Delhi District Court
The Workman vs Respondent/ on 27 February, 2008
-: 1 :-
IN THE COURT OF SH. I.S. MEHTA:
PRESIDING OFFICER : INDUSTRIAL TRIBUNAL NO. I :
ROOM NO. 02: THIRD FLOOR: KARKARDOOMA COURTS:
SHAHDARA: DELHI.
CID No. 60/2006.
The workman
SMT. SURENDER KAUR W/O SH. PREM CHAND
B-256, New Sanjay Amar Colony
Biswas Nagar, Shahdara
Delhi- 110032.
.....COMPLAINANT/ WORKMAN
AND
The management of
DEEPAK MEMORIAL HOSPITAL &
MEDICAL RESEARCH CENTRE
5, Institutional Area, Vikas Marg Extension
Delhi- 110092.
.....RESPONDENT/ MANAGEMENT
Date of Institution :- 05.12.2006.
Date of Reserve for Award :- 25.02.2008.
Date of passing of Award :- 27.02.2008.
AWARD
1. This is a complaint U/Sec. 33-A of the ID Act filed by the complainant alleging the violation of Section 33 of the ID Act by respondent/ management.
2. The brief facts giving rise to the present case are that the workman joined the management as Safai Karamchari in the year 2002 and her last drawn wages were Rs. 3260/- p.m. The workman -: 2 :- was an important activist of the only union of the management hospital namely Deepak Memorial Hospital Employees Union and was elected as Vice President of the said union in the year March, 2006. Thereafter, on 08.04.2006, the said union submitted a list of 5 office bearers of the union to the management seeing their declaration as protected workmen for the year 2006-07, but no response received from the management. The union approached to the Assistant Labour Commissioner by way of abundant caution, claiming declaration of 5 office bearers of the union as protected workmen.
3. It is further stated that during the pendency of an industrial dispute bearing ID No. 06/2006, the management hospital was taken over by M/s. Kailash Hospital & Research Centre Ltd. and new management forced the workmen to resign from the union as well as bearership of the union and submitted the same before the Assistant Labour Commissioner on 15.09.2006. On 25.09.2006, the hired goondas of the management attacked her outside the labour office and tried to kidnap by putting her in a Maruti Van. Thereafter, the workman called the police and took her for injury treatment at Hedgewar Hospital. It is further stated that because of the injuries and beatings, the workman could not report for duty for one week and had informed her department about her illness and her department -: 3 :- approved her leave. It is further stated that when the workman reported for duty on 03.10.2006, she was not allowed to go inside the hospital premises and the security guards informed that her services stands terminated. The services of the workman were terminated during the pendency of the industrial dispute bearing ID No. 06/2006 and the workman has been a protected workman during the year 2006-07. The management was, therefore, liable to seek permission before terminating her services. No such permission has been sought by the management, which is a violation U/Sec. 33 of the ID Act. The workman is unemployed after the termination of her services by the management. It is prayed that the workman be reinstated with continuity of service along with full back wages and consequential benefits.
4. Written Statement filed stating therein that the complainant was appointed as a daily wager Safai Karamchari on 01.05.2002. The complainant was not a regular workman as she has not completed 240 days in service during the period 2002-2006. The workman in the year 2002 worked for 37 days, 2003 worked for 109 days, 2004 worked for 18 days, 2005 worked for 14 days and in the year 2006 worked with the management only for 235 days. The workman is not entitled to any relief as she has worked only as a daily wager. It is further stated that on 22.09.2006, Deepak Memorial -: 4 :- Hospital Employees Union came to an end and at present, there is no union exists. It is further stated that complainant was terminated on 22.09.2006. Since, the workman was a daily wager and terminated on 22.09.2006, she is no more related with the pending industrial dispute ID No.06/2006. Other allegations made in the complaint are denied. It is prayed that the complainant is not entitled to any relief and the complaint be dismissed.
5. Rejoinder filed wherein the contentions raised in the written statement were controverted and the averments, made in the statement of claim were reiterated.
6. On the pleadings of the parties, the following issues were framed :-
1. Whether the claimant has not completed 240 days in service of the management ? If so, its effect.
2. Whether the present complaint filed by the complainant U/Sec. 33-A of the ID Act is not maintainable ? If so, its effect.
3. Relief.
7. Workman examined himself as CW1 who proved her affidavit Ex.CW1/A and relied upon documents Ex.CW1/1 to CW1/8. On the other hand, management examined MW1 Sh. S. N. Dubey, who proved documents Ex.MW1/ o MW1/58, MW2 Sh. Ganga Sah, -: 5 :- who proved his affidavit Ex.MW2/A and proved the document Ex. MW1/55 and MW3 Sh. Gautam Kumar, who proved affidavit MW3/A and relied upon documents Ex.MW1/53 and MW1/55.
