Delhi District Court
Between The vs The on 8 March, 2013
IN THE COURT OF SH. S.S. MALHOTRA, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI
I.D. NO. 530/11
Unique Case ID No. 02402C0289182011
BETWEEN THE WORKMAN
Sh. Manoj Kumar s/o Sh. Ramu Ram as represented by Rajdhani Kamgar Sangthan
Delhi, Opposite Group A4/1, Shaheed Sukhdev Nagar, Wazirpur Industrial Area,
Delhi110052.
AND THE MANAGEMENTS OF
(i) M/s Central Ayurvedic Drug Store, Directorate of Indian System of Medicine and
Homeopathy through Medical Officer, Sector18, Rohini, Delhi110085 (HQ: Directorate
of Indian System of Medicine and Homeopathy, Govt. of NCT of Delhi, A & U Tibbia
College Campus, Karol Bagh, New Delhi) & (ii) M/s Ministry of Health, GNCT of Delhi
through Secretary, Room No.907, 9th Level, AWing, Delhi Sachivalaya, IP Estate, New
Delhi.
Date of Institution : 15.09.2011
Date on which award reserved : 5.03.2013
Date on which award passed : 8.03.2013
A W A R D
1 Vide this award, I shall dispose off the reference as sent by Ld. Deputy Labour
Commissioner, Distt. NorthWest, Govt. of the National Capital Territory of Delhi arising
between the parties named above to this Labour Court vide Notification No.F.24/ID/
(600)/10/NWD/(252)/11/Lab./474650 dated 5.09.11 with the following terms of
reference:
"Whether services of Sh.Manoj Kumar s/o Sh. Ramu Ram have been terminated
illegally and/or unjustifiably by the management; and if yes, to what relief is he entitled
and what directions are necessary in this respect?"
2 After receiving of the reference, notice was issued to the workman with directions
ID NO.530/11 1/16
to file the statement of claim alongwith list of witnesses which has been filed by the
workman.
3 Before coming to the facts of the amended statement of claim, it is necessary to
mention here that initially the reference was received only against the management no. 1
i.e. M/s Central Ayurvedic Drug Store, Directorate of Indian System of Medicine and
Homeopathy but subsequently the workman got the corrigendum and as such the present
statement of claim was amended thereby mentioning the name of two managements in
the statement of claim.
4 Brief facts as stated by the workman in his statement of claim interalia are that he
had been working with the management no.1 since 1.03.03 at the post of Sweeper and
initially his salary was Rs.950/ per month. He had been performing his work with hard
labour and full dedication and never afforded any opportunity of complaint to the
management nor he has ever been charged sheeted by the management. However, the
management was not providing any legal facilities to the workman like appointment
letter, leaves and minimum wages which were being demanded by the workman time and
again from Dr. Lalji, the Medical Officer but neither such facilities were provided nor he
was posted against the permanent post nor his salary was being paid as per the Minimum
Wages Act and when he demanded these facilities time and again, particularly on
25.01.10alongwith salary for the months of November and December 2009, then instead of making the payment, he was terminated from the services and even his earned wages were not paid. Thereafter, he sent a demand letter dt. 27.08.10 and another demand letter dt. 21.01.11 to the management thereby demanding his reinstatement alongwith the earned wages but neither the management reinstated him nor paid his earned wages and as such the workman filed his statement of claim before the labour conciliation officer wherealso the management did not take any interest and ultimately the matter was ID NO.530/11 2/16 referred to this court by way of aforementioned reference for adjudication by the Ld. Dy. Labour Commissioner, Distt. NorthWest and the workman in terms of the directions of the court has filed the present statement of claim with a prayer that the management be directed to reinstate him at the same post with full back wages including benefits of continuity of service and all other consequential benefits.
