1 INTHECOURTOFMSSHAILJAIN,PRESIDINGOFFICER,INDUSTRIAL TRIBUNAL02,DWARKACOURTS,NEWDELHI IDNo.27/16 Sh[ENTITY] sonofSh.InderpalSingh representedbyMunicipalEmployee'sUnion AggarwalBhawan GTRoad,TisHazari Delhi54. Vs TheManagementofMunicipalCorporationofDelhi, ThroughitsCommissioner,TownHall, ChandniChowk,Delhi. DateofInstitution:01.05.2010 DateofOrder:04/12/2018 ORDER 1) Workman has raised the present dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this 2 Tribunalforadjudicationinthefollowingtermofreference "WhetherSh[ENTITY]s/oShInderpalSingh hasabsentedonhisownorhisserviceshavebeen illegally and/or unjustifiably terminated by the management;andifyes,towhatreliefisheentitled and what directions are necessary in this respect?" 2) Statement of claim was filed on behalf of the workman. In the claim, workman has stated that he joined the employment of the managementw.e.f.20/06/98asmali/beldarondailywages.Initiallyhe wasappointed asdailywager.Hewasbeingtreatedasmusterroll workerandwasbeingpaidwagesasfixedandrevisedfromtimeto time under the [ACT], while his counterparts doing identicalworkandtheworkofthesamevalue,beingtreatedasregular employees,werebeingpaidtheirsalaryinthepayscaleofRs.2550 3200/withallowancesasperrules.Itistheclaimoftheclaimantthat services of the workman had been terminated w.e.f. 19/12/98 by SectionOfficerShNeharSinghonaccountofrefusalofduties,without assigning any valid reason thereof. The termination of services of workman w.e.f 19/12/98 and denial of proper payscale at par with regularcounterpartsontheprincipleof"equalpayforequalwork"to thepresentworkmanistotallyillegalandbadinlaw.Itistheclaimof theworkmanthathehasnotcommittedanymisconductofanykindnor anysuchallegationhasbeenlevelledagainsthimbythemanagement. Itisalsotheclaimoftheworkmanthattherewasdiscriminationagainst 3 thepresentworkmanasjuniorstohimhavebeenretainedinservices whilehehasbeenthrownoutofjob.Theterminationofservicesofthe workmanisviolativeofsection25F,G&HoftheIndustrialDisputeAct and denial of 'equal payfor equalwork'asperArticle39(d)ofthe Constitution of India is also violative of the provision of Equal Remunerationact.Withthesesubmissions,ithasbeenprayedbythe workman that award be passed in favour of the workman holding therebythatservicesofpresentworkmanbythemanagementisillegal andunjustifiedandworkmanbeheldentitledtoreinstatementinservice withcontinuityandfullbackwagesalongwithallconsequentialbenefits eithermonetaryorotherwise. 3) Management/[ENTITY] has filed the written statement wherein they havetakenthepreliminaryobjectionthatthepresentdisputeisnotan IndustrialDispute,asthesamehasnotbeenproperlyespousedbythe union.Nodemandnoticehasbeenserveduponthemanagement as such the present dispute is not an industrial dispute and therefore, referenceisbadinlawandisliabletoberejected.Presentreference suffers from latches as claimant has alleged termination in the year 1998whereasthepresentclaimhasbeenfiledintheyear2010ieafter the gap of more than 12 years. It has also been submitted by the managementthatclaimanthasbeenpaidthewagesforthedays,he actuallyworkedandnothingisduetowardshim.Evenotherwise,the claimant has not worked for 240 days in a calender year, as such claimantisnotentitledforanyreliefandpresentclaimisliabletobe dismissed.Theclaimanthasworkedonlyfor155daysintotalwiththe managementondailywages.Ithasalsobeenstatedbymanagement that claimant was engaged for a specific purpose ie on a seasonal 4 natureofwork.Theirengagementwasforthelimitedperiodssubjectto time to time sanctions as per the requirement of work. Hence the claimant'sengagementwascoveredbyprovisionsofsection2(00)(bb) [ACT]hencetheclaimisnotmaintainableandis liable to be dismissed. On merits, it has been denied by the managementthatservicesoftheclaimant'hadbeenterminatedw.e.f. 19/12/98. It is submitted that claimant was engaged for a specific purposeieonaseasonalnatureofwork.Theirengagementwas for the limited periods subject to time to time sanctions as per the requirement of work against which he worked till 19/12/98 and thereafter there was no requirement hence the claimant was not engagedfurther.ThedailywagersarenotcoveredbytheCCSrulesas applicabletotheRegularGovernmentemployees,hencequestionof givingnoticetoworkmanbythemanagement doesnotarise.Ithas alsobeendeniedbythemanagementthatchargesheetisrequiredto be served or any domestic inquiry is required to be conducted for disengaginganydailywager.Withthesegrounds,ithasbeenprayed bythemanagementthatpresentreferenceberejected. 