Delhi High Court
Sh. Daya Shankar Prasad vs Director General Of Works, ... on 27 November, 2012
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th November, 2012
+ LPA No.777/2012
SH. DAYA SHANKAR PRASAD ..... Appellant
Through: Mr. D.S. Vohra & Ms. Renu Verma,
Advs.
Versus
DIRECTOR GENERAL OF WORKS, CENTRAL PUBLIC
WORKS DEPARTMENT ..... Respondent
Through: Mr. Ankur Chhibbar, Adv.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This intra-court appeal impugns the order dated 20.09.2012 of the
learned Single Judge allowing W.P.(C) No.12178/2006 preferred by the
respondent against the Award dated 23.02.2005 of the Industrial
Adjudicator.
2. The claim of the appellant before the Industrial Adjudicator was
that he had joined the services of the respondent on 17.06.1992 as a
Driver, initially for a period of two months and his services were
extended from time to time at two or three months duration through
"work orders" or "hand receipt" and which medium was adopted by the
respondent owing to the then prevalent ban on employment on casual or
muster roll basis. It was further the case of the appellant that his services
were terminated with effect from 27.08.1994 without notice or
compensation.
3. The respondent contested the claim of the appellant denying that
the appellant was ever in the employment of the respondent and pleading
him to be a contractor; it was pleaded that the respondent on 06.12.1992
invited quotations for running of a jeep and the quotation of the appellant
being the lowest, he was awarded the contract for arranging the running
of the vehicle for a period of two months with effect from 17.12.1992;
that after expiry of the said work order, fresh quotations were again called
and the respondent again quoted lowest rates and fresh work order was
issued to him; that the appellant quoted the lowest rates continuously for
seven times and seven work orders were issued to him for running of
vehicle till 14.07.1994; that during this period, the appellant arranged the
running of the vehicle either himself or by engaging a driver for this job
on his behalf; that however the rates quoted by the appellant in July, 1994
were not the lowest and therefore the work order could not be issued to
him and the last work order issued to the appellant expired on
17.07.1994.
4. The Industrial Adjudicator in the Award dated 23.02.2005 held that
the work of driving of the jeep was of a perennial nature and the work
orders issued by the respondent from time to time were a camouflage or
subterfuge and the real arrangement between the parties was of
employment even though in defiance of the ban imposed on the same.
Accordingly, the appellant was deemed to be an employee of the
respondent. However finding delay on the part of the appellant in raising
the dispute and holding that the appellant could not be expected to sit idle
and must be working as a driver elsewhere, relief only of reinstatement
with continuity of service but without back wages was granted.
5. The learned Single Judge, in the impugned judgment dated
20.09.2012, though has found the finding of the Industrial Adjudicator of
the appellant being an employee of the respondent and not an
independent contractor engaged to provide the services of a driver for
driving government vehicles to be non-interferable in exercise of powers
of judicial review, has held Section 25F of the Industrial Disputes Act,
1947, for the reason of non compliance wherewith the Industrial
Adjudicator had held the termination to be bad, to be not applicable.
Relying on M/s Haryana State F.C.C.W. Store Ltd. Vs. Ram Niwas AIR
2002 SC 2495, it was held that engagement of the appellant as a driver
being always fixed, for a period of two to three months under the work
orders categorically providing the same, non-engagement on the expiry of
the period of the last work order did not amount to retrenchment, as per
Section 2(oo)(bb) of the Act.
6. The counsel for the appellant before us has relied on Ramesh
Kumar Vs. State of Haryana 2010 (1) SCALE 432, Devinder Singh Vs.
Municipal Council, Sanaur (2011) 6 SCC 584 and on order dated
01.09.2011 of the Supreme Court in Civil Appeal No.2585/2006 titled
Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar Sharma.
7. However what we find is that there is no clear cut finding even in
the present case of the appellant having completed 240 days of
continuous service. In the first of the aforesaid two judgments cited,
there was categorical finding of the workman having worked for more
than 240 days and of violation of Section 25F of the Act; that is however
not the position here. The counsel for the appellant has also not been able
to distinguish in any manner the judgment in M/s Haryana State
F.C.C.W. Store Ltd. (supra) relied upon by the learned Single Judge and
which applies on all fours to the matter in controversy. We are therefore
not inclined to interfere.
8. Not only so, there are two other factors which persuade us for not
deciding in favour of the appellant. It is not in dispute that prior to
placing of each of the work orders on the appellant, tenders were invited
and the work orders were placed in favour of the appellant only for the
reason of the appellant‟s tender being the lowest. In such circumstances,
we are unable to sustain the finding of the Industrial Adjudicator, not
interfered with by the learned Single Judge, of an employer employee
relationship between the parties. It is also the admitted fact that the
appellant prior to raising the industrial dispute had approached the
Central Administrative Tribunal (CAT) where he was unsuccessful, with
the finding of there being no employer -employee relationship. It is only
thereafter that the industrial dispute was raised.
9. There is thus no merit in the appeal which is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
NOVEMBER 27, 2012
„gsr‟
