* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No. 3858/1996
% Reserved on: 7th August, 2012
Decided on: 15th October, 2012
NDMC AND ANR. ..... Petitioner
Through: Mr. Piyush Gaur for Mr. Arun
Bhardwaj, Adv.
versus
RAM PARSHAD ..... Respondent
Through: Mr. N.D. Pancholi, Mr. Hahorngam Zimik, Advs.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present petition the Petitioner impugns the award dated 25th March, 1995 whereby the learned Trial Court held that the termination of the Respondent/ workman was illegal and unjustified, a colourable exercise of power, therefore, mala-fide and directed reinstatement with full back wages and continuity of service.
2. Learned counsel for the Petitioner contends that the Petitioner was initially appointed on 3rd October, 1980 on adhoc basis on consolidated salary. His services were regularized with effect from 24th September, 1982 and he was placed on probation for two years. Thereafter the workman remained absent on several dates and stopped coming to office with effect from 26th December, 1984 without any intimation. He was called back to join, however, he failed and neglected to join the duty till 14 th February, 1985. Since the Respondent was on probation the Petitioner had two options either to simply terminate him without casting any aspersion or conduct an enquiry. The services of the Respondent were terminated on 8th July, 1985. The order was of termination simplicitor casting no aspersion on the W.P.(C) 3858/1996 Page 1 of 13 Respondent. The Respondent was given a cheque of the salary for one month as well. The learned Trial Court erred in reading the evidence of the management witness to imply that the Respondent was confirmed. In fact, the management witness MW1 has stated that after regularization, the Respondent had become negligent in performing his duties. Further, the post which the Respondent was holding was a civil post under the Petitioner and in terms of the rules governing the Respondent, the order of termination simplicitor with one month‟s pay was not an illegal order. Devender Singh Vs. Municipal Council, Sanaur AIR 2011 SC 2532 as relied upon by the Respondent has no application to the facts of the present case, as the termination of the Respondent was as per the terms of employment. It is further contended that the Respondent has been working with the Petitioner since January 2004 in terms of the award. However, his reinstatement is subject to the outcome of the present petition. It is prayed that the impugned award be set aside.
3. Learned counsel for the Respondent on the other hand contends that the Respondent is a workman and even if he was on probation, provisions of Section 25F are duly attracted if his services are terminated without following due process. Relying upon Devender Singh Vs. Municipal Council, Sanaur (supra) it is contended that the source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/ pay and the 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 Industrial Disputes Act, 1947 (in short „the ID Act‟). No distinction is made between a full-time and a part-time employee, or a person employed on contract basis. Further, since the termination of the W.P.(C) 3858/1996 Page 2 of 13 Respondent is illegal being contrary to the provision of Section 25F ID Act, there is no jurisdictional error in the Trial Court awarding reinstatement with full back wages, warranting interference by this Court as held in Devender Singh (supra) and M/s. Indian Tourism Development Corporation, New Delhi Vs. Delhi Administration, Delhi 1982 LAB IIC 1309 FB (Delhi). Reliance is also placed on L.Robort D'Souza Vs. Executive Engineer, Southern Railway and Anr. AIR 1982 SC 854 to contend that since the termination was on account of absence without leave constituting misconduct, the same is contrary to the principles of natural justice as no enquiry was held. Admittedly, the Respondent had completed 240 days and thus the provisions of Section 25F were clearly applicable. There being no infirmity in the impugned award, the petition be dismissed.
4. I have heard learned counsel for the parties. Briefly the facts giving rise to the filing of the present petition are that the Respondent was employed as Chowkidar with the Petitioner on 3rd October, 1980. The Respondent remained absent and thus a show cause notice was issued to him on 11th January, 1985. On 8th February, 1985 the Respondent was given a call back notice pursuant to which he rejoined the duties on 15 th February, 1985. Vide order dated 8th July, 1985 the service of the Respondent was terminated. On a dispute being raised, the following terms of reference were sent for adjudication:
"whether the termination of service of Shri Ram Parshad is illegal and/or unjustified and if so to what relief is he entitled to and what directions are necessary in this respect"?.
