1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER Writ Petition (C) No.4397/1999 Reserved on : Date of decision : IN THE MATTER OF : Rameshwar Dayal...Petitioner. Through : Mr.Sanjay Ghose with Ms.Pragyana, Advocates. Versus The Presiding Officer, Labour Court No.VI,... Respondents. Delhi and Anr. Through Ms.Amita Gupta, Advocate HIMA KOHLI, J. : 1.The petitioner has filed the present writ petition praying inter alia for quashing of the impugned award dated , passed by the Presiding Officer, Labour Court in ID No.107/1995, whereunder it was held that the petitioner/workman was not able to prove that his services were terminated illegally or unjustifiably by the respondent/management and therefore his claim was rejected. 2. Brief facts which are relevant for deciding the petition are that the petitioner was taken into employment of respondent no.2, MCD as a `Mali'/ `Beldar' w.e.f The petitioner workman was being treated as a muster roll employee and was being paid minimum wages fixed and revised from time to time under the Minimum Wages Act. The petitioner claimed
2 that his services were terminated by respondent no.2 w.e.f , without assigning any valid reason thereof and in violation of the provisions of Industrial Disputes Act, 1947 (hereinafter, in short referred to as `the Act'). A demand notice dated , was served on behalf of the petitioner on respondent no.2, but when no reply was received, the petitioner raised an industrial dispute by filing a Statement of Claim dated 28th June, 1993 before the Conciliation Officer of the appropriate Government. As no settlement could be arrived at in the conciliation proceedings initiated by the Conciliation Officer, the appropriate Government referred the dispute of the petitioner for adjudication vide reference dated , containing the following terms of reference:- Whether the services of Shri Rameshwar Dayal is illegal and/or unjustifiable by the management, and if so, to what relief is he entitled and what directions are necessary in this respect 3. The petitioner filed a statement of claim challenging his illegal termination and claiming reinstatement in service with continuity of service and full back wages. The respondent no.2 disputed the claim of the petitioner and filed its written statement, wherein it was stated that the petitioner workman was engaged as a daily wager only from , that too for a short period against development work, that he was only a temporary employee and had not completed 240 days/90 days of service in the one year preceding the date of his termination. However, the respondent management failed to appear in the proceedings thereafter, and vide order dated , it was proceeded against ex-parte. The petitioner workman, however, adduced evidence and filed certain documents on the record in support of his case. After perusing the entire material on record, including the pleadings of the parties, the evidence led and the arguments addressed, the Presiding Officer, Labour Court passed an ex-parte award rejecting the claim of the petitioner to reinstate him in service, on the ground that he was only a casual/ daily rated/ muster roll worker and therefore, his disengagement from service could not be held to be retrenchment. 4. In the course of arguments, learned counsel for the petitioner submitted that the impugned award suffers from an error of law and misappreciation of the statute and it is thus liable to be set aside. He submitted that the Labour Court had wrongly placed reliance on the judgment of the Supreme Court in the case of Himanshu Kumar Vidhyarthi Versus. State of Bihar, 1997 IV AD SC 196, while coming to the conclusion that termination of services of temporary employees does not amount to retrenchment. Reliance was placed
3 on the judgment of a Single Judge of this Court in the case of Management of Horticulture Department of Delhi Administration Versus Trilok Chand and Another, reported as 82 (1999) DLT 747, to state that provisions of Section 25F of the Act are applicable even in case of daily rated workmen. 5. Counsel for the petitioner further submitted that even assuming that the petitioner had not worked for 240 days continuously, the award still suffers from infirmity because the Labour Court failed to appreciate that Sections 25 G and H of the Act do not require any particular period of continuous service as is the requirement under Section 25 F of the Act, and that violation of Section 25 G and H would be sufficient to hold that the termination of the petitioner's service is void. It was argued that in the impugned award, the applicability of the provisions of Section 25 G and H was denied under a mistaken impression that since the petitioner workman was a daily wager, therefore, the said provisions were also not applicable to him. It was further contended by the counsel for the petitioner that while persons who came after him were retained in service, he was removed illegally by the management, to mete out hostile discrimination