5 Management no. 1 and management no. 2 have filed their reply/written statement on same lines thereby taking preliminary objections interalia that the claim filed by the workman is false, frivolous, baseless and has been filed with malafide intention to compel the management to accede to the illegal and unlawful demands of the workman, no cause of action to file the present claim has arisen in favour of the workman and against the management, the claimant is not a 'workman' under the provisions of the I.D. Act as he was not an employee of the management, rather he was working on part time basis for three hours a day on the fixed salary of Rs.1200/ per month and as such he does not fall within the definition of section 2 (s) of the I.D. Act and even otherwise the management is a government body and permanent recruitments are made through statutory bodies only and the workman was informed vide office letter dt. 17.03.10 that he had no claim for regularization as he was working as a part time sweeper only and it is further stated that he worked with the management till January 2010 and Rs.3600/ towards wages of November 2009 to January 2010 were paid to him vide cheque no. 36505 dt. 7.03.10 and as such nothing is due to be paid to the workman by the management nor the workman is entitled for the regularization of his service as claimed by him. On merits, relationship is denied in terms of the contents of preliminary objections and all the written statement is revolving around the facts that the workman was working on part time basis for three hours a day at fixed rates @ Rs.1200/ per month revised w.e.f. 1.03.07 and he was not entitled for regularization because he was only a part time sweeper working for three ID NO.530/11 3/16 hours a day. It is further stated that the management is not a commercial establishment and no commercial activities were/are going on and it is only a drugs store and the drugs after purchased were stored for free distribution in the dispensaries/hospitals and no profit motive was involved and as such the management does not fall within the provisions of the I.D. Act. Other facts are denied and it is prayed that the claim of the workman be dismissed.
6 The workman thereafter filed rejoinder in which he denied the contents of the written statement word by word and reiterated and reaffirmed the facts of the statement of claim and it is prayed that an award may kindly be passed in favour of the workman in terms of the prayer made by him in the statement of claim.
7 After completion of pleadings, the following issues were framed on 26.09.12:
1 Whether the workman had been working with the management on part time basis for three hours a day and as such is not coming within the definition of workman under I.D. Act?OPM.
2 In terms of reference?OPW.
3 Relief.
8 After the framing up of the issues, both the parties were given opportunity to lead their evidence to prove their respective contentions/pleas and accordingly, the matter was fixed for workman's evidence and the workman has examined himself as WW1 and then closed his evidence. Thereafter, opportunity was given to the managements no. 1 and 2 and the managements no.1 and 2 have examined Dr. Nilesh Ahuja (Dy.Director of the management) no.1 as M2W1 and then closed its evidence. Thereafter, matter was fixed for final arguments.
9 I have heard the arguments and perused the record. My issuewise findings are as ID NO.530/11 4/16 follows:
ISSUE NO. 1 10 The onus of this issue was upon the workman that he is a workman within the definition of section 2 (s) of the I.D. Act has been fixed by the court on both the parties but the court is of the opinion that prima facie the workman has to prove that whether he is a 'workman' within the definition of section 2 (s) of the I.D. Act and as such it is being dealt accordingly that the onus to prove this issue is upon the workman himself. 11 The workman in his statement of claim has stated that he had been working with the management since 1.03.03 at the post of Sweeper on the initial salary of Rs.950/ per month but the management had not regularized his services. The management in the written statement has taken the objection that the claimant is not a workman within the definition of section 2 (s) of the I.D. Act as he was working on part time basis for three hours a day and therefore, a part time employee does not fall within the definition of section 2 (s) of the I.D. Act. In the rejoinder the workman denied that he was working as a part time worker and he reiterated that he had been working with the management as a permanent employee and even he had been working for 8 to 12 hours per day. 12 In cross examination the workman deposed that appointment letter was not issued to him and he volunteered that he was given daily wager certificate by Dr. Lal Ji, the then store incharge. No ESI card or PF contribution slip was ever given to him and he volunteered that for the first time he demanded these facilities in the year 2009 from the director of the management. He admitted as correct that Ex.WW1/2 i.e. the notice issued by him does not have the name of Dr. Mohan Lal Ji and he volunteered that the same is addressed to the Director of the management and he further deposed that the copy of this letter was also sent to the head office of the management and he cannot say if the final authority of taking decision is the head office of the management and he has filed the ID NO.530/11 5/16 attendance register mark A. He further deposed that the attendance register was given to him by the store incharge of the management. He further deposed that he has not filed any application nor he has applied for such documents through RTI and he denied the suggestion that the document mark A has not been supplied to him by the store incharge and he had stolen the same from the office of the management. He also denied that he was kept as part time sweeper for 23 hours by the management and only for that reason his last drawn salary was Rs.1200/ per month although he admitted as correct that his last drawn salary was Rs.1200/ per month. He further deposed that he does not know whether he was kept by the management as a part timer for three hours since 1.03.03. 