Another Address vs The on 16 September, 2015

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Delhi District Court

Another Address vs The on 16 September, 2015

Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04

BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)

REFERENCE CASE (ID) No. 824/04 (OLD No. 296/95)
UNIQUE CASE ID No. 02402C0633112004
In the matter of :

Mrs. Vijaya Tiwari w/o. Sh. Vijay Kumar Awasthi
R/o. H. No. X - 254/35, Gali No.5,
Opposite Raghunath Mandir,
Brahmpuri, Delhi - 110053. (as per order of reference).

Another Address:
R/o. 475C, Nyay Khand - Pratham,
Indirapuram, Ghaziabad, UP.
(as per evidence affidavit Ex.WW1/A of the workman).

...Workman / Workwoman /
Applicant / Complainant / Claimant

Vs.

The Management of M/s. Brahmpuri Public School &
Brahmpuri Nursery Model School
Gali No. 15 II, Brahmpuri,
Delhi - 110053.
....Management

Date of institution : 20.09.1995
Date of reserving for order : 19.08.2015
Date of order : 16.09.2015

AWARD

1. TERMS OF REFERENCE

Vide ORDER No. F.24(1505)/95Lab./2860813 dated 13.09.1995

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Secretary (Labour), Government of N.C.T. of Delhi made the following

reference under section 10 (1) (c), 10 (1) (d) and 12 (5) of the Industrial

Disputes Act, 1947 read with Govt. of India, Ministry of Labour Notification

No. S11011/2/75-DK (IA) dated the 14th April, 1975 for adjudication by

Labour Court No. V:

"Whether the services of Mrs. Vijaya Tiwari have been terminated illegally
and/or unjustifiably by the management and if so, to what relief is she
entitled and what directions are necessary in this respect?"

2. 'NO DISPUTE AWARD'

In between 20.09.1995 and 08.06.2000 on many dates notices were

issued to workman and finally on 08.06.2000 'NoDisputeAward' was passed

by observing as under:

"2. In the case, the workwoman was duly served of the reference.
But despite the service of the summon for filing the statement of claim,
no statement of claim was filed by or on behalf of the workwoman.
This shows that the workwoman has no claim to make. Moreover, on
30.05.2000, none for the workwoman was also present in the court
which also shows that the workwoman is also not interested in this
case. The court is left with no option but to pronounce a no dispute
award. Accordingly, a no dispute award is hereby passed. File be
consigned to record room."

3. APPLICATION FOR SETTING ASIDE THE EXPARTE ORDER
AND CASE BE HEARD ON MERITS

On 01.08.2000 an application supported by affidavit of workman was

moved for setting aside the order dated 08.06.2000 and allowing the applicant /

workman to proceed with the case and to adduce the entire evidence for her

relief. Management filed reply to this application supported by affidavit of Ms.

Poonam Sikarwar, Vice Principal, Brahampuri Public School (Sr. Secondary).

This application of workman was allowed vide order dated 19.03.2001.

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4. C. M. (M) NO. 384/2001: BRAHAMPURI PUBLIC SCHOOL & ANR.
Vs. PRESIDING OFFICER, LABOUR COURT - V & ANR.

Management challenged the order dated 19.03.2001 in C. M. (M) No.

384/2001 before Hon'ble High Court of Delhi. Hon'ble High Court of Delhi

dismissed this petition vide order dated 20.02.2002.

5. CASE OF WORKMAN AS PLEADED / ALLEGED IN STATEMENT
OFCLAIM

(DITTO COPY)

"1) That the applicant i.e. the complainant has been working with the
Management of Brahmapuri Public School with effect from 20/10/1987 with a
view that the Management would be progressive one, and some day the school
shall be at the top of the area and that will stand in the arena of highest
schools with dignity, prestige and honor.

2) That after performing and discharging the duties with to the best of her
ability, and agility, and the applicant was posted as a Cashier on
1/4/1990, by which the status, standard, working capacity and pay scale has
been changed for which no objections were raised by the applicant,
because in the interest of public and for the betterment of children as well
as of the students, it was seen that the management was sacrificing their
precious time, money labour, endowment, therefore, the question of asking the
consolidated pay does not arise.

3) That it is not out of place to mention here that the consolidated amount of Rs.
2600/ (Rupees Two thousand six hundred only) was paid to the applicant per
month but her signatures were being taken on heavy amount, stating that this
is a public interest and one has to sacrifice. Similarly on cash duty also the
applicant was paid Rs.2600/ whereas she should have been paid Rs.6000/.
Though objections were raised but the amount was being paid only Rs.2600/
per month and signatures were obtained on a much higher amount.

4) That applicant was working with both Brahmpuri Public School &
Brahmpuri Nursery Model School which are in fact same , and are being
operated and managed from the same premises by the same
management ,from 20/10/87 to 15/9/1994. As per management's records She
was working as an Cashier/Accounts Asst.. On full time with Brahmpuri
Public School and as a Nursery teacher on part time with Brahmpuri Nursery
Model School. She has appropriate and foolproof documents in support of her

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working in the school which can be placed before the Honorable Court.

5) That the management of the above said school did not issue any Appointment
Letter to the applicant or to most of the staff working their between above
mentioned time which was a must for any organization which is being run
commercially and it is coming in the parameter of the rights of an employee
working for such an organization.

6) That no salary slips were being issued by the management of the above said
school and that the signatures were taken on the vouchers/ payment
registers bearing Revenue Stamps and bearing no amount.

7) That the statement given by the manager to Mr. S. K. Tyagi (Labour
Inspector) as per the letter from Asst. Labour Commissioner to the
applicant dated 20/1/1995, that the applicant was working at the school as a
part time nursery teacher and not as a full time cashier, and that the
applicant left the work by herself and the management did not ask her to
discontinue is totally false as the applicant was working there as a full time
cashier as well as part time nursery teacher. the applicant was working as a
full time cashier with the Brahmpuri Public School and a part time nursery
teacher with Brahmpuri Nursery Model School volunteeringly. And she was
removed from the services by the management itself in presence of other staff
members, without any prior notice.

8) That the reason for not being able to appear in the court proceedings was
that the applicant was not able to receive the summons sent by the court on
time as the Postman/Police were bribed by the management of the above said
school and the applicant was being forced by the management head by the
then MLA of Yamuna Vihar Delhi Mr. Sahib Singh Chauhan and she was
being harassed, tortured mentally by the same. Her husband Mr. Vijay Kumar
was also suffered greatly as Fake Criminal case was launched against him by
the vice principal Miss Poonam Sikarwar of the same school which is still
pending in the court of Honorable Raj Kapoor M.M. Karkardooma U/S
506/507/509 IPC.

9) That the salary of the applicant was withheld from the month of Feb. 1994
onwards as soon as the applicant started demanding the appointment letter
and the salary slip and refused to sign on the blank vouchers/payment
registers then she was removed from her services as on 15th Sept. 1994. Since
then the applicant is suffering greatly due to the financial crises caused by the
decision of the management of the above said school.

10) That the financial loss as well as the loss of time and the mental
harassment as mentioned above caused by the removal of the applicant from

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the services by the management can only be compensated by the full
payment of the applicants applicable salary since the date of joining ie
20/10/1987 and the return of the services.

So hereby the applicant requests the Court that necessary action should be
taken against the management of the said school which has caused lot of
difficulties to the applicant and the salary for the above mentioned period
should be the released alongwith the retrieval of the service."

6. STAND OF MANAGEMENT(S) AS PLEADED IN WRITTEN
STATEMENT OF DEFENCE.

".. Preliminary Objections.

(A) That even as per the contents of the claim petition, though
denied, it is respectfully submitted that the alleged claim is not
maintanable before this hon'ble court in view of the provisions of Delhi
School Education Act 1973 and Rules framed thereunder where a specal
tribunal namely Delhi School Tribunal is provided and constituted for the
alleged purpose
Reply on Merits
(1) Contents of the para 1 of the claim petition as stated are denied.
It is denied that the applicant was working with Brahmpuri Public School
w.e.f. 20.10.1987 as alleged. However, it is sumitted that the then Head
Mistress of the School namely Ms. Poonam Sikarwar with the permission
of the principal of Brahmpuri Public School, had been running coaching
centre for nursery classes in the evening in her free time in the premises
of Brahmpuri Public School in the name and style as Brahmpuri Public
Nursery Model School without any connection/relation with the
Brahmpuri Public School which is duly recognised under the provisions
of Delhi School Education Act, 1973 and Rules framed thereunder. It is
also submitted that Brahmpuri Public School functions only in one shift
ie. from 7.30 A.M. to 1.30 P.M. It is also submitted that the applicant had
worked with the Nursery coaching Centre for some time on a
consolidated sum of Rs.1000/ per month and that the applicant had left
the said centre at her own in September, 1994 after taking her dues as she
was to be busy thereafter in her own affairs. It is also submitted that the
said coaching centre was also discontinued in March 1995.
Infact the application and the claim made therein by the applicant is
wholly malafide, mischieveous, shame, motivated and absolutely false for
following reasons:

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(a) That the applicant seems to be a tool of some political elements
and is playing accrobatics of characterassessination against the
principal of the school named shri Sahab Singh Chauhan who is a
member of the legislative assembly (M.L.A.) of Delhi for blackmailing
him for her ulterior purposes.
(b) That the applicant's malafide conduct is proved by her writing to
various authorities in political circle and news papers even before
making application in the labour office.
(c) That the applicant first wrote to the deputy minister of home
affairs and in her complaint she had mentioned only Brahmpuri Public
School, Brahmpuri, Delhi110053. and not a single word about
Brahmpuri Nursery Model School. She has not even mentioned her slaary
amount in her complaint but admitted that she had herself left working in
the school in september, 1994 and had claimed the arrears of salary from
February, 1994 to september, 1994 without mentioning any amount of
arrears or monthly salary and the same was communicated by
accompanying letter dated 05.11.1994 from said Hon'ble minister to the
principal/M.L.A.
(d) That the applicant also wrote a letter dated 13.12.1994 to the
chief minister Delhi Govt. making a complaint therein regarding non
payment of her salary and restoration of her services without mentioning
any amount of salary and in contradiction of her previous complaints
made to the Hon'ble Deputy minister wherein she had admitted about
leaving her alleged job of her own, whereas she in the complaint to the
Hon'ble Chief minister has alleged that the principal of Brahmpuri
School dispensed her service. It is to be noted that she had not again
mentioned therein about the Brahmpuri Nursery School.
(e) That she had got published in DAINIK JAGARAN news papers of
16.01.1995 a defamatory statement about the said M.L.A. who happened
to be the principal of the said Brahmpuri Public School for her ulterior
motives and in other newspapers.
It is stated that she had not mentioned at all about the Brahmpuri
Nursary School therein.
(f) That the applicant has raised loans from the persons who also
happened to be known to the principal of the Brahmpuri Public School
and wants him to exploit so that he might persue those persons not to
recover their amount from her.
(2) Contents of para 2 of the claim petition as stated are denied. It is
denied that the applicant was working as alleged or was posted as
cashier on 1.4.90 as alleged or that the status, standard and working

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capacity were changed to which no objection were made on the alleged
ground. Contents of para 1 of the written statement above may also be
allowed to be taken as a part of this para for the sake of breavity, without
prejudice to above and other submissions herein below, it is respectfully
submitted that the applicant was not having the qualifications for the post
of cashier at the relevent time.
(3) Contents of Para No3, of the claim petition as stated are denied.
It is denied that consolidated amount of Rs.2600/ was paid to the
applicant per month or that her signatures were being taken on heavy
amount on the alleged grounds or that on cash duty the applicant was
paid Rs.2600/ or that she was entitled for Rs.6000/ or that objections
were raised but the amount was being paid only Rs.2600/ per month or
the signatures were obtained on much higher amount. The entire facts of
para 3 of the claim petition are totaly false and concocted one. True facts
were given in para 1 of the written statement and same may kindly be
taken as a part of this para for sake of breavity.
(4) Contents of para 4 of the claim petition as stated are denied. It is
totally false and misconceived to the state that the applicant was working
with both Brahmpuri Public School and Brahmpuri Nursery Model
School or that both are the same or that the same are being operated and
managed from the same premises by the same management from
20.10.1987 to 15.09.1994 or that as per management records she was
working as cashier/Account Astt. on full time with Brahmpuri Public
School and as a Nursery Teacher on part time with Brahmpuri Public
Model Shchool or that she has the documents in regard thereto. The true
facts are given in para 1 of the written statement above and same may
kindly be taken a part of this para for the sake of brevity. It is also
submitted that the claimant was not eligible for the alleged posts. Further
it is respectfully submitted that Brahmpuri Public School is duly
recognised by the appropriate authority under the provisions of Delhi
School Education Act, 1973 and Rules thereunder and as such its
functioning/mamagement in all respect is statutorily governed which
includes the appointment of eligible Staff. having qualifications as laid
down by the administration, Payment of Salary and other benefits etc.,
are made through crossed cheques (Accounts Payee) to the staff as per
prescribed PayScales at par with the staff of the Govt. schools and
sending of Annual Returns in this regard to the concerned authorities.
(5) Contents of para 5 of the claim petition as stated are totally false.
It is denied that the management did not issue any appointment letter to
the applicant or to the most of the staff working between above mentioned
time or that the institution is running commercially. It is submitted that

