4941 GI/2019

(6981)

jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05

REGD. NO. D. L. (N) 04/0007/2003—05

izkf/dkj ls izdkf'kr

PUBLISHED BY AUTHORITY

lkIrkfgd

WEEKLY

la- 40]

ubZ fnYyh] flrEcj 29—vDrwcj 5] 2019] 'kfuokj@vkf'ou 7—vkf'ou 13] 1941

No. 40]

NEW DELHI, SEPTEMBER 29— OCTOBER 5, 2019, SATURDAY/ASVINA 7— ASVINA 13, 1941

bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds

Separate Paging is given to this Part in order that it may be filed as a separate compilation

Hkkx II—[k.M 3—mi&[k.M (ii)

PART II—Section 3—Sub-section (ii)

Hkkjr ljdkj ds ea=kky;ksa (j{kk ea=kky; dks NksM+dj) }kjk tkjh fd, x, lkafof/d vkns'k vkSj vf/lwpuk,a

Statutory Orders and Notifications Issued by the Ministries of the Government of India

(Other than the Ministry of Defence)

िव

िव मंालय

मंालय

(िवीय सेवाएं िवभाग

िवीय सेवाएं िवभाग

िवीय सेवाएं िवभाग)

नई दली, 3 अ तूबर, 2019

का.आ.

का.आ. 1762

1762

1762.— बककारी कंपनी (उपम का अजन और अंतरण) अिधिनयम, 1970 (1970 का 5) क& धारा 3

क& उप-धारा (2क) के दूसरे परंतुक ,ारा -द. शि0य का -योग करते 3ए, के56ीय सरकार, भारतीय 7रजव बक से परामश

के प9ात, एत:ारा, से5;ल बक आफ इंिडया क& -ािधकृत पूंजी को पांच हजार करोड़ Dपए से बढ़ाकर दस हजार करोड़ Dपए

करती है।

[फा. सं. 11/8/2019–बीओए-I]

ए. के. घोष, अवर सिचव

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi, the 3rd October, 2019

S.O. 1762.—In exercise of the powers conferred by the second proviso to sub-section (2A) of section 3 of the

Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), the Central Government after

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THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

consultation with the Reserve Bank of India, hereby increases the authorised capital of the Central Bank of India from

five thousand crore rupees to ten thousand crore rupees.

[F.No.11/8/2019-BOA-I]

A. K. GHOSH, Under Secy.

रेल मंालय

(रेलवे बोड

रेलवे बोड

रेलवे बोड)

नई दली, 18 िसतE बर, 2019

का.आ.

का.आ. 1763

1763

1763.— रेल मंFालय (रेलवे बोड), राजभाषा िनयम 1976 (संघ के शासक&य -योजन के िलए -योग) के

िनयम 10 के उपिनयम (2) और (4) के अनुसरण मG पूव रेलवे मुH यालय, फेयरली I लेस, जहां 80 -ितशत से अिधक

अिधका7रय/कमचा7रय ने Lहदी का कायसाध क Mान -ाI त कर िलया है, को एतद,ारा अिधसूिचत करता है।

[सं. Lहदी 2018/रा.भा.1/12/1]

डॉ. बPण कुमार, िनदेशक (राजभाषा)

MINISTRY OF RAILWAYS

(RAILWAY BOARD)

New Delhi, the 18^th September, 2019

S.O. 1763.—Ministry of Railways (Railway Board) in pursurance of Sub Rule(2) and (4) of Rule 10 of the

Official Language Rules, 1976 (use for the Official purposes of the Union) hereby, notify the Eastern Railway

Headquarter, Fairy Place , where 80% or more Officers/Employees have acquired the working knowledge of Hindi

[No. Hindi 2018/O.L.-1/12/1]

Dr. BARUN KUMAR, Director(OL)

म एवं रोजगार मंालय

नई दली, 31 जनवरी, 2019

का.आ.

का.आ. 1764

1764

1764.—औQोिगक िववाद अिधिनयम, 1947 (1947 का 14) क& धारा 17 के अनुसरण मG के5 6ीय सरकार

मेसस कायकारी अिभयंता, कG6ीय लोक िनमाण िवभाग मुंबई, और अ5 य एवं उनके कमचारी के -बंधतंF के संबंS िनयोजक

और उनके कमकार के बीच अनुबंध मG िनTदU ट औQोिगक िववाद मG के5 6ीय सरकार औQोिगक अिधकरण एवं Wम 5 यायालय

मुंबई के पंचाट (संदभ सं. 32/2006) को -कािशत करती है जो के5 6ीय सरकार को 03.01.19 को -ाI त 3आ था।

[सं. एल-42012/263/2005-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 31^stJanuary, 2019

S.O. 1764.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 32/2006) of the Central Government Industrial Tribunal-cum-Labour

Court Mumbai, as shown in the Annexure, in the Industrial dispute between the employers in relation to the Executive

Engineer, Central Public Works Department, Mumbai & Others, and their workmen which were received by the Central

Government on 03.01.19.

[No. L-42012/263/2005-IR(DU)]

V. K. THAKUR, Section Officer

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vDrwcj 5] 2019@vkf'ou 13] 1941

6983

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : M. V. Deshpande, Presiding Officer

REFERENCE NO.CGIT-2/32 of 2006

EMPLOYERS IN RELATION TO THE MANAGEMENT OF CENTRAL PUBLIC WORKS DEPARTMENT

The Executive Engineer,

Central Public Works Department,

Goa Central Division, Bambolim,

Goa.

AND

THEIR WORKMEN

The Secretary

CPWD Mazdoor Union,

CPWD Office Compound, Bamanwade,

Vile Parle [E],

Mumbai – 400 099.

APPEARANCES:

FOR THE EMPLOYER

Mr. V. Narayanan, R. D. Rathod, Advocates

FOR THE WORKMAN

Mr. J. H. Sawant, Advocate

Mumbai, dated the 22^nd November, 2018

AWARD

Government of India, Ministry of Labour & Employment vide its order No. L-42012/263/2005 – IR (DU-II)

dated 31.05.2006 in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10

of the Industrial Disputes Act, 1947 have referred the following dispute to this tribunal for adjudication.

“Whether the action of the Executive Engineer, Central Public Works Department, Goa Division of utilizing the

services of Shri Shabir I Telsiwale on contractual basis and not regularizing the services w.e.f. 3.10.1989 is legal

and justified ? If not, to what relief Shri Shabir I Telsiwale is entitled ? ’’

After the receipt of the reference, notices were issued to both parties. In response to the notice, second party

workmen filed his statement of claim Ex.7. According to the second party workman, he was employed with management

of Central Public Works Department. He was selected and appointed by the management of CPWD in capacity of Motor

Lorry Driver for driving the vehicles of the management. He was driving the management jeep No. CLR 4261 w.e.f.

3.10.1989. He was in continuous employment of the management. He was paid wages directly by the management. He

was posted for the work at Kolhapur Central Sub-Division -1. He was paid wages at minimum rates on wages. He was

not granted any other benefits which were available to the regular workman of the management attending the same and

similar work of the management. He was repeatedly requesting the management to regularize his services as permanent

workman of the management as done in case of other workmen placed in similar circumstances. His appointment and his

continuation in service was approved and sanctioned by the competent authorities of the management from time to time

by modifying the procedure of recruitment suitably for the reasons that there was ban on recruitment and therefore it was

not possible for the management to follow strictly the rules of recruitment. He was qualified for the post and was

appointed and continued in service by following office procedure for approval and sanction etc. His case for his

regularization in service was under the active consideration of management. He was given assurance from time to time

that he shall be given permanency in the employment. However, instead of regularizing his service, management

continued his service and subsequently made paper arrangement that this services have been engaged through the

contractor and threatened him of his dismissal from the services. As such management continued to indulge in unfair

labour practice.

According to the applicant / union vide its letter dt. 3.5.2005 raised industrial dispute before Asstt. Labour

Commissioner [Central], Ministry of Labour, Govt. of India, Mumbai over the demand for conferring upon the workman

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THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

the status and privileges of permanent workman w.e.f. 3.10.89 in the post of Motor Lorry Driver with all consequential

benefits. However, conciliation ended in failure. The Central Govt. has referred dispute for adjudication to this tribunal.

The workman prays that action of Executive Engineer CPWD, Goa Division in utilising services of workman on

contractual basis, in not regularizing the services w.e.f. 3.10.1989 and further discontinuing the services of workman

w.e.f. 1.4.2006 be declared illegal and unjustified. He also prays for restoration of his services by conferring upon him

the status of permanent workman.

The first party management resisted the statement of claim vide its written statement Ex.8. According to them

the concerned workman Shri Shabir I Telsiwale was never employed at any time by the management of CPWD. He was

neither working in CPWD nor employed by the CPWD. It is submitted that Executive Engineer Goa Central Division,

Goa purchased a jeep and transferred the same to the Asst. Engineer Belgaon Central Sub Division – 4, CPWD Sambra –

24 under its control in November 1989. As there was no regular jeep driver available to run the departmental vehicle,

Assit. Engineer Belgaon invited quotations for running the said jeep for the period of 3 months from various local

contractors. The quotations were called on regular intervals for providing the services of driving the departmental

vehicles and the work orders used to be issued to the lower tenderers. One such contractor Shri Shabir I Telsiwale,

concerned workman quoted his tender which was lowest @ 1000/- per month and Rs.25/- per day as night halt outside

Belgaon. Accordingly, the work order was issued to the lower contractor Shri Shabir I Telsiwale for 3 months only. For

every 3 months work orders for driving vehicle had been issued to the agency which had quoted the lowest rates after

fresh call of quotations and the payment for providing the services had been made as per the rates in the work orders and

having accepted by the agency.

According to the management, concerned workman was not paid wages. He was paid contractual amount as per

the quotations quoted by him and work order issued to him for driving the departmental vehicle. After the 3 months

period is over, such contract came to a end. As such the applicant, the concerned workman Shri Shabbir I Tashewale was

never employee of the management.

The work allotted to the concerned workman was as a contractor and hence there is no relation in between

department and Shri Shabbir I Tashewale as of employer and employee.

According to the management, jeep which was in service was very old running on the road from 1989 and it was

almost 17 years old. In the first week of January 2006 it met with break down on the road and is not in working

condition. Therefore no quotation was called after 31.3.2006 for driving the said jeep on contractual basis. It is thus

contended that there was no question of restoration of services of Shri Shabbir I Tashewale. Therefore they prayed that

reference be dismissed with costs.

This tribunal has passed the award dt. 6.2.2017 and rejected the reference with no order as to costs.

Second party workman challenged the award dt. 6.2.2017 before the Hon’ble H.C. by filing WP No. 686/2018.

The Hon’ble H.C. quashed and set aside the impugned order and the matter is remanded to this tribunal for fresh hearing

in accordance with the law. The Hon’ble H.C. directed this tribunal to decide whether or not the employee on whose

behalf the reference was made was a workman u/s. 2(s) of the I.D. Act, 1947 and the contract between the parties was a

contract of service or contract for service. The Hon’ble H.C. directed this tribunal to hear the parties on the basis of same

evidence which was led before this tribunal and decide the reference.

10.

In view of that the concerned workman submitted written arguments vide Ex.44. Learned Counsel for the first

party has also advanced oral arguments in view of pleadings.

11.

Following points arises for my determination and my findings thereon for the reasons to follow are as under:

Sr. No.

Points

Findings

Whether the concerned employee on whose behalf the reference is

made was a workman u/s. 2(s) of the I.D. Act ?

Whether the concerned employee establishes employer - employee

relationship with first party?

No, not proved

Is concerned workman entitled to relief sought ?

As per final order

What Order ?

As per final order

Reasons

Issue No.1 & 2.

12.

Admittedly the concerned workman Shri Shabbir I Tashewale was working as motor lorry driver on work order

basis. It is uncontroverted that he was paid the wages through contractor since 1989. M/s. Gulmohar Construction,

Solapur was the contractor. Even it is admitted that there was ban to recruit the drivers in the department in 1989. The

work of driving jeep was entrusted to lowest tenderer on the work order basis for the period of 3 months. The concerned

workman in the reference has quoted his tender which was the lowest @ 1000/- per month and Rs.25/- per day as night

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vDrwcj 5] 2019@vkf'ou 13] 1941

6985

halt outside Belgaon and accordingly the work order was issued to the said lowest contractor Shri Shabbir I Tashewale

on 30.11.2089. Ex.B below Ex.19 is the chart showing the details of periodical orders issued to the agencies. It shows

that Shri Shabbir I Tashewale was issued the work order from 3.10.89 to 30.9.2001 initially for the period of 3 months

which was continued for every 3 months period till 30.09.2001. It shows that on 1.10.2001 till 31.03.2005 work order

was issued to M/s. Gulmohar Construction, Solapur and Shri Shabbir I Tashewale. This work order was issued for 3

months during the said period and thereafter from 1.4.2005 till 31.2.2006 work orders were issued to M/s. Gulmohar

Construction, Solapur, A.B. Construction, again for M/s. Gulmohar Construction, Solapur and then to A.B. Construction

for every months during this period. Chart clearly shows that the work orders were issued after inviting the quotations

for driving the departmental vehicle / jeep and had issued for 3 months only to the lower tenderer. Ex.C below list Ex.19

is the copy of work order dated 3.10.1989. It shows that labour charges for driving departmental jeep were fixed at

Rs.1000/- per month and for 3 months which were fixed for Rs.3000/- plus extra for night halts outside Belgaon for 15

days were fixed at Rs.375/-. Total Rs.3375/- were fixed towards labour charges and extra night halts. Contractor was

responsible for the cleanliness of the jeep etc. and other conditions are mentioned in the said work order. Similar were

the work orders on the basis of which the concerned workman worked as driver since 3.10.89 till 31.3.2006. The

question is whether it could establish employer-employee relationship of the concerned workman with first party ?

13.

Here in instant case it is no doubt true that the concerned workman continuously worked from 3.10.89 till

31.3.2006 as jeep driver. He has put in 240 days service on 31.3.2006. But then the fact remains that since there was ban

for recruitment, he was working on the basis of work order. After expiry of work order fresh quotations were again

called and he again quoted lowest rates and fresh work order was issued to him for same work. He quoted lowest rates

continuously for years together and work orders were issued to him for running the vehicle during this period. In view of

that it can be said that his engagement was always for fixed 2 – 3 months and it was categorically provided so in each one

of the work order given to him. Therefore non-engagement of concerned workman Shabbir I Tashewale on the expiry of

period of last work order given to him did not amount to his retrenchment under section 2(oo) (bb) of the I.D. Act, 1947

it is clearly provided that termination of the service of workman because of non-renewal of contract of employment and

its expiry does not amount retrenchment. In this regards hand can be led on the decision in case of M/s. Haryana State

FCCW Stock Ltd. Vs. Ram Nivas AIR 2002 SC 2495 wherein the termination of service of the concerned workman on

expiry of fixed period of his employment was not held to be accounting to his retrenchment despite of the fact that the

workman has worked for 240 days in a year.

