IN THE COURT OF SH.

AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
F. No. 24(116)/Lab/SD/2017/4618
Dated: 03.03.2017
DLCT130033582017

POIT NO.: 54/2023

Workmen:
Sh. Kanhai @ Khanu Si @ Kanhiya
S/o Sh. Chintamani Si,
R/o H. No. 2/19, Top Floor,
Sarvpriya Vihar, New Delhi-110016.

Vs.

The Management of:

1. M/s. DIC India Ltd.,
A-122/123, Okhla Industrial Area,
Phase-II, New Delhi.

2. M/s. DIC India Ltd.,

Transport Depot Road Kolkata,
West Bengal-700088.

Date of Institution : 12.04.2017

Date of Assignment to this court : 10.03.2023
Date of Arguments : 22.02.2024
Date of Award : 01.03.2024

AWAR D

1. The Labour Department, Govt. of the National Capital Territory of

Delhi has referred this dispute arising between the parties named above
for adjudication to this Tribunal with following terms of the reference:-

POIT-54-23 Page No. 1/31

 “Whether the workman Sh. Kanhai @ Khanu Si @
Kanhiya, S/o Sh. Chintamani Si, agead about 46 years is
entitled to be regularized in service from the initial date
of his joining i.e. 25.01.1994 and if so, to what relief is
he entitled and what directions are necessary in this
respect?”

2. Statement of claim has been filed on behalf of the workmen,

wherein it is stated that workman is employed as a Cook cum Care
Taker since 25.01.1994 and the claimant performed his duty diligently,
and honestly and he was receiving the salary directly from the
management. It is stated that initially, his salary was Rs. 700/- per
month and nature of the job of workman is permanent and 10 hours
duty was assigned to him in a day. It is stated that earlier the name of
management was Coates of India Ltd. And in the year 2004, the name
was got changed to DIC India Ltd. and at present, workman is drawing
the salary of Rs. 15,150/- per month.
3. It is stated that claimant had requested several times to provide the
appointment letter as well as wages according to provisions of
Industrial Dispute Act but management pretended on one pretext and
other by saying that management will provide the same to all the
employees but till date, the company has not provided the same. It is
stated that he is also entitled for regularization/permanent service as
other employees have already been regularized. It is further stated that
since October 2015, the management has not been providing the salary
of the workman deliberately and it is very difficult for workman to
survive. Thereafter, workmen sent two demand notices dated
07.12.2015 and 19.02.2016 through registered post to the management
at their Delhi and Noida offices and same were duly received but

POIT-54-23 Page No. 2/31

 officers responsible for management has deliberately concealed the
same and not replied. Thereafter, another notice dated 10.03.2016 was
sent to Kolkata office through registered post dated 18.03.2016 which
was duly received and same was duly replied on the basis of false and
frivolous contentions by unauthorised person who has no authorization
to send the reply but management has not replied or complied with the
same. It is further stated that claimant has also filed a claim for
recovery of wages of salary against the management which is pending
before the court and was fixed for 18.07.2017. Hence, present claim
was filed by the workman against the management seeking reliefs as
per statement of claim.
4. Written statement was filed by management stating that Care
Taker does not have a legal right to claim regularization of his services
in the employment of management and industrial dispute raised is not
tenable under I. D. Act. It was also stated that services of the Care
Taker are engaged by management on principal to principal basis to
take care of company's guest house at New Delhi and he received his
remuneration for services from management till March 2016 through
bank transfer and thereafter, workman with malafide intentions sought
to harass management and he closed his bank account and management
was always ready and willing to tender him his remuneration for said
period. It was also stated that there was no employer-employee
relationship by and between the parties. It was also stated that present
dispute has not been properly espoused by trade union.
5. On merits, it was stated that services rendered by the Caretaker to
the management are outside the purview of the provisions of I.D. Act as
there is no employee-employer relationship by and between the parties.

POIT-54-23 Page No. 3/31

 It is also stated that delay in payment has been due to the fact that he
suddenly closed his earlier bank account and thereafter, did not inform
the company that he had opened a new bank account under a new
name. The other contents of the claim were denied by management and
it was prayed that claim of the workman may be dismissed and award
be passed in favour of management.
6. Rejoinder was filed on behalf of claimant to the written statement
of management wherein contents of claim were reiterated and
reaffirmed and those of written statement were denied. On the
pleadings of parties, the following issues were framed vide order dated
12.11.2018:
1. Whether there existed no relationship of employee-employer
between workman and management?OPM
2. Whether workman does not come within the definition of workman
as per section 2(s) of the ID Act?OPM
3. Whether the industrial dispute raised by the workman has not been
validly espoused by a Trade Union, if not what are the consequences?
OPM
4. As per terms of reference?OPW
5. Relief.