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since the applicant was not an employee there was no question of any
appointment letter to be issued to her. The School i.e. Brahmpuri Public
School has been issuing appointment letters to its staff as per rules.
(6) Contents of para 6 of claim petition as stated are denied. It is
totaly misconceived to say that no salary slips were being issued as
alleged. It is totally denied that signatures were taken on the payment
register/vouchers bearing revenue stamps and bearing no amount. It is
submitted that proper salary as per scale has always been disbursed to
the staff and recorded on salary register.
(7) Contents of para 7 of claim petition besides admissions are
denied. It is denied that any statement as alleged was made by or on
behalf of the respondents. It is also denied that applicant was working as
full time cashier with Brahmpuri Public School and as a part time
teacher with Brahmpuri Model School or that she was removed as
alleged. The allegations are totally false besides being Vaque and
contradictory.
(8) Contents of para 8 of the claim petition as stated are denied. It is
a totally false statement. It is denied that she has not appeared in court as
court summons were not served upon her due to alleged acts of
managements head shri Chauhan as alleged or that she was harassed
and tortured mentally as alleged or that her husband also suffered due to
the criminal case filed by the vice principal Ms. Poonam Sikarwar. The
entire story is false and concocted one. The criminal case was registered
by the state for the offences committed by the husband of the claiment.
(9) Contents of para 9 as stated are denied. It is denied that the
salary of the applicant was withheld when she started demanding
appointment letters and salary slips or that she refused to sign the blank
vouchers/payment register or that she was removed from service on
15.09.1994 or that since then she has been suffering as alleged. The true
facts are given in para no.1 of the written statement and the same may
kindly be taken for the sake of breavity. Since the applicant was not
employed by Brahmpuri Public School, there was no question of
witholding any salary or issuance of appointment letter or salary slips to
her or of other allegations as alleged.
(10) Contents of para 10 of claim petition are totally false and
misconceived hence denied. The respondents have not caused any
harassment or loss to the applicant as alleged or otherwise. The loss and
the so called compensation are imaginary in view of above. The claim of
the applicant is totally false and misconceived hence deserves to be
dissmissed with exemplary costs. This written Statement, is, however

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without prejudice to respondent's contentions & pleas raised in C.M.(M)
filed against orders dated 19032001, Pending before Hon'ble High
Court of Delhi at New Delhi."

The written statement of defence is signed by both Mr. Sahab Singh

Chauhan, Principal, Brahampuri Public Sr. Sec. School and Ms. Poonam

Sikarwar, Vice Principal, Brahampuri Public Sr. Sec. School.

7. REJOINDER

Workman filed rejoinder pleadings as under:

"Most Respectfully showeth:
Informations furnished by respondent (written statement) is in correct
unfounded false, mischievous and has no bearing on this case, the facts as
per actual position records and documents are as under :

a. That the applicant was working with both Braham Puri Public
School, and Nursery Model School, which are in fact same from
20/10/1987 she was working as a full time cashier for both school and as
per instructions of the management she was teaching the nursery classes
in the absence of any other teacher or shortage of the staff. She has
appropriate and full proof documents in support of her working as a
cashier with above said school which can be placed before the Hon'ble
court.

b. That the submission of the respondent that Braham Puri Public
School, and Braham Puri Public Nursery Model School, are separate and
un related in titles is false. The both school entities of the same setup and
are owned financed, managed and operated by the same man/and or
through his own people.

c. The submission of the respondent that their was any nursery
coaching centre for same time is totally false in fact their was never any
coaching centre, there was and thereis a public school only. Braham Puri
Public School and Nursery Model School both are located in the same
building management, office setup and staff are same. She has the proof
in support of this position the name of Braham Puri Public Nursery Model
School is probably used to avoid escape, income tax and other
liabilities/obligations and responsibilities prescribed by relevant
provisions of industrial disputes act/rule.

d. The submissions by respondent that nursery classes were

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close/discontinued in March 1995 is false, we have adequate to proof to
prove that nursery classes are running in the said school.

e. That applicant is tool of any political elements is totally false,
mischievous whereas the principal of above said school is a M.L.A. of
Delhi and the applicant is a poor women with liabilities and financial
commitments. None payment of her salaries by the school from last
February, 1994 and her disengagement from school caused immense
mental, physical and psychological up heaval to the applicant. She and
her family have to face great humiliation and disgrace and serious
financial crises. As the principle of the school did not heed to her request,
the applicant had no alternative but to approach various authorities in
including your goodself to get justice.
The respondent had leveled the false allegation and making a
political drama only to divert the main issue and delay the justice to me.

f. The allegation of respondent in para 1 (f) that applicant has
raised loans is totally false, mischievous and has been leveled in order to
malign the applicant, tarnish her image, brow beat her and force her to
for go her claims. It is also a political drama to divert the main issue. She
has not taken a singal paisa from any persons who also happened to be
known to the principal or his friends.

2. The pleas of respondent (cont para No. 2) that the applicant was
not having the qualification for the post of cashier is false, she is much
qualified as per rules prescribed by the Government and she was doing
her work as, a cashier with full responsibility since October, 1987 to
September, 1994 (7 years).

3. That the contention of the respondent that the payment of salaries
etc. are made through crossed cheques is false, generally the most of staff
was paid by cash and the signatures were taken on the vouchers/payment
registers bearing revenue stamps and bearing no amount. Some teacher
were receiving their salaries through crossed cheques showing much
amount than actually paid balance amount were refundable in cash to
principal.

4. The plea of the respondent that the school has been issuing the
appointment letter as per rule is false in fact most of staff have not been
getting their appointment letter, Mrs. Vijay Tiwari was thrown out of
service as she demanded issue of the letter of appointment, regularisation
of past services and provision of approval benefits from 1987.

5. That the contention of the para No.7 that the respondent is denied

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that the applicant was not a full time cashier is false she had attended the
school and worked as a cashier regularly, her signature on attendant
register in school (which was not otherwise being maintained in the form
prescribed by relevant rules) shall prove unless the same have been
modified, changed, and rewritten the fact that she was working in the
school during above mentioned period can be prove by us.

We are requesting the court please take over the all records from the
school for above mentioned period.

6. That the contention of para 8 that they were not harassed and
tortured to the applicant, her husband and other family members are false.
The Principal (Sahib Singh) vice Principal (poonam), Repesh/Sanjay S/o
Sahib Singh, Mrs. Namita D/o Sahib Singh, Naresh Kumar brother of
Poonam, Shashi Kant the servant of Sahib Singh all are (related from
principal) continuously harassing and torturing to the applicant and her
family. We can proved with documentary supports for the same, they had
launched a fake criminal case against her husband Mr. Vijay Awasthi with
the held of political resources, police & money. The case is still pending
in the court of Hon'ble Raj Kapoor, M.M., Karkardooma Court, Delhi,
U/s. 506/507/509 I.P.C. and the next date is 31st July 2001. The M.L.A.
Sahib Singh is continuously misusing his post through police his men and
money. The applicant received regular threats to her life and her family
which obviously were arranged and caused by respondent to brow beat
the applicant. The fact is that Mr. Sahib Singh Principal of the school is
an active member of the important political party and has effective
contact at various level, this has made him bold enough to ignore rules
and regulation, deny prescribed benefits to his employees for the reason
he has terminated the services of the applicant unitaterly without any
reason and cause, also he did not pay her salaries and other dues since
February, 1994.

It is therefore, respectfully submitted that the reply furnished by the
respondent which is false irrelevant and unrelated to the case be rejected
and respondent be directed to.

a. To restore the services of the applicant in school immediately and
with respective office.
b. To pay her salaries and other benefits under relevant rules since
1987 onwards."

8. ISSUES

Vide order dated 20.08.2001 ld. predecessor of this Court framed the

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following issue:

(i) As per terms of reference.

9(a). APPLICATION FOR THE OBJECTION AGAINST THE
REPRESENTATION OF A LEGAL PRACTITIONER

Vide order dated 11.11.2002 workman moved an application for

objection against the representation of a legal practitioner wherein workman

prayed the Court to invoke inherent powers and disallow the appearance of

legal practitioner in this case. Management filed reply to this application.

Workman filed rejoinder to the reply filed by the management. Management

filed sur - rejoinder to the rejoinder filed by the workman.

(b) APPLICATION ON BEHALF OF RESPONDENTS UNDER
SECTION 151 OF CPC DATED 18.10.2002.

Management(s) moved an application dated 18.10.2002 praying for

framing an additional issue as raised in the preliminary objection no. A of the

written statement and to treat the same as preliminary issue. Workman filed

reply dated 08.01.2003 to this application. Management(s) filed rejoinder to

the reply filed by the workman.

VIDE ORDER DATED 11.02.2004 BOTH OF THESE
APPLICATIONS WERE DISPOSED OFF BY PASSING FOLLOWING
ORDER:

"11.02.04 Pr. AR for the parties.

Heard on application of the workman raising an objection against the representation by a legal practitioner.

During the course of arguments AR for the workman stated that the only objection of the workman was that Mr. V. S. Chaudhary being a legal practitioner was using dilatory tactics to protract the trial of the case. Mr. Chaudhary stated that he will proceed the case in right earnest and has no intention to cause delay in trial of the suit. Upon this AR for the workman did not raise objection for Mr. Chaudhary to Page 12 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 represent to management.

Considering the undertaking given by Mr. Chaudhary and as conceded by AR for the workman; I find no legal impediment if Mr. V. S. Chaudhary is allowed to represent the management. Accordingly he is granted ; permission to represent the management.

Disposed of accordingly.

Heard on application of the management on framing of additional issue. Considering the averments of the pleadings and submissions made; to resolve the controversy between the parties of the parties ; additional issues as framed are followed as below: Additional issues:

(1) Whether the claim of the workman is barred in view of the provisions of Delhi School Education Act 1973 and Rules thereunder? (OPM) (2) Whether the claimant is not covered within the definition of the workman? (OPM) The issue need to decided on evidence. As such case to come up for WE for 3/5/04."

10. TRANSFER OF CASE TO THE PREDECESSOR OF THIS COURT Vide Order dated 30.07.2004 case was transferred to the Court of Ms. Deepa Sharma, Ld. POLC, Karkardooma, Delhi pursuant to Order No. 18/Gaz./VI.E2(a)/2004 dated 22.04.2003 of Hon'ble High Court of Delhi conveyed by ld. District Judge, Delhi vide Order No. 31071 dated 30.04.2004.

11. CLOSURE OF W.E. AND RESERVING OF THE MATTER FOR AWARD On 02.05.2005, ld. predecessor of this court passed the following order:

''2505 Present: None for the workman.

AR for the management.

No WE is present. The case is pending for WE since long. No reasonable ground for further adjournment of the case for WE is made out. WE is closed. Management does not want to lead any evidence. ME is also closed. Final arguments are heard. The matter is reserved for award.''

12. APPLICATION FOR RESTORATION OF THE CASE RESERVED Page 13 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 FOR AWARD ON DT. 2.05.2005.