14.

Learned Counsel for the concerned workman submitted that the issue that Second party workman is a workman

or not, was never raised by the first party either before the conciliation officer or before the Hon’ble Bombay H.C. in the

pleadings connected with the Second party workman. Submission is to the effect that there was a contract of service

between the first party and the second party. The device has been used by the first party to give employment to the

second party by issuing the work orders from time to time for the purpose of depriving the second party of the status and

the privileges of the permanent workman. The first party has employed the second party for his perennial nature of work

for the period from 3.10.89 to 31.3.2006. As such there was a contract of service between the first party and the second

party and it was not a contract for service.

15.

Submission is also to the effect that the contract for service is different from contract of service. In contract of

service the employer normally enjoys the power of control over the work of the servant and the servant is bound to obey

the instructions of master. On the other hand, the independent contractor undertakes to produce the required result but in

casual execution of the job to produce the result is not under the order or control of the person for whom he executes the

work. With this the submission is that considering the nature of the work of the concerned workman, it can be said that

the second party workman Shri Shabbir I Tashewale was the workman as defined u/s. 2(s) of the act and the contract

between the parties was a contract of service and not contract for service.

16.

The submission is also to the effect that the services of the similarly situated workmen have been regularized by

the management and the appointment of the second party workman and its continuation in service was approved and

sanctioned by the authority of the first party from time to time by modifying the procedure of recruitment suitably for the

reason that there was ban on recruitment and therefore it was not possible or permissible for the management to follow

strictly the rules of recruitment. Submission is that the workman was qualified for the post and appointed and continued

in service by following the office procedure by approval and sanction.

17.

It is not possible to accept the submission that the second party workman worked on the basis of contractual

work order. After expiry of the work fresh quotations were again called since he quoted the lowest rate continuously for

years together the work orders were issued to him for running the vehicle during this period. His engagement was

always for 2 – 3 months. There is no such evidence on record that second party workman being the independent

contractor, he was under the order or control of the first party.

18.

The test which is uniformly applied in order to determine the relationship is the existence of right of control in

respect of manner in which the work is to be done. The distinction is also drawn between contract for service and

contract of service. In one case master can order or require what is to be done while in another case he can not only order

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[PART II—SEC. 3(ii)]

or require what is to be done but how it shall be done. The principle which emerges from the authorities is that prima-

facie test for determination of relationship between master and servant is the existence of right in the master to supervise

and control the work done by the servant not only in the matter of directing what work the servant is to do but also

manner in which he shall do his work. The correct method approach would be to consider whether having regard to the

nature of work there was due control and supervision by the employer.

19.

In the present case there was ban from the government for recruitment in the year 1994 and the ban continued.

Therefore workman was appointed on contract by the work order to drive the jeep and not heavy vehicles. When drivers

are to be recruited, depending upon the availability of the post as per the recruitment rules the workman cannot be

regularized unless ban is lifted. Even in case of similarly situated workmen management is directed to regularize the

services as and when ban lifted and vacancy arises as per the rules. So far as present workman is concerned, he cannot

claim the regularization on the basis of the availability of post as per rules.

20.

In the context, Learned Counsel for first party management seeks to rely on decision in case of Secretary State

of Karnataka Vs. Umadevi (3 & ors 2006) 4 SCC – 1. With regard to legality of the engagement of workers on daily

wages by the govt. the constitution bench observed as under

“3. A sovereign Government, considering the economic situation in the country and the work to be got done, is

not precluded from making temporary appointments or engaging workers on daily wages……………

12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ

persons. In posts which are temporary, on daily wages, as additional hands or taking them in without following the

required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in

terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not

needed permanently. This right of the union or of the State Government cannot but be recognized and there is nothing in

the constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the

situation. But the fact that such engagements are resorted to cannot be used to defeat the very scheme of public

employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in

various capacities for a duration or until the work in a particular project is completed……….”.

21.

In a nutshell, the legal position which emerges from Umadevi case (supra) can be de-lineated as under:

“(i) the government is not precluded from engaging workers on daily wages; (ii) appointment to public posts can

only be made in terms of statutory rules framed under Article 309 of Constitution of India; (iii) an employee

engaged on daily wage basis cannot claim to be made a permanent employee; (iv) the courts cannot direct

regularization of services of workers engaged on daily wage basis; (v) the doctrine of ‘equal pay for equal work’

has no application in case of regularization of services of workers engaged on daily wage basis and (vi) in cases

where services of workers engaged on daily wage basis gets regularized, such workers cannot claim parity with

regular employees with regard to payment of salary and other allowances for the period prior to regularization of

their services.”

22.

In view of this legal position, the concerned workman being the contract labour cannot get regularization.

23.

Even then Learned Counsel for the concerned workman submitted that in case of other workmen of the first

party placed in similar circumstances, three different awards came to be passed by this tribunal and the Hon’ble H.C.

vide order dt. 16.6.2004 read with order dt. 17.8.2004 in WP No. 401/2004 has been pleased to direct the first party to

regularize the services of these 9 employees covered in 3 awards. Accordingly, these 9 workmen covered in 3 awards

have been regularized in services w.e.f. 1.1.2004. Since the Second party workman has been placed in similar

circumstances to the 9 employees covered in these 3 awards is entitled for regularization.

24.

For it is explicit, that in Ref. No. CGIT-2/11 of 1997 the award came to be passed whereby it is declared that the

managements action for not regularizing the services of drivers – workmen from their respective dates of the

appointment is legal & justified. However, the management is directed to regularize them from the date of availability of

the vacancies. The regularization should be as per seniority in their appointment and each one of the workman is entitled

to all benefits from the date of regularization and not from the earlier period. Similarly in Ref. No. CGIT-2/88 of 1999

the action of the management of the CPWD in not regularizing the services of Chowdhry as Motor-Lorry Driver is held

justified and management is directed to regularize his services when the ban is lifted and vacancy arises as per rules.

Similarly in Ref. No. CGIT-2/97 of 1999 the action of the management of the CPWD in not regularizing the services of

Sidharth Jagtap is held justified and management is directed to regularize his services if ban is lifted and vacancy arises.

Similarly in Ref. No. CGIT-2/197 of 1999, wherein the action of the management is held justified. However, the

management is directed to regularize his services when the ban is lifted and vacancies arise. It cannot be said therefore

that in other 3 awards the services of the employees were reinstated by declaring the action of the management as un-

justified. It cannot be said therefore that other 9 employees who have been placed in similar circumstances have been

regularized on the ground that the action of the management was not justified. The fact remains therefore that so far as

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6987

concerned workman is concerned, he has not established employer-employee relationship and therefore it will have to be

said that he was not a workman u/s. 2(s) of the act.

25.

That part, if we see the evidence that has been placed on record it can be seen that admittedly in June 2006 the

jeep which the concerned workman was driving, broke down. He admits that the said jeep was 17 years old jeep.

Thereafter, the said jeep was scrapped and therefore quotations in respect of jeep were stopped. Admittedly the vehicle

broke down during the quarter from 1.1.2006 to 31.3.2006. Break down took in the first week of said quarter.

Admittedly the said such quotation was given to A.B. Construction and thereafter quotations in respect of that jeep was

stopped. Obviously therefore there was no question of issuing any fresh work order in respect of that jeep and therefore

it appears that his services were discontinued.

26.

Learned Counsel for the concerned workman seeks to rely on the decision in case of Ramsingh & Ors. V/S.

Chandigarh & Ors. – 2004 I SSC 126 to submit that the tests to be considered for determining the employer-employee

relationship are

Control

Integration

Power of appointment & dismissal.

Liability to pay remuneration and deduction insurance contributions.

Liability to organize the work and supply tools & materials.

Nature of mutual obligations and

Terms & conditions of the contract between the parties.

27.

In the instant case it has come on record that the work orders were issued on the basis of which the concerned

workman worked as a driver since 3.8.89 to 31.3.06. There is no evidence that he was paid wages by the first party or

the first party was deducting his contributions towards PF etc. The labour charges for driving departmental jeep were

fixed at Rs.1000/- p.m. and for 3 months it were fixed for Rs.3000/- plus extra night halts outside the city for 15 days

were fixed at Rs.375/- etc. He was responsible for cleanliness of jeep etc. and other conditions were mentioned in the

work order. That would clearly show that he was not paid wages, nor his PF or ESI contributions were deducted from his

wages at any time to establish employer-employee relationship and supervisory control etc.

28.

Considering all these facts, I find that the second party workman has not established employer-employee

relationship with first party management. Material placed on record amply makes it clear that the concerned workman

worked on the basis of contractual work orders. He was not employed by the first party management and therefore he is

not employee of first party. Issue No. 1 & 2 are answered accordingly as indicated against each of them in terms of

above observations.

Issue No.3 & 4

29.

In view of my findings to Issue No.1 & 2, the concerned workman is not entitled to relief of conferring upon

him the status and privilege of permanent workman. He also cannot seek reinstatement. As such he is not entitled to

reliefs sought. The reference is liable to be rejected with no order as to costs. Thus the order.

ORDER

Reference is rejected with no order as to costs.

Date: 22.11.2018

M.V. DESHPANDE, Presiding Officer

नई द ली, 25 िसतE बर, 2019

का.आ.

का.आ. 1765

1765

1765.—औQोिगक िववाद अिधिनयम, 1947 (1947 का 14) क& धारा 17 के अनुसरण मG के56ीय सरकार

मेसस अिधशासी अिभयंता, देहरादून कG6ीय िवQुत -भाग, देहरादून और अ5य एवं उनके कमचारी के -बंधतंF के संबS

िनयोजक और उनके कमकार के बीच अनुबंध मG िनTद[ औQोिगक िववाद मG के56ीय सरकार औQोिगक अिधकरण एवं Wम

5यायालय-1, नई दली के पंचाट (संदभ संHया 121/2016) को -कािशत करती है जो के56ीय सरकार को 16.09.2019 को

-ा\ 3ए थे।

[सं. एल-42025/07/2019-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

6988

THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

New Delhi, the 25^th September, 2019

S.O. 1765.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 121/2016) of the Central Government Industrial Tribunal-cum-Labour

Court -1, New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Executive Engineer, Dehradun Central Electrical Division,Dehradun & Others, and their workmen which were received

by the Central Government on 16.09.2019.

[No. L-42025/07/2019-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

IN THE COURT OF SHRI AVTAR CHAND DOGRA : PRESIDING OFFICER CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT No. 1, ROUSE AVENUE COURTS COMPLEX :

NEW DELHI.

ID No. 121/2016

Shri Monu Kumar S/o. Bhopal Singh

As represented by

All India Central PWD (MRM) Karamchari Sangathan (Regd.)

H.No. 4823, Gali No.13, Balbir Nagar Extension,

Shahdara,

Delhi 110032.

…Workmen

Versus

The Executive Engineer,

Dehradun Central Electrical Division,

CPWD, 20 Subhash Marg,

Dehradun (0135).

M/s. AEE Enterprises,

C/o. The Executive Engineer,

Dehradun Central Electrical Division,

CPWD, 20 Subhash Marg,

Dehradun

…Management

AWARD

This Award shall decide a claim petition directly filed by the workman Monu Kumar under Section 2-A of the

Industrial Disputes Act, 1947 (in short the Act).

Brief facts of the case as borne out from the averments made in the statement of claim are that the workman was

appointed by the above Management as Wiremen w.e.f. 15/7/2013 and was deputed at ARC,Sarsawa site for day to day

maintenance work and he had put in 240 days’ regular service till the date of is termination of services on 13/4/2014

when he was verbally told that his services are terminated by the concerned Junior Engineer. The workman fulfills the

conditions/eligibility criteria of recruitment rules for the post of Wireman. Neither the management of CPWD, nor the

contractors engaged for hiring the services of the workman, had paid minimum wages to the workman even

though he was legally entitled for regular pay scale of post of Wireman as he was discharging the duties at par

with regular Wireman till the date of his termination. In nut shell, the case of the claimant is that he was engaged by

CPWD through contractor, though contractors were/are being replaced by the Management from time to time and such

contractors were used only for the purpose of making payments to the workman, whereas the workmen are working

under the direct control of CPWD. Ministry of Labour, Govt. of India had issued a notification dated 31/7/2002 for

complete ban on 15 posts for contract system in CPWD but despite that the principal employer CPWD engaged the

workman through contractor which is unlawful as most of the times the workman was not aware as to who is his

contractor/employer and when the new contract came into force. It is pleaded that act of the management in terminating

services of the claimant is in violation of the provisions of Act. He has prayed for reinstatement of service with full

back wages and regularization of his services under the principal employer as per judgement dated 26/5/2000 of Hon’ble

High Court in CWP No.4817/99 (All India CPWD (MRM) Karamchari Sanghthan Vs. UOI and others, wherein

directions were issued for not terminating the service of contractual workman even after change of contractor.

The claim petition has been resisted by the Management of CPWD who filed its written statement and took

preliminary objections that there is no relationship of employer and employee between the parties, as the claimant is

labourer of contractor to whom contract had been awarded by the Management after inviting open tenders and

[Hkkx II—[k.M 3(ii)]

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6989

completing codal provisions. The workman/claimant had neither been appointed nor recruited by the Management and

as such he is not the workmen as per Section 2(S) of the Act. While denying the allegations of the claimants on merits,

it has been stated that since the claimant was not appointed by the Management, so question of providing er legal

facilities does not arise The workmen was working under the direct control and supervision of the contractor namely

M/s AEE Enterprises. As per available record, no agreement was executed by Management of CPWDE with M/s AEE

Enterprises. It is denied that the workman/claimant has completed more than 240 days in each calendar year under the

Management. It is stated that contract system is not sham and camouflage and as such the workmen is not entitled either

for regularization in his services or for reinstatement into service. Prayer has been made for dismissal of the claim

petition.

Management No.2 M/s AEE Enterprises did not appear despite notice and the case was proceeded ex parte

against it vide order dated 02/01/2017.

Rejoinder was filed on behalf of the workman wherein he reiterated the averments as made in the statement of

claim and denied the allegations of the Management No.1.

On the pleadings of the parties, following issues were framed on 24/04/2017 :-

Whether there is no relationship of employer and employee between the claimant and Management

No.1 ?

Whether termination of the claimant on 13/4/2014 is wrong and illegal and is against the principles of

natural justice as alleged ?

Whether the claimant is entitled for reinstatement alongwith bak wages as alleged ?

The Claimant in support of his case examined himself as WW1 and relied on the documents Ex.WW1/1 to

Ex.WW1/8, whereas the Management No.1 had examined Shri U.K.Goel, Executive Engineer (Electrical) as MW1 who

also tendered his evidence by way of affidavit Ex.MW1/A and relied on the document Ex.MW1/1 (colly.).

I have heard Shri Satish Kumar Sharma, A/R for the claimants and Shri Atul Bhardwaj, A/R for the

Management and have gone through the records carefully. My findings on above issues are as follows.

