Delhi District Court
Presiding Officer Labour CourtX vs Bharat on 27 February, 2013
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D. No. : 257/05
DI.
Date of Institution of the case : 15.03.2005
Date on which reserved for Award : 04.02.2013
Date on which Award is passed : 27.02.2013
Unique ID no. 02402C0150042005
Sh.Nallathambi, S/o Sh. Muthan,
C/o Delhi Dehat & Sehari Mazdoor Union (Regd.),
E7/26871, Sultanpuri,
Delhi110041 .................Workman
Versus
(i) The management of
M/s D.T.E.A. Senior Secondary School,
Laxmibai Nagar, New Delhi.
(ii) The management of
M/s Delhi Tamil Education Association (Regd.),
Lodhi Estate, New Delhi110003 ...............Managements
AWARD
The workman Sh.Nallathambi, raised an industrial dispute
regarding the termination of his services by the management of M/s.
D.T.E.A Senior Secondary School. Direct statement of claim was
D.I.D. No. 257/05 Page 1 out of 51
filed by the workman in the court, which was later on amended by
impleading the management no.2 on moving of an application on
behalf of the workman in this regard, on record, vide the relevant
order passed in this regard, on record. In the amended statement of
claim, it is stated by the workman that he had been in the employment
of the respondent/management no.1 since 16.08.1995 as Mali cum
Peon cum Chowkidar on the last drawn salary of Rs. 3,000/ per month instead of about consolidated salary of Rs.5,600/ per month as per Pay Commission Recommendation; that at the time of his joining, he was not given appointment letter by the respondent no.1, under the provisions of Delhi School Education Act of 1973 but his attendance was marked by his own hand on the attendance register of the school; that the respondent no. 2 is a separate and independent identity and the D.T.E.A. Senior Secondary School, Laxmibai Nagar, New Delhi is a separate and independent identity; that the respondent no. 2 is not empowered to interfere in the employment of the services of the employees of the School as per D.S.E.R Act & Rules, 1973; that this school is aided by Delhi Government and all the employees of the Delhi Government Schools of Delhi are getting all the consequential benefits under the provisions of Pay Commission Recommendations and under the D.S.E.R.Act, 1973 and being the employee of this Government aided school, the workman entitled to get all the D.I.D. No. 257/05 Page 2 out of 51 consequential benefits under the provisions of Pay Commission Recommendations and also under the provisions of D.S.E.R. Act, 1973; that the workman worked to the entire satisfaction of the respondent no. 1 but inspite of this his services were terminated by the respondent no. 1 without a cause or notice on 20.10.2004; that the workman always demanded the pay scale as per Pay Commission Recommendations and other facilities and benefits under the provisions of Delhi School Education Act of 1973 but inspite of this giving regular assurance by the respondent no. 1, he did not get the pay scale as per Pay Commission Recommendations, other facilities and benefits under the provisions of Delhi School Education Act of 1973 during his employment; that on his demand, the respondent no. 1 became annoyed and terminated his services without compliance of provisions of Section 25 F of the I.D. Act, 1947; that the termination of the services of the workman by the respondent no. 1 is totally illegal, unjustified and unfair labour practice without compliance of provisions of Section 25 F of the I.D. Act, 1947 and also against the principles of natural justice and fair play and also not under the provisions of Delhi School Education Act & Rules; that the workman served a registered AD & UPC Demand notice upon the respondent no. 1 and its copy to the Deputy Director of Education, Vasant Vihar, Delhi through UPC but inspite of this he was neither reinstated nor D.I.D. No. 257/05 Page 3 out of 51 offered anything so far; that the workman is unemployed since the date of the termination of his services inspite of his best efforts to secure a job, hence he has claimed reinstatement with full back wages as per Pay Commission Recommendations, past arrears of less paid salary since his appointment date to the date of termination of his service with the continuity of services, and all consequential benefits under the provisions of Delhi School Education Act of 1973.
Notice of the filing of statement of claim was sent to the managements. Management no. 1 did not appear in the court despite due service and was proceeded exparte, which order was later on set aside on the moving of an appropriate application by the management no. 1 in this regard, on record, vide the relevant order passed in this regard, on record. However, no written statement has been filed on behalf of the management no. 1, on record.
In the written statement filed by the management no. 2 it has taken the preliminary objections that the present statement of claim filed on behalf of the applicant is not maintainable since the same has been filed by the applicant having concealed the material facts on record and thereby misleading and playing on this Hon'ble Court; that the present statement of claim is liable to be dismissed on this ground only; that the present statement of claim is not maintainable since the present applicant does not come under the D.I.D. No. 257/05 Page 4 out of 51 scope and ambit of Section 2 (h) of the Delhi School Education Act, 1973 wherein the term 'employee' has been defined since the present applicant is not employed and paid and was not under the supervision or control of the respondent no. 1; that the present statement of claim is not maintainable since the present applicant does not come under the scope and ambit of section 2 (s) of Industrial Disputes Act, 1947 since there is no employeremployee relationship existing between the parties; that moreover, the applicant was not employed to do the work in the respondent school by the respondent, but was employed and paid by the respondent no. 2 on adhoc and daily basis and on the basis of stop gap arrangement; that the present statement of claim is not maintainable due to misjoinder and non joinder of parties as stated above; that the appellant has evil designs of his own and he wants to make illegal gains at the expenses of the respondent and the DTEA by abusing the process of law by filing the present statement of claim; that the respondent no.1 is a Government aided school being run by a Society named Delhi Tamil Education Association (hereinafter referred to as 'DTEA') i.e. respondent no. 2, which is registered under the Societies Registration Act, 1960; that the respondent no. 2 is a charitable organization catering to the educational and cultural needs of Tamils in Delhi amongst other and running seven schools including the respondent school in different D.I.D. No. 257/05 Page 5 out of 51 parts of Union Territory of Delhi; that the respondent no. 1 is the recognized school under the Delhi School Education Act, 1973 and is getting 95% of its funds from the Directorate of Education, Delhi and is governed by the provisions of Delhi Schools Education Act, 1973 and the rules framed there under; that the appointment of teaching and non teaching staff employed with the respondent no. 1 is required to be approved by the Directorate of Education (DOE), Delhi as per the rules; that such appointments of staff members of the respondent no. 1 are made by the said DOE and the school management has no authority or role in appointing anybody as staff member of the respondent no. 1; that the funds are released by DOE against the payments of salaries of only such staff members/employees whose appointments are approved by the Directorate of Education (DOE) for the respondent no. 1; that the Directorate of Education, Delhi has laid down certain guidelines in respect of the staff strength of various aided schools including the respondent school; that as per the said guidelines the respondent no. 1 could employ only two full time and permanent Chowkidar in each school including the respondent no. 1; that as per Rule 64(1) (g) of the Delhi School Education Rules, 1973, the respondent no. 1 could fill only such number of posts in the school which have been approved by the Directorate of Education, Delhi; that the said two Chowkidars were employed with the D.I.D. No. 257/05 Page 6 out of 51 respondent no. 1 and hence there was no room for appointment of third permanent Chowkidar with the respondent no. 1; that the above fact is further highlighted from the grant received from the Directorate of Education, Delhi after every three months wherein the salaries of all teaching and non teaching staff employed with the respondent no. 1 are duly recorded; that however, the salary of the applicant being paid by the respondent no. 2 during this period for his services rendered to the respondent school do not find any mention in the said list; that it is thus clear that the applicant was never employee/workman of the respondent nos. 1 & 2 and his