On 03.05.2005, workman moved an application for restoration of the case reserved for award on dt. 02.05.05. This application was ordered to be taken up for hearing on 04.05.2005 at 2.00 p.m. Application was dismissed in default on 04.05.2005 as none appeared. On 04.05.2005 itself workman moved another application for restoration of the case reserved for award on dt. 02.05.2005 praying to allow the workman to lead evidence and set aside the award order. Management filed reply to this application and vide order dated 06.09.2005 order dated 02.05.2005 was recalled and workwoman was given last opportunity to produce her evidence by way of affidavit, observing that, failing which the workwoman's evidence shall be closed.

13. EVIDENCE OF THE WORKMAN Workman appeared in the witness box as WW1 Smt. Vijay Tiwari and tendered her examinationinchief vide Ex. WW1/A. Workman relied upon documents exhibited as Ex.WW1/1- Letter dated 13.12.1994 regarding removal from service sent by workman to the Chief Minister, Delhi Government, Delhi; Ex.WW1/2 - Postal receipt; Ex.WW1/3 - Demand Notice; Ex.WW1/4 - Letter dated 10.11.1994 (date of 12.12.94 also mentioned in corner) sent by workman to Assistant Labour Commissioner; Ex.WW1/5 - Report (dated 20.01.1995) of the Labour Inspector Mr. S.K.Tyagi; Ex.WW1/6 - Legal Notice dated 22.11.1994 sent by Mr. K. C. Vashishth, Adv. on behalf of Sh. Shashi Kant S/o. Sh. Krishan Kant to the workman; Ex.WW1/7 Legal Notice dated 21.11.1994 sent by Mr. K. C. Vashishth, Adv. on behalf of Mr. Narender Kumar S/o. Sh. Sisram to the workman; Ex.WW1/8 - Empty Envelope addressed to workman; Ex.WW1/9 - Empty Envelope addressed to Page 14 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 workman; Ex.WW1/10 - Letter dated 29.08.1995 written by Mr. Lallan Prasad, PS to Deputy Minister of Home Affairs, North Block, New Delhi to the Deputy Commissioner of Police, East Delhi, Shahdara, Delhi; Ex.WW1/11 - Letter written by Mr. Raj Kumar Bhati, Chief General Secretary, Yuva Janta Dal, Delhi Pradesh, Delhi to the workman; Ex.WW1/12 Fee receipt dated 13.05.1993; Ex.WW1/13 to Ex.WW1/22 - Fee receipts of different dates. Workman also relied upon certain documents marked as Mark-A - Photograph; Mark - B - Letter dated 03.11.1994 sent to Labour Commissioner by workman; Mark - C - Postcard (Back side) written in Hindi titled as - 'Hai Koi Sunne Wala'; Mark - D - Postcard (Front side) of Mark - C; Mark - E Newspaper cutting dated 09.01.1995; Mark - F - Inland Letter; Mark - G - Newspaper Cutting; Mark - H - FIR No. 553/95 dated 26.08.1995 u/s. 506/507/509 IPC registered at Seelampur; Mark - I - Affidavit (without attestation) of Ms. Poonam Sikarwar; Mark-J - Copy of cross examination of PW1 Ms. Poonam Sikarwar conducted on 27.05.2000 in the court of ld. Metropolitan Magistrate; Mark - K to U - Photographs. On 05.12.2006 WE was closed by Mr. V.K.Awasthi AR for the workman.

14. EVIDENCE OF MANAGEMENT Management examined MW1 Mr. Sahab Singh Chauhan, Principal, Brahampuri Public Sr. Sec. School, Brahampuri, Delhi and tendered his examinationinchief vide Ex. MW1/A. Management relied upon documents exhibited as Ex.MW1/1 to Ex. MW1/4 - Cash Vouchers; Ex.MW1/5 - Letter dated 20.10.2006 sent by Director (Edn), M C D, Education Department: HQ, Nigam Bhawan, Kashmere Gate, Delhi 110006 to Sh. Saheb Singh Chauhan, MLA; Ex.MW1/6 - Letter dated 10.11.2006 sent by Mr. P. R. Meena, Public Page 15 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 Information Officer (HQ) / Joint Director of Education, Directorate of Education, RTI Cell, Old Secretariat, Delhi110054 to Sh. Sahab Singh Chauhan, MLA; Ex.MW1/7 - Cheque no. 685227 dated 06.08.1994 drawn on New Bank of India, Radhey Puri, New Delhi51 issued by proprietor of M/s. Pratibha Exports for a sum of Rs.10,000/ in favour of Ms. Poonam Sikarwar. Ex. MW1/8 Memorandum dated 09.08.94 given by Punjab National Bank regarding Ex. WW1/7; Ex. MW1/9 Letter written by workman to Deputy Home Minister, Govt. of India; Ex. MW1/10 Empty Envelope and Ex. MW1/11 Letter written by Mr. Ram Lal Rahi Deputy Minister of Home Affairs, India to Saheb Singh Chauhan, MLA.

15(a). APPLICATION / REQUEST BY AND ON BEHALF OF THE OF WORKMAN, FOR ORDER TO MANAGEMENT TO SUBMIT / PRODUCE THE ORIGINAL RECORDS BEFORE THE COURT FOR THE PERIOD OF 1987 TO 1994.

On 25.07.2007 workman moved an application for directing the management to produce the following records: "(a) Attendance Register of the Students for all classes (Nurser to 8 th) Since 1990 to 1994.

(b) Attendance Register of the employees and teachers from 1987 to 1994.

(d) Manual Receipt Books for Sales of Books, Copies, pen pencils, cloths, tie, belts, Icards etc. for the same period.

           (d)      Salary / Wages Registers for the same period.
           (e)      Vediogrophy and original photographs of annual functions of
                    the school during aforesaid period.
           (f)      School Leaving Registers of the Students since 1990 onwards.
                    (T.C. Register)
           (g)      Marks Registers of the students Since 1990 onwards.
           (h)      Fee & Student's record Registers, alongwith Annual Return sent to
                    concerned authorities.
           (i)      Register of board resulation of management for aforesaid period."


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            Management filed reply to this application.             On 23.02.2008, ld.

predecessor of this court passed the following orders:

"23.2.2008 Present: Sh. Vijay Awasthi, AR for the workwoman.

AR for the management.

AR for the management has brought original records / registers, whichever were available, for perusal of the workwoman. He has also filed the affidavit of the principal of the management school regarding the remaining registers/records which are not available with the management.

AR for the workwoman has checked the entire record brought by the management and he submits that out of the record brought by the management, he only wants the photocopy of 17 pages for his further reference.

The entire original record is returned to the management with directions to file photocopies of the 17 documents requested by the AR for the workwoman.

Put up on 1.3.2008 for supplying the photocopies of the documents requested by the AR of the workwoman."

AFFIDAVIT FILED BY Mr. Sahab Singh Chauhan referred to in order dated 23.02.2008 reads as under: "A F F I D A V I T I Sahab Singh Chauhan, Principal Brahampuri Public Sr. Sec. School Brahampuri, Delhi do hereby solemnly affirm and declare as under; 1 That the deponent is head of the Brahampuri Public Sr. Sec. School Brahampuri Delhi and is as such conversant with the facts of the case and is competent to swear & file this affidavit. 2 That in pursuance to order dt. 03/11/07 passed by this Hon'ble Court following records in original are being produced i. Five attendance registers of the employees of the school for the period commencing from 1987 - 1994. Register nos. 1 to 5 contain 54, 56, 114, 174 & 106 pages respectively. ii. Seven salary registers of the employees of the school for the period commencing from 19871994. Register nos. 1 to 7 contain 56, 36, 64, 114, 106, 114 & 56 pages respectively. iii. Three admission & withdrawal registers of school students containing 56, 114 & 175 pages respectively.

iv. Mark Sheets of Board Examinations for the year 199394.

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           v.       Five annual returns for the years commencing from 199094.
           vi.      Register of Management Resolutions for the period commencing
                    from 1986 - 1995 containing 88 pages.

3. That it is respectfully submitted that attendance registers of students are not permanent records and they are not preserved after the end of academic session as the admission & withdrawal register is the permanent record containing all relevant information/particulars/details of the students. Similarly marks records of students of home examinations are not preserved for long after the commencement of new academic session.

4. That manual fee receipt books are also not a permanent record and it is not preserved for long. As & when the amounts received are checked up & verified and audited by the chartered accountant and balance sheets prepared, the manual fee receipts books are not preserved thereafter.

5. That sales of books, copies, pen, pencils, clothes, tie, belts & identity cards etc. as alleged have never been the activities of the school & as such there is no question of any manual receipt books in regard thereto.

6. That the school does not have any such record of videography & photographs of functions as alleged.

7. That there is no such record as fee & student record registers as alleged."

(b). APPLICATION BY THE WORKMAN FOR SUBMISSION / PRODUCE OF SOME ADDITIONAL EVIDENCE OF WORKMAN UNDER RULE15 OF I. D. ACT. & REQUEST FOR RECALL OF ORIGINAL DOCUMENTS IS UNDER CUSTODY OF THE MANAGEMENT AND CALL TO PRESIDENT OF MANAGING SOCIETY OF THE SCHOOL FOR WITNESS.

On 17.03.2008 workman moved this application. Management filed reply to this application and on 27.09.2008 following order was passed by ld.


predecessor of this court:

           "27.9.2008
           Present:        AR for the workman.
                           AR for the management.
                           An application has been filed by the workman for

producing additional evidence. AR for the management submits that though he is not opposing the application with tooth and nail but he has Page 18 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 the objection that the workman has neither produced the witnesses earlier when the case was fixed for workman evidence nor he has given detail of the witnesses or the purpose or relevancy to produce the witnesses.

On the other hand AR for the workman submits that as the management has not produced the requisite record hence there is a need to prove his case by producing oral evidence.

Considering the totality of the circumstances I allow the application of the workman to produce additional evidence. AR for the workman is directed to file separate application giving details of the witnesses to produce and purpose of their producing in evidence with one day advance copy. Put up on 20.12.08 for producing additional workman evidence."

(c). APPLICATION / REQUEST OF THE WORKMAN FOR PRODUCING OF ADDITION EVIDENCE UNDER RULE 15 OF I. D. ACT, 1947.

On 20.12.2008 workman moved this application praying (i) to allow the workman to produce following witnesses in support of her claim in the interest of justice: "(1) Smt. Pratima Tiwari R/o X254/35, Gali No. 5, Braham Puri, Delhi (that time co worker).

(2) Mr. Anurag son of Sh. Ram Kishor R/o 692 N.K.I., Indra Puram Ghaziabad U.P. (that time student in the School). (3) Mr. Shri Nath Mishra R/o Vill. Bambhora, Distt. Raibarelly U.P. and his wife alongwith student (parent and student that time in School).

(4) Miss. Preeti Pandey alongwith her parents Shyam Dhar Pandey R/o Gali No.5, Braham Puri Delhi (parent and student that time in School)."

and (ii) to call following persons for cross examination: "(1) Ms. Poonam Sikarwar (Vice Principal of School) (2) Mrs. Shanti (Peon) or Mrs. Sheela (Peon) (3) Mrs. Firosa Begum (Teacher)"

On 20.12.2008 ld. AR for the management submitted that he does not want to file any reply to this application.

Vide order dated 17.01.2009 passed by ld. predecessor of this court Page 19 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 application moved on 20.12.2008 was dismissed.

(d). APPLICATION FOR ALLOW TO SUBMIT THE ADDITIONAL EVIDENCE OF WORKMAN UNDER SECTION 151 OF CPC.

On 19.02.2009 workman moved this application to set aside the order dated 17.01.2009 and allow the workman to produce following witnesses / evidence in support of her relief: "(i) That a student (that time) Anuradha D/O of Shri Ram Kishor currently R/O 692 Nyay Khand1 Indirapuram Gzb.) Will produce the evidence to prove the claim of workman.

(ii) That another student Anurag S/O Shri Ram Kishor currently R/O 692 Nyay Khand1 Indirapuram Gzb.) Also, will produce the evidence of prove the claim of workman.

(iii) That a parent of that time students in the school (Shrinath Mishra currently R/O Vill. Bambhora, Distt. Raibarely U.P. will produce the evidence alongwith that time students of the school.

(iv) We have found some other group photographs along with original negatives to prove the employment of the workman to be submitted before your honour.

(v) That a Written statement of that time vice - principal along with her signatures will be produced.

