Suman Kumari vs M/S Bhagini Nivedita College And ...
2017 Latest Caselaw 3710 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment reserved on : 24th July, 2017
                                   Date of decision : 28th July, 2017

W.P.(C) 6195/2017

SUMAN KUMARI                                       ..... Petitioner
                           Through     Mr. R.S.Jena, Advocate
                           versus

M/S BHAGINI NIVEDITA COLLEGE AND ANR..... Respondents
                   Through Nemo.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
                              JUDGMENT

ANU MALHOTRA, J.

1. By the present petition, the petitioner assails the impugned

award dated 14.12.2016 of the Presiding Officer Labour Court-XIX,

Karkardooma,Delhi in LIR No.236/16 whereby the reference No. F.24

(122)/13/SWD/Lab./5004-5007 dated 29.05.2013 as received from the

Dy.Labour Commissioner, Government of NCT of Delhi to the effect:

"Whether services of Sh.(sic) Suman Kumari W/o Sh. Raju have been illegally and/or unjustifiably terminated by the management, and if yes, to what relief is he entitled and what directions are necessary in this respect?"

was answered to the effect that the worklady arrayed as the petitioner

herein was not entitled to any relief and her claim was dismissed.

FACTUAL MATRIX

2. The petitioner herein had claimed that she was working with the

management of M/s Bhagini Nivedita College arrayed as respondent

No.1 to the present petition w.e.f. 8.2.2007 as a Junior Assistant and

her last drawn wages were Rs.10,500/- per month. She further claimed

that though she gave no chance of complaint to the management and

despite her service record being satisfactory, the management did not

provide her legal facilities, i.e., appointment letter, leave book, salary

slip, attendance card, earned leaves, casual leaves, bonus, overtime

etc. and when she demanded the same, the management terminated her

services on 13.12.2010 without giving her any notice or charge sheet

and without following the due process of law despite the fact that she

had completed 240 days of continuous service and had rendered four

years of service continuously with the management.

3. The petitioner further submitted that the college had conducted

the interview for the post of Lab Assistant for which she was

interviewed as she was fully competent and experienced but the

management, instead of appointing her, appointed a less experienced

and incompetent Lab Assistant in her place. After her termination,

which she alleges was done illegally, she filed a complaint in the

Labour Office and the Labour Inspector visited the management but

the management refused to reinstate her whereupon she served a legal

notice dated 9.3.2013 upon the management which was not replied

and the reference was then sent to the Labour Court for adjudication.

The petitioner claimed that she has been unemployed from the date of

her illegal termination and prayed for reinstatement with full back

wages and other consequential benefits.

4. The management of M/s Bhagini Nivedita College claimed

before the Labour Court that the worklady, i.e., the petitioner herein,

had worked on contract basis on the agreed terms and conditions and

she was fully satisfied with the payments/facilities provided to her.

The management also submitted that the process of regular

appointment was initiated on 5.11.2008 by giving an advertisement in

"Times of India" for which the worklady, i.e., the petitioner herein,

had also applied but could not qualify the requisite examination in the

general category and after taking approval from the University of

Delhi which had declared the post reserved for the OBC category, the

process for appointment of Junior Assistant started on 23.04.2011 and

regular appointments were made. The management submitted before

the Labour Court that the post of Junior Assistant had already been

filled through such process and as such no question of the worklady,

i.e., the petitioner herein, being taken in employment through the

process without her fulfilling the criteria for the post arose.

5. The management further stated that the worklady, i.e., the

petitioner herein, had been appointed on 8.2.2007 on contract basis

and the contract was renewed from time to time and that the conduct

of the worklady, i.e., the petitioner herein, was not appropriate during

her service tenure and there were other complaints received at the

principal's office from time to time. The management further

submitted before the Labour Commissioner that the services of the

worklady were never terminated by the management rather her

contractual period came to an end on 13.12.2010. The management

further submitted that the worklady, i.e., the petitioner herein, never

worked for 240 days continuously in the preceding year prior to the

date of her alleged termination with the management.

6. During the course of the proceedings before the Labour

Commissioner, on 18.12.2013 issues were framed to the effect :

(1) Whether the worklady was appointed on contractual basis, if yes, its consequences OPM (2) As per terms of reference.

(3) Relief.

