1 IN THE COURT OF SHRI [ENTITY]; PRESIDING OFFICER, LABOUR COURT XIX KARKARDOOMA COURTS:DELHI. LIR. NO. 1032/06 SH. RAMAKANT CHOUDHARY, S/O SH. JAGANNATH CHOUDHARY, C/O RITES KARAMCHARI SANGATHAN, DDA FLATS, ANAND VIHAR, NEW DELHI. WORKMAN VS M/s RAIL INDIA TECHNICAL & ECONOMIC SERVICES LTD., NEW DELHI HOUSE, 27, BARAKHAMBA ROAD, NEW DELHI-01. MANAGEMENT Date of reference:30/01/03 Date of taking up the matter for the first time:19/12/07 Date of conclusion of arguments:28/07/08 Date of award:11/08/08 Ref no. F.24(2927)/2002-Lab. 25607-11 dated 30/01/03 AWARD 1. On being satisfied as regards existence of an industrial dispute between the parties, the Secretary (Labour) Government of NCT of Delhi in exercise of powers conferred by [SECTION] and [SECTION] of the [ACT] [CASE NUMBER] Page 1 of 19 pages 2 referred the present dispute to the Labour Court V for adjudication, from where it was transferred to this court with the following terms of reference: "Whether the services of Sh. [ENTITY], s/o Sh. [ENTITY], c/o RITES Karamchari Sangathan, DDA Flats, Anand Vihar, New Delhi have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefits in terms of law/government notification and what other relief is he entitled and what directions are necessary in this respect?" 2. On being served with court notice workman filed a claim statement and sought reinstatement of his services with the management with continuity and back wages. As pleaded by workman, he had been in employment of the management as messenger since 01/07/94 with unblemished service record but the management terminated his services on 08/03/96. [CASE NUMBER] Page 2 of 19 pages 3 Thereafter, the workman was again employed by the management with effect from 12/09/97 as messenger and was allowed increments and other benefits as he had been employed against a post of perennial nature. The engineering department of the management also recommended case of the workman for regularization. But despite several representations of the workman, management did not consider him for regularization on post reserved for OBC. Finally on 28/03/02 management terminated services of the workman in an illegal and unjust manner, violating the provisions of [SECTION] of the [ACT]. Despite services of demand notice and intervention of labour authorities, management did not reinstate services of the workman. Hence this reference. 3. Management in their detailed written statement pleaded that services of the workman had been availed by them purely on contractual basis for a specific time period and on expiry of the said period, services of workman terminated automatically. As per management, cessation of employment of a contractual employee with efflux of time does [CASE NUMBER] Page 3 of 19 pages 4 not amount to retrenchment. On completion of contract period and the project on which the workman was engaged temporarily, he became surplus and his services were not extended. Management denied that their work is of perennial nature and explained that they keep engaging casual and temporary workers on contract basis since requirement of workers keeps fluctuating on account of different projects. Since the workman had been engaged against a temporary post sanctioned for a stipulated time period, there was no question of regularization of his services as the same is considered on actual availability of vacancies. 4. [ENTITY] filed a rejoinder denying the pleadings of management and reaffirmed the claim contents. 5. On the basis of pleadings my ld predecessor framed the following issues. 1. Whether the claimant was appointed as messenger by the management on contractual basis for a fixed period of time and also for specific time bound project and that services of the workman stood [CASE NUMBER] Page 4 of 19 pages 5 disengaged with efflux of time? OPM. 2. Relief in terms of reference. 6. In support of their respective case both sides examined one witness each. Both sides preferred to file their arguments in writing. I have perused the entire record and the written arguments. My issue wise findings are as under. ISSUE NO. 1 7. [ENTITY] stepped into the box as WW1 to depose on oath the above mentioned contents of his pleadings and placed on record the relevant documents as Ex.WW1/1-49. In his cross examination, the workman stated that he is graduate and admitted that at the time of his appointment he was aware of the terms and conditions mentioned in his appointment letter dated 12/09/97. He also admitted that every six months, his service contract used to be renewed with the management as per requirement of the management. He also admitted that the management had issued his last appointment/contract letter on 26/09/01 which was for a period of six months till 23/03/02. In his cross examination, workman also proved on record as Ex.WW1/MX1, [CASE NUMBER] Page 5 of 19 pages 6 management's letter dated 26/09/01 which bore his signatures. 