(vi) That a Coworker Mrs. Pratima Tiwari W/o Shri Vimal Tiwari R/o X254/35, Street No. 5, Brahmpuri Delhi will submit some original documents along with her witness."

Management filed reply to this application. Workman filed rejoinder to the reply filed by the management. Vide order dated 28.08.2010 made by ld. predecessor of this court application moved on 19.02.2009 was dismissed as withdrawn and case was adjourned to 25.09.2010 for final arguments.

16. AWARD:

On 19.10.2010 ld. predecessor of this Court passed following award:

"AWARD :

1. The appropriate Government sent a reference no. F.24 (1505)95 Lab./ 28608 13 dated 13.09.1995 to this court in relation to the illegal Page 20 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 termination of the workman Vijay Tiwari by the Management M/s. Brahmpuri Public School alias Brahmpuri Nursery Model School. The reference specifically points out as follows : "Whether the services of Mrs. Vijay Tiwari have been terminated illegally and/or unjustifiably by the Management and if so, to what relief is she entitled and what directions are necessary in this respect?"

2. As per claim, the workman Mrs. Vijay Tiwari was working with the respondent / Management M/s. Brahmpuri Public School alias Brahmpuri Nursery Model School w.e.f. 20.10.1987 and she was posted as a "cashier" from 01.04.1990. She was being paid a salary of Rs.2600/ p.m. for her work. It is her plea that the respondent did not issue any appointment letter. It is the contention of the claimant that on 20.01.1995 the Manager of the respondent / Management school made a statement to the Labour Inspector that she was working as a part time nursery teacher in the school and not as a full time cashier. It was further stated by him to the Labour Inspector that the claimant left her services voluntarily and the Management did not ask her to discontinue. The claimant pleaded some other enemity between the Vice Principal of the Management school and the husband of the claimant for which a case U/S 506/507/509 IPC was also registered.

3. The claimant pleaded to have been removed from her services on 15.09.1994 without any reason or rhyme.

4. The Management filed its reply / written statement. It was pleaded in the written statement that this workman was not eligible for being recruited as a Cashier. Her employment in the school was denied by the Management.

5. Pursuant to the pleadings of the parties, the ld. Predecessor vide its orders dated 20.08.2001 framed the following issue :

(i) As per terms of reference.

6. On the application of the Management, ld. Predecessor framed two additional issues vide its orders dated 11.02.2004 which are as follows : (1) Whether the claim of the workman is barred in view of the provisions of Delhi School Education Act 1973 and Rules thereunder? OPM.

(2) Whether the claimant is not covered within the definition of the Page 21 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 workman? OPM.

7. This court exercising its powers U/s. 11 of the Industrial Disputes Act r/w Order XIV Rule 5 CPC reframes and restructures the issues as follows and this is only for the sake of clarity : (1) Whether the claim of the workman is barred in view of the provisions of Delhi School Education Act 1973 and Rules thereunder? OPM.

(2) Whether the claimant is not covered within the definition of the workman? OPM.

(3) As per terms of reference.

8. The workman examined herself as WW1 and reiterated her claim. She introduced some new facts in her evidence. She also placed on record copies of some fee slips to show that she was working in the Management school.

9. One Sahib Singh Chauhan also examined himself on behalf of the Management claiming himself as Principal of the respondent school. During the cross - examination of this witness, a question was asked regarding his authorization and appearance on behalf of the Management to which he replied "The Management has authorized me to appear in this case as witness. I do not know whether the said authorization letter is on record or not. If directed I can produce the authority letter on record."

10. This witness has nowhere produced any documentary evidence otherwise to show that he was duly authorized on behalf of the Management of the school.

11. As a consequence of absence of authorization, it is difficult to rely upon this witness unless corroborated by some independent circumstance.

ISSUE NO. 1 :

12. In this issue this court has to adjudicate upon the fact whether the claim of the workman is barred in view of the provisions of Delhi School Education Act 1973 and Rules thereunder.

13. The entire evidence of the MW1 is perused. But the same does not speak even a single word as to how this claim was barred by provisions of law.

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14. It shows that the Management has failed to prove its burden to show and establish any bar of law on the prosecution of this case.

15. This issue is held to be "Not Proved" and is decided accordingly. ISSUE NO. 2 :

16. In this issue this court has to adjudicate upon the fact whether the claimant is not covered within the definition of the workman.

17. The language of Section 2 (s) of Industrial Disputes Act is plain and simple and the Management has not brought anything to the notice of this court as to why this claimant is not a workman within the meaning of this statutory language.

18. Hence this issue is held to be "Not Proved" by the Management. ISSUE NO. 3 :

19. In this issue this court has to adjudicate upon the fact as to whether the services of Mrs. Vijay Tiwari have been terminated illegally and / or unjustifiably by the Management and if so, to what relief she is entitled and what directions are necessary in this respect.

20. The workman had claimed that her services with the Management which the Management had denied. The workman has placed reliance on fee receipts of several students which were available in possession of the workman. It is claimed by her that these receipts came to her possession while she was working as Assistant Accountant in the respondent / Management school.

21. On the other hand the Management stated that she was teaching in a coaching center run by the VicePrincipal of that school for a consolidated sum of Rs.1000/ p.m. which was paid to her from that coaching center. The Management had produced vouchers Ex. MW1/1 to Ex. MW1/4 whereby showing the payment of Rs.1000/ . The revenue stamps were affixed on these vouchers. But as the signatures on these stamps are not complete. These are truncated. It is clear that these revenue stamps have been obtained from some other documents. These revenue stamps appeared to have been used after taking it from other documents. These vouchers are hence not very much reliable.

22. The production of the receipts Ex. WW1/12 to Ex. WW1/22 show that the workman was collecting fees from the students in the aforesaid school as an accountant. The Management could have disproved this Page 23 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 factum of employment by producing its records for that duration. The record of the respondent / Management was required by the claimant also, but the Management willingly abstained from producing it. The claimant argued that the Management was under an obligation not to destroy these records for a period of six years from the end of related assessment year. Rule 6F 3(1), Rule 6F 3(2) , Rule 6F 3(3), Rule 6F 3(4), Rule 6F 3(5) and Rule 6F 3(6) of the Income Tax Act wee relied upon by the workman.

23. This legal argument was not properly replied to by the Management.

24. In such circumstances, this court can legally infer that if this record was produced, it would have favoured the claimant that she was an accountant or assistant accountant there in the respondent's school.

25. It appears that there has been a history of long enemity between this workman and the Management. Both the parties have stated and spoken a lot on other aspects of the relationship which this court is not concerned about.

26. From the material available on record it appears that the workman Mrs. Vijay Tiwari was in the employment of the Management school as an accountant and she was removed from her services unfairly and without justification. This termination was well within the meaning of retrenchment as defined in Section 2 (oo) of the Industrial Disputes Act.

27. The Hon'ble Supreme Court in case Anoop Sharma Vs. Executive Engineer, Public Heath Division No. 1 Panipat (Haryana) has held that : "We have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25 F (a) and (b) has the effect of rendering the action of employer as nullity and the employee is entitled to continue in employment as if his service was not terminated."

28. In Krishna Bahadur Vs. Puran Theater, 2004 (103) FLR 146 SC., the Hon'ble Court held that the requirement of Section 25 F (b) the Industrial Disputes Act was imperative. The contravention thereof would render the retrenchment void ab initio. In the present case there is violation of not only Section 25 F (a) & (b) the Industrial Disputes Act Page 24 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 but of Rule 77 the Industrial Disputes Rules also.

29. Following the aforesaid laws laid down by the Hon'ble Supreme Court of India in Anoop Sharma (Supra) and Krishna Bahadur (Supra) this court also holds that the retrenchment of the workman in the present matter was void ab initio. The impugned retrenchment of the workman by the Management was legally defective.

30. As a corollary of this order the status of the workman would be as no retrenchment order was passed on 15.09.1994 and she continued in service with the Management with all consequential benefits and reliefs arising out of the same.

31. This issue is decided accordingly.

RELIEF :

32. As the action of retrenchment by the Management was defective and void ab initio, the claimant / workman is to be reinstated in her post and position back without any infirmity. So far as the point of back wages is concerned, she has not pleaded it specifically. However, there are some such indications in paras 9 and 10 of the claim, but no demand of back wages was made in her affidavit, nor any unemployment was proved by her. However, this court finds it proper to award a sum of Rs.15,000/ as compensation to this claimants / workman. This compensation is to be paid by the Management because it was the Management's illegal action which made her to suffer for such a lengthy period of time.

33. The reference is answered accordingly......."

17. W. P. (C) NO. 1568/2011: BRAHAMPURI PUBLIC SR. SEC. SCHOOL VS. VIJAY TIWARI AND W. P. (C) NO. 1438/2013 VIJAY TIWARI VS. MANAGEMENT OF BRAHAMPURI PUBLIC SR. SEC. SCHOOL.

Hon'ble Delhi High Court on 23.10.2013 passed following order: "O R D E R 23.10.2013 By way of above writ petitions management as well as workman have challenged the Award dated 19th October, 2010 passed by the Labour Court, XI, Delhi. No one appears for the workman despite the fact that matter has already been passed over once. Even on the last date of hearing workman remained unrepresented. Accordingly, I proceed to dispose of the matter after hearing the learned counsel for the Page 25 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 management and perusing the Labour Court record.

A perusal of impugned Award shows that statement of witness produced by the management has not been considered by the Industrial Adjudicator only on the ground that said witness had failed to produce authority letter in his favour issued by the management authorising him respondent to appear as a witness on behalf of management. A perusal of Labour Court record makes it clear that a copy of resolution passed by the 'Managing Committee' was produced on record along with the reply (page no. 465). By this resolution, principal of the management, namely, Mr. Sahab Singh Chauhan and Vice Principal Ms. Poonam Sikarwar were jointly and severly authorised to pursue the matter on behalf of the management and to take all necessary steps in connection therewith. It is Mr. Sahab Singh Chauhan, who had stepped in the witness box on behalf of the respondent. First of all, no authority letter is required for a witness to appear on behalf of a party including an establishment. Secondly, such authority was available with the Labour Court record in this case. Thus, Industrial Adjudicator has committed a patent error of law in ignoring the statement of management's witness namely Sahab Singh Chauhan.

For the forgoing reasons impugned award is set aside and the matter is remanded back to the concerned Labour Court for pronouncing the award afresh after affording opportunity of hearing to the parties.

Parties shall appear before the concerned Labour Court on 28th November, 2013.

Writ petition is disposed of in the above terms. Miscellaneous applications are disposed of as infructuous."

18. APPLICATION OF REQUEST FOR SUBMISSION ADDITIONAL EVIDENCE UNDER SECTION 11 OF THE I. D. ACT.

On 09.04.2014 workman moved this application. Management filed reply to this application. Vide order dated 08.05.2014 this application was dismissed.

19. On 07.10.2014 Court passed the following order: "ORDER 07.10.2014

1. On 01.08.2014 this Court passed the following order: Page 26 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 "01.08.2014 Present: Mr. Vijay Kumar Awasthi AR for the Workman.

Mr. U.S.Chaudhary Adv. for the management.

Ld. ARW has filed on record case laws. Copy of the list of the said case law supplied to ld. counsel for the management. The court has already part heard the arguments addressed by ld. ARW and ld. counsel for the management.

In the reference order, it is mentioned that reference is between workman and management of M/s Brahampuri Public School and Brahampuri Nursery Model School. One of the issue raised at the time of arguments was that school as is mentioned in the order of reference is not a legal entity. In the course of crossexamination of MW1 Mr. Sahab Singh Chauhan it has come that Bloomin Public Group registered is a 11 member society which is running the school. In my opinion, before proceeding further final arguments in the matter, it would be appropriate to decide whether the society which is running the school can be impleaded as a party to the present proceedings and, if yes, whether such impleadment should be made or not in the totality of facts and circumstances of the case.

Put up on 23.08.2014 at 2.00 p.m for consideration on this aspect."

2. I have Sh. Vijay Kumar Awasthi, AR for workman and Sh. U S Chaudhary, adv. for the management on the above referred aspect. Material available on judicial file perused.