appointment was also never approved by the Directorate of Education, Delhi; that in the above context, whenever any need arises because of leave of any regular employee or in any other contingency the Principals of seven schools being run by the respondent used to recommend the hiring of adhoc employees to fill the gaps and the same was done by the respondent no. 2 on temporary basis only; that the said salary of such adhoc and daily employees were paid by the respondent no. 2 from its own funds and resources; that as per the record available the applicant was appointed by respondent no. 2 as a Chowkidar on adhoc and daily basis vide a letter/order dated 02.09.2002 on a stop gap arrangement to work in the DTEA Senior Secondary School, Laxmi Bai Nagar, Delhi i.e. respondent no. 1 only on the condition that his D.I.D. No. 257/05 Page 7 out of 51 services will not be confirmed or considered for regular appointment by the respondents; that the applicant was assigned to work at the school premises of the respondent no. 1 by the respondent no. 2 only whenever the need arises as per the requirement in the respondent no. 1 school on adhoc and daily basis; that however, the salary of the applicant was paid from the funds of respondent no. 2 only and the applicant was under the supervision and control of the respondent no. 2 and the respondent no. 1 is not concerned with the applicant in this regard; that the applicant was subsequently reemployed from time to time on adhoc basis or stop gap arrangement and on daily basis; that however, the applicant stopped reporting to duty for the reason best known to him from 20.10.2004; that letter in this regard was also issued by the Principal of the respondent no. 1 to the Secretary of the respondent no. 2 dated 25.10.2004; that it was always made clear to the applicant that his services were adhoc/temporary in nature and was dependent on the requirement of the respondent from time to time; that the applicant unilaterally or without giving any reason stopped coming to work w.e.f. 20.10.2004; that the applicant did not intimate the respondents about his absence from work nor did he seek any leave; that the respondents were under the impression that the applicant might have got some other job and as a result was not keen to do the work with the respondent no. 2 on adhoc basis; that the D.I.D. No. 257/05 Page 8 out of 51 present statement of claim is not maintainable since the applicant wrongly and maliciously misrepresented and misstated the actual facts and also concealed various material facts and circumstances; that further the applicant is at present working in the Housing Society, situated at 38 Ground Floor, South Extension Part 1, New Delhi and is drawing the handsome salary and has filed the present case only to extract the illegal money from the respondents; that further false and concocted facts stated by the applicant are that the applicant wrongly stated that he had been in the employment of the respondent no. 1 as a Chowkidar; that the applicant further mischievously concealed the material facts that he had been employed by the respondent no. 2 and was working under the supervision and control of the respondent no. 2 only on adhoc and daily basis and under the stop gap arrangement; that the applicant further concealed the fact that he had been employed merely on adhoc and daily basis by the respondent no. 2 from time to time and when such requirement arose; that the applicant further concealed the fact that he was receiving the salary from the respondent no. 2 from their own funds and resources and the respondent had no role and control over him; that the applicant further concealed the fact that his appointment was never approved by the Directorate of Education (DOE) as required under the provisions of the Delhi School Education Act, 1973 to be a permanent employee.
D.I.D. No. 257/05 Page 9 out of 51 On merits, it is denied that the applicant is employed with the respondent no. 1 since 16.08.1995 as Mali cum Peon cum Chowkidar and has last drawn salary of Rs. 3,000/ per month instead of about consolidated salary of Rs. 5,600/ per month as per Pay Commission's Recommendations; that the applicant has last drawn salary of the month of September 2004 @ Rs. 80/ per day since he is employed on the daily basis @ Rs. 80/ per day and his salary is based on the number of days he worked under the respondent no. 2; that there is no question of issuing any appointment letter to the applicant since he is employed by the respondent no. 2 on adhoc and daily basis and his employment was not of continuous nature and was in fact based on stop gap arrangement; that it is denied that the attendance of the applicant was marked in the register of the school; that it is denied that the respondent no. 1 is not separate and independent identity from respondent no. 2; that in fact it is respondent no. 2 who manage and control the functioning of the respondent no. 1; that it is denied that the respondent no. 2 is not empowered to interfere in the employment of the services of the employees of the school; that it is denied that the applicant being the employee of the respondent no. 1 is entitled to get all consequential benefits under the provisions of the Pay Commission Recommendations and also under the provisions of the D.S.E.R Act, 1973; that it is denied that the applicant worked to D.I.D. No. 257/05 Page 10 out of 51 the entire satisfaction of the management but inspite of this, his services were terminated by the management without a Show Cause or notice on 20.10.2004; that there is no need for issuance of any notice or show cause by DTEA since the applicant was employed on adhoc and daily basis; that it is denied that the applicant demanded the pay scale as per the Pay Commission's recommendations and other facilities and benefits under the provisions of Delhi School Education Act, but inspite of this giving regular assurance of the management the applicant did not get pay scale as per the Pay Commission's recommendations, other facilities and benefits under the provisions of Delhi School Education Act, 1973 during employment; that the provisions of Delhi School Education Act, 1973 are not applicable to the applicant since he was not employed by the respondent under the provisions of Delhi School Education Act, 1973; that it is denied that any assurances were given to the applicant by the respondent no. 1; that it is denied that on his demand the management became annoyed and terminated his services without compliance of section 25 F of the Industrial Disputes Act, 1947 and also without making payment of his earned wages; that it is denied that the termination of the services is totally illegal, unjustified and unfair labour practices without compliance of section 25 F of Industrial Disputes Act, 1947 and against the principles of industrial D.I.D. No. 257/05 Page 11 out of 51 disputes and fair play and also under the provisions of Delhi School Education Act and Rules; that it is denied that the applicant served a registered AD and UPC demand notice to the management and its copy to the Deputy Director of Education, Vasant Vihar, Delhi through UPC; that it is denied that that the applicant is unemployed since the date of the termination of his service; that there is no question of the reinstatement of the applicant since he was appointed for the adhoc and daily basis only; that it is denied that the applicant is unemployed since the date of termination inspite of his best efforts to secure a job; that it is denied that the applicant is entitled to get the relief of reinstatement with entire full back wages as per Pay Commission's recommendations, past arrears, if less paid salaries since his appointment date to the date of termination of his services, unpaid earned wages with continuity of service, all consequential benefits under the provisions of pay commission's recommendations and also under the provisions of Delhi School Education Act, 1973. All other allegations are denied. Hence, it is prayed that the statement of claim be dismissed.
In rejoinder to the written statement of the management no. 2, all the averments of the management no. 2 are denied and that of amended statement of claim are reaffirmed by the workman.
On the pleadings of the parties, vide order dated 21.04.2006 D.I.D. No. 257/05 Page 12 out of 51 the following issues were framed: (1)Whether the services of the workman were terminated by the management illegally and unjustifiably?
(2) Whether the present claim is not maintainable?
(3) Whether there is no relationship of employer and employee between the workman and management no. 2?
(4) Relief.
No other issue arose or pressed and the case was adjourned for workman evidence.
In support of his case, workman himself appeared as WW1, tendered his affidavit by way of evidence Ex.WW1/A in his workman evidence. In his affidavit, he has reiterated all the averments of his amended statement of claim. He has relied upon the documents Exts.WW1/1 to WW1/7, on record.