8. Manager Personnel of the management appeared as MW1 to depose on oath the above mentioned contents of their pleadings and placed on record the relevant documents as Ex.MW1/1&2. In cross examination of MW1, a suggestion was extended which he admitted that the workman had been appointed in head quarters against specific project and for specific period. He admitted that workers namely [ENTITY] and [ENTITY] had joined subsequent to the workman and had been regularized. He further explained that the regularization is done after four years of service and the workman had been in the organization in two spans from 04/07/94 to 08/03/96 and 14/09/97 to 23/03/2000; when [ENTITY], an SC candidate was regularized in 1996, the workman was not on rolls of the management while when [ENTITY] was regularized in 2000, workman had not completed four years of service. 9. No other evidence was adduced. 10. On behalf of workman it is argued that the workman was engaged as a messenger, which is a job of [CASE NUMBER] Page 6 of 19 pages 7 perennial nature and he worked at the head office of the company, as such it cannot be treated as an engagement for fixed term period. It is further argued that since [ENTITY] and [ENTITY] workers junior to the claimant workman had been regularized, management could not terminate services of the workman. It is argued that management was under a duty to regularize the workman. 11. Per contra, it was argued that the workman had been employed on contractual basis for a specific project and for a specific time period. In view of specific clauses 6&7 of the contract of employment, expiry of contract period and the consequent cessation of services does not amount to retrenchment. It was argued that regularization of other employees cannot create a vested right in the workman, who was employed under a totally different contract. Management also places reliance on the judgments in the cases of [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] vs [CASE NUMBER] Page 7 of 19 pages 8 NATIONAL CENTER FOR TRADE INFORMATION, 2000 VII AD(Delhi) 595; and [PRECEDENT]. 12. In the case of [PRECEDENT] (supra) Hon'ble Supreme Court observed thus: "10. [SECTION] contains an exception. It is in two parts. The first part contemplates termination of service of the workman as a result of non renewal of the contract of employment or on its expiry; whereas the second part postulates termination of such contract of employment in terms of stipulations contained in that behalf 12. We have noticed hereinbefore that the respondent understood that his
appointment would be short lived. He furthermore understood that his services would be terminated at any point of time as it was on a contract basis
16. For the reasons aforementioned we are of the opinion that the instant [CASE NUMBER] Page 8 of 19 pages case is covered by the second part of [SECTION] of the said Act."
13. In the case of [PRECEDENT] (supra) Hon'ble Supreme Court observed:
"43 If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant [CASE NUMBER] Page 9 of 19 pages rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of adhoc employees who by the very nature of their appointment, do not acquire any right
45 It is not as if the person who accepts an engagement either temporary or casual in nature is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or causally got employed should be directed to be continued permanently.
[CASE NUMBER] Page 10 of 19 pages By doing so, it will be creating another mode of public appointment which is not permissible."
14. In the cases of [PRECEDENT] (supra) and [PRECEDENT] (supra) also it was held that where fixed term appointment, extended time to time, stood lapsed on expiry of last term, no right accrued in favour of the workman to be continued beyond that.
15. In the case of [PRECEDENT], Hon'ble Supreme Court held thus:
"7. It is now well settled principle of law that the appointment made on probation/adhoc for a specific period of time and such appointment comes to an end by efflux of time and the person holding such post can have no right to continue in the post. In the case of [PRECEDENT], a three judge bench of this court considered the identical question and [CASE NUMBER] Page 11 of 19 pages held in paragraph 20 of the judgment as under:
"Because the six months' period was coming to an end on 28th February, 1991, she preferred the writ petition a few days before and prayed for mandamus which was granted by the ld Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on adhoc basis for more than a year whether she is entitled to regularization? The answer should be in negative."
8. In the instant case having accepted the terms and conditions stipulated in the appointment order and allowed the period for which he was appointed to have been lapsed by [CASE NUMBER] Page 12 of 19 pages efflux of time, he is not permitted to turn back and say that the appointment dehors the rules or the terms and conditions stipulated in the appointment, were not legally valid."
16. In the case of [PRECEDENT], Hon'ble Supreme Court rejected the argument that the fixed period appointment was a camouflage to avoid regularization and upheld judgment of the Hon'ble High Court whereby award of the labour court, directing reinstatement of the workman on the grounds that although there is no evidence that the post of typist was a permanent one, the workman was engaged time to time and at the time of termination provisions under [SECTION] of the Act had not been complied with, was set aside.