3. As per OrderofReference dispute between the management of M/s. Brahmpuri Public School and Brahmpuri Nursery Model School and its workman Mrs. Vijay Tiwari has been referred for adjudication by the Labour Court. The expression, "management of M/s. Brahmpuri Public School and Brahmpuri Nursery Model School" refers to the Authority may be a Society etc. managing the affairs of the said school. On the judicial file there exists one document dated 11.07.2008 as per which management committee of Brahmpuri Public Sr. Sec. School, Brahmpuri on 10.03.2004 resolved that Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, Vice Principal jointly and severally shall do the needful in the present matter. WS on behalf of management has also been signed by both Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, Vice Principal. The order dated 23.10.2013 passed by Hon'ble Mr. Justice A. K. Pathak, Judge Delhi High Court in W. P. (Civil) No. 1568/2011 and W. P. (Civil) No. 1438/2013 also referred to this resolution whereby Principal of the management namely Mr. Sahab Singh Chauhan and Vice Principal Page 27 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 namely Ms. Poonam Sikarwar were jointly and severally authorised to pursue the matter on behalf of management and to take all necessary steps in connection herewith. Through whom management of M/s. Brahmpuri Public School and Brahmpuri Nursery Model School wants to be represented before this Court is internal matter of the management to be governed by its own rules and regulations. In view of above it may be noted that management of M/s. Brahmpuri Public School and Brahmpuri Nursery Model School is being represented by Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, Vice Principal. The case law reported as Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa and Ors. AIR 1964 SC 1746 referred to by ld. counsel for management has no application in this case. As the material on judicial file suggests Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, Vice Principal have access to all the records of the management so as to fully represent the case of management of M/s. Brahmpuri Public School and Brahmpuri Nursery Model School and nonimpleadment of above said society as a party to these proceedings would not render the award passed by this Court as ineffective and unenforceable. Interests of the management of M/s. Brahmpuri Public School and Brahmpuri Nursery Model School are being fully represented herein by Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, Vice Principal. Further, it can be safely presumed here that above said society is fully aware about the proceedings before this Court. The management of M/s. Brahmpuri Public School and Brahmpuri Nursery Model School also challenged the award passed by ld. predecessor of this Court on 19.10.2010 before the Hon'ble High Court of Delhi. In view of above observations there is no need for impleading Bloomin Public Group, the Society running the school as a party to these proceedings. Ordered accordingly." 20 (a). APPLICATION BY & ON BEHALF OF BRAHAMPURI PUBLIC SR. SEC. SCHOOL, BRAHAMPURI, DELHI UNDER SECTION 151 CPC FOR MAKING FACTUAL CORRECTIONS IN THE ORDERS DT. 07/10/2014 WITH A VIEW TO AVOID CONFUSION / PERVERSITY HAVING BEEN ARRIVED AT & FOR KEEPING THE FACTS ON RECORD STRAIGHT, IN THE INTEREST OF JUSTICE.

Management moved this application on 07.11.2014. Workman filed reply to this application on 09.02.2015.

Page 28 to 55                                                   (ANAND SWAROOP AGGARWAL)
                                                               POLC - XI / KKD / DELHI / 16.09.2015
 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr.                            ID No. 824/04

(b). APPLICATION BY WORKMAN U/S 151 CPC AS REQUEST FOR RECONSIDERATION OF THE ISSUE BY MAKING OF FACTUAL CORRECTIONS IN THE ORDER DT. 07/10/2014, TO AVOID CONFUSION & QUESTION OF LAW IN THE INTEREST OF JUSTICE.

Workman moved this application on 22.11.2014. Management filed reply to this application on 26.02.2015.

(c). APPLICATION BY & ON BEHALF OF WORKMAN FOR FACTUAL CORRECTIONS IN THE WORD / SENTENCES USED IN THE CLAIM PETITION OF THE WORKMAN TO AVOID CONFUSION ALONG WITH AN AFFIDAVIT OF WORKWOMEN UNDER SECTION 11 OF THE I. D. AT AND VI RULE 17 /R/W 151 CPC FOR KEEPING THE FACTS ON RECORD STRAIGHT IN THE INTEREST OF JUSTICE.

Workman moved this application on 09.02.2015. Management filed reply to this application on 26.02.2015.

On 25.04.2015 Court passed the following order: "ORDER 25.04.2015

1. This order shall dispose off three applications (i) moved by the management on 07.11.2014 under section 11 of CPC for making factual corrections in the order dated 07.10.2014 under the signature of Ms. Poonam Sikarwar, Principal Brahampuri Public Sr. Sec. School, Brahampuri, Delhi which was replied by workman on 09.02.2015; (ii) moved by the workman on 22.11.2014 under section 151 of CPC as request for reconsideration of the issue by making of factual corrections in the order dated 07.10.2014 which was also replied by management on 26.02.2015 and (iii) moved by workman on 09.02.2015 for factual corrections in the words / sentences used in the claim petition of the workman to avoid confusion alongwith an affidavit of workman under section 11 of the Industrial Disputes Act, 1947 and Order VI Rule 17 read with 151 of CPC for keeping the facts on record straight in the interest of justice which was also replied by the management on 26.02.2015.

2. I have heard Sh. Vijay Kumar Awasthi, AR for workman and Mr. U S Chaudhary, adv. for the management on the abovesaid applications. Material available on judicial file perused.

Page 29 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04

3. APPLICATION AT SR. NO. 1 AS ABOVE This application has been moved under the signature of applicant Ms. Poonam Sikarwar, Principal Brahampuri Public Sr. Sec. School, Brahampuri, Delhi. Para. 4 of the application reads as follows: ''4. That the respectful submission of the Applicant herein is that School Principal and VicePrincipal under the authorization of the Managing Committee of Brahampuri Public Sr. Sec. School, Brahampuri, Delhi, have been defending the case against Brahampuri Public Sr. Sec. School and not against the alleged Brahampuri Nursery Model School and that the Writ Petition in High Court against the Award dt. 19/10/2010 was filed by Brahampuri Public Sr. Sec. School, Brahampuri, Delhi and not by Brahampuri Nursery Model School.'' As per the OrderOfReference industrial dispute exists between management of M/s. Brahampuri Public School and Brahampuri Nursery Model School, Gali No. 15 II Brahampuri, Delhi53 and its workman Mrs. Vijay Tiwari, X254/35, Gali No. 5, Opposite Raghunath Mandir, Brahampuri Delhi53. However, in the statement of claim applicant/workman mentioned the name of respondent/management as ''MANAGEMENT OF BRAHAMPURI PUBLIC SCHOOL, ALIAS BRAHAMPURI NURSERY MODEL SCHOOL''. In the statement of claim applicant/workman pleaded that she was working with the management of Brahampuri Public School w.e.f 20.10.1987. Notably averments of the workman made in para. 8 of the reply to the application in hand that workman was working with the management since 198586 are beyond the pleadings/statement of claim and, thus, cannot be considered at all by this court. She further pleaded that she was working with both Brahampuri Public School and Brahampuri Nursery Model School which are infact same and are being operated and managed from the same premises by the same management from 20.10.1987 to 15.09.1994. Applicant/workman also pleaded that as per management's records she was working as Cashier/Accounts Assistant on full time with Brahampuri Public School and as a Nursery Teacher as a part time with Brahampuri Nursery Model School.

As against above averments, in the WS (filed under the signatures of Mr. Sahab Singh Chauhan, Principal Brahampuri Public Sr. Sec. School and Mr. Poonam Sikarwar, Vice Principal Brahampuri Public Sr. Sec. School on the basis/strength of resolution of the Managing Committee dated 13.03.2004) it is denied that applicant was working with Brahampuri Public School w.e.f. 20.10.1987 as alleged. Management further pleaded that Head Mistress of the School namely Ms. Poonam Sikarwar with the permission of Principal of Brahampuri Page 30 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 Public School had been running coaching center for nursery classes in the evening in her free time in the premises of Brahampuri Public School in the name and style as Brahampuri Public Nursery Model School without any connection/relation with the Brahampuri Public School which is duly recognized under the provisions of Delhi School Education Act, 1973 and rules framed thereunder. In the WS it is also pleaded that Brahampuri Public School functions only in one shift i.e. 7.30 a.m to 1.30 p.m. and that applicant had worked with nursery coaching center for some time on a consolidated sum of Rs. 1000/ per month and applicant had left the said center at her own in September, 1994 after taking her dues as she was to be busy thereafter in her own affairs. Further it is mentioned in the WS that said coaching center was discontinued in March, 1995.

On the basis of document dated 11.07.2008 as per which managing committee of Brahampuri Public Sr. Sec. School, Brahampuri on 10.03.2004 resolved that Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, VicePrincipal jointly and severally shall do the needful in the present mater, it can be said that Brahampuri Public Sr. Sec. School is being represented before the court through Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, VicePrincipal jointly and severally. Hon'ble Delhi High Court in a case law reported as Hamdard Education Society & Anr. Vs. Abdul Rehman & Anr. Manu/DE/1184/2014 has observed as under: ''20. Thus, it is clear that the employeremployee relationship in a recognized school is between the Managing Committee of the recognized school and the employee concerned. The society establishing the school is not the employer. Each and every school established by a parent society is an independent juristic entity having its own scheme of management and Managing Committee. The employees appointed by the Managing Committee of a school are not the employees of other schools.'' When such is the legal position, the representation on behalf of M/s. Brahampuri Public Sr. Sec. School on the basis of abovesaid resolution of management committee of the school can be said to be due and proper representation before this court. Also it is noted that abovesaid document dated 11.07.2008 signed as true copy by Mr. Sahab Singh Chauhan, Principal of Brahampuri Public Sr. Sec. School who is a member of managing committee of the school being Head of the School under rule 59 (1) (b) of Delhi School Education Rules, 1973.

What deserves to be noted is that as per WS filed under the signature of Mr. Sahab Singh Chauhan, Principal Brahampuri Public Page 31 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 Sr. Sec. School and Mr. Poonam Sikarwar, Vice Principal Brahampuri Public Sr. Sec. School on the basis/strength of resolution of the Managing Committee dated 13.03.2004, Brahampuri Public Nursery Model School, as already mentioned above, was being run by none else but Ms. Poonam Sikarwar who is already signatory to the WS, although in a different capacity. The fact that Ms. Poonam Sikarwar has signed the WS undoubtedly mean that Brahampuri Public Nursery Model School stands represented before this court through the said WS. Thus, there is nothing wrong, in substance, in the order dated 07.10.2014 when it mentioned that management of M/s. Brahampuri Public School and Brahampuri Nursery Model School is being represented by Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, VicePrincipal. However, it can be taken to mean that management of M/s. Brahampuri Public Sr. Sec. School is being represented by Mr. Sahab Singh Chauhan, Principal and Ms. Poonam Sikarwar, VicePrincipal, jointly as well as severally and M/s. Brahampuri Nursery Model School stands represented by Ms. Poonam Sikarwar in terms of stand taken in the WS. Further it is noted that Writ Petition (Civil) No. 1568/11 was filed by Brahampuri Public Sr. Sec. School through its Principal Ms. Poonam Sikarwar. Thus it can be said that through the said writ petition interests of both M/s. Brahampuri Public Sr. Sec. School and Brahampuri Public Nursery Model School stood served that is Ms. Poonam Sikarwar represented Brahampuri Public Sr. Sec. School as it Principal/VicePrincipal and M/s. Brahampuri Public Nursery Model School in terms of stand taken in the WS. In view of above detailed discussion it is observed that, in the totality of facts and circumstances of this case, there has been no material/substantial factual error which needs corrections. However, it is noted that the order dated 07.10.2014 as well as this order be read together.

Application in hand is disposed of accordingly.

4. APPLICATION AT SR. NO. 2 AS ABOVE This application is also liable to be disposed of in view of observations already made while dealing with application at Serial No. 1 as above. Ordered accordingly.

5. APPLICATION AT SR. NO. 3 AS ABOVE Prayer made in this application reads as under:

''Under the facts & circumstances of the case, it is humble prayed that this Hon'ble court may kindly be pleased to order to allow to explain in written factual corrections in the claim petition of the workman in the case in hand in the interest of justice.

Any otherfurther order (s) which this Hon'ble court may deem just fit, proper & equitable may be passed in favour of the applicant Page 32 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 workman.'' Through this application workman wants to explain true import of averments made by workman in the statement of claim. The contents of statement of claim can very well be explained by workman on the basis of entire material available on judicial file at the time of final arguments and there appear to be no need of workman moving such like application. This application of the workman stands disposed of accordingly. Ordered accordingly."