7. Thereafter, workman appeared in witness box and filed his

evidence by way of affidavit Ex. WW-1/A and after his detailed cross-
examination on different dates, W.E. was closed.
8. In defence, management produced Sh. Amit Kumar Choudhary as
MW-1 and tendered his evidence by way of affidavit Ex. MW-1/A. He

POIT-54-23 Page No. 4/31

 was duly cross-examined by AR for workman. Thereafter, M.E. was
closed by AR for management.
9. Thereafter, AR for workman filed an application for leading
additional evidence to prove the espousal. Reply to said application was
filed by management. This Tribunal vide its order dated 06.02.2024
allowed the said application and workman was allowed to produce the
witness of espousal. Accordingly, Sh. Surender Bhardwaj was
examined as WW-2 and W.E. was closed.
10. During pendency of matter, this Tribunal observed that this is a
general demand matter and thus directions were passed to Ahlmad to
correct the nomenclature of case to POIT from LIR vide order dated
20.07.2023.
11. I have heard the arguments and perused the entire records of the
case including pleadings of the parties, evidence led and documents
proved during evidence. My issue wise findings are as under:-

12. Issue No. 1. Whether there existed no relationship of

employee-employer between workman and management?OPM
13. The onus to disprove the relationship of employer-employee
between the workman and the management rests upon the management.
14. The workman has contended that the workman has been working
with the management w.e.f. 25.01.1994 as a Cook-cum-Caretaker in
Guest House situated in Sarvpriya Vihar, New Delhi with an initial
salary of Rs. 700/- per month. He had been performing the permanent
and perennial nature of work for 10-hours of duty assigned to him. He
had been in continuous and uninterrupted service with the management
for the past 23 years.

POIT-54-23 Page No. 5/31

 15. The management has disputed that the workman is not an
employee of the management, his services were engaged by the
management as per oral arrangement on a principal to principal basis
w.e.f. January 1994 for taking care of the company’s guest house in
New Delhi. His initial remuneration was Rs. 700/- per month. The
management has not disputed that the workman used to receive his
remuneration for performing his services from the management till
March 2016 via Bank Transfer. It is stated by the management that it
continues to be engaged as Caretaker by the management. He had only
been working with the management in the capacity of an independent
service provider as a vendor. The management had also disputed that
the workman was not performing the duties of Cook, but only
providing services of Caretaker.
16. In order to ascertain the issue of employer-employee relationship
the AR for the management has placed reliance upon the judgment of
BHEL v. Mahendra Prasad Jakhmola, (2019) 13 SCC 82 wherein
the Hon’ble Supreme Court has laid down certain factors and
parameters for the purpose of ascertaining the employer-employee
relationship. They are as follows:
“24. We may hasten to add that this view of the law has been
reiterated in Balwant Rai Saluja v. Air India Ltd. [Balwant Rai
Saluja v. Air India Ltd., (2014) 9 SCC 407 : (2014) 2 SCC
(L&S) 804] , as follows : (SCC pp. 437-38, para 65)
“65. Thus, it can be concluded that the relevant factors to be
taken into consideration to establish an employer-employee
relationship would include, inter alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;

POIT-54-23 Page No. 6/31

 (v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether there
exists complete control and supervision.
As regards extent of control and supervision, we have already
taken note of the observations in Bengal Nagpur Cotton Mills
case [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC
635 : (2011) 1 SCC (L&S) 16] , International Airport Authority
of India case [International Airport Authority of India v.
International Air Cargo Workers' Union, (2009) 13 SCC 374 :
(2010) 1 SCC (L&S) 257] and Nalco case [NALCO Ltd. v.
Ananta Kishore Rout, (2014) 6 SCC 756 : (2014) 2 SCC (L&S)
353] .”

17. This tribunal has gone through this judgment. The facts and
circumstances differ in the aforesaid judgment than the present case at
hand. The said case pertains to the issue of employer-employee
relationship in context of principal employer and workmen in the
presence of an intermediary i.e. contractor. However, in the present
case, there is no intermediary as such, the management has assured the
nature of relationship with the workman is of mere “independent
service provider”. However, despite the difference in the nature of
relationship, the fundamental principles of ascertaining employer-
employee relationship will not be materially altered, and will be
applicable based on the peculiar facts and circumstances of each case.
18. The AR for the Workman has placed on record the judgment of
Hon’ble Delhi High Court in Union Bank of India v. Mujahid
Qasim, 2020 SCC OnLine Del 1960 wherein the Court after
discussing several judgments has extensively laid down the factors in
respect to the issue of employer-employee relationship. They are as
follows:

POIT-54-23 Page No. 7/31

 “49. In the light of the above decisions, the factors which are to
be considered, to determine as to whether an employer-employee
relationship exists would inter alia, include:
(a) who is the appointing authority;
(b) who is the pay master;
(c) who can select and dismiss;
(d) how long does the alternative service last;
(e) the extent of control and supervision;
(f) the nature of the job, e.g., whether it is professional or skilled
work;
(g) nature of the establishment;
(h) the right to reject;
(i) who can take disciplinary action;
(j) whether there is continuity of service;
(k) whether the person was fully integrated into the employer's
concern (integration test);
(l) who organizes the work, i.e., supplies tools and materials; and
(m) who exercises control on when and how the work is to be
performed.”