5. The Petitioner claimed that he was employed as a Chowkidar/ Sweeper since 7th October, 1980 and in 1985 he was refused duty by the W.P.(C) 3858/1996 Page 3 of 13 Head Mistress of NDMC, Junior Navyug School with effect from 2nd January, 1985 without any reason but was made to rejoin on 15 th February, 1985. Thereafter, he was retrenched from service on 8th July, 1985 which retrenchment is arbitrary, no reason was given, no notice pay or retrenchment compensation was offered. The claimant was victimized because of the cases pending in the office of the conciliation officer. However, the Petitioner in the reply stated that the Respondent was employed as a Sweeper/ Chowkidar with effect from 12 th October, 1980 on ad-hoc basis for a short period till 23rd September, 1982 and with effect from 24th September, 1982 his services were regularized. The Respondent remained absent in the year 1984 and thus a show cause notice and a call back notice was issued to him. Though the Respondent joined duties on 15 th February, 1985, however in view of his unauthorized absence, his services were terminated on 8th July, 1985. The Petitioner raised the preliminary objections that it was not an industry, the Respondent was not a workman and Delhi Administration was not competent to send the reference. These objections were decided against the Petitioner. The issue in terms of reference was also decided against the Petitioner and the termination of the Respondent was held to be illegal/ unjustified and the Respondent was directed to be reinstated with full back wages and continuity of service.
6. At the time of hearing of the present petition the only issue raised by the learned counsel for the Petitioner is that since the Respondent was on probation and the probation had not been confirmed, the discharge simplicitor of the Respondent by the order dated 8th July, 1985 is not illegal and thus the award is liable to be set aside. The thrust of the argument of the learned counsel is that since the Respondent was employed on a civil post, in W.P.(C) 3858/1996 Page 4 of 13 terms of Rule 5 of CCS Temporary Service Rules an order of termination simplicitor which is not stigmatic cannot be said to be illegal. Further, the Respondent was paid a cheque of one month‟s salary. Their Lordships in Devender Singh Vs. Municipal Council, Sanaur (supra) while construing the definitions of "retrenchment" and "workman" under the Industrial Dispute Act held:
"10. The definition of the term "retrenchment" is quite comprehensive. It covers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of non-renewal of the contract of employment or of such contract being terminated under a stipulation contained therein or termination of the service of a workman on the ground of continued ill health also do not fall within the ambit of retrenchment.
12. Section 2(s) contains an exhaustive definition of the term 'workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are not reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, of the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial W.P.(C) 3858/1996 Page 5 of 13 functions does not fall within the definition of the term 'workman'.
13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the 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.
14. It is apposite to observe that 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 a 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."
7. In M. Venugopal vs. Divisional Manager, AIR 1994 SC 1343 it was held:
"9. Regulation 14 aforesaid has to be read as a statutory term of the contract of employment between the Corporation and the appellant. The order of appointment had fixed a target in respect of the performance of the appellant which admittedly the appellant failed to achieve within the period of probation which was extended up to two years. As such the Corporation was entitled not to confirm the appellant in terms of the order of appointment and to terminate his service during the period of probation without any notice in terms of Regulation 14(4) aforesaid. Clauses 10 and 11 of the order of appointment along with Regulation 14 shall be deemed to be stipulations of the contract of employment under which the service of the appellant has been terminated. Any such termination, even if the provisions of the Industrial Disputes Act were applicable in the case of the appellant, shall not be deemed to be W.P.(C) 3858/1996 Page 6 of 13 "retrenchment" within the meaning of Section 2(oo), having been covered by exception (bb). Before the introduction of clause (bb) in Section 2(oo), there were only three exceptions so far as termination of the service of the workman was concerned, which had been excluded from the ambit of retrenchment -- (a) voluntary retirement; (b) retirement on reaching the age of superannuation; and (c) on ground of continued ill-health. This Court from time to time held that the definition of "retrenchment" being very wide and comprehensive in nature shall cover, within its ambit termination of service in any manner and for any reason, otherwise than as a punishment inflicted by way of disciplinary action. The result was that even discharge simpliciter was held to fall within the purview of the definition of "retrenchment". (State Bank of India v. N. Sundara Money [(1976) 1 SCC 822: 1976 SCC (L&S) 132: AIR 1976 SC 1111] , Santosh Gupta v. State Bank of Patiala [(1980) 3 SCC 340: 1980 SCC (L&S) 409: AIR 1980 SC 1219] .) Now with introduction of one more exception to Section 2(oo), under clause (bb) the legislature has excluded from the purview of "retrenchment" (i) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry; (ii) such contract being terminated under a stipulation in that behalf contained in contract of employment. It need not be impressed that if in the contract of employment no such stipulation is provided or prescribed, then such contract shall not be covered by clause (bb) of Section 2(oo). In the present case, the termination of service of the appellant is as a result of the contract of employment having been terminated under the stipulations specifically provided under Regulation 14 and the order of the appointment of the appellant. In this background, the non- compliance of the requirement of Section 25-F shall not vitiate or nullify the order of termination of the appellant."