4) On 31/01/2012, following issues were framed by my Ld Predecessor: 1) Whetherpresent disputeisan industrialdisputeadefinedin section2(k)oftheIndustrialDisputeAct. 2)Whetherthepresent claimoftheworkmanhasbeenproperly espousedbytheunion?OPW. 3) Whether any notice of demand was served upon the management,ifsoitseffect?OPW 5 4) Whether the statement of claim is not maintainable on the groundoflatches/belatedstage?OPM 5)Aspertermsofreference. 5) After framing of issues, workman has led his evidence and in support of his case, workman has appeared as WW1 and has tendered his affidavit in evidenceasExWW1/[ENTITY] also reliedupondocumentsEx.WW1/1toExWW1/9. 6) Fromthesideofmanagement,onlyonewitnessisexaminedi.e. MW1Sh.[ENTITY],AdministrativeOfficerandhehastenderedhis evidencebywayofaffidavitEx.MW1/A andreliedupondocuments fromEx.MW1/1toEx.MW1/6. 7) ArgumentswereheardfromLdA.Rfortheparties.Insupportof hisarguments,LdA.Rfortheworkmanhasrelieduponthefollowing authorities: 1) [PRECEDENT]. 2)W.P(C)No6024/199TheManagementof[ENTITY]vs POITandanother [CASE NUMBER] O.PMarketingcumProcessingServicesSociety. 4)CivilAppealNo.8434/14RaghubirSinghvsGeneral Manager,HaryanaRoadways 8) I have considered the arguments advanced by Ld A.R for the parties, evidenceledbytheparties,thematerialavailableonrecord and the relevant provisions of law. I have also gone through the judgmentsrelieduponbyLdA.Rfortheworkman. 6 9) After considering the same, my issues wise findings are as follows: 1) Whetherpresent disputeisan industrialdisputeadefinedin section2(k)oftheIndustrialDisputeAct. 2)Whetherthepresent claimoftheworkmanhasbeenproperly espousedbytheunion?OPW. 10) Sinceboththeseissuesareinterrelated,Iwilldiscussanddecide boththeseissuessimultaneously. 11) LawprovidesthatanindustrialdisputeistobedecidedbyLabour courtsandIndustrialTribunaletc.Thetermindustrialdisputehasbeen defined in [SECTION] of the [ACT] which is reproducedasunder: "Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen which is connected with the employment or nonemploymentorthetermsofemploymentorwiththe conditionoflabour,ofanyperson" 12) From bare reading of provision of [SECTION] of [ACT] it is clear that any dispute between the employer and employer or between the employer and workmen or workmen & workmen, which is connected with the employment or non employment or terms and conditions of the employment would be treatedasanindustrialdispute.Thetermworkmenhasbeenusedby Legislaturetoexcludeindividualworkmanfromfilingindustrialdispute. 7 However,bywayofvariousjudgments, Hon'bleSupremeCourtand Hon'bleHighCourtshaveprovidedthatincaseanindividualdisputeof workmanissponsoredorespousedbythegroupofworkmenorbythe unionthenthatindividualdisputewouldalsofallwithinthedefinitionof industrial dispute and would comewithinthejurisdictionofIndustrial TribunalandLabourCourts. 13) [PRECEDENT], Hon'ble Supreme Court of India dealt with the issue of espousal of individualdisputeof workman.Inthiscase,Hon'bleSupremeCourt hadheldthat: "The decisions of this court have consistentlytakentheviewthatinorder thatadisputebetweenasingleemployee and his employer should be validly referredundersection10oftheAct, it isnecessary thatitshould havebeen taken up by the Union to which the employee belongs or by a number of employees. On this view, a dispute between an employer and a single employeecannot,byitself,betreatedas an industrial dispute, unless it is sponsoredorespousedbytheUnionof the workmen or by a number of workmen." 8 14) After the decision of case [PRECEDENT] (mentioned above), [SECTION] of [ACT] has been addedintheAct,in1965,whichprovidesthatanyindividualworkman who has been discharged, dismissed, retrenched or otherwise terminated from the services by the employer, then all the dispute betweenthatworkmanandhisemployerconnectedwithorarisingout of such discharge, dismissal or retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workmanorany"unionofworkmen"ispartytothedispute.Thus,from thejointreadingofsection2(k)ofIndustrialDisputeActandSection2A [ACT] itisclearthatindividualworkmancanraise theindustrialdisputeonlyinrespectofthedisputearisingoutofhis discharge, dismissal or retrenchment or termination. And all other causesofdisputeistobeespousedbytheunionoftheworkmen. 