against him. In support of his arguments, the petitioner relied upon a judgment of this Court in the case of Amarpal Singh and Anr Versus MCD reported as 2006 II AD (Delhi) 43 and a judgment of the Supreme Court in the case of Samistha Dube v. City Board, Etawah and Anr., reported as 1999 II AD(SC) On the other hand, counsel for the respondent stated that the petitioner workman was engaged by it only for specific work and for specific periods and that he had not worked for 240 days continuously in the one year preceding the date of termination of his services. Attention of the court was drawn to the provision of Section 2 (oo) (bb) of the Act to state that since the petitioner was engaged only for specific work, his case was covered under the exception to retrenchment as provided under Section 2 (oo)(bb) of the Act, and his termination on completion of the specific project, did not amount to retrenchment. It was further submitted that retrenchment being a precondition for applicability of the provisions of Section 25F, G and H of the Act, and there being no retrenchment in the present case, there was also no need to comply with the provisions of Section 25 F, G and H, while terminating the services of the petitioner workman and therefore, the said termination was neither illegal nor unjustified.
4 7. It was stated that the petitioner was appointed only for specific works on specific days and no proof was given by the petitioner to show that he had worked continuously for 240 days with the respondent/management, for any inference to be drawn in favour of the petitioner and against the respondent. Learned counsel for the respondent also stated that in any event, it was for the petitioner workman to prove that he had worked for 240 days continuously and since he had failed to discharge the onus of proof that lay on him, an adverse inference should be drawn against him, and on the said premise also, Section 25 F of the Act is inapplicable to the case of the petitioner workman. 8. Counsel for the respondent further argued that even otherwise, since the petitioner workman was engaged for different periods, for specific work and specific duration, therefore, there arose no question of keeping someone else in the place of petitioner. It was stated that the respondents have a policy for regularization of those workmen who were appointed on an yearly basis, and as a matter of policy, seniority list was only being prepared for regularisation of those persons who were employed on a regular and month-to- month basis, and not for daily wage workers like the petitioner, who were employed only for specific works. It was therefore submitted that there was no occasion for applicability or violation of the provisions of Section 25 G and H of the Act by the respondent. 9. Lastly, it was urged that the claim suffered on the ground of delay and laches. While the petitioner s services were terminated on 26th July, 1991, he raised an industrial dispute only on 7th June 1993, by serving a demand notice on the respondent, i.e. after almost two years of the alleged termination of his services. 10. Rebutting the aforesaid argument of the respondent, counsel for the petitioner placed reliance on a judgment rendered by the Supreme Court in the case of G.M., Haryana Roadways v. Pawan Kumar, reported as (2005) 12 SCC 459, to state that delay, if any, in raising the dispute cannot in itself bring an end to the dispute and the same may only be taken into account while granting relief. 11. I have heard the learned counsels for the parties and have also perused the records as placed on the file including the pleadings of the parties, and the impugned award. The main ground for answering the reference against the petitioner in the impugned award was the fact that the petitioner
5 workman was only a casual/daily rated/muster roll worker, and that since he was a temporary employee working on daily wages, the termination of his services could not be considered as retrenchment under the Industrial Disputes Act. In coming to the said decision, support was drawn from the judgment of Supreme Court in the case of Himanshu Kumar Vidyarthi (supra). Accordingly, it was held that since a daily rated/ casual/ muster roll /temporary employee cannot be retrenched, therefore, there was no question of violation of the provisions of Sections 25 F, G or H of the Act, the precondition for applicability of all these provisions being retrenchment. 