8. Learned ARM- Sh. P.K. Agarwal has submitted that the workman is not a workman within the meaning of ID Act, as she has not acquired the status of the workman. The workman in the year 2002 worked for 37 days, 2003 worked for 102 days, 2004 worked for 18 days, 2005 worked for 14 days and in the year 2006 worked with the management only for 201 days. Learned ARM has further submitted that the workman has filed the present complaint case prior to her declaration as protected workman and she was declared as protected workman on 29.12.2006, whereas, the present complaint is filed on 05.12.2006. He has further submitted that the act of the workman itself shows that the workman is not entitled to any relief. He has further submitted that the management was under legal obligation to seek permission only on the date when the workman was declared as protected workman only on 29.12.2006. He has further submitted that the workman was a daily wager and has not acquired the status of regular employee. He has further submitted that in another ID No. 55/2000 she has admitted that she was appointed on daily wages with the management. Therefore, the present complaint is not maintainable and prays that the complaint of -: 6 :- the complainant be dismissed and relied upon the judgment :
1. Manager (Now Regional Director) R.B.I. Vs Gopinath Sharma & Anr. Superme Court of India 2006 LLR 958
2. Jaipur Development Authority Vs. Ram Sahai & Anr. Supreme Court of India 2007 LLR 92
3. UP Power Corporation Ltd. and others Vs. Presiding Officer, Labour Court, Gorakhpur, Allahabad High Court 2008 LLR 87
4. Balwinder Singh Vs State of Himachal Pradesh and others, High Court of Himachal Pradesh (C.W.P. No. 672/1992 dated March 23, 1999)
5. Sundernagar District Panchayat and another Vs Jethabhai Pitamberbhai, Supreme Court of India 2006 LLR 175
9. On the other hand, Ld. AR of the workman Sh. N. A. Sabestian has submitted that the workman was the important activist of the Deepak Memorial Hospital Employees' Union since the last several years. Deepak Memorial Hospital Employees' Union is the only union of the workmen in the management hospital. The petitioner/workman was elected as the Vice President of the Deepak Memorial Hospital Employees' Union in March 2006 and thereafter, the union submitted a list of 5 Office Bearers of the union and sought their declaration as protected workmen for the year 2006-2007. Ld. AR of the workman further submitted that ID No. 6/06 is pending disposal before this Court. The management, thereafter, taken over M/s Kailash Hospital and Research Centre on 16.08.06 and the new management wanted to break the union using strong arm tactics. The management on 03.10.06, has not allowed the workman to go inside the Hospital and Security Guards informed her that workman stands -: 7 :- terminated from the service. Ld. AR of the workman further submitted that the action of the management is not justified and prays that the workman be reinstated with full back wages.10. ISSUE NO.1 & 2
Issue no.1 & 2 are taken together as both these issued are interconnected. The management in its Written Statement has stated that the workman has not completed 240 days of her service with the management. The workman in its replication has stated that the management themselves had admitted in writing that the worklady is a permanent workman on the rolls of the management. The management in order to prove its contention, has relied upon the documents i.e. Pay Receipts Ex. MW1/1 to MW1/50. The management in para-2 of its Written Statement has stated that the workman worked with the management in the year 2002 for 37 days, in 2003 for 109 days, in 2004 for 18 days, in 2005 for 14 days and in 2006 for 235 days. The management in its Written Statement has admitted that the workman was elected as Vice-President of Deepak Memorial Hospital Employees' Union. They have received the list of Office Bearers of the Union which is reproduced as under:
1. Sh. Jolly Joseph President
2. Smt. Surinder Kaur Vice President
3. Sh. Ram Naresh Giri General Secretary
4. Sh. Sanjay Kumar Secretary -: 8 :-
5. Sh. Rishipal Treasurar which otherwise means that during the period 2006, the workman was representing the Deepak Memorial Hospital Employees Union as Vice-President. The contention of Ld. AR of the management that the workman has not completed 240 days, therefore, the workman is not entitled to any relief, is without force. So far the completion of 240 days with the management is concerned i.e. in relation to acquiring the status u/s 25F of the Industrial Disputes Act, 1947.
Whereas, the present complaint of the workman against the management is violation of section 33 of the Industrial Disputes Act. Section 33 of the Industrial Disputes Act is reproduced as under:
Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.- (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before ( an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall --
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the -: 9 :- proceeding is pending.