13 Management in its evidence deposed in terms of written statement and stated that the workman has no right to file the present statement of claim as he was working for three hours a day and his fixed salary was Rs.1200/ per month. MW1 was also cross examined by the Ld.ARW and in cross examination, he deposed that for any part time worker who is appointed on part time basis, sanction is received from finance department, Govt. of Delhi and in this matter also, sanction was taken and the name of the workman is not mentioned in the sanction letter and he further deposed that sanction letter comes in the name of the dispensary and not in the name of the workman. He admitted as correct that the workman was working with the management as a part time sweeper but denied the suggestion that he was regular employee of the management. He further deposed that the workman was kept at the office of central ayurvedic drug store at sector 18, Rohini and he is not aware of the fact that the workman was not being sent for any other dispensary for part time work. He denied the suggestion that the management used to deploy the workman at Baba Sahib Ambedkar Hospital at sector 6, Rohini and the photocopy of the attendance register for the month of April 2008, September 2008 to November 2008 were put to the witness and he was asked as to whether the initial just ID NO.530/11 6/16 above the stamp of the Delhi Admn. Ayurvedic Department Baba Sahib Ambedkar Hospital pertains to concerned authority or not, to which the witness has replied that he has to check the record first and then he would reply the same. He further deposed that Dr. Lal Ji is the concerned medical officer in their department but he cannot say whether Ex.WW1/1 the certificate bears the signatures of Dr. Lal Ji. He further deposed that there is no sweeper posted at Central Ayurvedic Drug Store and he volunteered that the provision of appointing the sweeper temporarily on part time basis is issued from time to time and thereafter services of such sweepers are taken by the management. There is no provision for detaining or keeping more than one part time sweepers at one time. He denied the suggestion that the management used to take work for more than 8 hours from the claimant or that he was being paid on the basis of part time work. He also denied that apart from sweeping work, the services of the claimant were also taken for loading/unloading of drugs and other miscellaneous work and also deposed that no application from the workman who is appointed for part time used to taken by the management and no publication in the newspaper is given for requirement for part time sweepers and even no termination letter was issued to the workman at the time of his removal from the part time job nor any such notice was given to the workman prior to his removal from the part time service. He further deposed that the working hours of the workman was 9am to 12 noon and there is no power with any medical officer to appoint any part time worker in a government dispensary on behalf of the government and he volunteered that the medical officer used to engage part time services for such worker as per availability and requirement. He admitted as correct that the salary of the workman comes from Govt. of NCT, Delhi. He further deposed that the management has never appointed any sweeper against a permanent post any point of time so far. 14 From all these evidence, one fact is clear rather it is proved that the workman was ID NO.530/11 7/16 working as a part time worker with the management. Now the issue arises as to whether a part time worker is a 'workman' within the definition of section 2 (s) of the I.D. Act or not.
15 Ld.ARM has relied upon certain judgments i.e. i Union of India & Anr. Vs. Arulmozhi Iniarasu & Ors., 2011(3) Apex Court Judgments 517 (SC) Supreme Court of India;
ii Himanshu Kumar Vidyarthi & Ors. Vs. State of Bihar & Ors., 1997 (2) Apex Court Journal 445 (SC) Supreme Court of India;
iii M.P. Housing Board & Anr. Vs. Manoj Shrivastava, (2006) 2 Supreme Court Cases 702;
iv Pinaki Chatterjee & Ors. Vs. Central Administrative Tribunal & Ors., 2009 (2) Apex Court Judgments 014 (SC); and v UPSC Vs. Girish Jayanti Lal Vaghela & Ors., (2006) 2 Supreme Court Cases 482. 16 And Ld.ARM has interalia argued that "Labourer engaged for part time contingent i.e. for doing all types of work even for considerable long duration did not confer any legal right on them for seeking a mandamus for relaxation of age limit." 17 In Himanshu Kumar Vidyarthi & Ors. Vs. State of Bihar's case where workers were appointed in a school on daily basis and their services were terminated by the principle and it was inter alia held that "every department of the government cannot be treated to be an 'industry' and when the appointments are regulated by the statutory rules, the concept of 'industry' to that extent stands excluded and it was further held that since the workers are temporary employees working on daily wages and therefore, their disengagement from service cannot be construed to be a retrenchment under the I.D. Act."