15) In [PRECEDENT], Hon'bleSupremeCourthadobservedthat: "The definition of Industrial Dispute" inSection2(k)oftheActshowsthat an Industrial Dispute means any dispute or difference between an employer and employers or between employers and workmen, or between workmen and workmen, which is connectedwiththeemploymentornon employment or the terms of the 9 employment or with the condition of labour, of any person. The definition hasbeenthesubjectmatterofseveral decisions of this Court and the law is well settled. The locus classicus is the decision in the Workmen of M/s [PRECEDENT] connected with employment or non employment of a workman: (2) the disputebetweenasingleworkmanand his employer was sponsored or espousedbytheunionofworkmenor by a number of workmen; the phrase "theunion"merelyindicatestheUnion to which the employee belongs even thoughitmaybeunionofaminorityof theworkmen(3)theestablishmenthad nounion onitsownand some ofthe employees had joined the Union of anotherestablishmentbelongingtothe sameindustry.Insuchacaseitwould be open to that Union to take up the causeoftheworkmenifitissufficiently 10 representative of those workmen, despitethefactthatsuchUnionwasnot exclusivelyoftheworkmenworkingin theestablishmentconcerned. 16) LateronincaseofManagementofM/sHotelSamratVsGovt ofNCTandorsWPCNo6682andWPC6247of2004decidedon January4,2007,Hon'bleHighCourtofDelhihasdealtwiththeissueof espousalofindustrial dispute.Inthiscase, Hon'bleMrJusticeS.N. Dhingra has elaborated the requirement of espousal of individual disputeofworkmanbytheunion.InthiscaseHon'bleHighCourthad observed: "The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workman as a body or a considerable section of them, make common cause with the individual workmanandespousedhisdemand.The questionariseshowtheespousalcanbe inferred. Espousal means that the dispute of an individual workman is adaptedbyunionasitsowndisputeora largenumberofworkmengivesupport tothecauseofanindividualworkman. 17) After observing that individual dispute of workman cannot be calledasindustrialdisputeunlessitisespousedbytheexecutivebody 11 of the union, Hon'ble High Court held in case of Management of Messers Hotel Samrat (mentioned above) that the dispute was not properly espoused by the union and therefore held not to be an industrialdispute. 18) Fromthesejudgments,itisclearthatifanyindividualdisputeis sponsoredorespousedbythegroupofworkmenorunion,thenitwould attain the status of industrial dispute. However, in the present case,workman had not been able to prove or place on record any documentandhadnotledanyevidencetoprovethathiscausewas espousedbytheunion. 19) Workmanhasnotplacedonrecordanydocumentshowingthat his cause was supported by the union or that his dispute was ever discussedbytheunioninmeetingoranyresolutionwaspassedbythe uniontoespouseorsupportthecauseoftheworkman.Neitherany espousal letter nor any minutes of themeeting or resolution of the unionhavebeenplacedorprovedonrecordbytheworkmantoprove thathisdisputehadbecomeanindustrialdisputeafterbeingsupported by union. Therefore I am of the opinion that workman had failed to provethatpresentdisputefallswithinthedefinitionofindustrialdispute, asdefinedu/s2(k)oftheIndustrialDisputeActassamehasnotbeen espousedbytheunion.Henceissueno1and2aredecidedinfavourof themanagementandagainsttheworkman. ISSUENO.3:"Whetheranynoticeofdemandwasserveduponthe management,ifsoitseffect?OPW 20) Theonustoprovethisissuewasontheworkman.Workmanhas relieduponthedocumentEx.WW1/1,whichisstatedtobelegalnotice 12 sentbysomeGeneralSecretaryon23/12/06.Thisdocumentisneither signedbyworkmannorhehadprovedthesignatureofthepersonwho hadsignedthedocumentEx.WW1/1.Workmanhadnotevenexamined thatpersontoprovethatthedocumentEx.WW1/1bearshissignature orthathehimselfhadsentthesaidnoticetothemanagement.Even thenoticeplacedonrecordisthephotocopyofthedocumentanditis notthecarboncopyofthedocumentnoreventhecopywhichwould have been produced along with notice sent to the management as noticeisthecomputerizeddocument,andthecopyofthesamecould havebeenobtainedbytheworkmanalongwiththesignatureandcould have been placed and proved on record. Further the workman had relieduponthepostalreceiptEx.WW1/2.Fromthispostalreceipt,itis notclearastowhatdocument/envelopwassentonthispostalreceipt asnoticeEx.WW1/1doesnotbearthedetailsofsaidpostalreceipt. 21) Inviewoftheabovediscussion,Iamoftheopinionthatworkman hasnotbeenabletoprovethatanylegalnoticewassentbyhimoron his behalf by the union to the management. Hence issue no. 3 is decidedinfavourofthemanagementandagainsttheworkman. ISSUENO.4:"Whetherstatementofclaimisnotmaintainableon groundoflatches/belatedstage" 22) Asperthestatementofclaim,workmanhadjoinedtheservicesof the management on 20/06/98 and his services were terminated on 19/12/98 ie workman had worked with the management only for six monthsandhisserviceswereterminatedinDecember1998.However, presentcasehasbeenfiledbytheworkmanintheyear2010,whenthe reference was made to this Tribunal. Even after the receipt of the referencefromthe DeputyLabourCommissioner, workmanhadnot 13 takenanystepforfilingthestatementofclaimtill02/11/2010ieeven afterthereferencehasbeenreceivedinthepresentTribunal, for6 months,noactionwastakenbytheworkmanforfilingthestatementof claim. 