8. In Rajasthan Adult Education Association and another vs. Kumari Ashoka Bhatacharya and another, JT 1997 (9) SC 533 the Respondent W.P.(C) 3858/1996 Page 7 of 13 challenged her termination as illegal being contrary to the provisions of Section 25F of the Industrial Disputes Act, 1947. Their Lordships held that the Respondent therein was employed for a particular project and at the most she was on probation during the period of her appointment. She was told to show improvement in her work when the appellant therein found that the work of the Respondent was not up to the mark and she was showing no improvement, her services were dispensed with. It was a termination simplicitor without casting any stigma. It was held that the Appellant was within its right to terminate the temporary employment of the Respondent.
9. A learned Single Judge of this Court in Union of India vs. The Presiding Officer, CGIT and another, W.P. (C) No. 4870 of 1998 decided on 1st July, 2010 while dealing with the applicability of Section 25F of the Industrial Disputes Act to an appointee under the rules aforesaid relying upon Management of MCD vs. Prem Chand Gupta, AIR 2000 SC 454 held that even in a case of a temporary employee if Section 25F is not complied with the termination is bad in law. In Prem Chand (supra) the Hon‟ble Supreme Court was dealing with an order of termination passed on 29th April, 1966 when the amendment to the Section 2 (oo) of the Industrial Disputes Act had not come into force. Section 2 (oo) of the Industrial Disputes Act states as under:
2 (oo) "retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between W.P.(C) 3858/1996 Page 8 of 13 the employer and the workman concerned contains a stipulation in that behalf; or [(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
(c) termination of the service of a workman on the ground of continued ill-health;]"
10. Sub-section (bb) of Section 2(oo) ID Act permits termination simplicitor in terms of the contract. The Hon‟ble Supreme Court noticed this distinction in Prem Chand Gupta (Supra) in para 17 which reads as under:
"17. Learned counsel for the appellant Corporation, Ms Binu Tamta in order to salvage the situation invited our attention to a decision of this Court in the case of Birla VXL Ltd. v. State of Punjab [(1998) 5 SCC 632: 1998 SCC (L&S) 1422] and submitted that when the appointment is given for a fixed period, on expiry of the said period the appointment would cease by the efflux of time and it could not be said to be a retrenchment. In the aforesaid case, a two-Judge Bench of this Court was concerned with an appointment order given to the third respondent before this Court on 1-1-1983 which clearly stated that it was an appointment for two years up to 31-12-1984. When the said termination by the efflux of time took place, Section 2(oo) of the ID Act had already got amended by insertion of exception clause (bb) therein which reads as under:
"termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or"W.P.(C) 3858/1996 Page 9 of 13
Thus, it was a case of automatic termination of employment in the light of the stipulation contained in the appointment itself. Such termination could not be treated as retrenchment in the light of the excepted category indicated by clause (bb) inserted in Section 2(oo) by the amending Act of 1984. It has to be kept in view that the respondent workman's termination was prior to the 1984 amendment to Section 25-F. Hence, it was squarely governed by the ratio of the decision of this Court in the case of State Bank of India v. N. Sundara Money [(1975) 4 SCC 13: 1975 SCC (L&S) 198]. It is, therefore, not possible to agree with the contention of learned counsel for the appellant that termination of the respondent workman on 29-4-1966 would not be retrenchment. It has also to be seen that even though the earlier appointment of the respondent workman was for one year from 5-5-1964 his reappointment from 1-10-1964 was not for a fixed period and on the contrary it continued up to 18 months and it was against a clear vacancy of a permanent post caused on account of the termination of another employee. Consequently, reliance placed by learned counsel, Ms Binu Tamta for the appellant Corporation on the aforesaid decision of this Court is of no avail to her. She then invited our attention to a later decision of this Court in the case of Rajasthan Adult Education Assn. v. Ashoka Bhatacharya [(1998) 9 SCC 61 : 1998 SCC (L&S) 1114] . In that case this Court was concerned with the termination of a probationer temporary servant on account of unsatisfactory performance. A probationer employee was found to have not satisfactorily worked during her probation and her services were terminated w.e.f. 31-5-1989. This is also a case where after the amendment of Section 2(oo) by insertion of clause (bb) from 1984 such termination of probationers for unsatisfactory work would remain outside the sweep of Section 25-F read with Section 2(oo). In the present case, as seen earlier, the termination was years back of 29-4- 1966 when Section 2(oo)(bb) was not on the statute-book. Reliance was then placed by learned counsel for the appellant Corporation on a decision of a learned Single Judge of the Gujarat High Court in the case of Sunilkumar S.P. Sinha v. Indian Oil Corpn. Ltd. [1983 Lab IC 1139: (1982) 3 SLR 567:W.P.(C) 3858/1996 Page 10 of 13
