1 IN THE COURT OF SH. R.K. JAIN, PRESIDING OFFICER, LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI ID NO.307/03 BETWEEN: Work-woman Smt. [ENTITY], c/o. C.P.W.D. Mazdoor Union, E-26, Old Quarters, Raja Bazar, Baba Kharak Singh Marg, New Delhi. . . . . The work-woman AND M/s. P.W.D. Govt. of NCT through its Engineer in chief, Kasturba Gandhi Marg, Curzon Road, Curzon Road Barracks, New Delhi-1. . . . . The Management AWARD 1. The Secretary (Labour) Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F.24(1506)/2003/Lab.-13306 to 10 dated 28.8.03 with the following terms of reference. "Whether the services of Ms. [ENTITY], d/o. Late Sh. [ENTITY] have been terminated illegally and/or unjustifiably by the management and if so, to what relief is she entitled and what directions are necessary in this respect?" 2. After receipt of the reference, notice was sent to the work- woman who filed her statement of claim submitting therein that she was employed by the then Superintending Engineer, Sh. [ENTITY], of Delhi College of Engineering (Project) of the management after conducting her test and interview. She was employed for clerical 2 nature of job. She was performing her duties directly under the control of SE concerned and Executive Engineer also through their Asstt. Engineer. During her employment she was performing her duties on the computer in the office of the Superintendent Engineer and typing work was done by manual typewriter of Executive Engineer. Her duties were fixed from 9.30 am to 5.30 pm when she was working in the office of Superintendent Engineer and after her transfer to the Executive Engineer office she was performing duties from 9.30 am to 6.00 pm. 3. It is further submitted by the work-woman that payments were made to her through some fake contractor by the office of SE and Executive Engineer and she had no concern with the contractor. These activities of the management amounted to unfair labour practices and she should have been treated as direct employee of the management. 4. It is further submitted by the work-woman that she had completed more than 13 months service continuously and had been performing her duties in Delhi College of Engineering (Project) and there was no complaint against her. She was transferred on 30.12.00 to the office of Executive Engineer, Delhi College of Engineering (Project), Bawana, Delhi, where there was a vacancy of a typist. She was transferred due to some undesirable behaviour, demands and harassment (sic). 5. It is further submitted by the work-woman that in the month of February, 2002 Executive Engineer, Sh. [ENTITY], started harassing her and demanded half of her wages and Rs.50000 in cash for continuing and regularizing her services, which she refused. Thereafter she was teased by Sh. [ENTITY] and Sh. [ENTITY] also 3 behaved in-humanely with her and her services were terminated on 4.3.01. 6. It is further submitted by the work-woman that Sh. [ENTITY], MP, Rajya Sabha took her case. 7. It is further submitted by the work-woman that she had completed more that 240 days of continuous service and termination of her services in violation of [SECTION] of [ACT] was illegal and unjustified and she was entitled to be reinstated with full back wages as she was unemployed after termination of her services. 8. The notice of the claim was sent to the management and the management in its written statement denied that there was relationship of employer and employee between the parties. On merits, it was submitted by the management that the claimant was never employed by it and no letter of appointment was ever issued and she was never on the rolls of the management and no salary was paid to her by the management. It was submitted that a contract agency was employed for running and maintaining its equipments. It was submitted that there was a regular procedure based on notified recruitment rules and any appointment could be made only according to those rules. All other averments made in the claim were denied. 9. On the pleadings of the parties, following issues were framed: 1. Whether respondent no.2 is not an industry within the
meaning of [ACT]?
2. Whether there is no relationship of employer and employee between the parties?
3. As per terms of reference.
4. Relief.
10. The work-woman examined herself as WW1 and she filed her affidavit Ex.WW1/A in support of her case. The management examined its Executive Engineer (Electric) as MW2 who also filed his affidavit Ex.MW2/A in support of the case of the management. Sh. [ENTITY], Executive Engineer (Electrical) was examined as MW1 but since he was transferred, his statement could not be completed and his part statement cannot be read in evidence.
11. I have heard Ld. ARs for parties and have gone through the relevant record. My findings on the issues above are as follows. ISSUE NO.l
11. Ld. AR for management conceded this issue in favour of the work-woman. So I hold that management is an 'industry' as defined in [SECTION] of [ACT]. The issue is decided in favour of the work- woman and against the management.
ISSUE NO.2
12. It is by now well settled that it is for the workman to prove that not only he was in employment of the management but also had completed 240 days of continuous service within preceding 12 months from the date of alleged termination. The reference can be made to Surendernagar District Panchayat and [PRECEDENT]. The [PRECEDENT]. [PRECEDENT].
13. In the present case the work-woman has relied on three documents. Ex.WW1/1 (colly.), containing 28 pages, are stated to be the typing work carried out by the claimant while in employment of the management. Ex.WW1/2 is petition made to Sh. [ENTITY], Member of Parliament, Rajya Sabha, along with a letter of Sh. [ENTITY] addressed to the Lt. Governor, Delhi and communication by LG to Sh. [ENTITY]. Though these communications are not relevant for the purpose of deciding the relationship of employer and employee between the parties but in all these documents the work-woman is stated to be a casual employee.
14. The work-woman in her cross examination admitted that no written test was conducted by SE office at the time of her initial engagement. She admitted that no appointment letter was issued to her. She admitted that none of pages of document Ex.WW1/1 were addressed to her. She denied that she was not the employee of the management.
15. On the other hand, MW2 in his affidavit stated on oath that there was no relationship of employer and employee between the parties. In his cross examination, MW2 could not tell if Ex.WW1/1 were typed in the office of SE or not. He could not tell whether typewriter or computer were used in the office. He admitted that no service book or personal file was maintained with regard to workers who work on daily wages. He denied that claimant was working as Receptionist-cum-Typist.
16. In the present case nothing has come on record whereby it could be presumed that the claimant was ever in employment of the management. Even if it be presumed that documents Ex.WW1/1 (colly.) were typed by her still they do not prove that she was in employment of the management. The work-woman in her statement of claim has indicated that there was one contractor in between her and the management but this fact was not elaborated by her. This also reflects that the work-woman was not in direct employment of the management but was engaged by some contractor.
17. Accordingly I hold that the work-woman has failed to prove that there ever was relationship of employer and employee between the parties. The issue, accordingly, is decided in favour of the management and against the work-woman.
ISSUE NO.3
17. While deciding issue no.2, it has already been held that there was no relationship of employer and employee between the parties so there is no question of termination of work-woman services illegally and/or unjustifiably by the management. The issue, accordingly, is decided in favour of the management and against the work-woman.
18. In view of my findings on the issues above, I hold that the work-woman is not entitled to any relief and no directions are necessary in this respect.
19. The reference is answered accordingly.
20. A copy of this Award be sent to the Secretary (Labour), Govt. of NCT of Delhi and file be consigned to Record Room.
Announced in the open Court on 24.3.08 ([ENTITY]) Presiding Officer Labour Court No. IX Karkardooma Courts, Delhi