Daily rated workers, Hon'ble Apex Court observed that the confidential circular issued by the RBI directing the officers that workmen like the appellant should not be engaged continuously but should as far as possible be offered work on rotation basis and the case that the appellant was a badli worker, was characterized as unfair labour practice in view of item 10 of Section 2(ra) LIR No. 376/2012 13 of 19 of the Act. Item 10 reads as follows:-
"To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen,
18. Hon'ble Apex Court observed that the bank had indulged in methods amounting to unfair labour practice.
In Raj Singh's case (supra), Hon'ble High Court has clearly observed that apart from rights available u/s 25F of the Act, other rights are still available to a workman, who has not completed 240 days of service. In this regard, Hon'ble High Court relied on decision in Gopal vs MCD and Anr., CWP No. 1567 of 2003 decided on 29.04.2003 and decision in Samishta Dube vs City Board 1999 II AD(SC) 257.
The other rights available to a workman are available u/s 25G and H of the Act. To claim these rights, it is for the claimant to prove that while effecting retrenchment, the employer violated the rule of last come first go and that too, without any tangible reason.
Section 25H reads as under:-
"Re-employment of retrenched workmen.- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workman who offer themselves for re-employment shall have preference over other persons."
LIR No. 376/2012 14 of 19
19. In Durgapur Casual Worker Union & Ors. Vs FCI & Ors., Civil Appeal No. 10856 of 2014 decided on 09.12.2014, Hon'ble Apex Court observed that the workmen therein, who had been working as contract labourers under the contractors were entitled for reemployment when the employer proposed to take into employment any person, in view of Section 25H of the Act.
Herein, claimant has testified in his affidavit that many persons junior to him were retained in service while terminating his services arbitrarily. Management has denied this claim of the claimant.
To prove his claim, claimant was required to prove that any employee junior to him, in service, has been retained in service. But, he has failed to bring on record any material to suggest that any employee or workman junior to him, was retained in service on 28.03.2006, while he was retrenched from service.
On the aspect of names of some persons senior to the claimant being in the seniority list when MW1 was questioned, he replied that Jitender Verma got employed with the management as a regular employee in the year 2005. At that time, names of 4-5 other persons were also requisitioned from the Employment Exchange. MW1 produced on record documents Ex.MW1/W1 and MW1/W2, i.e. documents dt. 13.5.2015 from the Director of Extension Ministry of Agriculture and Office Order dt. 04.7.2000 issued by Supdt. Gr.I/HOO, in respect of aforesaid Jitender Verma . MW1 explained in his cross-examination that order dt.
LIR No. 376/2012 15 of 19 04.7.2000 was received in the office of management in the year 2000.
Admittedly, no record pertaining to Jitender Verma in connection with his employment through Employment Exchange was brought by MW1.
20. In Director, Fisheries, Terminal Division vs Bhikubhai, Meghajibhai Chavda 2010 Lab. IC 1089 while relying on decision in Municipal Corporation, Faridabad vs Siri Niwas (2004) 8 SCC 195, impact of non production of record by the management was taken into consideration so as to draw adverse inference on account of non production of best evidence in its possession.
But herein non production of record does not adversely affect the case of management or help the claimant when MW1 has explained that the record in this regard stood destroyed. In support of this explanation he placed on record Ex.MW1/W3, i.e. copy of guidelines.
As further stated by MW1, even list of applicants/aspirants for jobs, requisitioned from Employment Exchange stands destroyed. It is also in his cross-examination that said Jitender Verma became surplus in the year 2005.
Ex.MW1/3, i.e. copy of guidelines issued by Govt. of India in respect of retention of record. Record pertaining to nomination of candidates by local Employment Exchange and their selection falls in category C-3, meaning thereby that such a record is to be kept for three years. Service record of Jitender Verma is no more available in the office LIR No. 376/2012 16 of 19 of the management, same having been sent to the Ministry of Forests & Environment.
In view of the material available on record and the guidelines as contained in Ex.MW1/3, non production of some of the documents, as has come in the cross-examination of MW1, does not adversely affect the case of the management.
Even otherwise, it may be mentioned here that as per case of the claimant, his services were terminated in the year 2005, but he agitated the matter on 19.09.2011 with issuance of demand notice to the management. There is no explanation for the delay on the part of the claimant to raise his voice to redress the grievance. Had the claimant resorted to lawful remedy without delay, the management, would have produced the requisite record, which stands destroyed. So, the factor of delay also adversely affects the case of the claimant.
As per Office Order Ex.MW1/W2, Shri Jitender Verma was appointed as Chowkidar (Group 'D') with the recommendations of Selection Committee, and that too in a temporary capacity in the Directorate of Extension i.e. Management.
Ex.MW1/W1 is in the form of certificate dt. 13.5.2015 issued by MW1 to the effect that Jitender Mishra was never engaged as a casual labourer with the management. As further testified by him, Jitender Mishra was appointed by the Selection Committee of the Management as a direct appointment and not through Departmental Promotion Committee.
LIR No. 376/2012 17 of 19 There is nothing on record to suggest that Jitender Mishra was retained in service while terminating services of the claimant.
21. Furthermore, MW1 has also testified about the order passed by Central Administrative Tribunal in respect of some of the casual labourers whereby the management was directed to revise the list of casual labourers and further to re-engage those casual labourers as and when work of casual nature was available, in accordance with their seniority in the revised list.
MW1 has further testified that as per seniority of casual labourers, the name of claimant is at Sr. No. 6. Reference in the affidavit has further been made to judgment dt. 13.2.2001 and 09.2.2001 on the petition filed by Hari Das and Ashok Kumar before the Central Administrative Tribunal.
The claimant has not brought on any material on record to suggest that the seniority list prepared by the management is wrong or that any person shown senior to him in the said list was actually junior to him so as to show violation of provisions of Section 25 G and H of the Act. No step appears to have been taken by the claimant to move Central Administrative Tribunal to challenge the seniority list or the revised seniority list.
22. In view of above discussion, this Court finds that claimant has failed to prove that the management illegally retrenched his services or that any person junior to him has been retained in service while LIR No. 376/2012 18 of 19 terminating his services or that this is a case of violation of provisions of Section 25 F, G and H of the Act.
Claimant has failed to lead any evidence on the point that services of any contractor were utilized in his employment.
As a result, both these issues are decided against the claimant and in favour of the management.
Issue No.3(Relief)
23. In view of findings under Issues No.1 and 2, the claim of the claimant deserves to be dismissed. Claimant is not entitled to the relief prayed for. Statement of claim of the claimant is hereby dismissed. Reference is answered accordingly. Let copy of award be sent for publication and case file be consigned to record room. ANNOUNCED IN OPEN COURT ON 01st day of July 2015 (Narinder Kumar) Addl. District & Sessions Judge Presiding Officer Labour Court-XIX Karkardooma Courts, Delhi LIR No. 376/2012 19 of 19