The workman has also led the evidence of Sh. B.L. Meena, Registration Officer, District Employment Exchange, South West, Kirbi Place, Delhi Cantonment as WW2 in his workman evidence, who has deposed that Employment Card No. 2003/06/14492 dated 10.11.2003 was issued in the name of Sh. Nalla Thambi by the Directorate of Employment (DE) South West, Delhi Cantonment; that the same is Ex. WW2/1 (OSR); that as per their record, no job was offered or provided by the Directorate of Employment (DE) South D.I.D. No. 257/05 Page 13 out of 51 West Delhi Cantonment to the above named person.
After examining WW2, evidence on behalf of the workman has been closed , on record.
In support of its defence, the management no. 2 has examined Sh. J Samimalai, Secretary of the management no.2 as MW1, who has tendered his evidence by way of affidavit Ex.MW1/A as also relied upon documents Exts. MW1/1 to MW1/21, on record, which affidavit by way of evidence as also documents were later on replaced with affidavit by way of evidence Ex. MW1/1A as also documents Exts. RW1/1 to RW1/16, on record, on the moving of an appropriate application by the management on. 2 in this regard, on record, vide the relevant order passed in this regard, on record.
The management has also led the evidence of MW2 Ms. Vasantha Rajgopal, Principal of the management no.1 school, who has tendered her affidavit by way of evidence Ex. MW2/A in management evidence, on record.
Thereafter, management evidence has been closed, on record.
Final arguments have been heard. ARs for the parties have also filed written submissions in support of their submissions on behalf of their parties, on record. My findings on the issues are as follows: D.I.D. No. 257/05 Page 14 out of 51 Issue no.1.
It is seen from the record that the workman has appeared in his workman evidence as WW1, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon documents Exts. WW1/1 to WW1/7, on record. In his affidavit by way of evidence he has reiterated the contents of his amended statement of claim to the effect that he had been in the employment of the management since 16.08.1995 as Mali cum Peon cum Chowkidar on the last drawn salary of Rs. 3,000/ per month instead of about consolidated salary of Rs.5,600/ per month as per Pay Commission Recommendation at different places where this D.T.E.A. Senior Secondary School situated; that at the time of his joining, he was not given appointment letter by the respondent no.1, under the provisions of Delhi School Education Act of 1973 but he had several documents to prove his employment with the respondent no. 1; that his attendance was marked by his own hand on the attendance register of the school; that the respondent no. 2 i.e. (M/s Delhi Tamil Education Association (Regd.), Lodhi Estate, New Delhi110003) is a separate and independent identity and the D.T.E.A. Senior Secondary School, Laxmibai Nagar, New Delhi is a separate and independent identity; that the respondent no. 2 is not empowered to interfere in the employment of the services of the employees of the School as per D.I.D. No. 257/05 Page 15 out of 51 D.S.E.R Act & Rules, 1973; that this school is aided by Delhi Government and all the employees of the Delhi Government Schools of Delhi are getting all the consequential benefits under the provisions of Pay Commission Recommendations and under the D.S.E.R Act, 1973 and being the employee of this Government aided school, the workman is entitled to get all the consequential benefits under the provisions of Pay Commission Recommendations and also under the provisions of D.S.E.R Act, 1973; that he worked to the entire satisfaction of the respondent no. 1 but inspite of this his services were terminated by the respondent no. 1 without a cause or notice on 20.10.2004; that he always demanded the Pay Scale as per Pay Commission Recommendations and other facilities and benefits under the provisions of Delhi School Education Act of 1973 but inspite of this giving regular assurance by the respondent no. 1, he did not get the pay scale as per Pay Commission Recommendations, other facilities and benefits under the provisions of Delhi School Education Act of 1973 during his employment; that on his demand, the respondent no. 1 became annoyed and terminated his services without compliance of Section 25 F of the I.D. Act, 1947; that the termination of the services of the workman by the respondent no. 1 is totally illegal, unjustified and unfair labour practice without compliance of Section 25 F of the I.D. Act, 1947 and also against the principles of D.I.D. No. 257/05 Page 16 out of 51 natural justice and fair play and also not under the provisions of Delhi School Education Act & Rules; that the workman served a registered AD & UPC Demand notice upon the respondent no. 1 and its copy to the Deputy Director of Education, Vasant Vihar, Delhi through UPC but inspite of this he was neither reinstated nor offered anything so far; that the workman is unemployed since the date of the termination of his services inspite of his best efforts to secure a job, hence he has claimed reinstatement with full back wages as per pay commission recommendations, past arrears of less paid salary since his appointment date to the date of termination of his service with the continuity of services, and all consequential benefits under the provisions of Pay Commission Recommendations and also under the provisions of Delhi School Education Act of 1973.
Ex. WW1/1 being copies of alleged attendance registers of the management no. 1 for the months of January, 1997 to May, 1998 as also for the months of March 1999, December 1999, February 2000 to December 2001, February 2002 and April 2002; Ex. WW1/2 being copies of alleged duty list/roster of the classIV staff/employees of the management no.1 w.e.f. 01.09.1995, 01.12.1996, 06.01.1998, 09.02.1998 and 01.06.1999; Ex.WW1/3 being copy of representation dated 28.02.2005 of the workman to the management no.1 in respect of his alleged illegal termination of services on its part on 20.10.2004;
D.I.D. No. 257/05 Page 17 out of 51 Ex. WW1/4 being postal registration receipt bearing no. 4855 dated 01.03.2005 in its respect; Exts. WW1/5 and WW1/6 being UPC's dated 01.03.2005 each in its respect (Ex. WW1/5 in respect of the management no.1 and Ex. WW1/6 in respect of the Deputy Director of Education, Vasant Vihar, Delhi) and Ex. WW1/7 being AD card in respect of the representation dated 28.02.2005 of the workman to the management no. 1 (Ex. WW1/3) of the management no. 1 dated 02.03.2005.
This witness has been cross examined at length on behalf of the management in workman evidence, in which he has deposed that it was correct that he never received any appointment letter from the defendants; that it was wrong to suggest that the payments towards his wages were never paid by the school but paid by the DTEA; that it was wrong to suggest that he was working with DTEA on adhoc/daily wages basis; that he did not know that as per the guidelines of Directorate of Education DTEA could have employed only two permanent Chowkidars; that it was wrong to suggest that at the end of the month he was paid his wages on the basis of the number of working days on which he had worked; that it was wrong to suggest that he was paid different amounts of wages like Rs. 2,800/, sometimes Rs. 2,900/, sometimes Rs. 3,200/ and sometimes Rs. 3,000/ per month on the basis of the number of working days on D.I.D. No. 257/05 Page 18 out of 51 which he had put his duty; that he also used to sign on the receipt for the amount of the wages received by him; that he had got the photocopy of Ex. WW1/1 from the office; that the office people used to send him for getting the attendance register photocopy and during that process he had kept one copy of his own; that it was correct that attendance was not kept in his custody while he was working with the school; that it was wrong to suggest that Ex. WW1/1 has been manipulated and fabricated by him and was not a true copy of the attendance register maintained by the school; that it was wrong to suggest that Ex. WW1/2 was never sent to him by the school; that he did not remember where was the original of Ex. WW1/2. Vol. It might be lying at his home; that it was wrong to suggest that Ex.WW1/3 was never sent by him to the school; that it was correct that no legal notice was sent to DTEA; that it was wrong to suggest that Ex.WW1/3 was never received by the school; that it was wrong to suggest that Ex. WW1/4 to Ex. WW1/7 were forged and fabricated; that it was wrong to suggest that he had stopped reporting to duty on his own w.e.f. 20.10.2004; that it was wrong to suggest that at the time when he was appointed on adhoc basis in the school, he was told that he would not be employed on permanent basis; that it was wrong to suggest that he was kept on adhoc basis in the school to work @ Rs. 80/ per day; that it was wrong to suggest that he was never paid a D.I.D. No. 257/05 Page 19 out of 51 consolidated salary of Rs. 3,000/ per month; that it was wrong to suggest that he was not a regular employee of the defendants; that it was wrong to suggest that his services were never terminated by the respondents and he had left the services of his own; that it was wrong to suggest that his claim was false; that he had not been working anywhere; that it was wrong to suggest that he was gainfully employed and was concealing the said fact; that it was wrong to suggest that he had deposed falsely.