23) Thisdelayof12yearshasbeenexplainedbytheworkmanby stating that whenever he approached the management for his re instatement, hewastoldthatcertainothercoworkersnamely[ENTITY]haveraisedsimilardisputeandthecaseof presentworkmanwillbeconsideredonthebasisofthesaidorder.Itis furtherstatedbyworkmanthaton23/12/05Hon'bleHighCourtofDelhi hadpassedorderinfavourof[ENTITY]andgave the directions to the management to reinstate them with all consequential benefits. After this order of the Hon'ble High Court of Delhi,legalnoticewassent bytheworkmantothemanagementdt 23/12/06. 24) Workmanhastriedtoexplainthedelayof12yearsbysayingthat he was waiting for the outcome of the case filed by his coworkers [ENTITY].Workmanhasnotstatedastowhyhe has not joined the case alongwith [ENTITY] whenhiscasewassimilartothecaseofAmarPalandJaiBhagwan etc.InthelengthyfinalargumentsadvancedbyLdA.Rfortheworkman Sh [ENTITY], Advocate, not even single statement had been made by Ld Advocate for workman as to why present workman [ENTITY] had not joined with workmen [ENTITY] and [ENTITY] etc when they had raised industrial dispute against their alleged termination, althoughhewas havingsimilarfactsasthatof workmen[ENTITY].Merelysayingthatworkman 14 hascontactedthemanagementbutwasaskedtowaitfortheoutcome ofthecasefiledby[ENTITY]cannotbebelieved asitappearstobefarfetched&unbelievable. Ifapersonhasbeen terminatedfromhisservicesillegallyandhiscoworkershadtakenany actionagainstthemanagementthenanypersonwouldtrytojoinalong withcoworkersandwillnotwaitfor12yearsforfilingthesamecase againstthemanagement.ItappearsthatdeliberatelyworkmanSanjiv Kumarhadnottakenanystepfor12yearsandnowwantsthereliefof reinstatement granted to [ENTITY] and [ENTITY] etc. After the orderpassed byHon'bleHighCourt, dt23/12/05,whenreliefofre instatement was granted to fellow coworkers, workman has woken fromhissleepandhasfiledthepresentclaimwiththeintentiontoget some relief, I am of the opinion that although there is no limitation providedinIndustrialDisputeActformakingreferencetotheIndustrial Tribunal but in catena of judgments it has been held by Hon'ble SupremeCourtofIndiaandHon'bleHighCourtofDelhi thatevenin the absence of limitation beingprovidedfor makingreferenceto the Tribunal if the dispute has been raised after inordinate delay and disputehadbecomestale,thereliefcannotbegrantedtotheworkman. 25) In [PRECEDENT] when the dispute was raised by the workman against his termination after 7 years. While discussing the relevant provision and [ACT]Hon'bleSupremeCourt hasheldthat: "Lawdoesnotprescribeanytimelimitfortheappropriate Governmenttoexerciseitspowerundersection10ofthe Act,itisnotthatthispowercanbeexercisedatanypoint 15 oftimeandtorevivematterswhichhadsincebeensettled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on whichtheCentralGovernmenthasexercisedpowersinthis case after a lapse of about seven years of the order dismissing the respondent from service. At the time
referencewasmadenoindustrialdisputeexistedorcould beevensaidtohavebeenapprehended.Adisputewhichis stale could not be the subject matter of reference under [ACT]Astowhenadisputecanbesaidtobe stalewoulddependonthefactsandcircumstancesofeach case.[ENTITY],itappearstousto beratherincongruousthatthereferencebemadeu/s10of theActinthecircumstanceslikethepresentone.Infactit couldbesaidthattherewasnodisputependingatthetime whenthereferenceinquestionwasmade.Theonlyground advancedbytherespondentwasthattwootheremployees whoweredismissedfromserviceswerereinstated.Under whatcircumstancestheyweredismissedandsubsequently reinstatedisnowherementioned.Demandraisedbythe respondent for raising an industrial dispute was exfacie badandincompetent"
26) [PRECEDENT]
" Itistritethatthecourtsandtribunalshavingplenary jurisdiction have discretionary power to grant an appropriaterelieftotheparties.Theaimandobjectofthe IndustrialDisputeActmaybetoimpartsocialjusticeto theworkmanbutthesamebyitselfwouldnotmeanthat irrespective of his conduct a workmen would automatically beentitledtorelief.Theprocedurallaws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrineofacceptancesubsilentio".
27) Applyingtheseprinciple, in RameshKumarvsDelhiJalBoardin W.P(C)1034/2011,Hon'bleHighCourtofDelhihasheldthatunexplained delayofsixandhalfyearsinraisingindustrialdisputebyworkmandisentitle himfromanyreliefbytheIndustrialTribunal.
28) SimilarlyinS.ShalimarWorksLimitedvsTheirWorkmenAIR1959 SC 1217, it was held that "though no limitation is prescribed for making referenceofthedisputetoanIndustrialTribunal,nevertheless,ithastobe madewithinareasonableperiod.Inthatcasedelayof4yearsinraising industrialdisputewasheldtobefatal".SimilarviewwasreiteratedinS.M. Nilajkar and others vs Telecom District Manager, Karnataka 2003 (4) SCC27.Relyinguponabovesaidauthorities,ourownHon'bleHighCourtin SatbirSinghvsManagementofSupdt,Engineerandothers138(2007) DLT528(DHC)hasheldthat "inordinate and unexplained delay in raising industrial disputewoulddefeattherightsoftheworkmanandwould disentitlehimtoanyrelief".
29) LdARfortheworkmanhasrelieduponthefollowingjudgmentsonthe pointoflimitation:
1)CANo2157/99AjaibSinghvsTheShrihindCoOperativeMarketing CumProcessingServicesSocietyLtdandanother.
2) [CASE NUMBER] Raghubir Singh vs General Managefr, HaryanaRoadways
30) IhavegonethroughthesejudgmentsasrelieduponbyLdcounselfor the workman. As per the judgment [PRECEDENT]mentionedabove),IamoftheopinionthatsubsequentlyHon'bleSupreme Courtin [PRECEDENT] & [PRECEDENT], whichhasbecomestale could not be the subject matter of reference under [SECTION] of the Act.
Hence in view of this judgment, the dispute has to be referred within reasonableperiod.
As regards the judgment [PRECEDENT], asrelieduponbyLdARfor the workman, is concerned, Hon'ble Supreme Court has considered the issueoflimitationbeingapplicabletotheindustrialdisputebutthefactsofthe presentcasecanbedifferentiatedwiththefactsbeforetheHon'bleSupreme Court, as in [PRECEDENT], Hon'ble Supreme Court has rejected the order passed by the Industrial TribunalandHon'bleHighCourtonthegroundthattheyhavenotconsidered themeritsofthecasebuthasdismissedthecaseonthepointoflimitation. Hence the facts of this case can be differentiated from the facts of the presentcase.
31) Inviewofthesejudgments,Iamoftheopinionthatthereisdelayof12 yearsinfilingthepresentclaim&theexplanationfordelayassubmittedby workmanisneitherreasonablenoracceptable.Therefore,thestatementof claimofworkmanisnotmaintainableonthegroundof delayandlatches. Hence,Issueno.4isdecidedinfavourofthemanagementandagainstthe workman.
ISSUENO.5:Aspertermsofreference
32) PresentreferencehasbeensenttothisTribunalforadjudicationand disposalbytheDeputyLabourCommissioner,whichisreproducedasunder:
"Whether Sh [ENTITY] s/o Sh [ENTITY] hasabsentedonhisownorhisserviceshavebeen illegally and/or unjustifiably terminated by the management;andifyes,towhatreliefisheentitled andwhatdirectionsarenecessaryinthisrespect?"
