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Director General Of Works Cpwd vs Daya Shankar Prasad

High Court Of Delhi|20 September, 2012

JUDGMENT / ORDER

P.K.BHASIN:J This writ petition questions the legality of the Award dated 23rd February, 2005 passed by the Central Government Industrial Tribunal-cum-Labour Court(„CGIT‟ in short) directing the petitioner herein to reinstate the respondent with continuity of service.
2. The relevant facts are that the petitioner required the services of a driver for short terms of 2-3 months and for that purpose it had been inviting quotations from general public. The W.P. (C) 12178/2006 Page 1 of 9 respondent has been submitting his quotations and the same had been the lowest and so he had been getting the job of driving for different periods. Every time his quotation was accepted the petitioner used to issue a work order prescribing the period for which his services were to be utilized. The first in the series of those work orders given to the respondent was from 17 th December,1992 to 16th February,1993. Thereafter again the respondent was engaged for the period from 17 th April, 1993 to 16th June, 1993. This way the respondent got work orders from time to time till July,1994. Thereafter he was not engaged since his quotation was higher than what had been quoted by others. Aggrieved thereby, the respondent raised an industrial dispute claiming that he was in fact the employee of CPWD during the period from 17.07.1992 onwards and his services had been terminated illegally w.e.f. 27.08.1994. That dispute came to be referred to the CGIT for adjudication by the appropriate Government. The following was the term of reference:-
"Whether the action of the management of Executive Engineer Division A, CPWD, IP Bhawan, New Delhi in terminating the services of Sh. Daya Shankar Prasad, Driver is just, fair and legal? If not, to what relief the workman is entitled to?"
3. The respondent claimed before the CGIT that he was the employee of CPWD though it was being shown by the W.P. (C) 12178/2006 Page 2 of 9 petitioner herein in its records that he had been getting the contracts from time to time to provide the services of a driver and that since his services had been terminated illegally he was entitled to be reinstated in service with all consequential benefits.
4. The claim of the respondent was resisted by the petitioner and in its written statement it took the stand that the respondent was never employed by it as an employee but he was getting the contracts from time to time on work order basis for proving the services of driver for driving Government vehicle as and when required and so he was an independent contractor and not the employee of CPWD.
5. The CGIT, after going through the evidence led by both the parties directed the petitioner to reinstate the respondent with continuity of service but without back wages. This is how the CGIT had dealt with the submissions made on behalf of the respondent and petitioner herein and gave its findings in favour of the respondent:-
"..........It is submitted that Sh. Daya Shankar Prasad had never joined the services under management as a driver. Whereas For running of Jeep quotations were called by Al-5A Sub-Division: CPWD on 16.12.92 and in his quotation Sh. Daya Sankar Prasad was found lowest and a work order for a period of two months was given to him for arrangement of running vehicle w.e.f. 17.12.92. As such the statement of claimant for joining the W.P. (C) 12178/2006 Page 3 of 9 service on 17.6.92 is not correct. Alter expiry of work order fresh quotations were again called and Sh. Daya Shankar Prasad again quoted lowest rates and fresh work order was issued to him for same work. Sh. Daya Shankar Prasad quoted lowest rates continuously for seven times and seven work orders were issue to him for running of vehicle till July, 1994 during this period he arranged running of vehicle either himself or by engaging of a driver for this job on his behalf from time to time.
In July, 94 the rates quoted by Sh. Daya Shankar Prasad were not found lowest and therefore the work order could not be issued to him due to higher rates with compare to other quotations work order of Sh. Daya Shankar was finalized/completed on I 7.7.94 and no further work order was given to him onward......................................
...........It has been further submitted by the workman applicant that he continuously worked from 17.6.92 to 26.8.94 as Jeep Driver. He has put in 240 days service on 1.9.93 as such in view of the letter dated 19th September 1993 of the Ministry of Personnel, Public Grievances and Pension he should have been conferred temporary status. The workman applicant was paid a consolidated sum per month. It is also apparent from the work order that he has been asked to come in uniform and his duty hours are 9.00 AM to 5 PM. The Directorate General of CPWD has banned engagement of purely casual labour on and from 1983 vide OM No. 28/I 1/84 dated 19.11.85. The same was reiterated on 9.5.89 and 5.5.91 and finally in 1993 in the letter of 1993 the list of such workmen has been called for by the Directorate General. CPWD and demand of appointment has also been called for....
........It has been further submitted that management witness has admitted in his cross-examination that................. driving a vehicle is a continuous process so it is the admission of the management witness that driving vehicle is a continuous process. It implies that the work is a work of perennial nature. It has been almost admitted in the affidavit of the management that the workman was initially engaged on the work order basis on 17.6.92 and he worked up to 17.7.94. At least, as such it is admitted that the workman has driven the jeep of the management for more than two years. The management witness W.P. (C) 12178/2006 Page 4 of 9 has admitted in his cross-examination that he had only two drivers in his Division under control of the CPWD. One of them is Puran Bahadur and he does not remember name of the other Driver. Ile has also admitted that he had two vehicles in his Division and Daya Shankar is a contractor.............