Issue No. 1 to 3 :-

All these issues are taken up together as they can be conveniently disposed of by common discussion.

10-

During the course of arguments, learned A/R appearing for the workman strenuously argued that the the

contract/agreement between the Management and the contractor/s M/s AEE Enterprises was sham and bogus because the

same was against the spirit of notification Ex. MW1/W-1 issued by the Ministry of Labour. As such, the

workman/claimant should be deemed to be the employee of the Management of CPWD.

11-

Per-contra learned A/R appearing for the Management argued that since the claimant was not directly appointed

by the Management herein and he used to get wages from the contractor/s, there existed no relationship of employer-

employee between the parties. He relied on a number of judgements viz. Workman Vs. Coates of India Ltd. (2004) 3

SCC 547; Haldia Refinery Canteen Employees Union Vs. Indian Oil Corporation Ltd;(2005) SCC 51; Balwant

Rai Saluja Vs. Air India Ltd (2014) 9 SCC 407; Ram Singh Vs. Union Territory, Chandigarh (2004) 1 SCC 126;

Workman of Nilgiri Coop Marketing Society Vs. State of Tamilnadu (2004) 3 SCC 4514; Union of India and

another Vs. Aryulmozhi Iniarasu and others (2011) 9 SCR 1 to buttress his submission that if the contract is for

supply of labour, necessarily the labour supplied by the contractor will work under the directions, supervision and control

of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is

paid by a contractor.

12-

There is no dispute about preposition of law that the control test and organization test are not the only factors

which can be said to be decisive. With a view to elicit the answer, the Court/Tribunal is required to consider several

factors vis-a-vis- who is the appointing authority, who is a paymaster, who can dismiss; how long alternative service

lasts, the extent & control of supervision; the nature of the job – professional or skilled work etc. etc, which would have

a bearing on the result. It would be worthwhile to first consider the evidence adduced on record by the parties to the

dispute.

13-

Case of the claimant/workman herein is that he was engaged/ appointed as Electrician by the Department of

CPWD through contractor and was deputed at ARC, Sarasawa site for day to day maintenance work. Affidavit

Ex.WW1/A of the workman is in line with the averments made in the claim petition. He has filed on record copy of the

certificate showing that he had successfully completed the test/training for Electrician course from Gurjar ITC Rampur

Manharan, Saharanpur (UP) as Ex.WW1/1, gate pass Ex.WW1/2 issued to him for making entry in Avition Research

6990

THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

Centre, Sarasawa, Saharanpur; copy of the representation dated 27/6/2014 which he had submitted to the Executive

Engineer, Dehradun Central Electrical Division, CPWD for reinstatement into service as Ex.WW1/3; copy of the

demand notice which the Union had sent to the Executive Engineer of CPWD as Ex.WW1/4; extract of directions of

Hon’ble High Court in the matter of Rajender Lal and others Vs. UOI(, CWP No.8741 of 1998 as Ex.WW1/5; copy of

Minutes of Central Advisory (Contract Labour) Board circulated vide letter dated 18/12/2001 as Ex.WW1/6 (colly.);

copy of the Award dated 19/2/2014 of CGIT-I notified by the Ministry of Labour vide notification dated 7/3/2014 as

Ex.WW1/7 and Ex.WW1/8. In cross examination he admitted that no appointment letter had been issued to him by

Management No.1, though he claimed to have been appointed by Shri Kishan Chand, JE. He had neither made any

written application for the job, nor any advertisement was published for the same. He clarified that he was appointed on

15/7/2013 and his services were terminated on 13/4/2014. He denied the suggestion that he was a contractual employee.

14-

Testimony of MW1 Shri UK Goel is in conformity of the contents of the written statement. He showed his

ignorance if gate pass Ex.WW1/2 was issued by Avitional Research Centre on their instructions. He admitted that

Ex.MW1/W-1 is the copy of gazette notification and document Ex.MW1/W2 is the extract/copy of the complaint

the year 2013-14, or that the contractor engaged by the Management of CPWD had taken any licence from Labour

Department.

15-

From the pleadings of the parties and evidence adduced on record, it is manifest that the

workman/claimant worked under the Management of CPWD at its Avitional Research Centre, Saraswa, Saharanpur

through the contractor M/s AEE Enterprises and that is why gate pass Ex.WW1/2 was issued to him at the

instance/recommendations of JE (Electricity). It is not in dispute that neither any appointment letter had been issued to

him by Management No.1, nor any advertisement was published for the same by CPWD, nor he had made any written

application for the job to CPWD. As such, it stands proved on record that he was not recruited/engaged directly by

CPWD. Merely because gate pass Ex.WW1/2 was issued to the claimant, that would not ipso facto mean that he was the

employee of CPWD. This fact is also substantiated from the representation dated 27/6/2014 (Ex.WW1/3 (colly.) which

he had sent to the Executive Engineer, CPWD for reinstatement into service. In that representation, it has been clearly

mentioned that he was deputed through contractor to work at ARC, Sarasawa from 15/7/2013 and that his services

were terminated on 13/4/2014. Alongwith this representation Ex.WW1/3 he had also enclosed due & drawn statement

wherein also contractor’s name has been given as M/s AEE Enterprises. Perusal of the document Ex.MW1/W-2 (colly.)

which are the copies of complaint register, duly attested by Executive Engineer, CPWD, simply shows that complaints

relating to electricity were attended to by the workers Deepak Kumar, Joginder, Harimohan, Shivam, Lalit etc. but the

name of claimant Monu Kumar does not find mention therein. It thus stands proved on record that the workman/claimant

rendered service for a period of about nine months from 15/7/2013 to 12/4/2014 through contractor in CPWD

(principal employer).

16-

Even if it is assumed for the sake of argument that the contract/agreement between the Management of CPWD

& the contractor M/s AEE Enterprises was sham and bogus, in that eventuality also the workman/claimant would not

ipso facto become the employee of the CPWD, inasmuch as there is nothing on record to suggest that the

workman/claimant continued to work all the time under the direct or indirect control and supervision of the Management

of CPWD and the contractors kept on changing from time to time. It is therefore, held that there existed no

relationship of employer-employee between the Management of CPWD and the claimant herein. However, he

was the employee of M/s AEE Enterprises.

17-

Now the question arises for consideration is whether termination the claimant is illegal and in violations of the

provisions of the Act.

18-

It is manifest from the pleadings of the parties as well as evidence adduced on record that the claimant worked

as Electrician for about nine months from 15/7/2013 to 12/4/2014. Testimony of the claimant that his services were

illegally terminated by his employer w.e.f. 13/4/2014 without any notice has gone unchallenged and unassailed. This

Tribunal has already held that there existed relationship of employer-employees between the claimant and Management

No.2 M/s AEE Enterprises. Despite service Management No.2 neither caused appearance, nor rebutted the case of the

claimant, nor led any evidence to rebut the case of the claimant. Since no notice or compensation in lieu of notice period

was given to the claimant/s by the Management No.2, as termination of services of the claimant/workman was in

violation of provisions of Section 25-F of the Act.

19-

I may mention that provisions of Section 25-F of the Act which provides for conditions precedent to

retrenchment of workmen, are absolute and inexorable and it reads as under :-

“25-F : Conditions precedent to retrenchment of workmen –

No workman employed in any industry who has been in continuous service for not less than one year under

an employer shall be retrenched by that employer until –

[Hkkx II—[k.M 3(ii)]

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6991

(a) The workman has been given one month’s notice in writing indicating the reasons for retrenchment and the

period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of

the notice;

(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen

days’ average pay for every completed years of continuous service or any part thereof in excess of six

months; and

specified by the appropriate Government by notification in the Official Gazette.”

The above provision makes it clear that the employer is required to give notice to the appropriate Government apart-from

giving one month’s notice in writing or one month’s wages in lieu of the notice and payment of retrenchment

compensation to the concerned workman. There is nothing on record to show that either any notice was issued by the

Management or notice pay/compensation was paid to the workman/claimant prior to his termination. As such, the

Management No.2 has violated the provisions of Section 25-F of the Act.

20-

There is long line of decisions of Hon’ble Apex Court as well as of various High Courts that provisions of

Section 25-F of the Act are mandatory in nature and termination of the workman from services in derogation of the

provisions of Section 25-F of the Act will render action of the Management to be illegal and void under the law.

21-

Since there is no evidence on record that any valid notice was issued by the Management No.2 to the workman

at the time of termination or in lieu of such notice, any compensation was paid to the workman, as such action of the

Management in terminating the services the workman is held to be illegal and void.

22-

Now the residual question is whether the workman is entitled to any incidental relief of payment of back wages

and/or reinstatement of service with full/partial back wages. There is nothing on record to suggest that any show cause

notice or charge-sheet was issued to the claimant/workman by the Management No.2 prior to his termination. The

claimant worked under the Management No.2 just for about nine months prior to the date of his termination. It is fairly

settled that there are number of factors which are required to be considered by the Tribunal while considering the

question of reinstatement with back wages. It has been held in the case of Hari Nandan Prasad Vs. Food Corporation of

India (2014) 7 Supreme Court cases 190 as under :-

“Relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given

fact situation even though the termination of an employee is in contravention of the prescribed procedure.

Compensation instead of reinstatement has been held to meet the ends of justice. An order of retrenchment

passed in violation of Section 25-F although may be set aside but an award of reinstatement should not,

however, be automatically passed. The award of reinstatement with full back wages in a case where the

workman has completed 240 days of work in a year preceding the date of termination, particularly daily wages

has not been found to be proper by the Supreme Court and instead compensation has been awarded. The

Supreme Court has distinguished between a daily wager who does not hold a post and a permanent employee.

The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the

termination is found to be illegal, because of non payment of retrenchment compensation and notice pay as

mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always

open to the management to terminate the services of that employee by paying him the retrenchment

compensation.’’

23- Having regard to the recent judicial trends and duration of service rendered by the workman/claimant, this Tribunal

is of the view that an amount of Rs.1 lakh (Rupees One Lakh) appears to be just and reasonable, and same shall be paid

by Management No.2 within a period three months from the date of publication of this Award, failing which the

workman will be entitled to recover the same alongwith interest @ 6% from the date of publication of the Award till

realization of the amount.. Award is passed accordingly in favour of the claimant and against the Management No.2.

Let copy of this Award be sent for publication as required under Section 17 of the Act.

Dated : 6.9.2019

AVTAR CHAND DOGRA, Presiding Officer

6992

THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

नई द ली, 25 िसतE बर, 2019

का.आ.

का.आ. 1766

1766

1766.— औQोिगक िववाद अिधिनयम, 1947 (1947 का 14) क& धारा 17 के अनुसरण मG के56ीय सरकार

मेसस आयु0, दली नगर िनगम, दली और अ5य एवं उनके कमचारी के -बंधतंF के संबS िनयोजक और उनके कमकार

के बीच अनुबंध मG िनTद[ औQोिगक िववाद मG के56ीय सरकार औQोिगक अिधकरण एवं Wम 5यायालय-1, नई दली के

पंचाट (संदभ संHया 169/2012) को -कािशत करती है जो के56ीय सरकार को 16.09.2019 को -ा\ 3आ था।

[सं. एल-42012/89/2012-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 25^th September, 2019

S.O. 1766.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 169/2012) of the Central Government Industrial Tribunal-cum-Labour

Court -1, New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Commissioner, Municipal Corporation of Delhi, Delhi & Others, and their workmen which were received by the Central

Government on 16.09.2019.

[No. L-42012/89/2012-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

IN THE COURT OF SHRI AVTAR CHAND DOGRA : PRESIDING OFFICER CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT No. 1, NEW DELHI

ID No. 169/2012

Shri Jaspal

S/o. Shri Sant Ram, Sweeper

lastly post ed at MC Primary School, “Sultanpuri,

D-B lock-I, Delhi,l

Through Municipal Employees Union, Agarwal Bhawan,

GT Road, Tis Hazari, Delhi 54.

Versus

The Management of Municipal Corporation of Delhi

Through its Commissioner, Town Hall, Chandni Chowk,

Delhi 110006 now known as

Commissioner (North), North Delhi Municipal Corporation,

4^th Floor, Civil Centre, JL Nehru Marg,

New Delhi 110002.

Award

This Award shall decide a reference which was made to this Tribunal by the Appropriate Tribunal vide letter

No. L-42012/89/2012-IR(DU) dated 16.1.2012 under clause (d) of sub-section (1) and sub-section (2A) of Section 10 of

the Industrial Disputes Act, 1947 (in short the Act) for adjudication of an industrial dispute, terms of which are as under:

‘Whether the action of the management of MCD in termination the services of Shri Jaspal s/o. Shri Sant Ram

from 31/1/2007 is justified or not ? If not, what relief will be given to the workman and from which date?’

Both parties were put to notice and the claimant filed statement of claim, with the averments inter-alia that the

workman./claimant joined into the employment of Management w.e.f. 30/7/198989 as a Sweeper. He was initially

engaged as a daily wager employee and was being paid only minimum wages , while his counterparts who were doing

the identical work of same value, were being paid salary in proper pay scale. Services of the workman were terminated

w.e.f. 4/9/2000 on the allegation that he obtained appointment fraudulently by making baseless allegations upon him.

Thereafter he was re-engaged on 13/2/2002 and the Management again terminated his services we..f. 31/1/2007 in illegal

manner inasmuch as no notice or notice pay was given to him and that the management has also not displayed any

seniority8 list at the time of termination of his services and as such termination of services of the claimant was in

[Hkkx II—[k.M 3(ii)]

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6993

violation of provisions of Section 25-F, G and H of the Act read with Rules 76 to 78 of the Industrial Dispute (Central)

Rules, 1957. No memo or chargesheet was given to the workman, nor any domestic enquiry was conducted against him

prior to termination of his services. It is pleaded that though in the termination letter issued to the workman, Management

has mentioned that in pursuance of final order given by Hon’ble High Court of Delhi in CWP No.1675/2000 titled as

Azad Kumar Vs. MCD, the respective re-engagement letters issued of the respective workmen were stand withdrawn,

however Hon’ble High Court had never directed to terminate the services of the workmen concerned. Even otherwise the

said writ was not filed by the Management but was filed by the workmen concerned for regularization of their services.

A demand notice was served upon the Management vide communication dated 22/5/2007 but to no response. Thereafter

conciliation proceedings were also initiated but to no avail due to adamant and non cooperative attitude of the

Management. It is pleaded that the claimant is unemployed since the date of his termination ie.. from 31/1/2007. . Prayer

has been made for reinstatement of the workman in service with continuity of service and full back wages alongwith all

consequential benefits. He has also claimed cost of litigation as provided under Section 11(7) of the Act.

The Management resisted the claim of the workman by filing written statement and took preliminary objections

inter-alia that the dispute is not an industrial dispute as it is not properly espoused by the Union and even no demand

notice has been served upon the Management. Municipal employees Union is not recognized union of the management.