12. In view of various judgments of the Apex court and this court, it is now a settled position of law that that irrespective of whether a workman was daily wager or not, once he has completed 240 days of continuous service, the termination of his services without complying with the provision of Section 25F of the Act, is illegal. It was held by a division bench of this court in the case of Delhi Cantonment Board v. Central Government industrial Tribunal and Ors., 129(2006) DLT 610(DB) that in industrial law there is no difference between permanent and temporary employees as in service law and that as long as a person is a workman within the meaning of Section 2(s) of the Act and had put in 240 days of service in the year prior to the date of termination of his service, it is mandatory to comply with the provision of Section 25 F of the Act. 13. The judgment rendered by a single judge of this court in the case of Management of Horticulture Department of Delhi Administration (supra) is also noteworthy in this regard, relevant extract of which is being reproduced as under: 22. Notwithstanding the aforesaid position in law Mr. Anil Grover, learned counsel appearing on behalf of the petitioner argued that respondent is not to be treated as workman and is not entitled to the benefit of the provision of Section 25-F of the Act and in support of his submission he tried to draw sustenance from another judgment of Supreme Court in the case of Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others reported in 1997 IV AD SC 196. In this case, decided by a Division Bench, no doubt certain observations were made by the Supreme Court which give the impression that temporary working of daily wagers=would not be considered to be retrenched under the Act. However, a close look would show that the case was mainly decided on the ground that the concerned department namely, Cooperative Training Institute, Deogarh was not to be treated as ``industry'` within the meaning of Section 2(j) of the Act and
6 further in this case Supreme Court did not take into consideration the earlier case decided by it holding to the contrary and as noticed above. Not only this even in the following subsequent judgments, Supreme Court has taken the view that provision of Section 25-F would be applicable even in a case of daily rated workman. These cases are: 1. Rattan Singh Vs. Union of India, reported in (1997) 11 SCC Municipal Corporation of Delhi Vs. Praveen Kumar Jain, reported in (1998) 9 SCC Samistha Dubey Vs. City Board Etawah, reported in 1999 LLR 460 (SC). 14. It is evident from a study of the law laid down in the abovementioned case laws that once the requirement of 240 days of continuous service is fulfilled, the workman cannot be retrenched without following and/or complying with the provision of Section 25F of the Act. The impugned award, therefore, suffers from infirmity to the extent it states that since the petitioner was only a temporary employee, therefore, he could not be retrenched, and there was no need for complying with the provision of Section 25F of the Act. 15. However, what needs to be seen in the present case is that whether the petitioner workman had completed 240 days of continuous service in the year preceding the date of his termination, so as to be entitled to the protection of Section 25F of the Act. It is no longer res integra that the burden to prove 240 days of continuous service lies on the workman. In this context, it is appropriate to refer to the judgment rendered by the Supreme Court in the case of R.M.Yellati v. The Astt. Executive Engineer, reported as 2005 IX AD (SC) 257, wherein it was held that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. Relevant extract of the judgment is reproduced as under: However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to
7 produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year A bare perusal of the extract of the judgment produced hereinabove shows that although the burden to prove 240 days of service lies on the workman and this burden is discharged upon workman stepping into witness box and adducing cogent evidence on oath or affidavit, yet there is a caveat attached to the effect that mere affidavits or self serving statements made by the claimant/ workman will not suffice in the matter of discharge of burden placed by law on the workman. 17. In the present case, however, the petitioner workman has not even made an averment to the effect that he had worked for 240 days continuously with the respondent, in the year preceding the date of his termination. All that has been stated by the petitioner/ workman in the Statement of Claim as well as in his affidavit, is that he had joined employment of the MCD w.e.f 26th May, 1984 and that his services were terminated w.e.f. 26th July, Moreover, no evidence whatsoever was led by the petitioner before the Labour Court to prove the said fact, much less any records in the nature of muster rolls etc. summoned from the management. It is, therefore, a case where the petitioner workman failed to discharge the onus of proof placed on him and in the absence of his having proved that he had worked for a continuous period of 240 days with the respondent in the year prior to the termination of his services, the petitioner workman cannot claim the protection of the provision of Section 25F of the Act, and his termination cannot be held to be illegal or invalid for non-compliance of Section 25F of the Act. 18. The alternate plea of the petitioner is to the effect that assuming that he had not worked for 240 days continuously in the preceding 12 months prior to his termination, still the provisions of Section 25 G and H of the Act would be attracted. As against this, and also on the issue of applicability of Section 25F of the Act, the respondent s main line of defence has been that the petitioner workman was only appointed for specific work and for