7. The worklady, i.e., the petitioner herein, examined herself as

WW-1 and the Management produced Sh. Rajesh Kumar as MW-1.

The documents were produced in evidence on behalf of both sides,

i.e., the worklady and the management before the Labour

Commissioner.

8. Qua issue No.1, EX.MW-1/7, it is essential to advert to the

appointment letter of the worklady on contract basis dated 5.2.2007.

The said letter placed on record by the petitioner reads to the effect :-

" Dear Ms.Suman,

With reference to your application dated 5.2.2007, you are hereby informed that you have been appointed as J.A.C.T. Purely on Contractual basis for a period of 6 month on the following terms and conditions:

1. The appointment shall be of contractual nature for a period of 6 months only.

2. Contractual appointed will attract a salary of consolidated amount of Rs.6,000/- (Rupees Six thousand only ) per month.

3. No other benefits are attached to this contractual appointment except the benefit of Casual Leave.

4. This appointment has no relevance with the

permanent appointment whenever be made through proper procedure.

5. The contractual appointment can be terminated immediately at any time without assigning any reason.

6. The appointment is subject to the approval by the Government Body.

If above mentioned terms and conditions are accepted to you, you may join the duty immediately, You are required to bring the original and submit set of photocopies of all relevant documents, certificates and testimonials."

9. Vide letter dated 24.10.2007, the management informed the

worklady that her services on ad hoc basis were terminated w.e.f.

24.10.2017 (A/N). The said office order reads to the effect as under : -

               "BNC/ADMN/07/10/90                 24/10/07

                               OFFICE ORDER

This is to inform that the service of Ms.Suman, J.A.C.T. on ad-hoc basis is hereby terminated with effect from 24th October, 2007 (A.N.)

Sd/-

OSD/Principal"

10. The said worklady was thereafter appointed as Junior

Assistant/Typist purely on ad hoc basis for a period of 89 days in the

pay scale of Rs.3,050-75-3,950-80-4,590 on 29.10.2007. The terms of

the said letter are to the effect : -

"Dear Ms.Suman, With reference to your application dated 25/10/07, yhou are hereby informed that you have been appointed as JR.Asstt./typist purely on Ad-hoc basis for a period of 89 days on the following terms & conditions.

1. The appointment shall be of Ad-hoc nature for a period of 89 days in the pay scale of Rs.3,050-75- 3,950-80-4,590.

2. This appointment has no relevance with the permanent appointment whenever be made through proper procedure.

3. The Ad-hoc appointment can be terminated immediately at any time without assigning any reason.

4. This appointment has no relevance with the previous appointment. This will be treated totally a fresh appointment.

5. The appointment is subject to the approval of the Governing Body.

If above mentioned terms & conditions are acceptable to you, you may join the duty immediately."

11. Vide letter dated 25.1.2008 of the management, the services of

the worklady as Junior Assistant-cum-Typist (JACT) on ad hoc basis

were terminated on 25.1.2008 (afternoon). Vide letter dated 4.2.2008,

the worklady was appointed as Junior Assistant-cum-Typist on ad hoc

basis for a period of 89 days with the terms and conditions of the letter

being identical to the letter dated 29.10.2007 already referred to herein

above. Vide memorandum dated 28.4.2008, the services of the

worklady as JACT on ad hoc basis were terminated w.e.f. 30.4.2008.

Vide memorandum dated 6.11.2008 the services of the worklady as

JACT on contract basis were terminated w.e.f.7.11.2008 (A/N).

12. Vide appointment letter dated 10.11.2008, the worklady was

appointed as a Junior Assistant-cum-Typist purely on contractual basis

for a period of six months on the terms and conditions that the

appointment was of a contractual nature with a consolidated salary of

Rs.7500/- with no other benefits attached to this contractual

appointment except the benefit of causal leave and it having been

made clear that this appointment had no relevance with the permanent

appointment whenever made through proper procedure and the ad hoc

appointment could be terminated immediately at any time without

assigning any reason, the appointment had no relevance with the

previous appointment and would be treated totally a fresh

appointment.

13. The terms and conditions of the said appointment as detailed in

the said letter dated 10.11.2008 are as under: Page No.36 and 37

"With reference to your application dated 10/11/08, you are hereby informed that you have

been appointed as a Jr.Assistant/Typist purely on Contractual basis for a period of 06 months on the following terms and conditions:

1. The appointment shall be of contractual nature for a period of 06 months only.

2. Contractual appointment will attract a salary of consolidated amount of Rs.7500/- (Rupees Seven Thousand Five Hundred only) per month.