18 Ld.ARM has further relied upon UPSC Vs. Girish Jayanti Lal Vaghela's case ID NO.530/11 8/16 wherein it was inter alia held that "employment under the government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee." 19 He has further argued that in the present matter the appointment of the workman was only for a part time worker and there was no contract of service with the workman, rather it was a contract for service which terminates after a particular work is fulfilled. 20 Ld.ARW on the other hand has relied upon certain judgments i.e. i Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam, Civil Appeal no. 4445 of 2006;
ii General Manager, Telecom, Nagpur & Ors. vs. Naresh Brijlal Charote & Anr., W.P. No.2456 of 1996 (High Court of Bombay: Nagpur Bench);
iii Coal India Ltd. vs. PO Laboru Court3 & Ors., C.W. NO.4004/1992 (High Court of Delhi);
iv Yashwant Singh Yadav vs. State of Rajasthan & Ors., C.W.P. No.1589/1987 (High Court of Rajasthan :Jaipur Bench);
v Kailash Chand Saigal vs. Om Parkash & Ors., WP (C) 436 of 1995 (High Court of Delhi); and vi Simla Devi vs. Presiding Officer & Ors., C.W.P. No.4201/1996 (High Court of Punjab & Haryana).
21 Before coming to the issue of section 2 (s) of the I.D. Act, passing reference with respect to the status of the management is also necessary as in the written statement the management has taken one preliminary objection that the claimant is not a workman within the definition of section 2 (s) of the I.D. Act and the management is not an industry within the provisions of section 2 (k) of the I.D. Act. 22 Ld.ARW has relied upon the judgment titled Lalit Hari Ayurvedic College ID NO.530/11 9/16 Pharmacy vs. Workers Union MANU/SC/0324/1960 wherein it has already been held by the Hon'ble High Court of Bombay that the Government Ayurvedic Aushdhalaya is an industry within the provisions of I.D. Act. Therefore, this issue is no more resintegra rather it has been decided by the Hon'ble High Court that the management is an industry within the provisions of section 2 (k) of the I.D. Act and therefore, this objection is of no avail to the management.
23 Now coming to the judgment titled Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam, Civil Appeal no. 4445 of 2006, the Hon'ble High Supreme Court in this matter after relying upon number of case and after going through the provisions of section 2 (s) and 2 B of the I.D. Act the Hon'ble Supreme Court has inter alia held that "a bare perusal of the two definitions would reveal that their applicability is not limited to only full time employees but all that is required is that the workman claiming continuous service must fulfill the specific conditions amongst others laid down in the two provisions so as to seek the shelter of section 25F."
24 Ld.ARW has relied upon the judgment titled Simla Devi vs. Presiding Officer & Ors. (Supra) in which it was inter alia held that "a plain reading of the definition of 'workman' does not exclude the part time workmen form the definition of 'workman'. Such exclusion cannot be read into it ipso facto except if it is expressly provided or implied that no other interpretation is possible, which is not the case in the case in hand." 25 In the judgment titled Coal India Ltd. vs. PO Labour Court 3 & Ors., it was inter alia held that if a workman has worked for more than 240 days with the management in the preceding 12 months, then irrespective of the fact that he is a part time labourer, his services could not be terminated without complying the provisions of section 25F of the I.D. Act and the court has relied upon the judgments titled State and Ors. Vs K.C. Dutta, K.Ramachandram v State of Kerala; Gurudarshan Singh vs State of Punjab, 1983 (1) SLJ ID NO.530/11 10/16 399, Kanubhai Maru Vs. N.K. Desai 1988 1 LLN 1004, and Yashwant Yadav Vs. State of Rajasthan and Ors. 1987 LLR 96.