17. In the case of [PRECEDENT], the writ petition before Hon'ble Delhi High Court assailed the award passed by the labour court whereby reference had been [CASE NUMBER] Page 13 of 19 pages answered against the workman. In that case, the workman was a daily rated/casual/muster roll worker with effect from 01/09/88 and his services were terminated on 01/07/99 without assigning any reason and without holding any domestic enquiry against him. The award passed by labour court against the workman was upheld by the Hon'ble Delhi High Court, observing thus:
"3. The respondent/management in this case, it seems, had not prosecuted the matter and its defence was struck off. The Labour Court observed that the petitioner was merely a casual employee who had been employed as a muster roll worker. The petitioner failed to show any provision by which he, became entitled for regularization. Relying upon the judgment of the Supreme Court in case [PRECEDENT], Labour Court answered the reference against the petitioner.
5. In SECRETARY, STATE OF KARNATAKA AND OTHERS vs [CASE NUMBER] Page 14 of 19 pages UMADEVI AND OTHERS, III (2006) SLT 539=(2006) 4 SCC 1, Supreme Court observed that the State is equally controlled by economic considerations. The financial implications of any public employment, the viability of the department or of the instrumentality or of the project is also of equal concern of the State. The Courts cannot impose on the State a financial burden of this nature by insisting on regularization or permanence in employment of those who are employed temporarily and are not needed permanently or regularly. The burden may become so heavy by such directions that the undertaking itself may collapse under its own weight. The rule of equality in public employment is a basic feature of our [ACT]. Unless an appointment is in terms of the relevant rules of recruitment after a proper competition amongst qualified persons, the same would not confer any right on the appointee. If an appointment is a contractual appointment, it comes to an [CASE NUMBER] Page 15 of 19 pages end at the end of the project. If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. A temporary employee cannot claim to be made permanent on the expiry of his terms of appointment. Merely because a temporary employee or causal worker is continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed in regular service or made permanent."
18. Falling back to the present case, workman stated in his cross examination that he is a graduate and admitted that at the time of his appointment he was aware of the terms and conditions mentioned in his appointment letter. [ENTITY] also admitted that every six months his service contract used to be renewed. [ENTITY] also admitted that his appointment was under contract Ex.WW1/MX1.
19. The appointment contract Ex.WW1/MX1 clearly describes the post of the workman as Contract Messenger. As per clause 1.4 of the contract, appointment offered to the workman was for a period of six months from 24/09/01 to [CASE NUMBER] Page 16 of 19 pages 23/03/02 or completion of the project, whichever is earlier. As per clause 6, the contract was to terminate on the period specified therein without any notice and the workman was to have no right or claim to continue on the rolls of the management beyond the specified period. That goes to show clearly that the appointment offered to the workman was not a permanent appointment.
20. [ENTITY] himself has placed reliance on Ex.WW1/7, the management's letter dated 03/06/02 whereby his representation was rejected on the grounds that due to Voluntary Retirement Scheme introduced in the category of messengers and a number of regular employees being available, his contractual engagement could not be continued. No evidence has been brought to establish that the job on which the workman was engaged is of perennial nature as regards the project on which he was posted.
21. As regards regularization of co workers [ENTITY] and [ENTITY], as mentioned above, MW1 explained that [ENTITY] was regularized as scheduled caste candidate in 1996 when the workman was not on rolls of the management while [ENTITY] [CASE NUMBER] Page 17 of 19 pages was regularized in 2000 when the workman had not completed four years of service. As such, their regularization cannot create right in the workman to continue in service with the management.
22. Having accepted the terms of contractual appointment without any demur, now the workman cannot turn around and claim regularization under the garb of reinstatement of his services through these proceedings.
23. In view of above discussion, issue no. 1 is decided in favour of management and it is held proved that the workman was appointed as messenger on contractual basis for a fixed period of time, on a specific project and his services stood disengaged with efflux of time.
ISSUE NO.2
24. In view of above findings, it is held not proved that services of the workman were terminated by the management illegally and/or unjustifiably.
RELIEF
25. In view of above discussion, it is held that the workman is not entitled to any relief against the management. [CASE NUMBER] Page 18 of 19 pages
26. Reference accordingly stands answered. Copies of this award be sent for publication and file be consigned to records leaving the parties bear their own cost. ANNOUNCED IN THE OPEN COURT ON 11th August, 2008 ([ENTITY]) ADDITIONAL DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER, LABOUR COURT-XIX, KARKARDOOMA COURTS, DELHI.
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