The workman has also led the evidence of WW2 Sh. B.L. Meena, Registration Officer, District Employment Exchange, South West, Kirbi Place, Delhi Cantonment in his workman evidence, who has stated that Employment Card No. 2003/06/14492 dated 10.11.2003 was issued in the name of Sh. Nalla Thambi by the Directorate of Employment (DE) South West, Delhi Cantonment and the same is Ex. WW2/1 (OSR); that as per their record, no job was offered or provided by the Directorate of Employment (DE) South West Delhi Cantonment to the above named person.
This witness has been cross examined on behalf of the management, in which he has deposed that he was working in the employment exchange for the last three years; that Ex. WW2/1 does not bear his signature and he had not issued the same. Vol.It had been issued by Sh. O.P Madan, Assistant Employment Officer; that he did D.I.D. No. 257/05 Page 20 out of 51 not have any personal knowledge regarding the information submitted by the workman to them; that it was correct that he was deposing as per record only; that he did not have any knowledge if Sh. Nalla Thambi was working in a private job; that it was wrong to suggest that he had deposed falsely.
Thereafter, workman evidence has been closed, on record. In management evidence, the management has led the evidence of Sh. J Samimalai, Secretary of the management no.2, who has appeared in management evidence as MW1, tendered his affidavit by way of evidence Ex. MW1/A as also relied upon documents Exts. MW1/1 to MW1/21, on record. However, thereafter, an application has been moved on behalf of the management for replacing the documents filed in the examination in chief of the MW1 since they allegedly did not pertain to the management with some other documents, which has been allowed vide order dated 25.03.2008 passed in this regard, on record, and the matter renotified for the further examination in chief of the MW1, his cross examination and remaining management evidence on the date fixed. Thereafter, in his further examination in chief in management evidence, the MW1 has filed his additional affidavit by way of evidence Ex. MW1/A1 as also relied upon documents Exts. RW1/1 to RW1/16, on record. In his affidavit by way of evidence Ex. MW1/A1, he has deposed that he D.I.D. No. 257/05 Page 21 out of 51 was the Secretary of Delhi Tamil Education Association (hereinafter referred to as 'DTEA") which is a registered society under the Societies Registration Act; that the said society is running the respondent school; that the MW1 was authorized to depose the affidavit by way of evidence Ex. MW1/1A by virtue of Memorandum of Association & Rules of DTEA; that the respondent is a Government aided school being run by DTEA; that DTEA is a charitable organization catering to the educational and cultural needs of Tamils in Delhi amongst other and running seven schools including the respondent school in different part of Union Territory of Delhi; that the respondent is the recognized school under the Delhi School Education Act, 1973 and is getting 95% of its funds from the Directorate of Education, Delhi and is governed by the provisions of Delhi Schools Education Act, 1973 and the rules framed thereunder; that the appointment of teaching and non teaching staff employed with the respondent school is required to be approved by the Directorate of Education (DOE), Delhi, as per the rules; that such appointments of staff members of the respondent school were made by the said DOE and the school management has no authority or role in appointing anybody as staff member of the respondent school; that the funds were released by DOE against the payments of salaries of only such staff members/employees whose appointments were D.I.D. No. 257/05 Page 22 out of 51 approved by the Directorate of Education (DOE) for the respondent school; that the Directorate of Education, Delhi has laid down certain guidelines in respect of the staff strength of various aided schools including the respondent school; that as per the said guidelines the DTEA could employ only two permanent Chowkidar in each school including the respondent school; that as per Rule 64(1) (g) of the Delhi School Education Rules, 1973, the DTEA could fill only such number of posts in the respondent school which have been approved by the Directorate of Education, Delhi; that as per the aforesaid guidelines the respondent school could employ two Chowkidars in the respondent school; that the said Chaukidars were already employed with the respondent school and hence, there was no room for appointment of another permanent Chaukidar with respondent school; that the sanction letters received from the Directorate of Education regarding post fixation for the year 19992000, 20012002 and 20032004 for the concerned school show that only two Chaukidars could have been employed by the respondent; that the Directorate of Education takes no responsibility of regularizing the appointment of adhoc employees which are appointed by the respondent; that thus under no circumstances, the workman is entitled to reinstatement as his appointment would never be approved by the Directorate of Education; that the above fact is further highlighted from the grant D.I.D. No. 257/05 Page 23 out of 51 received by the DTEA from the Directorate of Education, Delhi after every three months wherein the salaries of all teaching and non teaching staff employed with the respondent are duly recorded; that however, the salary of the applicant being paid during this period for his services rendered to the respondent school does not find any mention in the said list; that from the details of grant received from the Directorate of Education, Delhi for the year 20022003 and 20032004 along with the list of all teaching and non teaching staff against whose salaries the grant was received by the DTEA, it is thus clear that the applicant was never employee/workman of the respondent school and his appointment was also never approved by the Directorate of Education, Delhi; that in the above context, whenever any need arises because of leave of any regular employee or in any other contingency the Principals of seven schools being run by the DTEA used to recommend the hiring of adhoc employees to fill the gaps and the same was done by the DTEA on temporary basis only; that the said salary of such adhoc and daily employees were paid by the DTEA from its own funds; that as per the record available the applicant was appointed by DTEA as an adhoc Chowkidar in DTEA Senior Secondary School, Laxmi Bai Nagar, New Delhi on a stop gap arrangement on purely adhoc basis; that it was also stated that adhoc services so rendered by him would not confer any right for D.I.D. No. 257/05 Page 24 out of 51 regular appointment nor the said adhoc services rendered would count for any other purpose; that the applicant was assigned to work at the school premises of the respondent by the DTEA only whenever the need arises as per the requirement in the respondent school on adhoc basis; that various letters issued by DTEA in this regard dated 29.11.2002, 30.12.2002, 01.03.2003, 25.03.2003, 03.04.2003, 30.04.2003, 28.07.2003, 14.07.2003 are filed as exhibits, on record; that the salary of the applicant was paid from the funds of DTEA only and the applicant was under the supervision and control of the said DTEA and the respondent is not concerned with the applicant in this regard; that the payment made to the workman from time to time vide various bills are filed as exhibits, on record; that thereafter, the applicant was again reemployed on adhoc basis thereafter by DTEA based on the requirement of the respondent school; that it was always made clear to the applicant that his services were adhoc/temporary in nature and was dependent on the requirement of the respondent from time to time; that the applicant unilaterally or without giving any reason stopped coming to work w.e.f. 01.07.2004 and was paid his entire salary; that the applicant did not intimate the respondent or the DTEA about his absence from work nor did he seek any leave; that the respondent or the DTEA were under the impression that the applicant might have got some other job and as a result was not keen D.I.D. No. 257/05 Page 25 out of 51 to do the work with the respondent under the DTEA on adhoc basis; that the present statement of claim is not maintainable since the applicant wrongly and maliciously misrepresented and misstated the actual facts and also concealed various material facts and circumstances; that the applicant