26 Ld.ARW has also argued that the judgment as relied upon by the Ld.ARM is not applicable to the present facts and circumstances as the judgment of Himanshu Kumar Vidyarthi & Ors. Vs. State of Bihar & Ors., 1997 (2) Apex Court Journal 445 (SC) Supreme Court of India was not covering the provisions of I.D. Act, rather that judgment was on the basis of relaxation of age with respect to daily wager and with respect to continuity of service.
26 I have gone through judgments as relied upon by both the Ld.AR of the parties and keeping in view the judgments relied upon by the Ld.ARW are directly covering the present issue whereas the judgments relied upon by the Ld.ARM are not applicable to the facts and circumstances of the present case and therefore, it is held that the claimant who is only a part time worker is a 'workman' within the definition of section 2 (s) of the I.D. Act. This issue is disposed off accordingly.
ISSUE NO. 2 27 The onus to prove this issue was upon the workman and he had to prove that his services have been terminated by the management illegally and/or unjustifiably. 28 The workman has claimed that his services have been terminated. The contention of the management is that the workman was only a part time worker and could have been removed by the management at any time as the provisions of the I.D. Act are not applicable to him. The court has already held while deciding the issue no. 1 that the claimant is a 'workman' within the provisions of section 2 (s) of the I.D. Act. The management has not issued any notice upon the workman nor has paid the compensation to him nor it conducted any enquiry against him before removing him from the service and therefore, after going through the evidence which has come on record, it is clear that ID NO.530/11 11/16 services of the workman have been terminated by the management. 29 This fact can also be viewed from yet another angle. The cross examination of WW1 establishes the fact that no legal facilities were being given to the workman as no appointment letter was issued to him, rather an effort was made that the certificate issued by Dr. Mohan Lal Ji is not a proper certificate given by the management to the workman by stating that the said Dr.Mohan Lal Ji had not authority to issue such certificate. The management had gone to the extent that the attendance register filed by the workman Mark A has been stolen by him, that too, without denying the correctness of the same. Meaning thereby the management has not disputed the correctness of the attendance register but only has been suggesting that the attendance register has been stolen from the management's office. Further, MW1 in his cross examination has admitted as correct that no enquiry has been held before terminating the services of the workman nor any notice was given to the workman prior to removal him from the service. Therefore, the court is of the opinion that the workman has been able to prove that his services have been terminated by the management illegally.
RELIEF 30 The court has already held while disposing off the issue no. 1 that the services of the workman have been terminated by the management illegally and as such the workman is entitled to certain relief. The workman in his statement of claim has sought reinstatement. Ld.ARW has argued that in terms of the cross examination of MW1, there is no permanent post of sweepers in all these dispensaries of Government of NCT of Delhi and every time the medical officers are given powers to appoint casual or part time worker for the purpose of doing work of a 'sweeper' and it is happening since long and therefore, the workman is liable to be reinstated and there is a requirement of sweeper in all the dispensaries and the workman is unemployed from the date of his illegal ID NO.530/11 12/16 termination and therefore, he be ordered to be reinstated.
31 Ld.ARM has argued that there is no question of reinstatement and he has relied upon the judgment titled Union of India & Anr. Vs. Arulmozhi Iniarasu & Ors., 2011(3) Apex Court Judgments 517 (SC) Supreme Court of India in which it was inter alia held that "engagement of the workmen as casual labourers even for considerable long duration did not confer any legal right on them for seeking a mandamus for relaxation of age limit or for reinstatement."
32 He has further argued that although the workman has worked for about six years yet he cannot be appointed as a permanent employee of the management and the courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily wagers or adhoc employees merely because such an employee has been continuing in the service for a long time i.e. beyond term of his appointment. He has further argued that it has also been held that such an employee would not be entitled to be absorbed in regular service or made permanent, merely on the strength or such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules." 33 He has further argued that the offer of appointment is purely on temporary basis only and in case the work and conduct of the candidates is not found to be satisfactory, their services will be terminated without any intimation/notice. 34 He has further argued that in the present case, there is no sanctioned post by the government of a permanent sweeper and it now well settled law that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service.