33) Asperreference,thisTribunalhastodecidewhetherShSanjivKumar (workman) hasabsentedofhisownorhisserviceshavebeenillegallyor unjustifiablyterminatedbythemanagement,iftheanswertothisquestionis yes,thenTribunalhastodecideforwhatreliefworkmanisentitledandwhat directionsarenecessaryinthisrespect.Asperthereference,thisTribunal hasonlyaverysmallpointtodecideiewhethertheworkmanhadabsented himself from the duties or his services have been illegally or unjustifiably terminated by the management. During the course of final arguments advanced by Sh [ENTITY], Ld Advocate for the workman, he had stressed onthepointthatbeforetheConciliationOfficer,the standofthe managementhadbeenthatworkmanhadabsentedhimselffromtheduties whereasbeforethisTribunalmanagementhaschangeditsdefenceandhas statedthatworkmanwasengagedagainstseasonalnatureofwork,against time to time temporary sanction, & for which workman had worked till 19/12/98.Thereafterastherewasnorequirementofhisservices,hencethe claimantwasnotfurtherengaged.ThecontentionofLdARfortheworkman hadbeenonthepointthatservicesofthe workmanhadbeenterminated illegallybythemanagementandintheWrittenStatementfiledbeforethis Tribunal, management has relinquished their defence of workman being absentfromdutiesandhasonlyfocusedontheterminationaspectofthe workman.LdA.Rfortheworkmanhadalsostatedthatsincethereischange instandofmanagement,asisclearfromtheWSfiledbeforeConciliation OfficerandWSfiledbeforethisTribunal,itiscontradictorydefensetakenby the management, hence defence of the management should not be accepted.
34) IhavecarefullygonethroughtheWSfiledbythemanagementbefore thisTribunalaswellasonefiledbeforetheConciliationOfficer,itisclear fromtheWSfiledbeforeConciliationOfficer,thatthere,thedefenseofthe managementwasthat workmanhadabsentedhimselffromthedutiesand therefore this point was included in the reference by the Deputy Labour CommissionerandsinceintheentireWSfiledbeforethisTribunal,ithasnot beenstatedbythemanagementthatitwastheworkmanwhohadabsented himselffromtheduties,hencethistribunalhadnottoconsidertheabsence ofworkman,asitappearstohavebeenrelinquishedbythemanagement.
Thepointwhethertheterminationoftheworkmanwasillegalornotisnow theonlyquestiontobedecidedbythistribunal.
35) LdA.Rfortheworkmanhadextensivelyarguedonthepointthatonce the workman had been engaged for a particular work even on the daily wages he isentitledtoallthebenefitswhichareavailabletotheregular employees.Ld A.R forthe workmanhad also stressedon thepointthat removing the workman from the work after 6 months amounts to retrenchment as provided in [SECTION] of [ACT] whichdefinestheretrenchmentandisthereforealsogovernedbysection25 F and 25 G of [ACT], therefore the workman is entitled to be reinstated as he has been illegally terminated by the management.
36) LdA.Rfortheworkmanhadalsoplacedrelianceonthejudgmentof Hon'bleHighCourtofDelhipassedby Hon'bleJusticeMsGitaMittalin W.P(C)No1598384/2004titledasShriAmarPalandanothervs[ENTITY]. Inthiscase,inrespecttoworkmen [ENTITY]itwas held by Hon'ble High Court that both workmen were entitled to rein statement.LdARfortheworkmanhadsubmittedthatfactsofbothworkmen beforeHon'bleHighCourtofDelhi(asmentionedabove)werethesameas thatofpresentworkman.
37) IhavegonethroughthejudgmentpassedbyHon'bleHighCourtof DelhiinW.P(C)No1598384/2004titledasShriAmarPalandanothervs [ENTITY],asrelieduponbyLdA.Rfortheworkman.Itisclearfromthejudgment thatfactsofthecasebeforeHon'bleHighCourtofDelhiwerealmostsimilar tothefactsinpresentcaseapartfromthefactthat [ENTITY] thematterofillegalterminationimmediatelyafter theirabovesaidtermination,whereaspresentworkmanhadwaitedfor12 yearsfordoingsowithoutanyjustifiablecause.
38) In the case before Hon'ble High Court in in W.P ( C ) No 15983 84/2004titledasShriAmarPalandanothervs[ENTITY],ithasbeenstatedby Hon'bleJusticeMsGitaMittalthatmanagementhasfailedtoprovidethe description of the specific job or the period for which the workmen were employed andtherewasonlyabareandbalddenialtothepleasofthe petitioners. Hon'ble High Court was of the opinion that in the evidence, workmanhadspecificallydeniedthattheywerenotemployedafter31.12.98 asnofurthersanctionwasgrantedbythemanagement.Hon'bleHighCourt ofDelhiincaseinW.P(C)No1598384/2004hasmainlyrelieduponthe factthatnatureandparticularoftheassignmentorkindofworkwhichthese workmenwererequiredtodo, werenotbroughtonrecord.Hon'bleHigh Courthasfurtherheldthatitwasforthemanagementtoshowthatcaseof thepetitionersfallswithintheexceptionsasprovidedinu/s2(oo)(bb)of IndustrialDisputeAct.Sincethemanagementhasfailedtodoso,Hon'ble HighCourtofDelhihaddirectedthemanagementtoreinstatethepetitioner [ENTITY].