wrongly stated that he had been in the employment of the respondent as a Chowkidar; that the applicant further mischievously concealed the material facts that he had been employed by the DTEA and was working under the supervision and control of the DTEA and not by the respondent on adhoc and daily basis and under the stop gap arrangement; that the applicant further concealed the fact that he had been employed merely on adhoc and daily basis by the DTEA from time to time and as and when such requirement arose; that the applicant further concealed the fact that he was receiving the salary from the DTEA from their own funds and resources and the respondent had no role and control over him; that the applicant further concealed the fact that his appointment was never approved by the Directorate of Education (DOE) as required under the provisions of the Delhi School Education Act, 1973 to be a permanent employee of the respondent school under the rules; that the last drawn salary and overtime allowance of applicant was @ Rs. 80/ per day (Rs. 10 per hour) to be calculated on the basis of number of days he worked; that the applicant has wrongly stated that he was D.I.D. No. 257/05 Page 26 out of 51 employed with the respondent and has lastly drawn salary of Rs. 2,400/ per month; that there was no question of his employment being of continuous nature and was in fact adhoc appointment based on stop gap arrangement; that the provisions of Delhi School Education Act, 1973 are not applicable to the applicant as he was not employed by the respondent under the provisions of Delhi School Education Act, 1973; that hence, the applicant is not a workman; that in view of this, there was no need for issuance of any notice or show cause by DTEA since the applicant was appointed on adhoc basis; that the respondent never received any registered AD and UPC demand notice as alleged by the applicant; that it is further disputed that the applicant is unemployed since the date of termination of his services, hence there is no question of termination or reinstatement of the applicant since the applicant was appointed on adhoc and daily basis; that the applicant was not entitled to the relief claimed by him as he is not a workman as per provisions of Industrial Disputes Act.
Ex. RW1/1 being copy of the Memorandum of Association & Rules of the management no. 2; Exts. RW1/2, RW1/3, again RW1/3 and RW1/4 being copies of letters dated 20.05.2000, 20.07.2002, 13.09.2004 and 28.07.2004 of the Office of the Deputy Director of Education, Directorate of Education, New Delhi to the management respectively; Ex. RW1/5 Colly being copies of the attendance D.I.D. No. 257/05 Page 27 out of 51 registers of the management no. 1 school in respect of its employees/workmen for the period January, 1997 to February, 2002 from which it is seen that the name of the workman viz. Sh. Nallathambi is figuring on the same along with the duty list/roster of the management no. 1 school in respect of its class IV staff/employees w.e.f. 01.09.1995 which is also including the name of the workman viz. Sh. Nallathambi on the same; Ex. RW1/6 being the copy of GrantInAid Form A of the management no. 1 school for the year 20022003; Ex. RW1/7 being copy of communication dated 19.12.2002 of the Government of National Capital Territory of Delhi, Office of The Deputy Director of Education, District South West, C4 Vasant Vihar, (Accounts Branch) regarding advance maintenance recurring grant for the quarterly for the year 20022003 in respect of the management no. 1 school along with the list of the employees of the management no. 1 school as also similar grant of the said authority to the management no. 1 school for the year 20032004 in respect of salaries of the employees of the management no. 1 school for the said year and the list of such employees of the management no. 1 school; Exts. RW1/8 to RW1/15 being letters dated November 29, 2002, 30.12.2002, 01.03.2003, 25.03.2003, 03.04.2003, 30.04.2003, 28.06.2003, 14.07.2003 of the management no. 2 to the management no. 1 in respect of certain employees/workmen including D.I.D. No. 257/05 Page 28 out of 51 the workman and Ex. RW1/16 Colly being copies of the payment of salary receipts to the workman amongst others for the months of January to March, 2004 of the management no. 1 school, from which it is seen that the same has been disbursed by the management no. 1 school to the workman amongst others for the said months bearing the signature and seal of the Principal of the management no.1 school on the same.
In his cross examination on behalf of the workman in management evidence, the MW1 has deposed that it was correct that he was the Secretary of DTEA Society; that he was an employee in DTEA Senior Secondary School; that it was correct that the school was being run by the Managing Committee and not by Society; that it was correct that the entire problems of the school were being tackled by the Managing Committee and not by the Society; that it was correct that the byelaws of the Society are separate and the Society is a distinct entity; that it was correct that all the funds given to the school come in the name of the Managing Committee and not in the name of Society; that it was correct that all the schools run by DTEA were controlled by Delhi School Education Act; that it was correct that as per this Act, there was an appointing authority; that it was wrong to suggest that the said appointing authority appointed the workman; that the workman was appointed by the DTEA Society as D.I.D. No. 257/05 Page 29 out of 51 an adhoc Chowkidar in DTEA Senior Secondary on a stop gap arrangement on purely adhoc basis; that the documents in this regard are Ex. RW1/8 to Ex. RW1/15; that these documents do not bear the signatures of the workman either as receiving of the same or otherwise; that it was wrong to suggest that all these documents were forged and fabricated by him to produce in the court; that it was wrong to suggest that these documents were not proof of the fact that the workman was appointed by virtue of these documents; that it was correct that these documents pertain to the year after 2002; that he had not filed any document of this workman regarding his employment prior to November, 2002; that the record of the workman regarding his employment was maintained in the Society Office; that however, no record regarding the employment of the workman prior to November, 2002 was located in their office; that he along with junior clerks maintain the employment record of all the employees; that it was wrong to suggest that he had not tried to locate the record of the employment of the workman prior to 2002; that it was wrong to suggest that since the workman was an employee of the school his service record was available only in the school and not with the society; that the workman was appointed vide order dated 30.12.2002 Ex. RW1/9; that however, no separate appointment letter was issued to the workman by the society except this order; that in this document D.I.D. No. 257/05 Page 30 out of 51 Ex. RW1/9 as well as in other documents the address these orders were sent to the workman; that it was wrong to suggest that the workman was the permanent employee and all these orders showing him as an adhoc employee or daily wager are forged and fabricated; that the society is authorized under its bye laws to send any of its employee to work in any school; that after going through the byelaws the witness was not in a position to point out any such byelaws or any other resolution by which society is authorized to depute any of its employee to work in any school; that it was correct that seven schools were running under the society; that it was correct that every school is having a separate recognition number from the Directorate of Education; that it was correct that these schools were affiliated to CBSE; that it was correct that the society is registered under Society's Registration Act, 1860 and the schools are recognized under the Delhi School Education Act, 1973; that it was correct that the society and the school are having different identities; that it was correct that he had made a statement before Sh.N.K. Kaushik, POLC in I.D.No. 244/04, the certified copy of which is Ex. MW1/W1; that it was correct that in the said case Smt. K. Anuradha, Principal also made the statement, certified copy of which is Ex. MW1/W2; that no demand notice of the workman was received by the management; that it was correct that Ex. WW1/3, Ex. WW1/4, Ex. WW1/5 and Ex.