(1983) 24 Guj LR 573 (Guj)] This decision also cannot be of any avail to her for the simple reason that the said decision proceeded on its own facts. In para 14 of the Report, it has been clearly mentioned by the learned Single Judge that the employee in that case was not a workman and again there was no evidence to show that all the requirements of Section 25-F were complied with for its applicability. It was a direct writ petition in the High Court and in the absence of relevant data the said section was held to be not applicable. The said judgment rendered on its own facts, therefore, cannot be pressed into service in the light of clear findings of fact reached by the Labour Court in the present case, which have remained well sustained on record, as seen by us earlier for applicability of Section 25-F to the impugned termination of the respondent workman's services. As a result of the aforesaid discussion, it must be held that termination of the respondent workman's service on 29-4-1966 was violative of Section 25-F of the ID Act and was, therefore, null and void. The second point for determination is answered in the affirmative against the appellant Corporation and in favour of the respondent workman, subject to our decision about appropriate relief to be given to the respondent workman as will be indicated while considering the last point for determination."
11. Since the termination in Prem Chand Gupta (supra) was prior to the insertion of sub-clause (bb) of Section 2 (oo) of the ID Act the same has no application to the facts of the present case. In the case at hand a perusal of terms of appointment in letter dated 23 rd September, 1982 (EX. MW1) show that the Petitioner was on probation for a period of two years which could be increased at the discretion of the chairman and his services could be terminated by the school at any time by giving one month notice or payment in lieu of such notice without furnishing any reason thereto. The Respondent had not been confirmed and was repeatedly absenting and thus vide order dated 8th July, 1985 the Board of Governors terminated his services under W.P.(C) 3858/1996 Page 11 of 13 Section 45 of the Punjab Municipal Act and gave him a cheque for one month‟s salary in lieu of the notice period. This being the position it cannot be held that the termination of the Respondent was illegal.
12. Further this Court in Delhi Transport Corporation Vs. Shri R.K. Tiwari & Anr. W.P.(C) 3841/2000 decided on 19th July, 2012 in a similar situation in view of the law laid down in Oil and Natural Gas Commission and Ors. Vs. Dr. Md. S. Iskender Ali (1980) 3 SCC 428 held:
"11. All these decisions were reviewed in the case of State of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC 52, 64 : 1976 SCC (L&S) 542 : (1977) 1 SCR 462, 475] where this Court observed as follows: (SCC p. 64, paras 23 & 24) "Keeping in view the principles extracted above, the respondent's suit could not be decreed in his favour. He was a temporary hand and had no right to the post. It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month's notice. The order to which exception is taken is ex facie an order of termination of service simpliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. In the circumstances, the respondent could not invite the court to go into the motive behind the order and claim the protection of Article 311(2) of the Constitution.
We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriving at the finding that the impugned order was passed by way of punishment by probing into the departmental correspondence that passed between the superiors of the respondent overlooking the observations made by this Court in I.N. Saksena v. State of M.P. [ AIR 1967 SC 1264 : (1967) 2 SCR 496 : (1967) 2 LLJ 427] that when there are no express words in the impugned order itself which throw a W.P.(C) 3858/1996 Page 12 of 13 stigma on the government servant, the court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research."
12. The facts of the present case appear to be on all fours with those of the aforesaid decision. From the undisputed facts detailed by us in an earlier part of the judgment, it is manifest that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed from the contract of service it could not be termed as penalty or punishment."
13. In view of the aforesaid discussion, the impugned award is set aside. However, keeping in view that fact that termination of the Respondent was due to his unauthorized absence and the Respondent has been reinstated and working since 2003 with the Petitioner during the pendency of the present petition, it would be appropriate that the Petitioner reconsiders the case of the Respondent for regular appointment if he has been found working satisfactorily.
14. Petition is disposed of.
(MUKTA GUPTA) JUDGE OCTOBER 15, 2012 'ga' W.P.(C) 3858/1996 Page 13 of 13