8 specific time period, and therefore, his case is covered by the exception to retrenchment as provided under Section 2 (oo) (bb) of the Act, and that none of the aforesaid provisions would be applicable to the present case for the simple reason that there has been no retrenchment. 19. It has to be firstly examined as to whether the provisions of Section 2 (oo) (bb) of the Act are attracted to the facts of the present case. It is evident from a perusal of the impugned award that after filing its written statement, the management never appeared before the Labour court and therefore, did not lead any evidence in support of its contention that the petitioner workman was appointed for specified work and for specified periods. Except for a bald statement to the said effect, no cogent evidence was produced by the respondent management to prove the alleged fact. It has been held by the Supreme Court in the case of S.M. Nilajkar and Ors. v. Telecom District Manager, Karnataka, reported as JT 2003(3) SC 436, that the burden of proof is on the management to prove that the workmen were engaged as casual or daily-wagers only for a particular project. Observations of the Court in this regard are reproduced as under: 14. The engagement of a workman as a daily-wager does not by itself amount to putting the workman on notice that he was being engaged in a scheme or project which was to last only for a particular length of time or upto to occurrence of some event, and therefore, the workman ought to know that his employment was short-lived. The contract of employment consciously entered into by the workman with the employer would result in a notice to the workman on the date of the commencement of the employment itself that his employment was short-lived and as per the terms of the contract the same was liable to termination on the expiry of the contract and the scheme or project coming to an end. The workman may not therefore complaint that by the act of employer his employment was coming to an abrupt termination. To exclude the termination of a scheme or project employee from the definition of retrenchment it is for the employer to prove the abovesaid ingredients so as to attract the applicability of Sub-clause (bb) abovesaid. In the case at hand, the respondent-employer has failed in alleging and proving the ingredients of Sub-clause (bb), as stated hereinabove. All that has been proved is that the appellants were engaged as casual workers or daily- wagers in a project. For want of proof attracting applicability of Sub-clause (bb), it has to be held that the termination of the services of the appellants amounted to retrenchment.
9 This position of law has been reiterated by a learned Single Judge of this Court in the case of Amar Pal Singh (supra). 20. All documents relating to appointment and service of the petitioner workman being in the possession of the respondent management, it was for the respondent MCD to show that the petitioner s case fell within the exception provided under Section 2(oo)(bb) of the Act. It was also for the respondent management to show that the employment of the petitioner workman was only for a specific work and was to come to an end on completion of the said work. The management having failed to discharge the said onus of proof, it cannot be held that the exception to retrenchment provided in Section 2 (oo)(bb) of the Act is attracted in the present case. 21. In view of the fact that the respondent management has failed to prove that in the present case, the basic ingredient of retrenchment is missing, it is now to be seen whether the termination of the petitioner workman is in violation of the provisions of Sections 25G and H of the Act. 22. Section 25G of the Act introduces the rule of 'last come first go'. Section 25H of the Act provides for re-employment of retrenched workman, which will apply in case where the employer proposes to take into employment any person, an opportunity has to be given to him to offer himself for reemployment. In view of the various judgments of the Apex Court in this regard, it is now well settled that continuous service is not a requirement for applicability of Section 25 G and H of the Act. The Supreme Court in the case of Jaipur Development Authority Versus Ram Sahai and Anr, reported as 2006 (11) SCALE 95, after referring to a number of its earlier decisions on the issue, has held as under: 10 Mr. Jain appears to be right when he submits that continuous work in terms of Section 25B of the Act is not necessary in so far as statutory requirements under Sections 25G and 25H are concerned. The said question appears to have been considered by this Court in some decisions. 11. In Central Bank of India v. S. Satyam and Ors. (1996) 5 SCC 419, this Court opined: The next provision is Section 25H which is couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25F. It does not require curtailment of the ordinary meaning of the word 'retrenchment' used therein. The provision for reemployment of retrenched workmen merely gives preference to a retrenched workman in the