It is alleged that the claim is time barred as the claimant has alleged his termination on 31/1/2007, whereas the present

claim has been filed in the year 2012 after lapse of five years. The claimant was never engaged as daily wager Safai

Karamchari by the Management but he in connivance with scrupulous persons had obtained the engagement on the basis

of a forged office order dated 2/7/1998 which was absolutely fake and on the basis of aforesaid fake order, the claimant

had fraudulently worked from 30/7/1998 to 4/9/2000 and from 13/12/2002 to 31/1/2007. He was relieved vide office

order dated 18/1/2007. An enquiry was conducted into the matter by the Screening Committee and after investigation

into the matter it was found that in 105 cases the signatures of the Competent Authority on the office order were forged

one. It is alleged that the claimant earlier had raised industrial dispute on the same issue/subect matter twice which were

dismissed. Since the matter has already been adjudicated upon against the workman, hence the workman has no right to

raise the industrial dispute. Prayer has been made for dismissal of claim petition.

On the pleadings of the parties, following issues were framed on 31/1/2014 :-

(1)

Whether claimant secured his engagement as daily wager safai karamchari on the basis of forged order ?

If yes, its effect ?

(2)

As in terms of reference ?

To prove his case, the claimant examined himself as WW1 and tendered his affidavit Ex.WW1/A and relied on

the documents Ex.WW1/1 to Ex.WW1/14. On the other hand, the Management examined one Smt. Neera, Assistant

Director of Education, as MW1 who filed her affidavit Ex.WW1/A and relied on the documents Ex.MW1/1 to

Ex.MW1/3.

I have heard Shri Rajiv Aggarwal, A/R for the claimant and Shri Rajiv Bhardwaj, A/R for the Management and

have gone through the records carefully. My findings on the above issues are as under.

Issue No.1 :-

Both these issues being co-related are taken up together and same can be disposed of conveniently by common

discussion.

During the course of hearing, learned A/.R for the Management strenuously argued that the workman/claimant

had earlier also raised industrial dispute concerned his termination but same was dismissed vide Award dated 22/10/2008

( Ex.WW1/8) and 16/11/2009 (Ex.WW1/9). Perusal of the Award Ex.WW1/8 shows that joint claim petition was

dismissed on technical ground, holding that joint claims can not be filed under Section 10(4-A) of the Act, whereas vide

Award Ex.WW1/9 the claim petition was dismissed on the ground of limitation. To my mind, dismissal of earlier claim

petition of the workman is of no help to the Management. It is pertinent to mention here that this being a reference,

no limitation is prescribed for the same. Once a reference is made to the Court/Tribunal by the Appropriate Government,

same is required to be answered.

As per the case of the claimant/workman, he had joined into the employment of the Management on 30/7/1988

on daily wage basis as per office order Ex.WW1/4. Services of the workman were disengaged on 4/9/2000 vide office

order Ex.WW1/5 on the allegation that he had obtained appointment fraudulently. Thereafter he was again engaged on

13/2/2002 and his services were terminated w.e.f.31/1/2007. On the other hand, case of the Management is that the

claimant was never engaged as daily wager Safai Karamchari by the Management but he in connivance with scrupulous

persons had obtained the engagement on the basis of a forged office order dated 2/7/1998 which was absolutely fake and

on the basis of aforesaid fake order, the claimant had fraudulently worked under the Management. He was relieved vide

office order dated 18/1/2007.

6994

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[PART II—SEC. 3(ii)]

I may mention that onus was upon the Management to prove the fact that the claimant had secured his

engagement on the basis of forged order. The version of the claimant in his affidavit Ex.WW1 is in line and reiteration

of the averments made in the claim petition. In his cross examination the workman/claimant explained that he is

educated upto 6^th class and he had moved an application in the Head Office at the time of his appointment but does not

have copy of the same. He denied the suggestion that he had got job on the basis of forged order Ex.WW1/4. MW1

Smt. Neera testified that the Screening Committee of the Management had found that in 105 cases, signatures of the

Competent Authority on the office order were forged one and were not of concerned DEO/AEO. She has filed on record

copy of the enquiry report as Ex.MW1/1 wherein name of the claimant appears at Sl.No.87. In her cross examination

she admitted that the claimant joined as a sweeper on 30/7/1988 and no notice was given to the workmen before his

termination. Though she deposed that 105 workers were found to be engaged on fake orders and workman/claimant was

one of them, but she could not say whether the workmen concerned were joined in the said enquiry or any notice was

issued to him or not. There is no record to show that statement of workmen concerned was recorded.

10-

I may mention that it is not the case of the Management that the workman /claimant had secured job on daily

wage basis by filing fake or fabricated documents rather its case is that he secured job on fake order. MW1 has admitted

that the opinion of handwriting expert was not obtained in the said enquiry. The Management has not disclosed as to who

was the Officer/official who facilitated issuing fake order of engagement of workman/’claimant as sweeper on daily

wage basis in the year 1988. Even if it is presumed that the workman/claimant was engaged on the basis of fake order in

the year 1988, in that eventuality also the claimant/workman can not be blamed rather the Officer/official who facilitated

issuing fake order of engagement was liable for action. Be that as it may it has come on record that services of the

claimant were discontinued/terminated on 4/9/2000 on the basis of enquiry report Ex.MW1/1 (dated 28/7/200) and office

note dated 8/8/2000. It has also come on record that the claimant/workman was re-engaged on 13/2/2002 meaning

thereby he was given fresh appointment/engagement. Once the workman/claimant was re-engaged by the Management

on its roll either on daily wage basis or as a casual/muster roll employee, his engagement in 1988 on the basis of fake

order was of no consequence more so when he himself was not instrument in issuing the fake order. The

workman/claimant continued to work under the Management continuously from 13/2/2002 upto 31/1/2007. Thus, it

emerges from record that the workman/claimant had worked under the Management for over 240 days in calendar year

prior to his termination w.e.f.31/1/2007. MW1 has admitted in her testimony that no notice in writing was given to the

workman before his termination. No charge sheet or memo was issued to the workman. Admittedly, the Management

has not issued any notice to the claimant before ordering her termination, nor has paid one month’s salary in lieu of such

notice as required under Section 25-F of the Act. I may mention that provisions of Section 25-F of the Act which

provides for conditions precedent to retrenchment of workmen, are absolute and inexorable and it reads as under :-

“25-F : Conditions precedent to retrenchment of workmen –

No workman employed in any industry who has been in continuous service for not less than one year under an

employer shall be retrenched by that employer until –

(a) The workman has been given one month’s notice in writing indicating the reasons for retrenchment and the

period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of

the notice;

(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen

days’ average pay for every completed years of continuous service or any part thereof in excess of six

months; and

specified by the appropriate Government by notification in the Official Gazette.”

The above provision makes it clear that the employer is required to give notice to the appropriate Government apart-from

giving one month’s notice in writing or one month’s wages in lieu of the notice and payment of retrenchment

compensation to the concerned workman. There is nothing on record to show that either any notice was issued by the

Management or notice pay/compensation was paid to the workman/claimant prior to his termination. As such, the

Management has violated the provisions of Section 25-F of the Act.

11-

There is long line of decisions of Hon’ble Apex Court as well as of various High Courts that provisions of

Section 25-F of the Act are mandatory in nature and termination of the workman from services in derogation of the

provisions of Section 25-F of the Act will render action of the Management to be illegal and void under the law. Since

there is no evidence on record that in lieu of notice period, any compensation was paid to the workman, as such action of

the Management in terminating the services of the workman w.e.f. 31/1/2007 is held to be illegal and void.

12-

Now the residual question is whether the claimant/work is entitled to any incidental relief of payment of back

wages and/or reinstatement of service with full back wages. It stands proved on record that claimant was continuously in

the employment of the Management from 13//2/2000 till 31/1/2007 when his services were illegally terminated.

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Testimony of the workman/claimant that he is unemployed since after his termination has gone unchallanged and

unassailed. The Management has not adduced any evidence to show that the workman is gainfully employed.

13-

The Hon’ble Apex Court in case “Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya”

reported as (2013) 10 SCC 324 has held as under : -

“The propositions which can be culled out from the aforementioned judgments are :

In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the

normal rule.

ii)

Ordinarily, an employee or workman whose services are terminated and who is desirous of getting

back wages is required to either plead or at least make a statement before the adjudicating

authority or the Court of first instance that he/she was not gainfully employed or was employed on

lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also

lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages

equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled

law that the burden of proof of the existence of a particular fact lies on the person who makes a positive

averments about its existence. It is always easier to prove a positive fact than to prove a negative fact.

Therefore, once the employee shows that he was employed, the onus lies on the employer to specifically

plead and prove that the employee was gainfully employed and was getting the same or substantially

similar emoluments.”

With regard to the principle to be followed by the Labour Courts/Industrial Tribunals to award back wages if order of

termination./dismissal is set aside, their lordships after referring to the decision of a Bench of three Judges had laid down

the law as under :- (see page 102-103 of LLR Jan.-June 2015)

“17. The very idea of restoring an employee to the position which he held before dismissal or removal or

termination of service implies that the employee will be put in the same position, in which he would have been

but for th illegal action taken by the employee. The injury suffered by a person, who is dismissed or removed or

is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order

which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up.

Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the

source of sustenance. The children are deprived of nutritious food and all opportunities of education and

advancement in life. At times, the family has to be borrow from the relatives and other acquaintance to avoid

starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action

taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent

judicial/quasi-judicial body or Court that the action taken by the employer is ultra vires the relevant statutory

provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer

wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for

him/her to specifically plead and prove that during the intervening period the employee was gainfully employed

and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal

act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer

by relieving him of the obligation to pay back wages including the emoluments. “

14-

A Bench of three Judges of the Hon’ble Supreme Court in the case of Hindustan Tin Works Private Limited v.

Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 held that relief of reinstatement with continuity of

service can be granted where termination of service is found to be invalid. It would mean that the employer has taken

away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously

deprived the workman of his earnings. If thus the act of employer is found to be totally illegal and arbitrary, in that

eventuality the workman is required to be reinstated, with full back wages. Plain common sense also dictates that the

removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the

workmen alongwith payment of back wages.

15.

In the case of Bholanath Lal and others Vs. Shree Om Enterprises (P) Ltd., Manu/DE/1922/2018 (decided

on 10/5/2018), Hon’ble High Court of Delhi while considering the question of illegal termination and reinstatement held

as under :-

“The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the

statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman,

then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such

cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere

with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different

opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay

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[PART II—SEC. 3(ii)]

the same The courts must always keep in view that that in the cases of wrongful/illegal termination of service,

the wrongdoer is the employer and the sufferer is the employee./workman and there is no justification to give a

premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/ workman

his dues in the form of full back wages.”

16-

Having regard to the legal position as discussed above and the fact that the claimant was performing duty to a

post of regular and perennial nature, this Tribunal is of the firm view that the claimant herein is entitled for reinstatement

into service on the same post with 60% back wages and all consequential benefits, The claimant/workman is also

granted litigation costs of Rs.10,000/- (Rupees Ten Thousand only) as provided under Section 11(7) of the Act and same

shall also be paid by the Management. Award is passed accordingly in favour of the claimant and against the

Management.

Let copy of this Award be sent for publication as required under Section 17 of the Act.

Date : 9.9.2019

AVTAR CHAND DOGRA, Presiding Officer

नई द ली, 25 िसतE बर, 2019

का.आ.

का.आ. 1767

1767

1767.— औQोिगक िववाद अिधिनयम, 1947 (1947 का 14) क& धारा 17 के अनुसरण मG के56ीय सरकार

मेसस सिचव, संगीत नाटक अकादमी नई दली और अ5य एवं उनके कमचारी के -बंधतंF के संबS िनयोजक और उनके

कमकार के बीच अनुबंध मG िनTद[ औQोिगक िववाद मG के56ीय सरकार औQोिगक अिधकरण एवं Wम 5यायालय-1, नई

दली के पंचाट (संदभ संHया. 164 of 2016) को -कािशत करती है जो के56ीय सरकार को 16.09.2019 को -ा\ 3ए थे ।

[सं. एल-42011/100/2016-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 25^th September, 2019

S.O.1767.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 164 of 2016) of the Central Government Industrial Tribunal -

cum-Labour Court-1, New Delhi as shown in the Annexure, in the Industrial dispute between the employers in

relation to The Secretary, Sangeet Natak Akdemy, New Delhi & Others, and their workmen which were received

by the Central Government on 16.09.2019.

[No. L-42011/100/2016-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

BEFORE PRESIDING OFFICER : CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT No. 1, NEW DELHI – 110 002

ID No. 164 of 2016

Shri Dharambeer S/o. late Shri Ramesh Chand

Shri Jay Pal s/o. late Shri Shyam Lal, Attendants

Sangeet Natak Akademi,

Through its Secretary, Rabindra Bhawan, Feroz Shah Road,

New Delhi 110001 through

Delhi Labour Union, Agarwal Bhawan,GT Road,

Tis Hazari, Delhi 110054.

…Workmen

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6997

Versus

The Management of Sangeet Natak Akademy,

Through its Secretary, Rabindra Bhawan,

Feroz Shah Road,

New Delhi 110001

…Management

AWARD

This award shall decide a reference which was made to this Tribunal by the appropriate Government vide letter

No.L-42011/100/2016/IR(DU) dated 16^th August/23^rd September, 2016 under clause (d) of sub-section (1) and sub-

section (2A) of Section 10 of the Industrial Disputes Act, 1947(in short the Act) for adjudication of an industrial dispute,

terms of which are as under:-

‘Whether the action of the management of Sangeet Natak Akademi in not regularization the services of Shri

Dharambeer Singh s/;o. late Shri Ramesh Chand and Shri Jay Pal s/o. late Shri Shyam Lal, attendants, is fair

and legal ? If not, what relief the workmen are entitled to and from what date ?’

Both parties were put to notice and the claimants/ workmen filed a joint statement of claim with the averments

that they joined into the employment of then management as Attendants w.e.f. 14/8/2005 and 25/11/2008 respectively

and are getting meager salary of Rs.9500/- per month. They have been discharging their duties sincerely and honestly to

the satisfaction of their superios and have unblemished & uninterrupted record of service to their credit but they are

malfidely shown as employee on contract basis. Management being an apex body in performing arts of the country, is

rendering advice and assistance to the Government of India in the task of formulating and implementing policies and

programmes in the field. The management has illegally engaged the workmen on contractual basis though the job on

which the workmen are discharging their duties is of regular and permanent nature. The Management has not taken any

steps to regularize the services of t he workman in proper pay scale & allowance. Non regularization of the services of t

he workmen with effect from the initial dates of their joining on the post of Attendant in proper pay scale is not totally

illegal and unjust but also against the principle of “equal pay for equal work” and it amounts to sheer exploitation of

labour as the workmen concerned are discharging the same duties as are being discharged by a regular employee. The

workmen have acquired the status of permanent employees from the initial date of their joining into the employment

after completing 90 days of continuous employment as provided in the Model Standing Orders framed under the

Industrial Employment (Standing Orders) Act, 1946. A demand notice dated 15/9/2015 was served upon the

Management but to no response. Thereafter the conciliation proceedings were initiated but to no avail, due to adamant &

non cooperative attitude of the management. Prayer has been made for regularization of the workmen with retrospective

effect from the initial date of their joining and to pay them entire difference of salary. They have also prayed for costs of

litigation as provided under Section 11(7) of the Act.