(2)During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute ( or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman)--
(a) alter, in regard to any matter nor connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute--
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceeding; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.-: 10 :-
11. The present complaint u/s 33A of the Industrial Disputes Act, 1947 is filed by the workman on 05.12.2006. The ID No. 6/06 pertaining to the general demand of the Deepak Memorial Hospital Employees Union is pending before this Court since 20.01.2006. The management in its Written Statement in para-2 has admitted that they have received the list of Office Bearers of the Union of the workman. The list Ex. CW1/2 shows that the workman was elected as Vice President of Deepak Memorial Hospital Employees Union. The list of the Office Bearers of the Union Ex. CW1/2 is dated 08.04.2006. The contention of Ld. AR of the management that the workman has filed the present complaint u/s 33A of the ID Act, 1947 prior to her declaration of a protected workman, therefore, the present complaint is not maintainable is without force. The main ID, ID No. 6/06 is pending with this Court since 20.01.2006. The workman elected as Vice President of the Deepak Memorial Hospital Employees Union and thereafter, the Union has handed over the list of protected workmen. The list of protected workmen is Ex.CW1/2 dated 08.04.2006. Rule 61(1) of the Industrial Disputes (Central Rules, 1957 reads as under:-
Protected Workmen- (1) Every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer before the 30th April every year, the names and addresses of such of the officers of the union who are employed in that establishment and -: 11 :- who, in the opinion of the union should be recognised as "protected workmen". Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
12. Rule 61(2) of the Industrial Disputes (Central Rules, 1957 reads as under:-
(2) The employer shall, subject to section 33, sub-section (4), recognise such workmen to be "protected workmen" for the purposes of sub-
section (3) of the said section and communicate to the union, in writing, within fifteen days of the receipt of the names and addresses under sub-
rule (1), the list of workmen recognised as protected workmen for the period of twelve months from the date of such communication.
13. The receiving of the list of protected workmen given by the Union to the management is not disputed by the management in para-2 of the Written Statement. The said list was sent to the office of Assistant Labour Commissioner, who vide order dated 29.12.2006, declared the present workman i.e. Vice President of Deepak Memorial Hospital Employees Union and remaining office bearer of the Union as mentioned in Ex.CW1/2 to be the protected workmen. There is no plea on behalf of the management that they have not accepted the workman to be protected workman within the period of 15 days after the receipt of the list. Therefore, I hold that the present workman has acquired the status of protected workman on -: 12 :- the date when the list of protected workmen was handed over by the Union to the management on 08.04.2006. It has been held by the Hon'ble High Court of Delhi in the case 2004 III LLJ Delhi P-914 M/s. Batra Hospital and Medical Research Centre of Sh. Aishi Ram Batra Charitable Trust Vs. Batra Hospital Employees' Union and others as under:
Rule 61(2) of the Industrial Disputes Rules, 1957 clearly indicates that objection, if any, to protected status of a workman, has to be communicated by the management within 15 days. Otherwise it will be deemed that the workmen mentioned in the application begins to enjoy protected status. Significant indeed is the use of the word "shall" in Rule under Rule 61 sub-clause (2) which indicates the emergent and mandatory nature of a prompt reaction by the management.
14. The present workman has acquired the status of the protected workman since 08.04.2006 and thereafter, the management was under legal obligation to file the permission application before this Tribunal, prior to terminating the workman as admitted by the management in para-15 of Written Statement. The management in para 15 of the Written Statement has admitted that the workman was terminated on 22.09.2006. Therefore, the action of the management without seeking permission from this Tribunal, amounts to violation of provision of section 33 of ID Act. As such, the -: 13 :- action of the management cannot be said to be justified.
Consequently, the workman is deemed to be in the employment of the management. Therefore, the issue no.2 is decided in favour of the workman and against the management and the issue no.1 too is decided accordingly.
15. In view of the discussions made above, the action of the management in dismissing of the workman on 22.09.2006 during the pendency of ID No. 6/06, without taking permission of the Court, is set aside. The workman is deem to be in the service of the management. The management is directed to reinstate the workman w.e.f. 22.09.2006 with continuity of service and full back wages. The management is further directed to allow the workman to resume duty and also to pay arrears of back wages within one month of passing of this award. The complaint u/s 33A of the ID Act of the complainant/workman Surinder Kaur is allowed. The judgments and contentions relied upon by the management is no help to the management. Award is passed accordingly.
ANNOUNCED IN OPEN COURT TODAY i.e. 27.02.2008.
[ I.S. MEHTA ] PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO. I:
KARKARDOOMA COURTS:DELHI.