21. ARGUMENTS I have heard Mr. Vijay Kumar Awasthi, AR for the workman and Mr. U. S. Chaudhary, Adv. for the management. Written arguments have also been filed by both the parties. Ld. AR for workman relied upon case laws reported as (i) State of U.P. Vs. Presiding Officer, Labour Court and Anr. 2003 (96) FLR 317; (ii) Sher Singh Vs. State of Punjab and Ors. 2002 (94) FLR 1045; (iii) Smt. Nishita Mhatre Vs. Shri Dev Deveshwar Sansthan 2002 (94) FLR 766; (iv) Executive Director, District Scheduled Caste Service Cooperative Society Ltd., Guntur and Anr. Vs. P.O., Labour Court, Guntur and Anr. 2002 (94) FLR 541;

(v) Shri Devadeveshwar Sansthan, Parvati and Kothrud Vs. Sushila Raghu Kadu 2002 (94) FLR 766; (vi) Bhuna Cooperative Sugar Mills Ltd. Vs. Mohinder Singh 2001 LLR 141 (P & H HC); (vii) Municipal Corporation of Delhi Vs. Ram Kumar 2002 LLR 1171 (DEL HC); (viii) Novapan Industries Ltd. Vs. S. K. Murthy 2003 LLR 569 2003 (97 FLR 342 AP HC); (ix) Usha Workers Union Vs. Usha Martin Industries Ltd. 2003 (LLR 760 JHAR HC); (x) Hindustan Prefab Ltd. Vs. Labour Commissioner 2004 (LLR 309 DEL HC);

(xi) T. N. Vishakantaiah Vs. Management of Masoor Petro Chemicals Ltd., Richur, 2005 LLR (162 Karn HC); (xii) Tungabhadra Board Vs. Easu 2000 (LLR Karn HC); (xiii) Nehru Yuva Kendra Sangathan Vs. Union of India 2000 (LLR 776 Del HC); (xiv) Union of India Vs. Sh. Gajanan Maharaj Sansthan Page 33 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 2002 (5 SCC 44 2002); (xv) Principal Kendriya Vidhayala Vs. Uttam Bose 2004 (ILL 686 GAU HC); (xvi) Sports Authority of India Vs. Sports Authority of India Kamgar Union 2005 LLR 541; (xvii) Manipal Academy of Higher Education Vs. State of Karnataka 2007 LLR 1119 SN (KARN HC); (xviii) K. H. Pandhi Vs. Presiding Officer Additional Labour Court 110/2004 BLT 101 (Del HC); (xix) Bangalore Water Supply & Sewerage Board, etc. Vs. R. Rajappa & Ors. 1978 AIR 548; (xx) Apeejay School Vs. Darbari Lal & Ors. W.P. (C) No. 7695/1999 (High Court of Delhi) D.O.D. 28.05.2010; (xxi) Miss A. Sundarambal Vs. Government of Goa, Daman and Diu & Ors. JT 1987 (2) 101; (xxii) The Life Insurance Corporation of India Vs. D. J. Bahadur & Ors. 1980 AIR 2181; (xxiii) Manuelmony Matriculation School Vs. The Principal Labour Court High Court Campus Chennai 104 and N. Rajendran W. P. No. 34589 of 2007 (Madras High Court) D.O.D. 26.11.07; (xxiv) Management of M/s. Mahavir Senior Model School, Sangam Park Vs. Shri Ram Surat Mishra W. P. (C) No. 3522/2002 (High Court of Delhi) D.O.D. 15.09.2006; (xxv) Christian Medical College Hospital Employees' Union & Anr. Vs. Christian Medical College Vellore Association & Ors. 1988 AIR 37; (xxvi) Principal Amar Shaheed Inter College Vs. POLC UP & Ors. W. C. No. 17221 of 2001 at Allahabad High Court dated 24.03.2005; (xxvii) Peoples Welfare Society, Nagpur & Ors. Vs. Second Labour Court, Nagpur & Ors. decided on 22.10.1997 by HMJ F. I. Rebellow - Judge Bombay High Court; (xxviii) Gujarat State Cooperative Land Development Bank Ltd. Vs. P. R. Manded and Ors. 1979 AIR 1203; (xxix) Vijaya Bank Vs. Shymamal Kumar Lodh Civil Appeal No. 4211 & 4212 of 2007 D.O.D. 06.07.10 by Hon'ble Supreme Court of India; (xxx) Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre Page 34 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 and Another Civil Appeal No. 6394 of 2010 D.O.D. 09.08.2010 by Hon'ble Supreme Court of India;(xxxi) Kallakurichi Taluk Coop. Housing Society Ltd. Vs. M. Maria Soosai & Ors. Civil Appeal No. 4357 of 2010 D.O.D. 06.05.2010 by Hon'ble Supreme Court of India; (xxxii) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and ors. Civil Appeal No. 6767 of 2013 arising out of SLP (C) No. 6778 of 2012 D.O.D. 12.08.2013; (xxxiii) Allahabad Jal Sansthan Vs. Daya Shankar Rai & Anr. Civil Appeal No. 8924 of 2003 D.O.D. 03.05.2005 by Hon'ble Supreme Court of India; (xxxiv) Mohan Lal Vs. Management of M/s. Bharat Electronics Ltd. 1981 AIR 1253; (xxxv) Narotam Chopra Vs. Presiding Officer Labour Court 1988 (36) BLJR 636; (xxxvi) Hindustan Tin Works Pvt. Ltd. Vs. Employees of Hindustan Tin Works Pvt. Ltd. 1979 AIR 75; (xxxvii) Manager, K. V. S. S. Mandawar & Anr. Vs. Mukesh Kumar Sharma Civil Appeal No. 2698 of 2010 (arising out of SLP (C) No. 30872 of 2008) D.O.D. 25.03.2010 by Hon'ble Supreme Court of India; (xxxviii) C. N. Malla Vs. State of J & K & Ors. 2009 INSC 1474; (xxxix) Dev Dutt Sharma Vs. Managing Society National Public School & Ors. W. P. (C) No. 11563/2009 (High Court of Delhi) D.O.D. 02.07.10; (xl) Executive Engineer, Public Health Division Vs. Kamlesh 2008 - II - LLJ - 826 (SC); (xli) Bhubaneshwar Mallick Vs. Employer in relation to Management of Central Coal Fields Limited Ranchi & Anr. W.P.(L) No. 3246/2001 (High Court of Jharkhand at Ranchi) D.O.D. 17.03.2010; (xlii) Manorama Verma Vs. State of Bihar & Ors. 1994 Supp. (3) SCC 671; (xliii) CMC Hospital Emp. Union Vs. CMC Vellor Association 1988 SCC L&S 53 and (xliv) Commissioner of Income Tax Vs. Rajnikant Dave (2006) 150 TAXMAN 387 (All.) Ld. counsel for management relied upon case laws (i) Safdarjung Page 35 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 Enclave Education Society Vs. Municipal Corporation of India 47 (1992) DLT 424 (SC); (ii) Wing Commander S. K. Singh Vs. Ld. Governor, U. T. of Delhi & Ors and Air Force Central School, The Director of Education, Delhi Admn. & Ors. C. W. P. No. 540 & 1160/80 D.O.D. 21.02.1986; (iii) Miss A. Sundarambal Vs. Govt. of Goa, Daman & Diu and Ors. AIR 1988 SC 1700 (also relied upon by workman); (iv) Hanuman Mandir Middle School Vs. Ms. Saroj Anand & Ors. 1999 (48) DRJ 814; (v) Mohan Lal Jhanghala Vs. Managing Committee CW 7567/2001 D.O.D. 09.12.2003; (vi) Mrs. Poonam Malhotra Vs. School and Anr. MANU / DE / 7954 / 2007; (vii) Guru Harkishan Public School through its Managing Committee Vs. Director of Education & Anr. W.P. (C) No. 8058/2011 (High Court of Delhi) D.O.D. 14.05.2015; (viii) Management of M/s. Mahavir Senior Model School Vs. Sh. Ram Surat Mishra MANU / DE / 3167 / 2006 and (ix) Unni J. P. Krishnan & Ors. Vs. State of A. P. & Ors. 1993 SCC (1) 645. I have gone through material available on judicial file very carefully.

22. My ISSUEWISE findings are as under: In this case initially issue was framed on 20.08.2001 as 1. As per terms of reference. Additional issues were also framed on 11.02.2004 in the following term: (1) Whether the claim of the workman is barred in view of the provisions of Delhi School Education Act 1973 and Rules thereunder? (OPM) (2) Whether the claimant is not covered within the definition of the workman? (OPM) Ld. predecessor of this Court while passing the award dated 19.10.2010 while exercising powers under section 11 of the Industrial Disputes Act, 1947 read with Order XIV Rule 5 of CPC reframed and restructured the issues as Page 36 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 follows only for the sake of clarity:

(i) Whether the claim of the workman is barred in view of the provisions of Delhi School Education Act 1973 and Rules thereunder? OPM.

(ii) Whether the claimant is not covered within the definition of the workman? OPM.

           (iii)    As per terms of reference.

           Thus, I proceed to decide the issues.

ISSUE No. (i)

Whether the claim of the workman is barred in view of the provisions of Delhi School Education Act 1973 and Rules thereunder? OPM.

Preliminary Objection (A) in the written statement of the management(s) reads as under: "(A) That even as per the contents of the claim petition, though denied, it is respectfully submitted that the alleged claim is not maintanable before this hon'ble court in view of the provisions of Delhi School Education Act 1973 and Rules framed thereunder where a specal tribunal namely Delhi School Tribunal is provided and constituted for the alleged purpose"

Here as per workman / claimant she was working as Cashier / Account Asstt. on full time basis with Brahampuri Public School and as a Nursery Teacher on part time with Brahampuri Nursery Model School. Management has denied the averment of workman / claimant regarding her working with Brahampuri Public School and has pleaded that Head Mistress of the school namely Ms. Poonam Sikarwar with the permission of the principle of Brahampuri Public School had been running coaching centre for nursery classes in the evening in her free time in the premises of Brahampuri Public School in the name and style as Brahampuri Public Nursery Model School without any connection / relation with the Brahapuri Public School which is Page 37 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 duly recognized under the provisions of Delhi School Education Act, 1973 and Rules framed thereunder. Management has further pleaded that applicant had worked with the Nursery Coaching Center for some time on a consolidated sum of Rs.1000/ per month and that applicant had left the said centre at her own in September, 1994 after taking her dues as she was to be busy thereafter in her own affairs. In the rejoinder workman / claimant / applicant pleaded that she was working as full time Cashier for both school and as per instructions of the management she was teaching the nursery classes in the absence of any other teacher or shortage of the staff.

As per these pleadings of workman / claimant / applicant the primary or substantial duties allegedly performed workman / claimant / applicant can be said to be that of a Cashier / Accounts Asstt., which are of manual / clerical in nature. Working of workman / claimant / applicant, as alleged, as a teacher of primary classes in the absence of any other teacher or shortage of staff cannot be taken as affecting the status as acquired by workman / claimant / applicant by virtue of nature of primary or substantial duties allegedly performed by the workman / claimant / applicant. Thus going by the contents of claim petition it cannot be said that claim filed by workman / claimant / applicant is not maintainable before this Court as a Labour Court in view of provisions of the Delhi School Education Act, 1973 and Rules framed thereunder where a special tribunal namely Delhi School Tribunal is provided and constituted for the alleged purpose. It is not the case of workman / claimant / applicant herein that her primary / substantial duties were that of a teacher. A teacher has been held not to be a 'workman' under section 2(s) of the Industrial Disputes Act, 1947. Hence, a teacher cannot approach the Labour Court constituted under the provisions of Industrial Disputes Act, 1947. Hon'ble High Court of Delhi in Page 38 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 case law reported as Apeejay School Vs. Darbari Lal & Ors. W.P. (C) No. 7695/1999 (High Court of Delhi) D.O.D. 28.05.2010 has ruled that The jurisdiction of the Industrial Adjudicator under the Industrial Disputes Act, 1947 is not barred in relation to disputes raised by workman employed in schools and covered by the School Act. An employee in a school can undoubtedly approach Delhi School Tribunal but the law recognizes that there can be concurrent remedies with a right to choice (Jai Singh and Anr. Vs. Secretary Law and Judicial & ors. MANU/DE/0875/2008). There is no general principle in law that only one remedy should be available. In case law reported as Miss A. Sundarambal Vs. Government of Goa, Daman and Diu & Ors. JT 1987 (2) 101 it has been held that even though an educational institution has to be treated as an industry the teachers employed by educational institutions whether the said institutions are importing primary, secondary, graduate or post graduate education cannot be called as 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947. In case law reported as Bangalore Water Supply & Sewerage Board, etc. Vs. R. Rajappa & Ors. 1978 AIR 548 it has been ruled that education can be and is, in its institutional form, an industry. Noble objectives, pious purposes, spiritual formalities and developmental projects are no reason not to implicate the charitable institutions as industries and economic activities and occupations of an altruistic character are industries. Further in case law reported as Management of M/s. Mahavir Senior Model School, Sangam Park Vs. Shri Ram Surat Mishra W. P. (C) No. 3522/2002 (High Court of Delhi) D.O.D. 15.09.2006 it has been held that it cannot be said that Industrial Disputes Act, 1947 does not apply to the employees of the school (teachers are not workman). Industrial Disputes Act, 1947 is applicable in the case of petitioner institute in respect of employees Page 39 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 other than teachers.