Management resisted the Claim petition by filing written reply, stating that the claimants were engaged purely

on contractual basis, as per their educational qualifications and consolidated payment to them was increased from time to

time based on the increase in the Minimum Wages Act and presently they are getting salary of Rs.15000/- per month

w.e.f. October, 2016. It has been denied that the claimants were engaged or employed to a post of permanent nature. It

has been alleged that they were engaged purely on temporary basis for the projects as assigned by the Ministry of Culture

from time to time and due break period was given to them. They were assigned with the work of messenger/attendant,

diary & dispatch work etc.. No recruitment procedure as applicable to the Direct Recruitment post had been carried out

for the claimants. It is also alleged that consequent upon the ban on the Group D post in the 6^thPay Commission

recommendations, these posts were merged and renamed as Multi Task under Group-C category. It is stated that after

following required procedure, due weightage to the claimants will be given for their long working with the Akademi and

they will be considered suitably as & when posts got vacant. It is averred that the claimants have no right for

regularization from the date of their initial appointment.

The claimants/workmen filed rejoinder reiterating their own case as set up in the statement of claim and denied

the allegations of the Management as made out in the written reply.

In order to prove their case, the claimants examined themselves as WW1 and WW2 who filed their respective

affidavits Ex.WW1/A & Ex.WW2/A and relied on number of documents Ex.WW1/1 to Ex.WW1/24. They also

examined Shri Surender Bhardwaj, General Secretary of the Delhi Labour Union who proved the resolution for

espousing the cause of the claimants/workmen by the Union as Ex.WW1/5. On the other hand, the Management

examined MW1 Smt.Vinodi Sharma, Deputy Secretary who tendered her evidence by way of affidavit Ex. MW1/A and

additional affidavit Ex.MW1/B. She placed reliance on the documents Ex.MW1/1 to Ex.MW1/3.

I have heard Shri Rajiv Aggarwal, learned A/R for the claimants and Shri Dharmender Kumar, A/R for the

Management. I have also gone through the records carefully.

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[PART II—SEC. 3(ii)]

7- Case of the claimants is that they had joined as Attendants under the Management w.e.f. 14/8/2005 and 25/11/2008

respectively. Though they have been discharging their duties sincerely and honestly to the satisfaction of their superios

and have unblemished & uninterrupted record of service to their credit but the Managedment have malfidely shown

them to be contractual employee/s and they are deprived of wages/salary as is being paid to their regular counter-parts

despite the fact that they are doing the same work. From the pleadings of the parties and evidence adduced on record, it

is evident that the claimants/workmen are still working under the Management/s and there existed relationship of

employer-employees between the Management and the claimants/workmen herein.

8- Short question/issue arises for consideration is as to whether the workmen/claimants who are working with the

Management are entitled to be regularized to the post/s to which they are working.

Ld. A/R for the claimants argued that the Management/s by adopting unfair labour practice, are depriving

the claimants their legitimate right of regularization and lawful dues in the regular pay scale. Per contra, learned A/R

appearing for the Management strenuously argued that the claimants were engaged purely on temporary basis without

following any due procedure of recruitment. The claimants being contractual employees has got no right to be appointed

on permanent basis or to be regularized in service. He relied on the judgements in the case of State of Karnataka Vs.

Uma Devi 2006 (4) SCC 1; Ram, Sevak Yadav Vs. State of Bihar (2013) 1 PLJR 964 and Upender Singh Vs. State

of Bihar and otrs 2018 (3) SCC 680 to buttress his submission that irregular/illegal appointments can not be

regularized.

There is no dispute about preposition of law that there is no fundamental right of those workers who have been

employed as daily wager or temporarily or on contractual basis to claim that they have a right to be absorbed in service.

Even such workers even serving for a long number of years will not become entitle to claim regularization if he is not

working against a sanctioned post.

10-

Hon’ble Supreme Court in the case of Hari Nandan Prasad and another Vs. Food Corporation of India

2014) 7 Supreme Court cases 190 held as under :-

“… We are of the opinion that when there are posts available, in the absence of any unfair labour practice, the

Labour Court would not give direction for regularization only because a worker has continued as daily wage

worker/adhoc/temporary worker for number of year. Further, if there are no posts available, such a direction for

regularization would be impressible. In the abovesaid circumstances, giving of direction to regularise a person,

only on the basis of number of years put in by such a worker as daily wager., may amount to backdoor entry

into the service which is an anathema to Article 14 of the Constitution. Further such a direction would not be

given when the concerned worker does not meet the eligibility requirement of the post in question as per the

Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the

employer itself under some scheme or otherwise and the workmen in question who have approached

Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally

justified, otherwise non regularization of the left over workers itself would amount to invidious

discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the

Industrial adjudicator would be achieving the equality of upholding Article 14 rather than violating this

constitutional provision.”

11-

Our own High Court in the case of Project Director, Department of Rural Development Versus its

Workmen through D.P.V.V.I.E.Union (W.P. –Civil No. 17555/2005 – decided on 29/3/2019) after referring to

number of judgments including the judgement of Hon’ble Apex Court in the case of Secretary, State of Karnataka and

other Vs Uma Devi, 2006 (4) SCC 1 and of Delhi High Court in the case of Anil Lamba and others Vs. GNCTD WP

(Civil) No.958/2018, has observed in para 27 and 29 as under :-

27. “In my view, the rigors applicable for grant of regularization in cases of public employment cannot be read

in such a manner so as to take away the wide powers of an Industrial Tribunal under the ID Act. It needs no

reiteration that the basic tenets of service law are very different from those of labour law and therefore, the

safeguards put in place to protect the interests of workmen cannot be conflated with the service rules and

regulations applicable to government employees in the public sector. Both of them stand on different footing

and can neither be tested on the same touchstone nor enforced on the same manner. Therefore, I am of the

opinion that neither the decision in Uma Devi (supra) and Anil Lamba (supra) has any application to the facts of

the present case. Even otherwise, a perusal of the decision in Uma Devi (supra) shows that with respect to

the regularization of temporary employees, the Supreme Court itself had specifically carved out an

exception for those contractual employees who, though appointed regularly, had completed at least 10

years of service. In the facts of the present case, the respondents/workmen have as on date completed

more than twenty-two years of service, and therefore, even as per the decision in Uma Devi (supra), they

would be entitled to the regularization of their services.”

……….

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29. Thus, in the light of the observations of the Supreme Court in Ajaypal Singh (supra), ONGC (supra) and

Umrala Gram Panchayat (supra) as also of this Court in Ram Singh (supra), I find that the petitioner’s reliance

on the decision of the Supreme Court in Uma Devi (supra) and of this Court in Anil Lamba (supra) is wholly

misconceived. In my opinion, once the Tribunal was of the view that the petitioner was indulging in

unfair labour practice, it was well within its domain to pass an order, directing the petitioner to

regularize the respondents’ services………”

From the above rulings, it is clear that ordinarily the Labour Court/Industrial Adjudicator should not issue direction for

regularization of the workman engaged/working on casual/daily wage basis irrespective of his length of service unless

there is a Scheme/policy of the Management & unless similarly situated workmen have been regularized by the

employer/Management under the said policy/Scheme and benefit of such scheme/policy has been declined to the

other. However, the Industrial Tribunal is vested with powers to curb unfair labour practices being adopted by

the employer/s.

12-

To decide the issue in proper perspective, it would be worthwhile to refer the oral as well as documentary

evidence adduced on record. I may mention that testimony of the workmen/claimants who appeared in the witness box

as WW1 and WW2 is in line with the averments made in the claim petition. They have filed on record copy of

legal/demand notice dated 15/9/2015 as Ex.WW1/1 and its postal receipts as Ex.WW1/2 & Ex.WW1/3; statement of

claim filed before the Assistant Labour Commissioner as Ex.WW1/4; resolution of the Union espousing their

cause/dispute as Ex.WW1/5; order of engagement and subsequent orders issued by the Management regarding extension

of their term as contractual employees from time to time, as Ex.WW1/6 to Ex.WW1/20 and copy of the identity card

issued by the Management in favour of claimant Dharambir, Attendant as Ex.WW1/21; copies of the representation

letters which the claimant Dharambir had written to the Management on 20/12/2013 and 27/2/2015 regarding

regularization of his services as Ex.WW1/23 and Ex.WW1/24 respectively. In cross examination the workmen/claimants

clarified that they did not have any document to show that they were engaged for a regular post by the Management, at

the time of their joining. Workman Dharambeer is 10^th class pass whereas workman/claimant Jay Pal is 12^th class pass.

They had made representations to the Management regarding regularization of their services, during the period from

2009 to 2015. They admitted that the Management has not regularized the services of any of the co-employees who are

performing similar/identical work.

13-

Testimony of MW1 Smt. Vinodi Sharma vide affidavit Ex.MW1/A is also in line with the averments made in

the written reply. However, vide affidavit Ex.MW1/B, it was clarified that Shri Ashok Kumar –elder brother of claimant

Dharambir had joined the Management as staff van driver on daily wage basis w.e.f. 18/8/1989 but was promoted as

grade II driver w.e.f. 10/9/2000, whereas his father Shri Ramesh Chand had also been working under the Management

since 3/12/1973 and he retired as Daftry on 31/7/2009. She has admitted in her cross examination that nature of work &

working hours of the claimants and their counterparts who are regular employees and are paid salary in regular pay-

scale, is same and identical. She was not in a position to say as to how many posts of attendant/s are lying vacant with

the Management since 2005. She could not say if 5 Nos. of posts of Attendant were lying vacant at the time of her

deposition. She showed her ignorance if the post of Library Attendant, Museum Attendant and Safai Karamchari were

lying vacant since 30/76/2018, 28/2/2018 and 2013 respectively. She admitted that S/Shri Tika Ram, Inder Singh and

Narender Ballabh who were working as Attendants have retired and since then the posts are lying vacant. She could not

say if the claimants do possess the requisite qualification for the post of Attendant. She also admitted that the workers

S/Shri MS Rao, Sanjay Baloni, Surender Singh, Mohan Singh, Raghunathan Pillai, Har Singh Manral and Narayan

Sikngh Bora have been regularized in 1998 retrospectively from 1993. She also admitted that documents Ex.MW1/W-1

to Ex.MW1/W-53 were issued by the Management. She also admitted that work of Attendant and MTS workmen are of

perennial nature with the Management. While admitting that in the office order dated 9/4/2019 ( Ex.MW1/54), certain

terms as para 6 to para 13 were incorporated for the first time, she showed her ignorance if the Management had taken

permission from any Competent Authority before incorporation such paras (terms & conditions). She also clarified that

the claimants were appointed by the Chairman .

14-

It is evident that the claimants/workmen have been working as Attendants with the Management continuously

but with artificial breaks, since 14/8/2005 and 25/11/2008 respectively. The post to which the claimants/workmen are

working is of regular and perennial nature, which fact is admitted to by MW1 – witness of the Management. It has also

come on record that S/Shri Tika Ram, Inder Singh and Narender Ballabh who were working as regular Attendants with

the Management have retired and since then the posts are lying vacant. It is also evident from the evidence adduced on

record that the claimants/workman are being paid consolidated wages/salary and not the regular pay-scale despite the

fact that nature of work & working hours of the claimants and their counterparts who are regular employees and are paid

salary in regular pay-scale, is same and identical. This clearly goes to show that the Management has deprived the

workmen the status & privilege of permanent/regular employee, as the workmen working as Attendants are getting lesser

than the wages/salary being paid to their regular counterparts. Employing workmen as “badlis”, casuals or temporaries

and to continue them as such for years together with the object of depriving them of the status & privileges of permanent

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[PART II—SEC. 3(ii)]

workman amounts to unfair labour practice in terms of Section 2(ra) read with Fifth Schedule of the Act. It

emerges that the Management has adopted unfair labour practice in depriving the workmen/claimants herein of the status

& benefit of permanent workman and such a practice is required to be curbed.

15-

It has come on record that the workmen/claimants herein have been working as Attendants continuously on

contract basis for the last over 10 years but are not being paid wages as per pay-scale for their respective categories

rather they are paid wages less than that being paid to their regular counter-parts. Once the workmen/claimants are doing

same duties and responsibilities as are being performed by regular employees of the Management, they are entitled to

get wages at par with those of regular employees, on the principle of “Equal Pay for Equal Work”.

16-

Hon’ble the Apex Court in the case of State of Punjab and others Vs. Jagjit Singh and others,

2017Lab.L.C. 427 while upholding the principle of “equal pay for equal work” even for temporary employees observed

as under :-

“The principle of “equal pay for equal work” can be extended to temporary employees (differently

described as work-charged, daily wage, casual, adhoc, contractual and the like). It is fallacious to

determine artificial parameters to deny fruits of labour. An employee engaged for the same work, can not be

paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare State.

Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is

compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his

family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For

he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of

paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement,

emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it

compels involuntary subjugation. “

17-

In view of the rulings and facts of the case as discussed hereinabove, it is held that the claimants are entitled to

get wages in the pay-scale of Attendant/MTS,w.e.f. the date of their initial engagement, alongwith all consequential

benefits

18-

As regards regularization of services of the workmen/claimant, it has come on record that the claimant

Dharambir is 10^th class pass, whereas claimant/workman Jay Pal is 12^th class pass. In the past also, the Management had

regularized the services of some of the workers in 1998 – may be under some scheme/policy formulated for the purpose.

The post to which the claimants/workmen are working is of regular and perennial nature. As such, this Tribunal

considers it expedient in the interest of justice to direct the Management to issue orders regarding regularization of the

services of claimants/workmen from the date of their initial engagement/joining, within a period of three months from

the date of publication of the Award.

Award is passed accordingly in favour of the claimants and against the Management. Let copy of this Award be sent for

publication as required under Section 17 of the Act.

Date : 5.9.2019

AVTAR CHAND DOGRA, Presiding Officer

नई द ली, 25 िसतE बर, 2019

का.आ.

का.आ. 1768

1768

1768.— औQोिगक िववाद अिधिनयम , 1947(1947 का 14) क& धारा 17 के अनुसरण मG के56ीय सरकार

मेसस सिचव,संगीत नाटक अकादमी नई दली और अ5य एवं उनके कमचारी के -बंधतंF के संबS िनयोजक और उनके

दली के पंचाट (संदभ संHया 212/2015) को -कािशत करती है जो के56ीय सरकार को 16.09.2019 को -ा\ 3ए थे ।

[सं. एल-42011/163/2017-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vDrwcj 5] 2019@vkf'ou 13] 1941

7001

New Delhi, the 25^th September, 2019

S.O. 1768.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 212/2015) of the Central Government Industrial Tribunal-cum-Labour

Court-1 New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Secretary, Department of Personnel, Non-Statutory Canteen, Government of India, New Delh & Others, and their

workmen which were received by the Central Government on 16.09.2019.