3. No other benefits are attached to this contractual appointment except the benefit of Casual Leave.

4. his(sic.) appointment has no relevance with the permanent appointment whenever be made through proper procedure.

5. The adhoc appointment can be terminated immediately at any time without assigning any reason.

6. This appointment has no relevance with the previous appointment. This will be treated totally a fresh appointment.

7. The appointment is subject to the approval of the Governing Body.

If above mentioned terms and conditions are acceptable to you, you may join the duty on or after 12/11/08."

14. Vide memorandum dated 11.5.2009, the services of the

worklady, i.e., the petitioner herein, as Junior Assistant on contract

basis were terminated w.e.f. 11.5.2009 (A/N). The petitioner has

further submitted that she was appointed as a Junior Assistant for the

period 13.5.2009 to 10.11.2009, 6.11.2009 to 14.5.2010 and 15.6.2010

to 12.12.2010 and her services were terminated on 13.12.2010 again.

15. The petitioner has not chosen to place on record the copies of

the letters of appointment for the period from 13.5.2009 to

10.11.2009, 6.11.2009 to 14.5.2010 and 15.6.2010 to 12.12.2010 with

the present petition.

OBSERVATIONS IN IMPUGNED AWARD

16. The Labour Court vide the impugned award dated 14.12.2006

on the basis of documents submitted and evidence led by the parties

concluded that in view of the documents relied upon by the worklady,

i.e., the petitioner herein, and the management, it was clear that the

worklady, i.e., the petitioner herein, had been appointed on a

contractual basis and the Issue No.1 was decided, accordingly, in

favour of the management and against the worklady.

17. Qua Issue No.2 which was in relation to the terms of the

reference, it was observed to the effect that the documents on record

brought forth that the worklady had not completed 240 days in a year

immediately preceding to the date of her alleged termination with the

management and that the contention of the management that her

services had never been terminated and rather her contract had come

to an end,- had to be accepted.

18. It was also observed vide the impugned award to the effect that

the law was well settled that no workman could be allowed a back

door entry by resorting to such means of initial appointment on

contract basis and then to seek regularization thereof and that the

contention of the worklady that when she demanded legal facilities,

her services had been terminated or that she had completed 240 days

of continuous service with the management had also not been

corroborated by any substantive piece of evidence or any document.

19. The impugned award also observed to the effect that the

worklady had been appointed on contract basis and a formal

appointment letter had been issued to her, which she had been

accepting throughout her tenure of service and in these circumstances,

the contention that her services were terminated when she demanded

legal facilities could not be accepted. Vide the impugned award, it

was further held that the contention of the worklady that she had

worked for a continuous period of 240 days with the management in

the year immediately preceding the date of her termination could not

be accepted as she had not been able to place any document on record

to substantiate that she had worked for 240 days continuously with the

management in the year immediately preceding the date of her

termination. It was further observed to the effect that in terms of

Section 2(oo)(bb) of the Industrial Disputes Act, 1947, an employee

can be kept on a contact or on fixed term and after the fixed term is

over, the same does not amount to termination of services of the

workman. The issue was, thus, decided against the worklady and in

favour of the management.

20. Qua Issue No.3, it was observed by the Labour Court to the

effect that in view of the findings on issue Nos. 1 and 2, the worklady

was not entitled to any relief and the claim was thus dismissed.

CONTENTIONS RAISED BY THE PETITIONER

21. On behalf of the petitioner, it was submitted by the learned

counsel for the petitioner that the respondent management M/s

Bhagini Nivedita College deliberately used to appoint and terminate

the services of the petitioner from time to time for creating a gap of

some days between the appointment and termination or re-

appointment and that the management had tried to take advantage of

the terms of ad hoc contract and that even during the break of the

services, the worklady had been engaged by the management for the

same post as if she was working in the post of a Junior Assistant-cum-

typist and that the respondent management had terminated the services

of the petitioner by a colourable exercise of the power as per the

provisions of the Industrial Disputes Act, 1947 for avoiding the

regularization of her service in the post of Junior Assistant-Cum-

Typist.