Also what is to be noted is that management(s) in the WS have pleaded that applicant had worked with the the Nursery Coaching Centre for same time on a consolidated sum of Rs.1000/ per month. WHAT is to be noted is that management(s) has not even pleaded that in what capacity / with what / which nature of duties applicant had worked with the Nursery Coaching Center. Management(s) have not pleaded that applicant was working as a teacher in the said alleged Nursery Coaching Centre. Thus, going by the pleadings of statement of claim / claim petition, or even the management(s), it cannot be said that claim petition as per its contents is not maintainable before this Court as a Labour Court under the Industrial Disputes Act, 1947 in view of provisions of Delhi School Education Act, 1973 and rules framed thereunder. ISSUE No. 1 is accordingly, decided against the management(s). ISSUE No. (ii) Whether the claimant is not covered within the definition of the workman? OPM.

Section 2(s) of the Industrial Disputes Act, 1947 defines 'workman' as under: "2. Definitions: In this Act, unless there is anything repugnant in the subject or context, "(s) "workman" means any person (including an apprentice) employed in any industry 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 proceeding under this Act in relation to an industrial dispute, included 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) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of Page 40 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding* [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

* Subs. by Act 24 of 2010, sec.2(ii) for "one thousand six hundred rupees" (w.e.f. 15.09.2010) In view of case law Bangalore Water Supply & Sewerage Board, etc. Vs. R. Rajappa & Ors. 1978 AIR 548 undoubtedly management(s) fall within the definition of 'industry' under section 2(j) of the Industrial Disputes Act, 1947. Whether a particular employee in an industry is a workman or not depends, interalia, on two aspects (i) whether there existed relationship of employer and employee between the management and the employee and (ii) nature of duties assigned to / performed by the employee while working in the industry in the relationship of employer and employee.

Here the management of Brahampuri Public School has denied the averments of workman / claimant / applicant regarding her employment w.e.f. 20.10.1987 to 15.09.1994 with the management of Brahampuri Public School. In this way management of Brahampuri Public School is denying the relationship of employer and employee between the said management and the applicant / claimant / workman. Hence the issue, as to whether claimant is / is not covered within the definition of workman qua the management of Brahampuri Public School.

As regards the management of Brahampuri Nursery Model School, workman / claimant / applicant has pleaded that she was working as a 'teacher' Page 41 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 on part time with Brahampuri Nursery Model School. As per case law reported as Miss A. Sundarambal Vs. Government of Goa, Daman and Diu & Ors. JT 1987 (2) 101 the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947. HOWEVER, workman / claimant / applicant in the rejoinder has pleaded that she was working as a full time Cashier for both the school and as per instructions of the management she was teaching the nursery classes in the absence of any other teacher or shortage of staff. Workman / claimant / applicant in the rejoinder, while denying the stand taken by management(s) in the WS to the effect that there was no connection / relation between Brahampuri Public School and Brahampuri Public Nursery Model School, pleaded that there was never any coaching centre for nursery classes and there was and there is a public school only and Brahampuri Public School and Nursery Model School both are located in the same building management; office set up and staff are same. It is in this background that this issue deserves to be decided.

It is well settled proposition of law that burden to prove that there existed relationship of employer and employee between the management and the workman is on the workman. This burden is to be discharged by the workman on the basis of principle of preponderance of probabilities keeping in view the facts and circumstances of each particular case. The nature of evidence which may be taken as sufficient proof of existence of such relationship on the basis of principle of preponderance of probabilities, to a large extent, depends on the totality of facts and circumstances of each particular case as emerging on the basis of pleadings of parties and other Page 42 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 material brought on judicial record by the parties to the proceedings. No straight jacket / hard and fast formula can be laid down for determining the existence of such relationship.

HERE workman / claimant / applicant has not filed on record any proof of her appointment by the management(s) w.e.f. 20.10.1987 or any other date nor workman / claimant / applicant has filed on record any proof of payment of salary by management(s) in terms of averments made in the statement of claim. This is despite the fact that, as submitted by the ld. counsel for management(s), that Brahampuri Public School being the recognized school has to act / conduct / manage its affairs strictly in accordance with the provisions of the Delhi School Education Act, 1973 and rules framed thereunder. As per averments made by workman / claimant / applicant in the statement of claim / rejoinder she worked with management(s) since 20101987 till 15.09.1994. However in the evidence affidavit workman / claimant / applicant deposed that she had actually joined the management(s) as Assistant Clerk in the year 198586 and she was working as a Assistant Cashier since October 1987. These depositions of workman / claimant / applicant are beyond pleadings. But it is noted that MW1 Mr. Sahab Singh Chauhan in his evidence affidavit denied these depositions of workman / claimant / applicant. Both, the depositions of workman / claimant / applicant and MW1 Mr. Sahab Singh Chauhan are oral / without documentary support and MW1 Mr. Sahab Singh Chauhan has denied these depositions of workman in his evidence affidavit and, thus, management(s) has availed the opportunity to deny the stand taken by workman / claimant / applicant beyond pleadings. In this way, when management(s) has availed the opportunity to deny the stand taken by workman / claimant / applicant which was otherwise beyond pleadings, it can be said that no Page 43 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 prejudice has been caused to management(s) by reason of workman / claimant / applicant making depositions beyond pleadings and Court may even consider such depositions in the facts and circumstances of this case. Also it has to be kept in mind that this Court being a Labour Court constituted u/s. 7 of the Industrial Disputes Act, 1947 is not bound by the strict rules of pleadings or provision of the Evidence Act, 1872 so long as, as no prejudice in the facts and circumstances of each case is caused to other party and there is no violation of principles of natural justice and fair play. Workman / claimant / applicant in her evidence affidavit has deposed that at the time of her joining the management(s) neither any appointment letters used to be given nor any other formality used to be completed and every order used to be oral. She further deposed that subsequently in October, 1987 she was taken on muster rolls but no appointment letter was given to her and all orders were made orally. What is to be noted is that it has not specifically come on judicial records as to when Brahampuri Public School came to be recognized for the first time under the provision of Delhi School Education Act, 1973 and rules framed thereunder. In this background much importance cannot be attached to the submissions made by ld. counsel for management(s) that Brahampuri Public School being a recognized school, it could not have made any appointment without following the provisions of Delhi School Education Act, 1973 and rules framed thereunder. In any way this Court is well competent to decide the controversies herein on the basis of material which is available on judicial record without attaching much importance to, otherwise, statutory obligation of a recognized school under the provisions of Delhi School Education Act, 1973 and rules framed thereunder.

Also it is to be noted that appointment as such on an employee like the Page 44 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 workman / claimant / applicant herein as per provisions of Rule 96 of the Delhi School Education Rules, 1973 did not involve any outsider. As per this rule appointment is to be made by Chairman of the Managing Committee and Head of the school. It is not the case that Brahampuri Public School is an aided school. WW1 Mrs. Vijaya Tiwari in her crossexamination deposed that :

"I was doing B.A. In the year 1985. I have not done any diploma. I was born in the year 1969. I was called by the management from my house for giving me appointment to the post of cashier. I had not applied in writing for any post in the management. My interview was also taken by the management by Chairman. I am not aware of the qualification norms of the management for the post of Cashier, Asstt. Clerk, Asstt. Cashier, Accountant and Teacher. It is correct that in the year 1988 the management was a primary school. It is also correct that in the year 1989 it had become a middle school. I did not fill any surety bond. I was not preparing the salary certificate of the employees. My job was to collect the fees and to maintain the books of accounts. The fees day used to be once in 15 days. I was not doing any other job except collecting fees from the students and maintaining its records. I was orally promoted on the post of Cashier from Asstt. Cashier by the Principal w.e.f. 1.4.1990."

As per these depositions workman / claimant / applicant was doing B.A. in 1985 and she was born in the year 1969. It is noted that as per photocopy of 10th class certificate of workman / claimant / applicant available on judicial file her date of birth is 11.08.1964. In this regard ld. counsel for management(s) submitted that regarding this certificate no opportunity was given to management(s) to crossexamine the workman / claimant / applicant. If ld. counsel for management(s) intended to take any benefit from the inconsistency in these depositions, to my mind, attention of witness must have been drawn then and there and explanation ought to have been sought by ld. counsel for Page 45 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 management then and there. It is not the case here that workman / claimant / applicant was not an educated lady and she could not have possessed date of birth certificate usually given to persons qualifying the secondary school examination. But management(s), despite inconsistency as above, did not insist on production of documentary proof in support of date of birth of workman / claimant / applicant.

In this factual background this inconsistency is to no effect and does not benefit the management(s) in any manner. WW1 Mrs. Vijaya Tiwari in her crossexamination deposed that her interview was also taken by the management by Chairman. In this way provisions of Rule 96 of the Delhi Education Rules 1973 can be taken to have been substantially complied with in this case. It is not the case that statutory forms have been provided prescribing the format on which application for job, if at all required to be in writing, mandatorily have to be made. It has also not been brought on record by management(s) as to what are / were the requisite qualifications for appointment as a Assistant Clerk / Assistant Cashier / Cashier. The depositions made by WW1 Mrs. Vijaya Tiwari to the effect that, "...... I was not doing any other job except collecting fee from the students and maintaining its records..." do not in any way benefit the management(s) in the facts and circumstances of this case inasmuch as undisputedly Brahampuri Public Nursery Model School had engaged the workman / claimant / applicant for teaching in Nursery Coaching Centre regarding which case of workman / claimant / applicant is that she was employed there as part time nursery teacher and workman / claimant / applicant used to teach on account of absence of any teacher or shortage of staff.