[No. L-42011/163/2017-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

BEFORE PRESIDING OFFICER: CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT No. 1 DELHI

ID No. 212/2015

Smt. Sharda Sahotra,

C/o All India Central Government Canteen Employees Association,

F-48, Lado Sarai,

New Delhi – 110 030

…Workman

Versus

The Secretary,

Department of Personnel,

Non-Statutory Canteen,

Government of India,

North Block,

New Delhi 110 001

…Management

AWARD

A reference under clause (d) of sub-section (1) and sub section (2A) of Section 10 of the Industrial Disputes

Act, 1947(in short the Act) was received from the Central Government, Ministry of Labour and Employment for

adjudication vide letter No.L-42011/163/2017-IR(DU) dated 06.04.2018 for adjudication of an industrial dispute with the

following terms:

‘Whether the workman Ms.Sharda Shahotra entitled to promotion to the next higher level?” If yes, with effect

from which date?’

Claim statement was filed on behalf of Ms.Sharda Sahotra (in short the claimant) averring therein that she was

working as clerk with effect from 10.01.1985 and promoted as Assistant Manager cum Storekeeper in the pay scale of

Rs.3200-4900 with effect from 10.09.2008. After completing 23 years of service, claimant was entitled for 2^nd ACP in

the pay scale of Rs.5000-8000 with effect from 10.09.2008, which was denied by the management. The scale was

revised as CAT order in the pay scale of Rs.4000-6000 in the 1^st ACP with effect from 22.12.2014 but the 2^nd ACP after

completing 24 years of service was not revised in the pay scale of Rs.9300-Rs.34,800. The Gazette notification issued by

the department of Personnel, Government of India dated 27.08.2009 on page 486 is as under:

Manager cum Accountant – Promotion : Assistant Manager-cum-Store Keeper with eight years regular

service in the pay band of Rs.5200-20,200 (PB-I) plus Grade Pay of Rs.2400 (pre-revised scale of pay of

Rs.4000-6000) failing which Assistant Manager cum Store Keeper and Clerks/Salesmen with sixteen years of

combined regular service in those grades.

Deputy General Manager/Manager Grade II : Deputy General Manager/Manager Grade II with eight years

regular service in the pay band of Rs.5200-20,200 (PB-I) plus Grade Pay of Rs.2400(pre-revised scale of pay of

Rs.4000-6000), failing which Assistant Manager cum Store Keeper and Clerks/Salesmen with sixteen years of

combined service in those grades.

The above notification pertains to GSR – 125 dated 19.08.2009 is also annexed alongwith the statement of

claim. Since one departmental canteen clerk was granted the pay scale of Rs.9300-34800 with grade pay of Rs.4200 as

per the above notification and promoted as Deputy General Manager, the same is to be extended to the claimant as well,

7002

THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

otherwise it would be violation of Article 14 and 16 of the Constitution and will be against the spirit of justice. Finally, it

has been prayed that the claimant may be granted pay scale of Rs.9300-34800 with effect from 01.04.2012 and

accordingly designation be amended as Manager Grade II/Manager cum Accountant/Deputy General Manager.

Claim was demurred by the Department of Personnel and Training, taking various preliminary objections, inter

alia of the claimant not approaching the court with clean hands, the claim being false, concocted, fabricated, concealment

of facts, suppression of facts, the management not being an ‘industry’ within the meaning of clause 2(j) of the Act, cadre

of canteen employees being a decentralized cadre under the control of the Government department in which they are

working, the claimant being already sanctioned the financial benefits, the claimant not being not entitled for benefits as

she was not promoted to the post of Manager Grade II, misjoinder of parties etc.

On merits, it has been averred by the management that the cadre of canteen employees is a decentralized cadre

and these employees are under the administrative control of Government Department in which they are located.

Recruitment/promotion is made by the respective departments. It is brought out that Office of Director of Canteens

circulates model recruitment rules for various canteen posts which are adopted and notified by the respective

Government departments . In case of need for deviation from Model Recruitment Rules circulated by DOPT, the

concerned Government Department seeks approval of DOPT. The claimant was working as Clerk with effect from

10.01.1995 in Departmental Canteen of CPWD. On merits, management has denied the material averments contained

therein and that the claimant has already been granted 2^nd ACP with effect from 01.09.2008. It has also been averred that

the CPWD did not seek approval of DOPT for any modification/deviation from Model Recruitment Rules circulated by

the DOPT, hence prayer of the claimant for grant of pay band II with effect from 01.04.2012 was also not acceded to by

the administrative Ministry.

Written statement was also filed on behalf of CPWD, which is on the same lines as the written statement filed

on behalf of Department of Personnel & Training.

Rejoinder was filed on behalf of the claimant wherein averments made in the written statement were denied and

stand taken in the statement of claim was reasserted as well as reiterated.

Against this factual background, this Tribunal vide order dated 10.03.2015, framed the following issues:

(i)

Whether the claimant is entitled to pay scale of Rs.9300-34,800 with effect from 01.04.2010?

(ii)

Whether the claim is not legally maintainable in view of the various preliminary objections?

(iii) As in terms of reference

10.

Both parties adduced evidence in support of the stand taken in their respective pleadings. Claimant in order to

prove her case examined herself as WW1 and tendered her affidavit Ex.WW1/A and she also tendered document

Ex.WW1/1. Management, in order to rebut the case of the claimant, examined Shri Sunil Kumar, Executive Engineer,

CPWD as MW1 whose affidavit is Ex.MW1/A and he also tendered in evidence documents Ex.MW1/1 to Ex.MW1/11.

Management also examined Shri Kulbhushan Malhotra, Under Secretary, Department of Personnel & Training, as MW2

whose affidavit is Ex.MW2/A and he relied on documents Ex.MW2/1 to Ex.MW2/10. No other witness was examined

by either of the parties.

11.

I have heard Shri Sanjay Sharma, A/R for the claimant and Shri Chaman Sharma, A/R for the management.

I have also gone through the records carefully. My findings on the above issues are as follows.

Issue No. (ii)

12.

First I take up this issue. Though various preliminary objections were raised, none of the issues were pressed

during the course of arguments by the management. Hence, this issue is decided accordingly.

Issue No.(i) and (iii)

13.

Both these issues are being taken up together for the purpose of discussion as they are inter-related and can be

disposed of conveniently.

14)

Testimony of the workmen who appeared in the witness box as WW1 is in conformity with the averments made

in the claim petition. She has admitted in her cross examination that she was granted benefits of Ist ACP w.e.f. 9/8/1999

and was placed in the pay-scale of Rs.3200-4990/- which pay-scale was revised to Rs.4000-6000/- as per O.M. dated

10/4/2006. Her pay was fixed in the pay-scale of Rs.5200-20200 with grade pay of Rs.2400/- after implementation of

recommendations of 6^th Pay Commission w.e.f. 1/1/2006. She was promoted as Assistant Manager-cum-Store Keeper on

10/9/2008. She also admitted that she was granted benefits of 2^nd MACP w.e.f. 1/9/2008 and was placed in the pay-scale

of Rs.5200-20200 (with Grade pay of Rs.2800/-) which fact is also evident from office order Ex.MW2/6. She further

admitted that monetary benefits of 3^rd MACP was granted to her on completion of 30 years of service w.e.f. 10/1/2015

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vDrwcj 5] 2019@vkf'ou 13] 1941

7003

and was placed in the pay-scale of Rs.9300- 34800- (with Grade pay of Rs.4200/-), as also evident from office order

Ex.MW1/8.

15.

Testimony of MW1 and MW2 is also in line with the contents of the written statement. They admitted about the

issuance of office order dated 2/3/2012 (Ex.MW1/W-1) and that Shri Pramod Jha who was working as Manager

(Canteen) got voluntary retirement from service on 31/3/2012 and that the Management did not appoint any official to

the post of Manager (Canteen) after retirement of abovenamed Shri Pramod Jha.

16.

From the pleadings of the parties and evidence adduced on record, it is evident that the claimant was

appointed as clerk on 10/1/1985 and she was promoted as Assistant Manager-cum-Storekeeper in the pay-scale of

Rs.3200-4800 w.e.f., 10/9/2008. It is also evident that Shri Pramod Jha who was working as Canteen Manager got

voluntary retirement from service on 31^st March, 2012. The Management had not appointed any official to the post of

Canteen Manager w.e.f.1/4/2012 after retirement of aforesaid official Pramod Jha. Vide order dated 2/3/2012

(Ex.MW1/W-1) issued by the office of Management, the claimant was directed to take charge from Shri Pramod Jha,

Canteen Manager She has specifically stated in her testimony as WW1 that after the post of Manager fell vacant, she

has been working in that post and she has been looking after the work of Canteen Manager after retirement of earlier

Manager. The Management did not appoint any official to the post of Canteen Manager after retirement of Shri Pramod

Jha, Attested Copy of the Gazette notification dated 27/8/2009 has been filed on record and same being a public

document is now marked as Ex.C-1 (for the purpose of identification of document). The said gazette notification

contains rules relating to recruitment/promotion of group-C and D in the DOPT Canteen The said notification/Rules

provides that for promotion to the post of Manager cum Accountant in the pay-scale of Rs.9300-34800/- with Grade Pay

of Rs.4200/-, official working as Assistant Manager cum Store Keeper with 8 years regular service in the pay scale of

Rs.5200-20200 with Grade Pay of Rs.2400/-, failing which Assistant Manager cum-Store Keeper and

clerks/salesman with 16 years of combined regular service in those grades are eligible for such promotion. It is

undisputed fact that the claimant was appointed as clerk as on 10/1/1985 and was promoted as 3200-4900/- (pre revised)

w.e.f. 10/9/2008. Apparently she was having combined service of clerk and Assistant Manager-cum-Storekeeper

for a period of more than 16 years, ,as on 1/4/2012 when post of Manager (Canteen) in the pay-scale of Rs.9300-

34800/- (with Grade Pay of Rs.4200) became vacant, after voluntary retirement of Shri Promod Jha, Manager

(Canteen) and was, therefore, eligible for appointment to the post of Manager (Canteen), as per service/promotion

rules notified vide gazette notification Ex.,C-1.

17.

The workman/claimant has filed on record a copy of the order dated 23/3/2010 issued by the Department of

Personnel & Training (DOPT) alongwith a copy of office note/recommendations of Department Promotion Committee

as Ex.WW1/1, perusal of which shows that Shri K.G.Thomas Kutty who was holding the post of Assistant Manager cum

Store Keepar w.e.f. 4/11/2009 and fulfilling the condition of 16 years of combined regular service in the grade of

Assistant Manager cum Storekeeper and Clerk/Salesman, was promoted to the post of Deputy General Manager in the

Departmental Canteen in the pay scale of Rs.9300-34800/- with grade pay of Rs.4200/- with immediate effect

i.e.23/3/2010. It would not be out of place to mention here that the workman/claimant was earlier working as clerk w.e.f.

10/1/1985 and was promoted to the post of Assistant Manager cum Storekeeper as on 10/.9/2008 and she was holding the

said post even in the year 2012. She was granted benefit of 3^rd MACT on 10/1/2015 in the pay-scale of Rs.9300-34800/-

with grade pay of Rs.4200/- on completion of 30 years of service, which impliedly shows that her work and conduct was

upto the mark.

18.

To my mind the case of the workman/claimant is akin to the case of Mr.K.G.Thomas Kutty, inasmuch as the

workman/claimant Smt.Sharda Sahotra having been appointed as clerk as on 10/1/1985, was holding the post of

Assistant Manager cum Store Keepar w.e.f. 10/9/2008 and fulfilled the condition of 16 years of combined regular service

in the grade of Assistant Manager cum Storekeeper and Clerk/Salesman. As such, in terms of recruitment/promotion

rules Ex.C-1, the claimant/workman was also eligible and entitled to be promoted to the post of Manager (Canteen) in the

pay scale of Rs.9300-34800/- with grade pay of Rs.4200/-, after the post of Manager (Canteen) fell vacant w.e.f.1/4/2012

after retirement of Shri Pramod Jha, Manager (Canteen) on 31/3/2012. Action of the Management in not giving

promotion to the claimant for the post of Manager (Canteen) in the pay scale of Rs.9300-34800/- with grade pay of

Rs.4200/- is arbitrary, unjustified and unwarranted. These issues are decided accordingly in favour of the claimant and

against the Management.

Relief :-

As a corollary to the aforesaid discussion, it is held that the workman/claimant is entitled to be promoted to the

post of Manager (Canteen) in the pay scale of Rs.9300-34800/- with grade pay of Rs.4200/-, w.e.f.1/4/2012. As such,

this Tribunal considers it expedient in the interest of justice to direct the Management to issue formal order regarding

7004

THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

promotion of the workman/claimant to the post of Manager (Canteen) in the pay scale of Rs.9300-34800/- with grade pay

of Rs.4200/-, w.e.f.1/4/2012, within a period of three months from the date of publication of the Award.

Award is passed accordingly in favour of the claimant and against the Management. Let copy of this Award be sent for

publication as required under Section 17 of the Act.

Dated : 6.9.2019

AVTAR CHAND DOGRA, Presiding Officer

नई द ली, 25 िसतE बर, 2019

का.आ.

का.आ. 1769

1769

1769.—औQोिगक िववाद अिधिनयम, 1947 (1947 का 14) क& धारा 17 के अनुसरण मG के56ीय सरकार

मेसस आयु0 पूव] दली नगर िनगम,दली और अ5य एवं उनके कमचारी के -बंधतंF के संबS िनयोजक और उनके

कमकार के बीच अनुबंध मG िनTद[ औQोिगक िववाद मG के56ीय सरकार औQोिगक अिधकरण एवं Wम 5यायालय-1,

नई दली के पंचाट (संदभ संHया 67/2017) को -कािशत करती है जो के56ीय सरकार को 16.09.2019 को -ा\ 3ए थे ।

[सं. एल-42025/07/2019-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 25th September, 2019

S.O. 1769.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 67/2017) of the Central Government Industrial Tribunal-cum-Labour

Court New Delhi - 1 as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Commissioner, East Delhi Municipal Corporation, Delhi & Others, and their workmen which were received by the

Central Government on 16.09.2019.

[No. L-42025/07/2019-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

IN THE COURT OF SHRI AVTAR CHAND DOGRA : PRESIDING OFFICER CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT No. 1, NEW DELHI

DD No. 67/2017

Shri Sandeep Goyal s/o. Shri Shri Chand

R/o. X/3700 Gali No.7 Shanti Mohalla,

Delhi 110031.