D.I.D. No. 257/05 Page 31 out of 51 WW1/7 bear the correct address of the management; that it was wrong to suggest that the AD card was received by the school; that he was not present in the school when the postman had visited the school along with the registry; that it was correct that he had no personal knowledge about the service of this AD card upon the school; that the society is not the appointing authority of the employees of the school; that during the tenure of employment of workman, there were no complaints against him; that no notice was sent to the workman by the school or by the society when he was not coming on duty; that it was correct that the Principal of the school maintains the attendance record of an employee working there; that the Managing Committee of the school is separate from the Managing Committee of the society; that it was correct that the Principal is the authorized person to look after the day to day affairs and administration of the school; that it was correct that the 95% grant coming to the school goes to the school only and not to the society.
Que: Do you have any record to show payment of any salary to the workman by the society?
Ans: The said document is Ex. RW1/19. It is correct that on the top of this document the name of the school is mentioned and not that of society. It is also correct that this document bear the signatures and stamp of the Principal of the school and not of the society.
D.I.D. No. 257/05 Page 32 out of 51 that it was wrong to suggest that the workman was always paid salary by the school under the signatures of the Principal only; that it was further wrong to suggest that the society had never paid any salary to the claimant; that it was correct that all the receipts of the salary placed on record are issued under the signature of the Principal and from the school only; that it was correct that there is no document filed on record which can show the payment of salary to the workman by the society; that it was correct that the workman had worked from 16.08.1995 till 20.10.2004; that it was correct that during this entire period the workman had worked only in the school; that it was wrong to suggest that the workman was terminated from the school by the Principal; that it was correct that no compensation or notice pay was given to the workman; that he could not tell the number of employees which were appointed during the period 2004 to 2008; that it was correct that the employees were appointed during this period; that no letter was written to the workman by the management for his reemployment; that it was correct that document Ex. WW1/1 (running in 41 pages) is the attendance record of the school; that it was correct that document Ex. WW1/2 (running in five pages) belongs to the school; that it was wrong to suggest that the AD of the demand notice was received by the school or that he was deposing falsely on this point; that he did not remember if he had been authorized by the D.I.D. No. 257/05 Page 33 out of 51 school to appear on its behalf in this case or to file the written statement; that no such authorization was there on record; that no authorization or resolution in his favour by the Managing Committee of the society placed on record wherein he was authorized to appear on behalf of society in this case. Vol. he was authorized to represent the Society in view of clause 43 of the Memorandum of Association of the Society Ex. MW1/1; that it was wrong to suggest that the workman was monthly salaried paid employee and not a daily wager; that it was correct that on Ex. MW1/19, which is consisting of three pages, it is not mentioned that the workman was daily wager; that it was wrong to suggest that the workman was the permanent employee of the school; that it was wrong to suggest that he was deposing falsely.
The management has further led the evidence of Ms. Vasantha Rajgopal, Principal of the management no. 1 school as MW2 in management evidence, in which she has tendered her affidavit by way of evidence Ex. MW2/A. In her affidavit by way of evidence Ex. MW2/A, she has deposed that she was the Principal of the respondent school and well aware of the facts and circumstances of the case and hence was competent to depose the affidavit Ex.MW2/A; that the respondent is a government aided school being run by DTEA; that DTEA is a charitable organization catering to the educational and D.I.D. No. 257/05 Page 34 out of 51 cultural needs of Tamils in Delhi amongst other and running seven schools including the respondent school in different part of Union Territory of Delhi; that the respondent is a recognized school under the Delhi School Education Act, 1973 and is getting 95% of its funds from the Directorate of Education, Delhi and is governed by the provisions of Delhi Schools Education Act, 1973 and the rules framed thereunder; that the appointment of teaching and non teaching staff employed with the respondent school is required to be approved by the Directorate of Education (DOE), Delhi as per the rules; that such appointments of staff members of the respondent school are made by the said DOE and the school management has no authority or role in appointing anybody as staff member of the respondent school; that the funds are released by DOE against the payments or salaries of only such staff members/employees whose appointments are approved by the Directorate of Education (DOE) for the respondent school; that the respondent maintains an Attendance Register for recording the attendance of teaching and non teaching staff who were employed by the respondent school; that the name of the applicant, Nallathambi, who alleged himself to be the workman/employee of the respondent school does not appear in the said attendance register; that this clearly demonstrates that the workman was never an employee of the respondent school; that the workman was never an employee of D.I.D. No. 257/05 Page 35 out of 51 the respondent school and was an adhoc employment of DTEA which is a society under the provisions of Societies Registration Act; that the workman unilaterally or without giving any reason stopped coming to work w.e.f. 20.10.2004; that the workman did not intimate the respondent about his absence from work nor did he seek any leave; that the respondent was under the impression that the workman might have got some other job and as a result was not keen to do the work with the respondent under the DTEA on adhoc basis.
In her cross examination on behalf of the workman in management evidence, she has deposed that she remained posted as Principal in DTEA Senior Secondary School, Laxmi Bai Nagar from December, 2005 to June, 2006, again on September, 2007 till date; that she came to know only through her associates that the workman had left the job of the school of his own volition; that the name of those associates were Mr. Samimalai; that it was correct that Mr. Samimalai was not posted in this school nor sits there; that she could not say as to from where the workman had left the job, either from association or from the school; that at the time of appointment of the workman, she was working in DTEA School, Lodhi Estate; that she was not present at the time of appointment of the workman by the society; that she did not have any proof that the workman was appointed by the society; that she did not know if the workman had D.I.D. No. 257/05 Page 36 out of 51 continuously worked with the school from16.08.1995 to 20.10.2004; that it was correct that she was not having any proof to the effect that the workman had left the job on 20.10.2004; that she could not admit or deny the suggestion due to want of knowledge that the workman was terminated by the school on 20.10.2004; that it was correct that she had no personal knowledge about the workman i.e. about his appointment or his tenure of service or his termination; that she had no idea if the workman had ever worked with the society leaving the work of the school; that it was correct that the employees of society and the school cannot be transferred interse; that the copy of the register Ex. WW1/1 is not the register of attendance maintained by the school for its employees. Vol. For the adhoc employees of the society, the attendance register was maintained by the society itself and as a goodwill gesture, the school gets the same signed from the employee; that it was wrong to suggest that this register was maintained by the staff of the school; that it was correct that all the persons mentioned in Ex. WW1/1 were working in the school; that she could not identify the signatures of the Principal on document Ex.WW1/2; that she did not knew who was working as Principal at R.K. Puram School on 01.09.1995; that it was wrong to suggest that she was intentionally concealing the name of Principal; that it was correct that the day to day administration over the staff working in the D.I.D. No. 257/05 Page 37 out of 51 school was done by the Principal; that she was not aware about the byelaws of the society but usually the society appoints the employees and sends them to work in the school as adhoc employees; that it was wrong to suggest that the society was not authorized to appoint a person for the school; that it was wrong to suggest that the workman was the employee of the school; that the workman must have been working during his entire tenure of service in the school; that the documents Exts. WW1/3 (demand notice) to WW1/7 bear the correct address of the school; that she was not aware whether this document was received in the school or not as she was not posted there at that time; that she did not know the rates of salary paid to the daily wagers at that time. Vol. The adhoc employees appointed in the school were treated as daily wager; that the document Ex. MW1/19 Colly as exhibited earlier on 17.04.2007 appears to have been issued by the school; that she had read her affidavit before signing; that she did not know if the management no. 1 had not appointed any counsel in this matter nor filed any written statement; that she had been sent to depose as a witness in this case by the society; that she was an employee of the school and her appointment was approved by the Director of Education and not society; that it was wrong to suggest that she was deposing falsely at the instance of the association.