39) AfterconsideringthejudgmentofHon'bleHighCourtininW.P(C[CASE NUMBER] similartothefactsbeforeHon'bleHighCourtofDelhiin inW.P(C)No 1598384/2004titledasShriAmarPalandanothervs[ENTITY].Butwithgreat respect, I have to submit that evidence led by the parties appears to be differentinthecase.Inthepresentcase,managementhadexaminedMW1 [ENTITY],whohadprovedonrecordthedocumentsEx.MW1/1and Ex.MW1/2 which are the sanction orders for temporary engagement of workersforthreemonths.ThedocumentEx.MW1/1isdt09/06/98andthe documentEx.MW1/2isdt15/09/98.MW1[ENTITY]hadspecifically statedthattheseworkerswereengagedfortemporaryworkforthreemonths initiallyvideorderdt09/06/98Ex.MW1/1.Butsincetheworkwascontinued their engagement was extended for further three months in view of the documentEx.MW1/2and astherewasnofurtherrequirementofengaging theseworkerstheirservicescametoanendaftertheprojectwascompleted. A bare perusal of document Ex.MW1/1 and Ex.MW1/2 clearly show that therewasnocontinuousengagementoftheworkmanforanyregularkindof job northerewascontinuousorderpassedafterEx.MW1/2,duetowhich these workmen could not have been engaged or employed by the management.Ex.MW1/3toEx.MW1/6are thedocumentsforpaymentof beldarsiepresentworkers.InthedocumentEx.MW1/3toEx.MW1/6nameof thepresentworkmanShSanjivKumarismentionedatSlNo1.Itisclearthat workmenwasengagedforaparticularworkontemporarynatureforthree monthsandagainforaparticularworkoftemporarynatureforthreemonths fromSeptember1998tillOctober1998andwasdulypaidforthework.
40) Althoughby wayof definition of workman u/[SECTION] the [ACT]
41) My view also get support from thecaseof Stateof Haryanavs JasmerSingh(2015)4,SCC458,Hon'bleSupremeCourthadheld that:
"Therespondents,therefore,inthepresentappealswho areemployedondailywagescannotbetreatedasona par with persons in regular service of the State of Haryanaholdingsimilarposts.Dailyratedworkersare notrequiredtopossessthequalificationprescribedfor regular workers, nor do they have to fulfill the requirementrelatingtoageatthetimeofrecruitment. They are not selected in the manner in which regular employeesareselected.Inotherwordstherequirement for selection are not as rigorous. There are also provisions relating to regular service such as the liabilityofamemberoftheservicetobetransferred,and hisbeingsubjecttothedisciplinaryjurisdictionofthe authorities as prescribed, which the daily rated workmenarenotsubjectedto.Theycannot,therefore,be equatedwithregularworkmenforthepurposesfortheir wages.Norcantheyclaimtheminimumofregularpay scaleoftheregularlyemployed.
42) Therefore in view of the judgment of [PRECEDENT]not claim the same pay scale facility, as that of the regular employee, therefore, thecontentionofLdAdvocatefortheworkman thatworkmanwasnotbeingprovidedthesamefacilityasthatofthe regularemployee,isnotacceptable.
43) Inviewofmyabovediscussion,Iamoftheopinionthatworkman, herein, is not entitled to any relief claimed by him; firstly because workmanwasadailywager,hencecannotbeequatedwiththeregular employee; secondly it has been proved by the management that workmanwasengagedonlyforafixedperiodaspersanctiongranted tomanagement,andassoonastheworkofmanagementgotfinished, theservicesofworkmanwasnolongerrequiredbythemanagement, hencehewasdisengagedfromtheservices.Fromthis,itisalsoclear thatservicesoftheworkman,herein, wereneverterminatedbythe management rather it came to an end, as theperiod for which his services were required, had completed and his services were not longerrequiredbythemanagement.
44) ThecontentionofLdAdvocateforworkmanhadbeenthatcaseof the workman falls under the provision of [SECTION] of the IndustrialDisputeActasitamountstoretrenchment.
Forbetterunderstanding Section2(oo)(bb)oftheIndustrial DisputeAct,itisreproducedasunder:
"Retrenchmentmeanstheterminationbytheemployeroftheserviceof aworkmanforanyreasonwhatsoever,otherwisethanasapunishment inflictedbywayofdisciplinaryactionbutdoesnotinclude:
a)voluntaryretirementoftheworkman;or
b)Retirementoftheworkmanonreachingtheageof superannuation if the contract of employment between the employer and the workman concerned containsastipulationinthatbehalf;or (bb) termination of services of the workman as a result of the nonrenewal of the contract of the employmentbetweentheemployerandtheworkman concerned on its expiry or of such contract being terminated under a stipulation in that behalf containedtherein;or
c) termination of the service of a workman on the groundofcontinuedillhealth.
