Delhi High Court
Union Of India & Others vs Bimal Krishna Dass on 5 March, 2009
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 23591-92/2005
% Decided on : 05.03.2009
U. O. I. & ORS.
. . . Petitioners
through : Mr. A. K. Bhardwaj, Advocate
VERSUS
BIMAL KRISHNA DASS
. . . Respondents
through: Mr. A. K. Trivedi, Advocate
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed to see
the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J. (ORAL)
1. The respondent herein was engaged as Badli worker between May, 1998 to
May, 2000. When he worked intermittently and with breaks during this period,
he was disengaged after May 2000. The respondent approached the Tribunal and
filed OA no. 2600/2002 stating his claim for appointment for regular
establishment with the department, that is, Delhi Milk Scheme. On the basis of
scheme for regularization prepared by DMS, in fact, the respondent had made a
request in this behalf in that OA. Orders dated 8.1.2003 were passed directing the
petitioner herein to pass a reasoned order. In compliance thereof the petitioner
passed orders dated 30.6.2003 rejecting the request of the respondent herein. In
these circumstances, respondent approached the Tribunal again and filed OA
1929/2004 assailing the said orders dated 30.6.2003. This OA of the respondent
has been allowed by the Tribunal. While setting aside order dated 30.6.2003
passed by the petitioner, directions were given to the petitioner to consider the
case of the respondent for appointment on regular establishment and in that event
of consequential benefits be also accorded to him. The validity of this order is the
subject matter of the present writ petition. It would be necessary to take note of
the relevant provision of the certifying standing orders duly certified by the
labour office under the provisions of Industrial employment standing orders and
such standing orders are therefore of statutory nature.
2. Para 4 of these standing orders classifies various workers in three
categories, namely, casual, badli and apprentice. Since we are concerned with a
Badli worker following provision is made in respect of such workers.
"(iii) „Badli‟ means a worker who is employed for the
purpose of working in place of regular employee who are
temporarily absent:
Provided that a Badli worker who has actually
worked for not less than 240 days in any period of 12
months shall be transferred to regular/establishment
governed by the Fundamental and Supplementary Rules."
3. As per the aforesaid provision a Badli worker who has actually worked for
not less than 240 days in any period of 12 months is to be transferred to regular/
establishment. The case of the respondent was that he had worked for more than
240 days for the period from November, 1998 to October 1999 and therefore he
had become entitled to be transferred to regular/establishment. The petitioner, on
the other hand, had contended before the Tribunal that the services of the
respondent were dispensed with in May, 2000 and the relevant period which is to
be taken into consideration while ascertaining as to whether such Badli worker
has worked for 240 days or not would be the preceding 12 months from the date
of disengagement. On that basis according to the petitioner the relevant period
was June, 1999 to May, 2000 and during this period respondent had worked for
only 228 days and was therefore not entitled to benefit of regularization. Learned
counsel for the petitioner in support of his submission referred to the judgment of
Supreme Court in case of Karnataka State Road Transport Corporation v. S. G.
Kotturappa 2001 (1), Supreme Court Service Law Judgment, 441 and
specifically referred to the observations made therein:
"It is not case where the respondent has completed 240 days
of service during the period of 12 months preceding such
termination as contemplated under Section 25F read with
Section 25B of the Industrial Disputes Act, 1947. The Badli
workers, thus, did not acquire any legal right to continue in
service. They were not even entitled to the protection under
the Industrial Disputes Act nor the mandatory requirements
of Section 25F of the Industrial Disputes Act were required
to be complied with before terminating his services, unless
they complete 240 days‟ service within a period of twelve
months preceding the date of termination."
4. A bare reading of the aforesaid extract from the said judgment would
demonstrate that while deciding the issue of completion of 240 days of service,
the discussion was with reference to the provision of Industrial Disputes Act.
Under Section 25 (b) of the said Act specific terminology used is "240 days
service preceding the date of termination" on that post. Under the provision of
that act question which arises for consideration is about the payment of
retrenchment compensation. However, in the present case, we are only concerned
with the standing orders duly certified by the labour department and in the
relevant standing order as extracted earlier, the terminology used is "any period of
12 months" which is materially different than the language used in Section 25 (b)
of the Industrial Disputes Act which talks of 12 months preceding the date of
termination. In the present case the respondent herein if his submission is to be
accepted had completed 240 days in the 12 months period starting from
November, 1998 to October, 1999 and therefore immediately after October 1999
he had become entitled to be transferred to regular establishment. We are,
therefore, of the opinion that the words appearing in Para 4 of standing orders "in
any period of 12 months" would cover in its ambit the case of the respondent.
The second issue, however, arises for consideration is as to whether the
respondent "actually" worked for 240 days during the said period. It is the
submission of the learned counsel for the petitioner that he worked actually for
240 days would certify actual 240 working days excluding the holidays etc. This
submission is based on the judgment of the Supreme Court in the Bank of India
and Anr. v. Tarun Kr. Biswan & Ors. 2007 (9) Scale 443 wherein the Supreme
Court held:
"The scheme to which both the appellant and the
respondent have referred to in para 2 (1) speaks for 240
days of work in Budlee Service. Similar is the position in
para 2 as quoted above. The scheme of budlee days is
different. It denotes actual working days. American
Express's case (supra) has no application as the nature of
work is different. Additionally, dispute is about as to
whether the respondents had completed 240 budlee days."
5. That was also a case of Badli worker and the court was concerned with
similar provision. Therefore, while hearing whether the respondent had worked
for 240 days during the period November, 1998 to October, 1999, actual working
days will have to be taken into consideration. We, therefore, dispose of this writ
petition with directions to the petitioner herein to consider the case of the
respondent as directed by the Tribunal and while doing so calculate 240 days by
taking into consideration actual working days. If on that reckoning it is found
that respondent worked for 240 days or more, the directions as given by the
Tribunal shall be implemented. This exercise shall be completed within two
months and appropriate order shall be passed in this behalf.
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
March 05, 2009
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