35 He has also relied upon the judgment titled UPSC Vs. Girish Jayanti Lal Vaghela & Ors., (2006) 2 Supreme Court Cases 482 in which it was inter alia held that "the main ID NO.530/11 13/16 object of Article 16 of the Constitution of India is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment or appointment" cover not merely the initial appointment but also other attributes of service like promotion, age of superannuation, etc. The appointment to any post under the State can only be made after making a proper advertisement inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the interse merit of candidates who applied in response to the advertisement made."
36 It was also further held in this judgment that "employment under the government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee"
and he has further argued that the workman cannot be reinstated.
37 I have given my thoughtful considerable to all the arguments and citations relied upon by both the parties. The court is of the opinion that when there is no sanctioned post of sweeper by government of NCT and once the workman has been appointed only on part time basis, he cannot be regularized nor he can be ordered to be reinstated as the government service is definitely much more than a contract and it definitely is a status as well, nor any person can be allowed to keep the workman in such manner nor the such workman gets rights if he has been appointed as a casual or part timer worker. In these circumstances, the court is of the opinion that the contention of Ld.ARM is well found and as such the prayer of reinstatement of the workman cannot be accepted in view of the settled principles of law. However, since the claimant is a 'workman' within the provisions of 2 (s) of the I.D. Act and has been terminated illegally, he is entitled to certain relief and in the present case he is given a lump sum compensation. ID NO.530/11 14/16 38 In coming to the above conclusion, the court also find support from the judgment of Hon'ble Delhi High Court given in the case of Rameshwar Dayal Vs. Presiding Officer Labour Court No. VI, Delhi & Anr. 2007 (3) LLJ 729 (DHC) wherein the Hon'ble Delhi High Court came to the conclusion that "a lumpsum amount of Rs. 50000/ as compensation in lieu of reinstatement and back wages towards full and final settlement of all claims of the workman was an appropriate relief". 39 In Kishan Lal & Ors. Vs. Govt. Of NCT of Delhi & Ors., 2007 VI AD (Delhi) 13, the Hon'ble Delhi High Court held mainly to the effect that "in lieu of grant of relief of reinstatement and full back wages, the management was directed to pay to each of the workmen a lumpsum compensation of Rs.40000/ towards full and final settlement of all claims of each of such workmen".
40 In PGI of Medical Education & Research, Chandigarh Vs. Raj Kumar & Ors., AIR 2001 Supreme Court 479, the Hon'ble Apex Court observed that "a discretion was available to an Industrial Tribunal in the matter of grant of back wages and such discretion was to be exercised in a judicial and judicious manner depending upon the facts and circumstances of each case".
41 In Indian Railway Construction Company Ltd. Vs. Ajay Kumar, AIR 2003 Supreme Court 1843, the Hon'ble Supreme Court of India awarded one time lumpsum compensation to the workman in this case towards full and final settlement of all his claims.
42 On the basis of abovementioned discussion and taking into consideration the overall facts and circumstances of the instant case and in the light of abovementioned authorities, particularly keeping in view the fact that the services of the workman have been terminated by the management illegally and also keeping in view that the workman ID NO.530/11 15/16 is an able bodied person and it cannot be presumed that he would remain without any job for all this period, it would be in the interest of justice that a lump sum compensation is given to the workman in lieu of his reinstatement, back wages which will include all other consequential benefits. Accordingly, the workman is given a lump sum compensation to the extent of Rs.50000/ in lieu of his reinstatement, back wages and all other consequential benefits and the management is directed to pay the lump sum compensation to the extent of Rs.50000/ to the workman within a period of one month from the date of award, failing which this amount shall carry a simple interest @ 8% per annum from the date of award till realization.
A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.
ANNOUNCED IN THE OPEN COURT (S.S. MALHOTRA)
ON 8th. March, 2013 POLCIX/EAST DISTRICT/
KARKARDOOMA COURTS/DELHI
ID NO.530/11 16/16