…Workman

Versus

East Delhi Municipal Corporation,

A=2/104, Udyog Sadan,

Patparganj Indl. Area,

Delhi 110092.

Prehari Cyber Security & Facilities Pvt. Ltd.,

8/40, First Floor, South Patel Nagar,

New Delhi 110008.

…Management

AWARD

This is a claim filed directly by the Workman/claimant Sandeep Goyal under Section 2(A) of the Industrial

Disputes Act (hereinafter referred to as “the Act”), with the averments that workman was employed by Management

No.1 as a caretaker at Samudai Bhawan of East Delhi Municipal Corporatioln w.e.f. 1/12/2014 at a monthly salary of

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % vDrwcj 5] 2019@vkf'ou 13] 1941

7005

Rs.8000/- on adhoc basis. He was working satisfactorily without any complaint. Senior Officer Ms. Anita Bali used to

give wages to the workman and maintained attendance register. She used to pay below the minimum wages and when

he complaint about it, Smt. Anita Bali gave wages for the month of December, 2014 to February, 2015 to the workman.

Thereafter the workman alongwith other employees raised their voice for regularizing their job as they had been working

on adhoc basis form quite some time and being deprived of their statutory rights. It is pleaded that in response to his

RTI application, the Management No.1 replied that the workman has not been appointed by Management No.1 but has

been appointed by Management NO.2 and provided attendance register only for six months i.e. from December, 2014 till

May, 2015. The workman made complaints to the Management No.1 regarding non deposit of wages of wages and

against Smt. Anita Bali but the Management refused to take action against her. Management No.1 informed vide letter

dated 22/6/2015. It is stated that the Management No.1 has made contradictory stand in RTI reply dated 3/6/2015 it was

stated that the workman worked at Samudai Bhawan, Rajgarh Colony, but in another reply dated 19/2/2016 it was stated

that the workman was working at South Patel Nagar, New Delhi. It is pleaded that services of t he workman were

terminated illegally but it has not been disclosed as to when his services were terminated. It is also pleaded that the

management even did not pay him wages after February, 2015 and deprived him the various facilities like ESIC, PF,

Gratuity etc. He claimed to be a poor persona and he is jobless after wrongful termination by the Management. He

prayed for reinstatement with full back wages, continuity of service and with all consequential benefits.

Notice of the claim petition issued to the Management No.1 and 2. Though Management No.1 participated in

the proceedings through its Authorised Representative Shri Narender Singh but did not file any written reply.

Ultimately, the matter was proceeded ex parte against the Management No.1 vide order dated 29/8/2017.

The claim petition has been resisted by the Management No. 2 who filed its written statement and took

preliminary objections inter alia that claimant has not approached the Court with clean hands, inasmuch as he had joined

the Management (No.2) against the contract of East Delhi Municipal Corporation, on 1/12/2014 on probation and he was

very irregular in his services and he worked with the Management till 20/6/2015. He always misbehaved with the senior

staff in filthy language and started absenting from duties without any reason & intimation to the Management w.e.f.

20/5/2015 and filed false & frivolous case against the Management. The Management (No.2) had never terminated his

services at any point of time, rather the workman himself did not join duty for the reasons best known to him. It is

alleged that the Management No.2 always paid minimum wages to the workman besides EPF and

ESIC facilities as per rules. He was also having ESI card. EPF No. of the claimant is DLCPM 0045449/00393 and ESIC

No. is 1114515804. The claim has been filed just to grab money from the Management. Prayer has been made for

dismissal of the claim petition .

The workman/claimant filed rejoinder, wherein he denied all the allegations made by the Management No.2 and

reiterated his own case as set up in the claim petition. He denied that he started absenting from duties without any reason

and intimation from 20/5/2015 or that he misbehaved with the senior staff. It was stated that the Management No. 1

terminated his services from 22/6/2016 and therefore, no question of absenting from job from 20/5/2015 arises. He

denied that he left the job at his own. It is alleged that the Management no.1 marked his attendance from 1/12/2014 and

he worked for 570 days. Denying that the workman was paid minimum wages besides EPF and ESIC contributions, it is

stated that the Management be put to strict proof of the same.

On the pleadings of the parties, following issues were framed on 29/8/2017 :-

Whether services of the claimant has been wrongfully and illegally terminated by the Management on

22/6/2016 as alleged ?

Whether the claim filed by the claimant is not legally maintainable in view of the various preliminary

objections ?

Relief.

The Claimant in support of his case examined himself as W.W.1 and tendered his affidavit Ex.WW1/A

alongwith documents Ex.WW1/1 to WW1/7. However, Management No.2 in order to rebut the case of the claimant did

not examine any witness despite the fact that number of opportunities were granted to it. Ultimately the defence of the

Management No.2 was closed vide order dated 14/2/2019 when it failed to adduce evidence and to pay the costs imposed

upon it..

I have heard Shri A.K.Singh A/R for the claimant/workman and Shri Rajan Kumar, A/R for the Management

No. 2 and have gone through the records carefully. My findings on the above issues are as follows.

Issue No. 1 and 2 :-

8) Both these issues being inter related are being taken up together for the purpose of discussion and they can be

conveniently disposed of.

7006

THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

Testimony of the workman/claimant is in line with the averments made in the claim petition. He filed on record

a number of documents viz. WW1/1 –copy of his Aadhar card; extracts of attendance sheet from December, 2014 to

May, 2015 as Ex.WW1/2 (colly.); copy of letter/reply dated 22/6/2016 (Ex.WW1/3) received by the claimant from PIO

in the office of Management No.1 under RTI Act, stating that he was engaged by a private company/contractor at its

Community Centre for upkeep; another letter/reply dated 3/6/2015 (Ex.WW1/4)received by the claimant from the PIO

of the office of Management NO.1, stating that he was not the employee of Management No.1 rather was employee of an

agency/contractor M/s Prahri Cyber Agency (Management No.2 herein) and that the said agency used to pay wages t

him. To the same effect is the reply under RTI Act given by PIO of the office of Management No.1 to the claimant vide

letter dated 19/2/2016 (Ex.WW1/5 ). Vide reply dated 2/11/2016 (Ex.WW1/6) PIO of the office of Management No.1

informed the claimant that Ms. Anita Bali was neither making payment of wages nor taking attendance at Community

Centre of Management No.1 and that he was not employee of East MCD; Ex.WW1/7 is the copy of the complaint which

the workman had given to ALC./Conciliation Officer. In the cross examination, the workman/claimant clarified that he

has no complaint or grievance against Management No.2 herein and he never worked under Management No.2 at any

point of time and his relief is restricted only against Management No. 1.

10.

Neither the Management No.1 or Management No.2 adduced any cogent evidence on record to prove that the

claimant was in fact was the employee of Management No.2 M/s Prahari Cyber Security or that he was deputed by

Management No.2 to work at the Community Centre of Management No.1 East MCD, although the Management No. 1

has time and again informed the claimant vide its replies under RTI Act (Ex.WW1/3 to Ex.WW1/6) that the claimant

Sandeep Goel was not the employee of East MCD. Even the Management No.2 has not led any evidence to prove that

the claimant was paid minimum wages under Minimum Wages Act besides facilities of PF and ESIC. Testimony of the

claimant that he was employed by Management No.1 as a caretaker at its Samudari Bhawan w.e.f. 1/12/2014 at a

monthly salary of Rs.8000/- on adhoc basis and that he worked with the Management for 570 days has gone

unchallenged and unassailed. The claimant has filed on record copies of the Attendance Sheet/s for the months from

December, 2014 to May, 2015 as Ex.WW1/2 (colly.) which is duly signed/verified by Ms. Anita Bali, Building Incharge,

Community Service Department, East Delhi Municipal Corporation. Management No.1 has not come forward to rebut

the case of the claimant or to show that the documents Ex.WW1/2 (colly.) filed by the claimants are false and fabricated.

In these facts and circumstances of the case, this Tribunal is of the view that relationship of employee and employer

between the workman and Management No.1 stands established, and the claimant falls within the definition of

workman as provided under Section 2(S) of the Act. In this regard, reference can be made to the decision in the case

of Devinder Singh Vs. Municipal Council, Sanaur, AIR 2011 Supreme Courtt 2532, wherein the Hon’ble Apex Court

while interpreting the provisions of Section 2(S) of the Act which deals with the definition of “workman” has observed

as under :-

“The source of employment, the quantum of recruitment, the terms & conditions of employment/ contract of

service, the quantum of wages/ pay and mode of payment are not at all relevant for deciding whether or not a

person is a workman within the meaning of Section 2(s) of the Act. The definition of workman also does not

make any distinction between full time and part time employee or a person appointed on contract basis. There is

nothing in the plain language of Section 2(s) from which it can be inferred that only person employed on regular

basis or a person employed for doing whole time job is a workman and the one employed on temporary, part

time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a

workman.”

It is clear from the perusal of aforesaid observations that even if a person is engaged on temporary, part time or contract

basis or for doing any other kind of work and is duly paid wages for the said work, in that eventuality such a person

would be covered by the definition of “workman” as provided in Section 2(S) of the Act.

11)

Version of the claimant/workman that he kept on working under Management No.1 till 22/6/2016 when he

received letter dated 22/6/2016 and that his services were terminated illegally, has also gone unchallenged and

unassailed. As mentioned above, version of the claimant that he worked with the Management for 570 days has gone

unchallenged and unassailed. There is nothing on record to suggest that before terminating the services of the claimant

any notice/memo or one month’s salary in lieu of such notice was p;aid to him, as required under Section 25-F of the

Act, It would not be out of place to mention here that Section 25-F of the Act also clearly provides that no workman

employed in any industry who has been in continuous service for not less than one year under an employer shall be

retrenched by that employer until the workman has been given one month' s notice in writing indicating the reasons for

retrenchment or the workman has been paid in lieu of such notice, wages for the period of the notice. Provisions of

Section 25-F of the Act which provides for conditions precedent to retrenchment of workmen, are absolute and

inexorable and it reads as under :-

“25-F : Conditions precedent to retrenchment of workmen –

No workman employed in any industry who has been in continuous service for not less than one year under an

employer shall be retrenched by that employer until –

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7007

(a) The workman has been given one month’s notice in writing indicating the reasons for retrenchment and the

period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of

the notice;

(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen

days’ average pay for every completed years of continuous service or any part thereof in excess of six

months; and

specified by the appropriate Government by notification in the Official Gazette.”

The above provision makes it clear that the employer is required to give notice to the appropriate Government apart-from

giving one month’s notice in writing or one month’s wages in lieu of the notice and payment of retrenchment

compensation to the concerned workman. There is nothing on record to show that either any notice was issued by the

Management or notice pay/compensation was paid to the workman/claimant prior to his termination. As such, the

Management has violated the provisions of Section 25-F of the Act.

12-

There is long line of decisions of Hon’ble Apex Court as well as of various High Courts that provisions of

Section 25-F of the Act are mandatory in nature and termination of the workman from services in derogation of the

provisions of Section 25-F of the Act will render action of the Management to be illegal and void under the law.

13-

Since there is no evidence on record that in lieu of notice period, any compensation was paid to the workman,

as such action of the Management in terminating the services of the workman w.e.f,.22/6/2016 is held to be illegal and

void.

14-

Now the residual question is whether the claimant/work is entitled to any incidental relief of payment of back

wages and/or reinstatement of service with full back wages. No doubt, the version of the claimant that he continuously

worked under the Management from 1/12/2014 till 22/6/2016 has gone unchallenged but he has not filed on record any

document to show that his employment was on the basis of any written test/interview or that he was getting salary/wages

of Rs.8000/- per month from the Management No.1. It would not be out of place to mention here that he disclosed his

age as 37 years when he entered the witness box on 17/5/2018, meaning thereby that he was about 33 years of age when

he claimed to have joined employment of the Management on 1/12/2014. Apparently, at the time when he was engaged

as Caretaker in the Community Centre of Management No.1, he had crossed the age for selection in any government

department/organization. While claiming that he is jobless since after his termination from service, the workman has

prayed for reinstatement into service with full back wages. As discussed above, the claimant was engaged on 1/12/2014

and as per his own pleadings, he worked just for 570 days. There is nothing on record to suggest that job of the claimant

was on permanent basis or that he was given any regular post/appointment by the Management No.1. There are number

of factors which are required to be considered by the Tribunal while considering the question of reinstatement with back

wages. It has been held in the case of Hari Nandan Prasad Vs. Food Corporation of India (2014) 7 Supreme Court cases

190 as under :-

“Relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given

fact situation even though the termination of an employee is in contravention of the prescribed procedure.

Compensation instead of reinstatement has been held to meet the ends of justice. An order of retrenchment

passed in violation of Section 25-F although may be set aside but an award of reinstatement should not,

however, automatically passed. The award of reinstatement with full back wages in a case where the workman

has completed 240 days of work in a year preceding the date of termination, particularly daily wages has not

been found to be proper by the Supreme Court and instead compensation has been awarded. The Supreme

Court has distinguished between a daily wager who does not hold a post and a permanent employee. The

reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination

is found to be illegal, because of non payment of retrenchment compensation and notice pay as mandatorily

required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the

management to terminate the services of that employee by paying him the retrenchment compensation.

15) Having regard to the recent judicial trends and duration of service rendered by the claimant, an amount of Rs.1 lakh

(Rupees One Lakh) appear to be just and reasonable, and the same is payable to the claimant herein by the Management

No.1. Award is passed accordingly.

Let copy of this Award be sent for publication as required under Section 17 of the Act.

Date : 3.9.2019

AVTAR CHAND DOGRA, Presiding Officer

7008

THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

नई द ली, 25 िसतE बर, 2019

का.आ.

का.आ. 1770

1770

1770.—औQोिगक िववाद अिधिनयम, 1947 (1947 का 14) क& धारा 17 के अनुसरण मG के56ीय सरकार

मेसस महा-बंधक, अशोक होटल, नई दली और अ5य एवं उनके कमचारी के -बंधतंF के संबS िनयोजक और उनके

नई दली के पंचाट (संदभ संHया 161/2016) को -कािशत करती है जो के56ीय सरकार को 16.09.2019 को -ा\ 3ए थे ।

[सं. एल-42011/78/2016-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 25th September, 2019

S.O. 1770.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 161/2016.) of the Central Government Industrial Tribunal-cum-

Labour Court New Delhi-1 as shown in the Annexure, in the Industrial dispute between the employers in relation to

The General Manager, Ashok Hotel, New Delhi & Others, and their workmen which were received by the Central

Government on 16.09.2019.

[No. L-42011/78/2016-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

BEFORE SHRI AVTAR CHAND DOGRA : PRESIDING OFFICER CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT No. 1, NEW DELHI

ID No. 161/2016

Shri Kamlesh Kumar and others

Represented by Shri S.S. Upadhyaya, President,

MAZDOOR JANTA UNION,

C-47, STAFF QUARTERS, Ashok Hotel ,

New Delhi 110021.