45) Frombarereadingofsection2(oo)(bb)oftheIndustrialDispute Actitisclearthatretrenchmentwouldbetheterminationbyemployer of services of workman, for any reason, whatsoever, inflicted as punishmentbywayofdisciplinaryaction.Itdoesnotincludevoluntary retirement,superannuationandthirdlyterminationoftheserviceofthe workmanasisresultofnonrenewalofthecontractoftheemployment on its expiry and fourthly the termination of the services of the workmanwasonthegroundofcontinuedillhealth.Thus,ithasbeen specificallyprovidedundersection2(oo)(bb)oftheIndustrialDispute Actthatincaseservicesofworkmanisterminatedduetononrenewal ofthecontractofemployment,itwouldnotamounttoretrenchment.
46) Furthersection25FoftheIndustrialDisputeActprovidesthe condition precedent to retrenchment of workman. [SECTION] of [ACT] provides that no workman employed in any industry whohasbeenincontinuanceservicefornotlessthanone yearunderanemployershallberetrenchedbythatemployerunless theworkmanhasbeengivenonemonthnoticeinwritingandworkman hasbeenpaid,retrenchmentcompensation,asperlawandnoticein theprescribedmannerisservedontheappropriategovernment.The basicunderstandingofSection25F[ACT]isthat workmanwhohasworkedforlessthanoneyearcanberetrenchedby theemployerwithoutfollowingtherequirementasprescribedinsection [ACT]Apparentlyworkmanherein,has notworkedwiththemanagementforoneyear, asadmittedlyhehad workedthereonlyforsixmonths,[ACT] does not apply to the facts in hand. Since, as per the provisionofsection2(oo)(bb)ofIndustrialDisputeActterminationof services of present workman was not retrenchment and provision of Section25FofIndustrialDisputeActdoesnotapplytothepresent workman,ashehasnotworkedforoneyear,henceSection25Gof IndustrialDisputeActwhichprovidesprocedureforretrenchmentielast persontobeemployedinthecategoryistogofirsti.etoterminatehis servicesfirstlywillnotapplytothepresentworkman.Henceargument ofLdARfortheworkmanthatincaseofretrenchmentorterminationof servicesofpresentworkman,managementshouldhaveappliedthe policyof'lastcomefirstgo"cannotbeacceptedandisnotapplicableto thepresentsituationinhand.
47) Ld A.R/Advocate for the workman has also relied upon the judgmentin [PRECEDENT] Thisjudgmentisalsoon the point of termination of temporary employees claimed to be probationers. In this case Hon'ble High Court of Delhi has held that terminationofserviceswithoutcomplyingtheprovisionsofsection25 (F)ofIndustrialDisputeActisillegal.However,thisjudgmentdoesnot applytothepresentfactsinhand,asinthecasebeforeHon'bleHigh Court of Delhi, workmen were on probation and their services were terminated without inquiry but in the present case, workman was engagedforalimitedperiodandaftercompletionofworkhewasnot furtherengaged.Thereforethefactsofthiscasecanbedifferentiated fromthefactsofthepresentcase.
48) ThejudgmentinW.P(C)6024/1999titledasTheManagement ofMunicipalCorporationofDelhivsPresidingOfficer,Industrial Tribunalandanther,asrelieduponbyLdARfortheworkman,was decidedbyHon'bleHighCourtonthegroundthatnoevidencewasled by the management toshowthatworkerswereactuallyengagedon contractualbasisbutinthepresentcase,evidencehadbeenledby boththeparties.Hencethisjudgmentalsodoesnotprovideanyhelpto theworkman.
49) In view of my above discussion ,issueno.1and2havebeen decidedagainsttheworkmantotheeffectthatpresentdisputeisnotan industrial dispute as same has not been properly espoused by the union.Issueno. 3hasbeendecided against theworkmanthatno demandnoticehasbeensentbytheworkmantothemanagementand issueno 4 has been decidedtotheeffectthatpresentstatementof claimisnotmaintainableonthegroundofdelayandlatchesandissue no.5isdecidedagainsttheworkmanthat workmanisnotentitledto anyrelief.Iamoftheopinionthatthereliefsoughtbytheworkman cannotbegrantedtohim.Thereferenceis,thus,answeredinnegative.
50) CopyofthisawardbesenttoGNCTofDelhiforpublication.
51) Filebeconsignedtorecordroom. AnnouncedintheopenCourton(SHAILJAIN)
this4thDecember,2018.PresidingOfficer,POIT02 DwarkaCourt,NewDelhi.
Digitally signed by [ENTITY] Date:
JAIN 2018.12.10 15:42:49 +0530