To show her employment with management, workman / claimant / Page 46 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 applicant is relying upon documents Ex. WW1/12 to Ex. WW1/22 photographs Mark A and Mark K to U. As regards these documents / photographs workman WW1 Mrs. Vijaya Tiwari has been made to depose that, "........In photograph 'marked T' the daughter of Sh. S. S. Chauhan is sitting with me. It is incorrect that all the photographs are of social gathering but some of them are of social gathering. It is correct that I do have the originals of the documents which have been marked. It is incorrect that I do not have the originals of these documents because they are fabricated documents.......". There is no suggestion in the crossexamination of WW1 Mrs. Vijaya Tiwari that in photograph 'T' daughter of Sh. S. S. Chauhan is not sitting with the workman / claimant / applicant. As regards these photographs it was suggested that all the photographs are of social gathering which was denied by WW1 Mrs. Vijaya Tiwari, however, it was admitted that some of the photographs are of social gathering. The manner of crossexamination of WW1 Mrs. Vijaya Tiwari as regards these photographs suggest that there is no denial as to the existence / geniuneness of these photographs and only stand taken by management(s) is that these photographs are of social gathering inasmuch as MW1 Mr. Sahab Singh Chauhan in his crossexamination has deposed that, ".........I know the claimant as she had been residing in the same block in which I used to reside and the sister in law (Bhabhi) of the claimant was employed in our school.......". What is to be noted is that all the photographs Mark A and Mark K to U are not of social gathering. Some of the photographs are of social gathering and some of the photographs are not of social gatherings and these photographs which are not of social gathering have been taken in the school premises in an atmosphere not that of a social gathering. WW1 Mrs. Vijaya Tiwari in her evidence affidavit deposed that to prove that she was employed in the Brahampuri Public School in 1988 or Page 47 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 prior thereto, she is relying upon group photograph Mark A which was taken when Ms. Poonam Sikarwal joined in the year 1988. Photograph Mark A has been taken in school premises and school children in school uniform are visible in this photograph. MW1 Mr. Sahab Singh Chauhan in his crossexamination deposed that, "..... I do not remember the year when Mrs. Poonam Sikarwal became the VicePrincipal of the school. However, she joined as a Teacher in 1988....". These depositions of MW1 Mr. Sahab Singh Chauhan corroborate the depositions of WW1 Mrs. Vijay Tiwari to the effect that Mrs. Poonam Sikarwal joined in the year 1988. In this factual background photograph Mark A becomes worth reliance. Photographs Mark K, Mark L and Mark Q have been taken in school premises. As regards photographs Mark R, Mark S, Mark T and Mark U, WW1 Mrs. Vijaya Tiwari deposed that these photographs prove that workman / claimant / applicant was working as a Cashier. There is no denial from the side of management(s) regarding the depositions made by WW1 Mrs. Vijaya Tiwari regarding photograph Mark - T. Primafacie these photographs corroborate the depositions of the WW1 Mrs. Vijaya Tiwari.

NOW coming to documents Ex. WW1/12 to Ex. WW1/22. As per management(s) these receipts are fabricated. Noticeably photographs Mark A and Mark K, Mark L, Mark Q, Mark R, Mark S, Mark T and Mark U to support the version of workman / claimant / applicant regarding her employment with the management(s). When seen in this background Ex. WW1/12 to Ex. WW1/22 can be relied upon by the Court inasmuch as:

(i) MW1 Mr. Sahab Singh Chauhan in his crossexamination regarding these receipts has deposed as under : ".........Ex. WW 1/12 to 22 are not the receipts of our school. (Vol. The same are fabricated) I cannot tell whether the names Page 48 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 mentioned in the receipts were the students of our school. Q. Can you produce counterfoil to receipt book No. AK400 to 500 for the period May 199.... Braham Puri Public Nursery Model School and BC 7150 to 7200 of Braham Puri Public School for the period AugustSeptember 1994?

A. I cannot produce any counterfoil receipts of the year 199394 of Braham Puri Public School being old record. I have no concern with Braham Puri Public Nursery Model School. I do not know whether Ex. MW1/1 bears the signatures of Mrs. Vijay Tiwari at point A or not. Vol. It bears the signatures of Mrs. Poonam Sikerwal at point B. Ex. MW1/9 was received by me along with Ex. MW1/11 issued by the then Deputy Home Minister. I cannot say whether Ex. MW1/9 bears the signatures of Mrs. Vijay Tiwari or not at point C. Ex. MW1/1 to MW1/4 are not manipulated documents."

The reason as disclosed by MW1 Mr. Sahab Singh Chauhan for non production of relevant counterfoils of receipts books pertaining to Ex. WW1/12 to Ex. WW1/22 does not inspire confidence inasmuch as MW1 Mr. Sahab Singh Chauhan himself is relying upon Ex. MW1/1 to Ex. MW1/4 which also even pertain to the year 1994. If these vouchers have been retained all along since 1994 there was no reason for not retaining the counterfoil receipts books pertaining to Ex. WW1/12 to Ex. WW1/22.

(ii) Details as given in Ex. WW1/16 match with details given in Admission & Withdrawal Register produced by management(s). Some of the names mentioned in Ex. WW1/12 to Ex. WW1/22 match with names mentioned in Admission & Withdrawal Register produced by management(s) and photocopies therefrom were kept on judicial record. This could not have been possible except when workman / claimant / applicant was in employment of management as Cashier.

(iii) Ex. MW1/1 to Ex. MW1/4 cannot be taken to have been Page 49 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 proved by virtue of deposition of MW1 Mr. Sahab Singh Chauhan in the facts and circumstances of this case. For proving Ex. MW1/1 to Ex. MW1/4 examination of Mrs. Poonam Sikerwal as a witness was required. More so when, inconsistent with the pleadings / WS of management(s), Mrs. Poonam Sikerwar in her crossexamination in case FIR No. 553/95 P.S. Seelam Pur before the Ld. M.M. deposed that, ".... It is correct to suggest Vijay Tiwari used to work in coaching Centre - part time at school premises; I do not know who was running this coaching centre at the premise....". First line of these depositions does not in any way affect the averments of workman / claimant / applicant regarding her employment with Braham Puri Public School inasmuch as, as per workman / claimant / applicant, she was, interalia, working on part time basis with Brahampuri Nursery Model School.

It is not out of place to mention here that workman / claimant / applicant had moved various applications for leading additional evidence which, however, met the fate as already mentioned in para. 15 hereinabove. Thus, it is not the case that workman / claimant / applicant did not even attempted to prove the case as pleaded by her by intending to examine / leading corroborative evidence.

Ex. MW1/5 and Ex. MW/6 do not help the management(s) in any manner to prove that the post of workman / claimant / applicant was not existing in the Brahampuri Public School inasmuch as there is nothing in Ex. MW1/5 and Ex. MW1/6 to suggest that these documents were / are also applicable to private schools as is the case of Brahampuri Public School. The receipts Ex. WW1/13 to Ex. WW1/22 suggest existence of post of workman / claimant / applicant in the Brahampuri Public School.

The fact that MW1 Mr. Sahab Singh Chauhan is in possession of Ex.

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 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr.                         ID No. 824/04

MW1/1 to Ex. MW1/4 and is intending to prove these documents and Mrs. Poonam Sikarwar has not cared to prove the stand taken by management(s) qua the running of Brahampuri Public Nursery Model School by herself appearing in the witness box, in the totality of facts and circumstances of this case, suggest that stand of workman / claimant / applicant that affairs of both Brahampuri Public School and Brahampuri Public Nursery Model School were managed by the same management / office / staff are quite possibly true. Admittedly both were being run in the same building premises. As already noted as the primary or substantial nature of work of workman / claimant / applicant was clerical / manual her eventual engagement as a teacher for nursery class due to absence of teacher or shortage of staff cannot change the status acquired by workman / claimant / applicant by reason of her primary or substantial nature of duties. In view of above detailed discussion it is observed that there did exist relationship of employer and employee between management(s) and workman / claimant / applicant and workman / claimant / applicant can be said to be a 'workman' u/s. 2(s) of the Industrial Disputes Act, 1947. ISSUE No. 2 is decided accordingly.

ISSUE No. (iii): As per terms of reference.

("Whether the services of Mrs. Vijaya Tiwari have been terminated illegally and/or unjustifiably by the management and if so, to what relief is she entitled and what directions are necessary in this respect?") Here workman pleaded and deposed that she was employed with the management since 20.10.1987 and management(s) illegally terminated her services on 15.09.1994. Management of Brahampuri Public School denied the existence of relationship of employer and employee between the management of Brahampuri Public School and workman. This stand of the management of Brahampuri Public School has not been found to be worth reliance by the Page 51 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 Court. This necessarily mean that Court has to proceed on the assumption that the stand has taken by workman regarding her service tenure with the management(s) and the circumstances under which management(s) terminated services of workman deserves to be acted upon by the Court.

The fact that Ex.MW1/9 mentions that, "...... is karan maine karya karna chhod diya...." does not in any way benefit the management(s). True spirit of contents of Ex.MW1/9 can be understood when the said document is read as a whole. In the said letter Ex.MW1/9 workman has written that she was working with the management(s) since last 7 years as 'Teacher / Cashier'. This stand was denied by the management(s) before the Court but Court has not believed the version of the management(s). In the said letter Ex.MW1/9 it is also mentioned that workman had not received salary from February 1994 to September 1994 despite many requests to the management(s). Services of workman can be terminated either expressly by specific positive acts of the management(s) or even by negative acts on the part of the management(s) namely by withholding salary of workman for many months together. When so understood it can be said that it was the management(s) who terminated the services of workman in terms of averments made in statement of claim. Also the fact that workman in her cross - examination has deposed that, "..... I did not go to the management for joining my duties after receipt of Ex.WW1/5 dated 20.01.1995....." does not in any way affect the case of workman, inasmuch as, as per Ex.WW1/5, when read as a whole, it does not mean that management(s) was offering duties to the workman on the terms as pleaded by workman in the statement of claim.

NOW MERELY BECAUSE management(s) terminated the services of workman illegally / unjustifiably does not mean that workman is automatically Page 52 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 entitled to be reinstated in service with management(s) with full back wages. Whether the workman is entitled to be reinstated in service or not depends on the facts and circumstances of this case at the discretion of this Court keeping in view the totality of the facts and circumstances of this case. In the case in hand workman has failed to produce on record documents, whatever may be the reason for the same, to show that she was formally appointed by the management(s) by following the statutory provisions under the Delhi School Education Act, 1973. This is also a ground for denial of reinstatement in service with the management(s) but this does not mean that workman cannot be granted any relief by this Court on account of illegal / unjustified termination of her services by the management(s).

In my considered opinion, in the totality of the facts of circumstances of this case particularly keeping in view the stand has taken by the management(s) in the WS and the fact that services of workman were terminated on 15.09.1994 and today it is 16.09.2015 the order for reinstatement of workman in service with the management(s) may not result in cordial industrial relations or industrial peace between the management(s) and the workman. Hence, reinstatement is declined.

In case law reported as General Manager, Haryana Roadways Vs. Rudhan Singh (2005) 5 SCC 591 it has been observed that there is no rule of thumb that in every case where Industrial Tribunal gives finding that termiantion of servie was bad, entire back wages should be awarded. Also in case law reported as Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayan Prakash Srivastava & Another & Another (2007)1SCC 491 it has been observed that payment of full back wages is not a natural consequence of setting aside an order of termination of services. Further in case law reported as C. N. Malla Page 53 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04 Vs. State of J & K & Ors. 2009 INSC 1474 it has been observed that the legal position is fairly settled by catena of decisions that direction to pay back wages in its entirety is not automatic consequent upon declaration of dismissal order bad in law. The concept of discretion is inbuilt in such exercise. The court is required to exercise discretion reasonably and judiciously keeping in view the facts and circumstances of each case and no strait - jacket formula can be evolved.

I have perused the application moved by workman on 09.02.2015 for factual corrections in the words / sentences used in the claim petition of the workman. Workman cannot be reasonably speaking believed to be totally unemployed / not gaining anything despite her serious sincere efforts to get the job since 15.09.1994 till today. In any way in the statement of claim there is no averment to the effect that workman ever tried to search for the job after illegal termination of services of workman by management(s). Hence, workman is held to be not entitled to full back wages.

In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation to the tune of Rs.3,50,000/ (Rupees Three Lacs and Fifty Thousand Only) to the workman for illegal / unjustified termination of her services by the management(s) and for consequences thereof / back wages would meet the ends of justice. If this amount of Rs.3,50,000/ (Rupees Three Lacs and Fifty Thousand Only) is not paid to workman within one month of award coming into force management(s) shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 50,000/ (Rupees Fifty Thousand only) is also awarded to workman as costs of litigation payable by the management(s). ISSUES NO. 3 IS DECIDED ACCORDINGLY.

Page 54 to 55 (ANAND SWAROOP AGGARWAL) POLC - XI / KKD / DELHI / 16.09.2015 Mrs. Vijaya Tiwari Vs M/s. Brahmpuri Public School & Anr. ID No. 824/04

23. Reference stands answered accordingly.

24. Copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action.

25. File be consigned to Record Room after completing due formalities.




PRONOUNCED IN THE OPEN COURT ON 16.09.2015



                                                    (ANAND SWAROOP AGGARWAL)
                                                   POLCXI, Karkardooma Courts, Delhi*




Page 55 to 55                                                      (ANAND SWAROOP AGGARWAL)
                                                                  POLC - XI / KKD / DELHI / 16.09.2015

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