…Workmen/Claimant

Versus

The Management of Ashok Hotel

Represented by

General Manager, Ashok Hotel,

50-B, Chankayapuri,

New Delhi 110021.

Management/ Respondent

AWARD

This Award shall decide a reference which was made to this Tribunal by the Appropriate Government vide its letter

No.L-42011/78/2016/IR(DU) dated 15/9/2016 under clause (d) of sub-section (1) and sub-section (2A) of Section 10 of

the Industrial Disputes Act, 1947 (in short the Act) for adjudication of an industrial dispute, terms of which are as under:-

‘Whether the action of the management of the Ashok Hotel in not regularizing the services of the workman as

per details given (list annexed) is fair and legal ? If not to what relief the workman are entitled to and from

which date ?’

Both parties were put to notice and 7 Nos. of workmen whose particulars/details given below filed a joint

statement of claim, with the averments that they are working in the premises of Ashok Hotel and carrying out the misc.

jobs, belonging to the Management of Ashok Hotel at its Front Office/Reception vis-à-vis booking of rooms for guests

directly or through Travel Agents etc; that the management of Ashok Hotel – a public sector organization functioning

under ITDC, Ministry of Tourism, is beneficiary of their services.

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7009

Sl.

Name of workman S/Shri

Father’s Name S/Shri

Desig nation.

Working since

Kamlesh Kumar

Manak Chand

FO Coord.

June, 2004

Sunil Batra

Labh Chand

FO Cashier

Jan, 2004

Shashi Kumar

Prem Singh

FO-GRE

Nov. 2011

Satyendra Kumar

Mohan Singh

FO-Coord

Jan, 2012

Deepak Kr.Chauhan

Pramod Kumar

FO-GRE

Jan. 2013

Ramavtar Upadhyay

Meghshyam

FO-GRE

Jan. 2013

Sidharth Sheelanand

Krishan Chand

FO Cashier

Sep. 2013

It is pleaded that though the workmen are performing duties of cashier in the Front office or that of Reservation clerk but

the Management of Ashok Hotel is paying them minimum wages instead of paying them regular pay scale at par with the

permanent employees working under it as Receptionist/clerk/cashier in the Front Office/reservation in different shifts.

The workman were paid salary through M/s NM Manpower Contractor for the period from June, 2004 till September,

2012; through M/s. Sprakling Enterprise Contractor from October, 2012 to February, 2014; through M/’s Scan Guard

Protection Services – contractor from March, 2014 till date. It is alleged that these contractors are not registered with the

Labour Department and same is in violation of Contract Labour (Regulation & Abolition) Act. It is also alleged that in

the similar cases of employees working in Housekeeping department and kitchen department of Ashok Hotel, the labour

Courts have passed award, declaring such workers to be employees of Management and that the Management has

challenged the said Award/s which was confirmed by Hon’ble High Court. It is further pleaded that the contract

between the management of Ashok Hotel and so call contractors are bogus, sham and camouflage and not genuine and

same were made with the intention to deprive the workman of regular pay scale and other benefits at part with permanent

employees of Ashok Hotel. The management of Ashok Hotel has got sanctioned strength of workers and even posts are

lying vacant. Thus, the workmen/claimants have prayed that Management of Ashok Hotel be directed to regularize their

services in the regular pay scale from the initial date of their working.

The claim of the Workman has been resisted by the Management of Ashok Hotel who filed its written statement

and took preliminary objections that the claimants being employees of M/s Scan Guard Protection Services Pvt. Ltd. are

not entitled to seek relief of regularization by the Management of Ashok Hotel. It is alleged that the Management

entered into an agreement with M/s Scan Guard Protection Services Pvt. Ltd. for providing skilled manpower in different

areas of the Hotel. The claimants are drawing their salaries from their employer M/s Scan Guard Protection Services Pvt.

Ltd./contractor. The said contractor has got its own PF code and the contributions made by the claimants were deposited

through PF code of their employer. It has been denied that the agreement between the Management and the aforesaid

contractor is bogus, sham or artificial and not genuine,. The claimants have been deployed by the contractor for fulfilling

its obligations under the contract awarded to it. The Management has neither violated any rules nor has committed any

unfair labour practice. Prayer has been made for dismissal of the claim petition.

No rejoinder was filed on behalf of the claimants. Vide order dated 24/3/2017 following issues were framed on

the pleadings of the parties :-

(i)

Whether the claim is not legally maintainable in view of the various preliminary objections ?

(ii)

In terms of reference ?

The Claimants in support of their case examined themselves as WW2 to WW6 besides examining Shri

S.S.Upadhyay, President of Ashok Hotel Mazdoor Janta Union as WW1 who all tendered their respective affidavits

Ex.WW1/A to Ex.WW6/A and relied on number of documents which will be referred to while giving findings to various

issues, wherever required.

On the other hand, the Management did not examine any witness and the matter was proceeded ex parte against

it vide order dated 12/6/2017. Thereafter an application for recalling the ex parte order was moved on behalf of the

Management and same was allowed subject to payment of costs but Management did not come forward to pay the costs

and hence right of the Management to cross examine the claimants’ witnesses was closed vide order dated 11/2/2019.

Thus, no evidence has been adduced in rebuttal from the side of the Management.

I have heard Shri S.S. Upadhyay, A/R for the workmen and have also gone through the records carefully and my

findings are as follows.

Issue No.1 and 2 :-

Both these issues being co-related are taken up together and they can be disposed of conveniently by a common

discussion.

At the outset I may mention that onus to prove relationship of employee-employer between themselves and

Management is on the workmen/claimants. Testimony of the workman is in line with the averments made in the claim

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THE GAZETTE OF INDIA : OCTOBER 5, 2019/ASVINA 13, 1941

[PART II—SEC. 3(ii)]

petition. According to their statement of claim as well as evidence adduced on record, it is manifest that they are

working in the premises of Ashok Hotel and carrying out the misc. jobs, belonging to the Management of Ashok Hotel

at its Front Office/Reception vis-à-vis booking of rooms for guests directly or through Travel Agents etc. Although the

claimant have filed on record number of documents but they have not filed on record any document in the form of

appointment letter or salary slip etc. to show that they were appointed/employed by the Management of Ashok Hotel at

any point of time or that they were paid wages/salary by the Management of Ashok Hotel in lieu of services rendered by

them. Document Ex.WW1/1 is the copy of resolution/espousal certificate of the Union; WW1/2 is the copy of demand

notice dated 10/8/2015 which the Union of the claimants had sent to the Management; Ex.WW1/3 is the copy of

Certified Standing Orders (Modified) of Ashok Hotel; copy of Ashok Hotel Employees Provident Fund Trust Rules is

Ex.WW1/4; WW1/5 is copy of the order dated 28/12/2010 of Employees Provident Fund Organization, whereby

relaxation granted to the Management Hotel was withdrawn and it was directed to transfer the PF accumulations in

respect of all its employees/members to RPFC, Delhi (North); WW1/6 is the copy of inter office communication of the

Management, asking the departments concerned to forward the biometric attendance sheet of contractual manpower after

verification, so as to ensure timely payment of wages to the contractual employees. Ex.WW1/7 is also the inter office

communication of the Management whereby payment of Rs.1000/- on the eve of Golden Jubilee of Ashok Hotel and

Rs.500/- on eve of Satyagrah Conference was ordered to be paid to the contractual workers deployed under AMC;

Ex.WW1/8 is copy of letter dated 28/7/2008 which the Management had sent to M/s Recruitment Bureau regarding

deployment of Satveer Nimesh at the level of Cashier; WW1/9 is the inter office communication dated 27/11/2008 of the

Management regarding redeployment of contractual workers Nidhi Dang and Ankita Prakash (not relevant with the

instant case); WW1/10 is the copy of letter dated 20/12/2004 sent by the Management to M/s NM Manpower

Outsourcing Pvt.Ltd., intimating about the applicability of reimbursement of paid leave to contractual employees;

Ex.WW1/11 is copy of Employment of Contract Labour Manual of ITDC.; Ex.WW1/12 is the copy of sanctioned

strength, in position and vacant position of the Staff posted at Ashok Hotel. Claimant Kamlesh Kumar also filed a

number of documents viz. WW2/1 is copy of his own visting card; WW2/2 is the copy of e-mail which was sent by him

through the official e-mail of the Management to Telengana Bhawan on 3/5/2017, confirming reservation of rooms for

Justice C.V. Nagrarjuna and Sri GD Aruna, IAS on the request letter Ex.WW 2/3 received from General Admn. Branch

of Govt. of Telengana.; documents Ex.WW2/4 to Ex.WW2/10 are also copies of E-mails allegedly sent by claimant

Kamlesh Kumar from official e-mail of Ashoka Hotel to other clients / customers in the month of May, 2017; documents

Ex.WW2/11 and Ex.WW2/12 are the copies of inter office communication/certificate of the Management, showing that

the claimants Kamlesh Kumar, Rav Avtar and Rajan Kumar had attended training session of 8 hours. The

workman/claimant Satyendra also filed number of documents vis. WW3/1 copy identity card issued to him by his

employer M/s Scan Guard; WW3/2 & Ex.WW3/3 is copy of email dated 24/4/2017 sent by the workman/claimant from

official website of the Management to the client regarding confirmation of room accommodation at Ashok Hotel;

Ex.WW3/4 is the copy of his own visiting card. To the same effect are documents filed by other claimants/ workmen

viz. WW4/1 to WW4/12; Ex.WW5/1 to Ex.WW5/16;. Ex.WW6/1 to Ex.WW6/5 showing that their employer is the

contractor of the Management herein but they have been rendering services at Ashok Hotel.

10-

From the deposition of WW1 to WW6 coupled with the document Ex.WW/2 to Ex.WW2/12 ; Ex.WW3/2 to

Ex.WW3/7; Ex.WW4/3 to Ex.WW10; Ex.WW5/2 to Ex.WW5/12 and Ex.WW6/2, filed on record, it appears prima facie

that the claimants have been working under the control and supervision of the Management of Ashok Hotel though they

were initially engaged through contractor/s. The Management alongwith the written statement had filed on record copy

of the agreement dated 26/2/2014 executed between them and M/s Scan Guard Protection Services (P) Ltd. and for the

sake of reference, the said agreement is now marked as Mark C-1.. though the same has not been proved on record by the

Management. Even if it is assumed for the sake of arguments that the Management of Ashok Hotel used to get work

done from the claimants/workmen through the contactor pursuant to the contract/agreement Mark-C-I issued in favour of

the contactor/s, in that eventuality also the question arises for consideration is whether the said contract is a sham or

camouflage as alleged by the claimants.

11-

It is fairly settled that the ID Act as well as Contract Labour (Regulation & Abolition) Act, 1970 are essentially

social and beneficial legislations. The main purpose of the CLRA Act, 1970 is to regulate the conditions of workers

under the contract labour system and to provide for its abolition by the appropriate government as provided under Section

10 of the said Act. Section 12 of the said Act bars a contractor from undertaking or executing any work through contract

labour, except under and in accordance with a licence issued. Section 23, 24 and 25 of the Act makes contravention of

the provisions of Act punishable thereunder. There is also requirement for the principal employer of the establishment to

get itself registered under the CLRA Act so as to avail the benefit of provisions of the Act.

12-

Constitution Bench of Hon’ble Supreme Court in the celebrated case of Steel Authority of India Ltd. Vs.

National Union Waterfront Workers, (2001) 7 SCC 1 noticed the following circumstances under which contract

labour would be held to be the workmen of the principal employer :-

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7011

“107. An analysis of the cases, discussed above, shows that they fall in three classes :

(i)

Where contract labour is engaged in or in connection with the work of an establishment establishment and

employment of contract labour is prohibited either because the Industrial Adjudicator/Court ordered

abolition of contract or because the appropriate Govt. issued notification under Section 10(1) of the CLRA

Act, no automatic absorption of the contract labour working in the establishment was ordered.

(ii)

Where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract

labour working in the establishment of the principal employer, were held in fact and in reality, the

employees of the principal employer himself. Indeed such cases do not relate to abolition of contract

labour but present instances wherein the Court pierced the veil and declared the correct position as a fact

at the stage after employment of contract labour stood prohibited.

(iii) Where in discharge of a statutory obligation of maintaining a canteen in an establishment, the principal

employer availed the services of a contractor, the Courts have held that the contract labour would indeed

be the employees of the principal employer.

13-

In the case of Management of Ashok Hotel Vs. the Workmen (W.P. –Civil No.14828/2006 – decided on

19/2/2013), similar issue was involved and it was a case where various workmen were working continuously as

safaiwala/housemen in the kitchen department etc. and they were alleged to be working directly under the contractor who

had entered into a contract with the principal employer i.e. Ashok Hotel. Contention of the Management to the effect

that workmen were employees of the contractor was rejected and contract in the said case was held to be sham and

camouflage so as to deny direct relationship of employer (Ashok Hotel ) and the workmen.

14-

Except for the bald statement that the claimants are/were the workers of the contactor, the Management has not

any evidence to rebut the contention of the claimants that they have been working continuously from the date of their

engagement and that the contractors used to be changed but the workers remained the same. Agreement Mark C-1 was

executed by the Management in favour of M/s Scan Guard Protection Services (P) Ltd. on 26/2/2014 and the said

agreement was effective from 1/3/2014 to 30/9/2015. The said contract was simply for providing manpower and was

not for completion of any project/scheme. The Management of Ashok Hotel has not filed on record copy of

fresh/renewed agreements/ contracts awarded to contractor/s for the period beyond 30/9/2015., so as to ascertain as to

whether such contract was either for completion of any project or for supply of manpower. The Management has not

explained as to why it continued to engage and get the work done through contractual workers even beyond 30/9/2015.

All these circumstances lead me to draw an inference against the Management that the contracts/agreements issued by

the Management of CPWD for getting the work done through the claimants/workmen herein from time to time are sham

and camouflage and that there existed relationship of employer-employees between the parties.

15-

Now, an important question/issue arises for consideration is as to whether the workmen/claimants who are still

working with the Management are entitled to be regularized to the post/s to which they are working. It is fairly settled

that there is no fundamental right of those workers who have been employed as daily wager or temporarily or on

contractual basis to claim that they have a right to be absorbed in service. Even such workers even serving for a long

number of years will not become entitle to claim regularization if he is not working against a sanctioned post.

16-

Hon’ble Supreme Court in the case of Hari Nandan Prasad and another Vs. Food Corporation of India

2014) 7 Supreme Court cases 190 held as under :-

“… We are of the opinion that when there are posts available, in the absence of any unfair labour practice, the

Labour Court would not give direction for regularization only because a worker has continued as daily wage

worker/adhoc/temporary worker for number of year. Further, if there are no posts available, such a direction for

regularization would be impressible. In the abovesaid circumstances, giving of direction to regularise a person,

only on the basis of number of years put in by such a worker as daily wager et., may amount to backdoor entry