10 matter of re- employment over other persons. It is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman. 12. Yet again in Samishta Dube v. City Board, Etawah and Anr. (1999) 3 SCC 14, this Court held: We shall next deal with the point whether, in case employees junior to the appellant were retained, the directions issued by the Labour Court could be treated as valid. Section 6-P of the U.P. Act (which corresponds to Section 25G of the Central Act of 1947) states that where any workman in an industrial establishment is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workmen in this behalf the employer shall ordinarily retrench the workmen who was the last person to be employed in that category, unless for reasons to be recorded, the employer retrenches any other person. Now this provision is not controlled by conditions as to length of service contained in Section 6-N (which corresponds to Section 25F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose under this very Section 6-P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. (See also in this connection Central Bank of India v. S. Satyam.) Nor was the High Court correct in stating that no rule of seniority was applicable to daily-wagers. There is no such restriction in Section 6-P of the U.P. Act read with Section 2(z) of the U.P. Act which defines workman. It is true that the rule of first come, last go in Section 6-P could be deviated from by an employer because the section uses the word ordinarily. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of confidence, etc., as held in Swadesamitran Ltd. v. Workmen. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act. 13. Yet again recently in Regional Manager, SBI v. Rakesh Kumar Tewari (2006) 1 SCC 530, this Court followed Central Bank of India (supra), stating: Section 25G provides for the procedure for retrenchment of a workman. The respondents have correctly submitted that the provisions of
11 Sections 25G and 25H of the Act do not require that the workman should have been in continuous employment within the meaning of Section 25B before he could said to have been retrenched. 23. Therefore, even assuming that the petitioner workman had not rendered 240 days of continuous service in the preceding one year with the respondent management, still the termination of his services without complying with the provisions of Sections 25 G and H of the Act, renders the termination illegal and unjustified. It is also to be noted that the petitioner workman had provided some information about the person who he claims, had been appointed in his place by the respondent management, and the respondent management not having appeared in the proceedings before the Labour Court, the said averment of the petitioner workman remains unrebutted. 24. However, keeping in view the fact that in the case of Jaipur Development Authority (supra) also, in spite of coming to the conclusion that the provisions of Sections 25 G and H of the Act had not been complied with and therefore the termination order was illegal and unjustified, the Supreme Court still held that reinstatement of the workman would not be the appropriate relief considering that he was only a daily rated workman, and that he was not appointed in accordance with the constitutional scheme of appointment, neither was his work of perennial nature, nor did he prove that when his services were terminated any person junior to him in the same category, had been retained. Accordingly, payment of a lump sum compensation was deemed to be an appropriate remedy. 25. Guided by the view taken by the Supreme Court in the case of Jaipur Development Authority (supra), and keeping in mind the fact that the nature of job performed by the petitioner workman is such that it is difficult to perceive that he would have been sitting idle all this while and also taking into account that the petitioner had been terminated from service in the year 1991 and that a period of over 15 years has since elapsed, coupled with the fact that an industrial dispute was raised only after a considerable delay of two years, the respondent no. 2 is hereby directed to pay to the petitioner workman, a lump sum amount of Rs. 50,000/- as compensation in lieu of reinstatement and back wages in full and final settlement of the claims of the petitioner workman, within four weeks from today. The impugned award is set aside and the writ petition is allowed to the aforesaid extent. No order as to costs.
12 Sd/- ( HIMA KOHLI ) JUDGE