22. During the course of arguments addressed, reliance was placed

on behalf of the petitioner by the learned counsel for the petitioner on

the verdict of the Supreme Court in Workmen of American Express

International Banking Corporation v. Management of American

Express International Banking Corporation; AIR 1986 SUPREME

COURT 458 to contend that there had been a colourable exercise of

power by the respondent No.1/management in termination of her

services and that the record indicated that the worklady had worked

for over a period of 240 days during the period of 12 calendar months

immediately preceding the date of her termination and that no notice

having been issued to her in terms of Section 25-F(a) of the Industrial

Disputes Act, 1947, the termination of her services by the respondent

No.1 was illegal.

ANALYSIS

23. On a consideration of the submissions that have been made in

the petition and the reliance placed on behalf of the petitioner on the

verdict of the Supreme Court in Workmen of American Express

International Banking Corporation (supra), at the outset it is

essential to observe that the letters of appointment of the worklady,

i.e., the petitioner herein, that the respondent No.1/management has

placed on record, bring forth categorically that the services of the

worklady, i.e., the petitioner had been hired as a Junior Assistant-cum-

Typist purely on a contractual basis for a period of six months vide

appointment letter dated 5.2.2007, it having been made specifically

clear that the contractual appointment could be terminated

immediately at any time without assigning any reason and that the

appointment would have no relevance with the permanent

appointment which would be made through proper procedure.

24. The letter dated 29.10.2007 of the respondent No.1 to the

petitioner also shows that the petitioner having been appointed on ad

hoc basis for a period of 89 days had made it clear to the petitioner

that her appointment was an ad hoc appointment which would be

terminated at any time and it had no relevance with the previous

appointment and would be treated totally a fresh appointment. The

letter dated 4.2.2008 issued by the respondent no. 1 to the petitioner is

also similar in nature making it apparent that the appointment of the

petitioner was on ad hoc basis conferring no rights to permanent

appointment. Likewise the appointment letter dated 10.11.2008 also

showed that the worklady, i.e., the petitioner herein, had been

appointed purely on an ad hoc basis for a period of six months, it

having been specified therein that the appointment was on ad hoc

basis and had no relevance with the permanent appointment whenever

made through proper procedure.

25. The petitioner herself has submitted vide paragraph IX of the

petition to the effect that the worklady, i.e., the petitioner herein had

been appointed for a specific purpose of work as a Junior Assistant-

cum-Typist from 13.5.2009 to 10.11.2009, 6.11.2009 to 14.5.2010 and

15.6.2010 to 12.12.2010. The petitioner having not submitted copies

of the said appointment letters makes it apparent that the said letters

also brought forth contractual terms of appointment. In fact the

petitioner through the submissions made during the course of the

proceedings before the Labour Court and through the present petition

has not disputed that as per the documents on record, the terms of

contract between the management and the petitioner brought forth

only a contractual period of work for the stipulated period of time.

26. In these circumstances, it is apparent that the provisions of

Section 25-F of the Industrial Disputes Act, do not apply to the

petitioner in any manner in as much as the petitioner has not been in

continuous service for a period of 240 days immediately preceding the

year from the date of termination of her services in terms of Section

25-B (2)(a)(ii) of the Industrial Disputes Act, 1947.

27. In the circumstances of the case, there is nothing on the record

to indicate that the terms of the contracts in which the petitioner

entered into with the respondent No.1 willingly, were in any manner a

colourable exercise of power to deprive the petitioner of her rights of

her regular appointment and rather the letters of appointment made it

clear that the appointments of the petitioner was not on a regular basis.

It is apparent, thus, that there is no infirmity in the impugned award

dated 14.12.2016.

28. Reliance placed on behalf of the petitioner on the verdict of the

Supreme Court in Workmen of American Express International

Banking Corporation (supra) is wholly misplaced as it relates to the

aspect of Sundays and Saturdays being included into the period of

continuous working for computation in terms of Section 25-B read

with Section 25-F of the Industrial Disputes Act, 1947 and the facts of

the present case are not in pari materia with the facts of the case relied

upon on behalf of the petitioner.

CONCLUSION

29. There being, thus, no infirmity in the impugned award dated

14.12.2016 in LIR No.236/16, no notice of the petition is directed to

be issued.

30. The W.P.(C) 6195/2017 is thus dismissed.

ANU MALHOTRA, J th JULY 28 , 2017 Sv