Thereafter, management evidence has been closed, on record.
D.I.D. No. 257/05 Page 38 out of 51 It is seen from the record that the workman has alleged in no uncertain terms by way of his statement of claim as also by way of his affidavit by way of evidence Ex. WW1/A that he had been in the employment of the management no.1 school since 16.08.1995 as Mali cum Peon cum Chowkidar on the last drawn salary of Rs. 3,000/ per month instead of about consolidated salary of Rs.5,600/ per month as per Pay Commission Recommendation and that his services had been terminated illegally on the part of the management without any notice or show cause on 20.10.2004.
It is further seen from the record that the workman has relied upon copies of attendance registers of the management no. 1 school w.e.f. January, 1997 till May 1998, March 1999, December 1999, February 2000 to April 2002 Ex. WW1/1 Colly along with copies of the duty list/roster of the management no. 1 school in respect of its class IV staff including the workman w.e.f. 01.09.1995, 01.12.1996, 06.01.1998, 09.02.1998 and 01.06.1999 Ex. WW1/2 Colly in support of his being in the employment of the management no. 1 school for the period alleged, as above said, which I further find from the record are the same documents which have been got exhibited by the management in its management evidence as Ex. RW1/5 Colly viz. copies of attendance registers of the management no. 1 school for the months of January 1997 till May 1998, March 1999, December 1999, D.I.D. No. 257/05 Page 39 out of 51 February 2000 to April 2002 including the duty list/roster of the management no. 1 school in respect of its class IV employees including the workman for the period, as above said.
It is further seen from the record that no written statement has been filed by the management no. 1 school to the statement of claim of the workman in respect of his allegations qua his employment with the management no. 1 school against the management no. 1 as mentioned therein , as above said, and accordingly, the contents of the statement of claim of the workman against the management no. 1 school in respect of his allegations against it of being in the employment of the management no. 1 school w.e.f. the date alleged till the date his services are alleged to have been terminated on the part of the management no. 1 school on the last drawn salary as alleged are deemed to have been admitted by the management no. 1 school, on record.
It is further seen from the record that vide Ex. RW1/16 Colly, which are the photocopies of payment of salary receipts of the management no. 1 school in respect of the workman Sh. Nallathamabi along with others for the months of January 2004, February 2004 and March 2004 filed by the management in its management evidence, on record, it is evident that the salary was being paid to the workman for his services/employment by the management no. 1 school and not by D.I.D. No. 257/05 Page 40 out of 51 the management no. 2 as alleged on behalf of the managements. It is further seen from the record that it has been admitted by the MW1 Sh. J. Samimalai, Secretary of the management no. 2 in his cross examination on behalf of the workman in management evidence that it is correct that all the receipts of the salary placed on record are issued under the signature of the Principal and from the school only; that it is correct that there is no document filed on record which can show the payment of salary to the workman by the society; that it is correct that the workman had worked from 16.08.1995 till 20.10.2004; that it is correct that during this entire period the workman had worked only in the school as also by way of an answer to a question put to him in his cross examination on behalf of the workman in management evidence viz. Que: Do you have any record to show payment of any salary to the workman by the society?
Ans: The said document is Ex. RW1/19. It is correct that on the top of this document the name of the school is mentioned and not that of the society. It is also correct that this document bears the signatures and stamp of the Principal of the school and not of the society. (emphasis supplied).
It is further seen from the record that by virtue of the admission D.I.D. No. 257/05 Page 41 out of 51 on behalf of the management no.2 that the workman had worked from 16.08.1995 till 20.10.2004 and that too for the said entire period only with the management no.1 school as has been alleged by the workman in his statement of claim as also in his affidavit by way of evidence Ex. WW1/A in his workman evidence, on record, with no document having been filed on the part of the managements, on record, showing the appointment of the workman in his employment with the management no. 1 school on the part of the management no. 2 society w.e.f. 16.08.1995 till November 29, 2002 (only thereafter vide Exts. RW1/8 to RW1/15 as alleged by the management no. 2 society) it cannot be held that the workman had been initially appointed in his appointment with the management no. 1 school by the management no. 2 society and accordingly, is the employee of the management no. 2 society, as alleged by it. I further find that in view of my above observation the documents Exts.RW1/8 to RW1/15 of the management no. 2 stand negatived on record.
Vide citation (2011) 1 SCC 635 General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon Appellant Vs. Bharat Lal and Anr. Respondents, it has been held that there are two well recognized tests to find out whether the contract labourers are the direct employees of the principal employer viz. (i). Whether the principal employer pays the salary instead of the contractor and (ii) D.I.D. No. 257/05 Page 42 out of 51 Whether the principal employer controls and supervises the work of the employee. It has further been held that the onus is upon the employee to aver and prove that he was paid salary directly by the principal employer and not by the contractor.
I find from the record that the twin test of payment of wages to the employee as also control and supervision of his work on the part of the employer is satisfied in the instant dispute vide Ex. WW1/1 Colly which are the attendance registers of the management no.1 school in respect of its employees including the workman for the period January, 1997 till April, 2002 (also Ex. RW1/5 Colly) along with the duty list/roster of the management no. 1 school in respect of its class IV staff/employees including the workman w.e.f. 01.09.1995, 01.12.1996, 06.01.1998, 09.02.1998 and 01.06.1999 Ex.WW1/2 Colly, which have been admitted on the part of the management no.2 when in the cross examination of MW1 Sh. J. Samimalai, Secretary of the management no.2 society on behalf of the workman in management evidence he states that "it is correct that document Ex.WW1/1 (running in 41 pages) is the attendance record of the school. It is correct that document Ex.WW1/2 (running in five pages) belongs to the school" as also document Ex. RW1/16 Colly (Ex. MW1/19 Colly) which are the payment of wages receipts of the management no. 1 school in respect of the workman and other D.I.D. No. 257/05 Page 43 out of 51 employees for the months of January 2004 to March 2004, which have been admitted on the part of the management no. 2 society in the cross examination of its MW1 on behalf of the workman in management evidence to bearing the name of the school on the top of the documents as also the signatures and stamp of the principal of the school and not of the society on the same, as above said, with the further admission on the part of the management no. 2 society in the cross examination of its MW1 on behalf of the workman in management evidence to the effect that it is correct that there is no document filed on record which can show the payment of salary to the workman by the society, qua the workman and the management no.1 school and accordingly in view of the above evidence, on record, the workman is held to be an employee of the management no.1 school as alleged by him.