................It was submitted from the side of the workman applicant that he was engaged from 17.12.1992 as is apparent from the admitted work order Annexure-A and it is also admitted that the applicant worked up to 30.04.1994. He was given work order on 01.12.1993 to 28.02.1994 as is evident from the admitted papers filed by the workman applicant. He has all alone been given work orders. The work order dated 07.08.1993 to 16.10.1993 and 01.12.1993 to 28.02.1994 are very much pertinent in this respect. These work orders are in violation or Circular letter dated 18th August 1993 as such the Government directions have been flouted by the respondent or the concerned authority and even after the aforesaid letter dated 18th August 1993 work order has been given to the workman applicant. Theory of contract is baseless as on every work order Shri Daya Shankar Prasad has put his signature and all the work orders are given to Shri Daya Shankar, bear the signature of Shri Daya Shankar and he is lone Jeep Driver. From the above it becomes obvious that the Government Circular letter dated 18th August 1993 has been absolutely violated and it has been kept in abeyance. The workman applicant has worked for 240 days up to 18th August 1993........................ The workman applicant should have got appointment...................."
6. The petitioner felt aggrieved with the direction of the CGIT to reinstate the respondent in service after holding that he was the employee of CPWD and so this petition was filed against the Award dated 23rd February, 2005.
7. The learned counsel for the petitioner had contended that the impugned Award is perverse inasmuch as no reasons have W.P. (C) 12178/2006 Page 5 of 9 been given by the CGIT as to why the termination of services of the respondent was illegal even if it were to be accepted that he was an employee of CPWD and not an independent contractor. Learned counsel also contended that even if the respondent was to be considered as an employee of CPWD the termination of his employment cannot be said to illegal since every time he was engaged as a driver his engagement was for a fixed period and it was clearly mentioned so in the work orders which were being given to him and, therefore, the termination of his engagement as a driver on expiry of each fixed term engagement did not amount to „retrenchment‟ attracting the provisions of Section 25-F of the Industrial Disputes Act,1947. And, counsel further contended, if there was no retrenchment of the respondent no illegality was there in the non-renewal of the contract after the expiry of the period of last contract.
8. Learned counsel for the respondent, on the other hand, supported the impugned award passed by CGIT and submitted that Labour Court has come to the conclusion after proper appreciation of evidence that the respondent was an employee of CPWD and not an independent contractor and that his services had been terminated illegally. It was also contended that since the respondent had put in more than 240 days of W.P. (C) 12178/2006 Page 6 of 9 service from July,1992 till 26.08.1994 his services could not be terminated by the petitioner-employer without complying with the provisions of Section 25-F of the Industrial Disputes Act,1947 which undisputedly were not complied with. Learned counsel concluded by submitting that since there is no perversity in the conclusions arrived at by the learned Presiding Officer of the CGIT there is little scope for interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India which is quite limited whenever there is a challenge to the correctness of the Awards of industrial adjudicators.
9. I am in agreement with the submission of learned counsel for the respondent that this Court will not sit in appeal over the findings of the CGIT to the effect that respondent was an employee of CPWD and not an independent contractor engaged to provide the services of a driver for driving the Government vehicles. However, only in order to satisfy myself as to whether this conclusion of CGIT was a conclusion on the basis of evidence adduced during the trial from both the sides I have examined the evidence and I find that no fault can be found with the conclusion of the CGIT to the effect that the respondent was, in fact, employee of CPWD as and when his W.P. (C) 12178/2006 Page 7 of 9 services were being utilized as a driver. The petitioner had not adduced any evidence to show that the respondent himself was not driving the Government vehicles as and when he was given the work orders and he had been providing the services of another driver.
10. However, this conclusion of the CGIT would still not entitle the respondent to get the relief which the CGIT gave him under the impugned Award. The CGIT has not given any reason as to why the termination of the services of the respondent was illegal. Learned counsel for the respondent had submitted that since undisputedly the respondent had worked with CPWD for more than 240 days from July, 1992 till August, 1994 his services could not be terminated by the petitioner without complying with the mandatory provisions of Section 25-F of the Industrial Disputes Act. However, in my view there is no merit in this submission of learned counsel for the respondent. Admittedly, whenever the respondent was engaged as a driver by the petitioner his engagement was always for a fixed period of 2-3 months and it was categorically provided so in each one of the work orders given to the respondent. Therefore, non-engagement of the respondent on the expiry of the period of last work order given to him did not W.P. (C) 12178/2006 Page 8 of 9 amount to his retrenchment. Under Section 2(oo)(bb) of the Industrial Disputes Act it is clearly provided that termination of services of a workman because of non-renewal of the contract of employment on its expiry does not amount to retrenchment. In this regard a useful reference can be made to a judgment of the Hon‟ble Supreme Court in "M/s. Haryan State F.C.C.W. Store Ltd. vs. Ram Niwas", AIR 2002 SC 2495 wherein the termination of services of the concerned workman on the expiry of fixed period of his employment was not held to be amounting to his retrenchment despite the fact that the workman had worked for more than 240 days in a year.
11. Therefore, the Award of the CGIT in the present case holding that the termination of employment of the respondent was illegal and consequently he was entitled to be reinstated in service cannot be sustained at all and is liable to be set aside. This writ petition is accordingly allowed and the Award of the CGIT directing the petitioner to reinstate the respondent in service is set aside.
P.K. BHASIN,J September 20, 2012 W.P. (C) 12178/2006 Page 9 of 9
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Title

Director General Of Works Cpwd vs Daya Shankar Prasad

Court

High Court Of Delhi

JudgmentDate
20 September, 2012