It is further seen from the record that it has been alleged by the managements by way of Ex.MW1/21 as also by way of the affidavit by way of evidence of Ms. Vasantha Rajgopal, Principal of the management no. 1 school Ex.MW2/A that the workman unilaterally or without giving any reason stopped coming to work with the management no.1 school w.e.f. 20.10.2004; that the workman did not intimate the respondent/management about his absence from work nor did he seek any leave. However, no evidence in this regard has D.I.D. No. 257/05 Page 44 out of 51 been placed, on record, by the managements in substantiation of their said allegation against the workman so much so that it has not even been alleged on the part of the managements, on record, that any enquiry was held in respect of the alleged absence of the workman from his duties with the management no.1 w.e.f. the date alleged which was mandatorily required to be held on the part of the management no.1 in his respect in view of the settled position in law to the effect that abandonment being not a temporary absence but being a total and complete giving up of duties so as to indicate an intention not to resume the same (emphasis supplied) as held by the Hon'ble Supreme Court of India vide citation AIR 1979 SC 582; G.T. LAD and others, Appellants vs. M/s Chemical and Fibres of India Ltd., Respondent as also abandonment being admittedly also a facet of misconduct necessitating holding of an enquiry as held by the Hon'ble Supreme Court of India vide citation MANU/SC/0529/1993 (JT 1993 (3) SC 617) D.K. Yadav Appellant vs. J.M.A. Industries Ltd. Respondent as also by the Hon'ble High Court of Delhi vide citations 2010 (117) DRJ 433 Anil Chuttani, Appellant vs. The Oil and Natural Gas Corporation, Respondent; 2010 LLR 312 Hindustan Associates Engineers Pvt. Ltd. vs. Sh. K.K. Aggarwal; MANU/DE/0541/2005 Shakuntla's Export House (P) Ltd. vs. D.I.D. No. 257/05 Page 45 out of 51 Secretary (Labour); Mount Carmel School vs. The Presiding Officer, Labour Court NoX, Karkardooma Courts, Delhi and Others, which factum viz. holding of an enquiry into the alleged absence of the workman from his duties with the management no.1, as above said, I find from the record has neither even been averred by the managements in the instant proceedings nor proved in the same, on record.
In view of my above observation, I thus find that the managements have not been able to discharge the onus of proving the factum of the alleged abandonment of the services of the management no.1 on the part of the workman w.e.f. the date alleged which admittedly was upon the management no.1 and accordingly it is held that the workman has been able to prove the factum of termination of his services on the part of the management no.1 on 20.10.2004 as alleged by him.
Admittedly, by virtue of the length of service of the workman as classIV staff/employee/chowkidar with the management no.1 school w.e.f. 16.08.1995 to 20.10.2004 as alleged by him in his statement of claim and affidavit by way of evidence Ex.WW1/A in workman evidence having been admitted on the part of the managements, in view of the management no.1 school having not filed any written statement in rebuttal to the statement of claim of the D.I.D. No. 257/05 Page 46 out of 51 workman to the said effect and the MW1 Sh. J.Samimalai, Secretary of the management no.2 having admitted in his cross examination on behalf of the workman in management evidence that it was correct that the society is registered under Societies Registration Act, 1860 and the schools are recognised under the Delhi School Education Act, 1973; that it was correct that the society and the school are having different identities;........that the society are not the appointing authority of the employees of the school;.........that no notice was sent to the workman by the school or by the society when he was not coming on duty;........that the managing committee of the school is separate from the managing committee of the society;......that it was correct that the workman had worked from 16.08.1995 till 20.10.2004; that it was correct that during this entire period the workman had worked only in the school as also the MW2 Ms.Vasantha Rajgopal, Principal of the management no.1 school having deposed in her cross examination on behalf of the workman in management evidence that I do not have any proof that the workman was appointed by the society;...... that it was correct that I am not having any proof to the effect that the workman had left the job on 20.10.2004;......that I have no idea if the workman had ever worked with the society leaving the work of the school; that it was D.I.D. No. 257/05 Page 47 out of 51 correct that the employees of society and the school cannot be transferred interse;..... that it was correct that all the persons mentioned in Ex. WW1/1 were working in the school;.....that the workman must have been working during his entire tenure of service in the school as also in view of my finding herein above that the workman was an employee of the management no.1 school, it is evident that the workman had completed 240 days of service with the management no.1 school in the year preceding the date of his alleged termination of service on its part viz. 20.10.2004 as required under the provisions of Section 25B of the Industrial Disputes Act, 1947 (as amended upto date) and was accordingly entitled to the protection of the provisions of Section 25F of the Industrial Disputes Act, 1947 (as amended upto date), as on the said date, which in view of the stand of the managements, as above said, of the workman having allegedly abandoned his services with the management no.1 school on 20.10.2004 as alleged, it is found to have not been complied with on the part of the management no.1 school as on the said date as also has been admitted on the part of the MW1 Sh. J.Samimalai, Secretary of the management no.2 in management evidence to have not been complied with when he states that it was correct that no compensation or notice pay was given to the workman and accordingly, the termination of the services of the workman on D.I.D. No. 257/05 Page 48 out of 51 20.10.2004 on the part of the management no.1 school as alleged by him is held to be illegal.
Issue no.2.
It is seen from the record that though it has been alleged in the written statement of the management no.2, the management no.1 having not filed any written statement to the statement of claim of the workman, on record, that the statement of claim of the workman is not maintainable since the workman did not come under the scope of ambit of Section 2 (h) of the Delhi School Education Act, 1973 wherein the term 'employee' has been defined since the present applicant is not employed and paid and was not under the supervision or control of the management no.1, however, no such objection has been taken on the part of the management no.1 qua the workman in this regard, on record, alongwith any other preliminary objections as taken by the management no.2 in respect of the employment of the workman with the management no.1 school nor any evidence led by the management no.1 school in this regard, on record, as also in view of my findings on issue no.1, herein above, that the workman was the employee of management no.1 school and his services have been terminated on the part of the management no.1 school illegally on the date alleged, the instant issue is decided in favour of the workman and against the managements.
D.I.D. No. 257/05 Page 49 out of 51 Issue no.3.
In view of my findings on issue no.1, herein above, holding that the workman is an employee of management no.1, as alleged by him, the instant issue is decided in favour of the workman against the management no.2.
Issue no.4 It is seen from the record that the workman has alleged by way of his statement of claim as also vide his affidavit by way of evidence Ex.WW1/A in workman evidence that he has been unemployed from the date of termination of his services on the part of the management no.1 school and has been unable to secure job/any employment inspite of his best efforts with no evidence having been brought on the part of the managements in rebuttal of the same, on record, by way of even any allegation in controversion of the said assertion on the part of the workman in their management evidence by way of affidavits by way of evidence of MW1 and MW2 Exts.MW1/A1 and MW2/A respectively, on record, or any evidence to the effect that the workman has been in gainful employment during the period w.e.f. the date of the alleged termination of his services on the part of the management no.1 till any date as also in view of the admitted length of service of the workman with the management no.1 school w.e.f. 16.08.1995 till 20.10.2004, it is felt D.I.D. No. 257/05 Page 50 out of 51 appropriate that the relief of reinstatement in service, however, along with 50% of backwages and continuity of service be awarded to the workman against the management no.1 since it cannot be held that the workman has remained totally unemployed during the period with effect from the date of termination of his services on the part of the management no.1 as alleged till the date of passing of award.
The award is passed accordingly. Ahlmad is directed to send six copies of this Award to the appropriate Government. The file be consigned to the record room.
Announced in the open court
on 27.02.2013 (Chandra Gupta)
Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
D.I.D. No. 257/05 Page 51 out of 51