19. The judgment of Mujahid Qasim (supra) holds more relevance

in the present case as it also dealt with a similar issue of independent
service providers, wherein the management contended the worker
(Driver) as an independent service provider working only for the
employees of the management, and that the management bank had no
relationship whatsoever with the workman therein.
20. Keeping in view the factors laid down in BHEL (supra) and
Mujahid Qasim (supra), this tribunal has to assess if the workman is
an employee of the management of M/s DIC India Ltd., or he was
merely providing independent services to the management of M/s DIC
India Ltd.
21. The management has not disputed the initial date of joining of the
workman and that he was getting monthly payment/salary for

POIT-54-23 Page No. 8/31

 performing the duties of Caretaker. The workman has also placed on
record Ex. MW1/1 (2 sheets) i.e. payment slips dated 09.04.2011
made towards the Guest Flat Expenses. Likewise, several other
payments slips such as Mark-B (Colly 1- 7 Pages) at Page 1, 2 and 5
stipulated the payment made made to the workman “for cooking & care
taking of Delhi Guest House DIC India Limited”. Ex. MW-1/2 has been
admitted by the management witness that the same has been issued by
the management. Ex. MW1/2 is also one of the payments slip for the
month of September for making payment of Rs. 15,150/- “for cooking
& care taking of Delhi Guest House (DIC India Limited)” Therefore,
the version of the management that the workman had never performed
the duties of is belied with the documentary evidence placed on record
by the workman.
22. The workman had also filed his bank statement for the period
July 2015 to February 2016 and from November 2017 to April 2018,
wherein the it clearly shows that the management has been making
monthly payment to the workman for performing his service. Likewise,
the workman had also filed Ex. WW1Z-2 which is the detailed
breakdown of the “Delhi Guest House Expenses for September-2022”
incurred by the workman for taking care of the guest house, which
included Rs. 800 (paid to the watchman), Rs. 500/- (housekeeping), Rs.
200 (sweeper), Rs. 1000 (G.H. Cleaning), Rs. 350 (motor repairing)
and Rs. 18 (speed post) for the purpose of getting reimbursed from the
management. So is the case with Ex. WW1/Z3 (Delhi Guest House
Expenses for October 2022 and Ex. WW1/Z4 (Delhi Guest House
Expenses for November 2022). The workman has also placed on record
the visitor’s book maintained by him for the period 05.09.1999 to

POIT-54-23 Page No. 9/31

 08.06.2003, which further corroborates the stance of the workman that
he had been working continuously and uninterruptedly with the
management from his initial date of joining onwards. The management
has not disputed the authenticity of the aforementioned documents, nor
suggested in their Written Statement, Affidavit, Cross-examination, or
during the course of arguments that the documents submitted by the
workman to the court records are false and fabricated. Hence, this
tribunal has no reasons to cast doubt on the authenticity of the
document, more so when some of which had been admitted by the
management witness in his cross-examination.
23. Further, the workman in his cross-examination has deposed that
he had been working at the guest house since 25.01.1994. He also
stated that the job performed by him at the guest house was to
prepare /cook food and besides cooking food for the management he
did not perform any other duty. He also stated it to be correct that as a
matter of practice when any guest/visitor of the company resides in the
guest house, he/she is required to make an entry in a register
maintained for the purpose of recording the stay of guest/visitor. In
support of the same, the workman had also placed on record the
visitor’s register, and the same was marked as Ex. WW1/Z1. He also
deposed that he used to get paid an amount of Rs. 15000/- for taking
care of the guest house. He also stated that there is no dispute or claim
whatsoever with regard to the reimbursement payments made by the
company to him directly into his bank account.
24. The management witness in his cross-examination deposed that
the Guest House at H. No. 2/19, Sarvapriya Vihar was owned by the
management till January 2023. All its fixtures and amenities at the

POIT-54-23 Page No. 10/31

 aforesaid guest house were owned by the management. He also
confirmed that whenever any guest was to come to the guest house, he
was supposed to inform the management in advance and, thereafter, the
management used to tell the claimant about the same. On the aspect of
alleged oral arrangement made between the workman and the
management, the witness stated that he was not working with the
management in the year 1994 and the so-called oral arrangement was
never made in his presence. He confirmed that there was a functional
kitchen in the guest house and denied the suggestion of the AR for the
workman the claimant was working as a Cook also in the guest house
and volunteered that he was merely a caretaker. In this regard, the said
witness was also shown the Ex. MW1/W2 which is the aforesaid
payments slip for the month of September for making payment of Rs.
15,150/- “for cooking & care taking of Delhi Guest House (DIC India
Limited)” In this regard, the witness stated that “I have seen a
document i.e. receipt for remuneration of Rs. 15150/- to the claimant
and the same is now exhibited as Ex. MW1/W2. It is correct that Ex.
MW1/W2 bears the signature of the claimant at Point A. It is correct
that similar receipts were issued to the claimant at the time of paying
his remuneration. It is correct that remuneration of the claimant used to
be fixed and changed time to time. It is correct that the remuneration
paid to the claimant was not dependent upon the number of guests
residing in the guest house.” After stating this, he showed his lack of
knowledge if the claimant was working as Cook-cum-Caretaker with
the management. The said witness in the same cross-examination
initially denied that he was not working as Cook, thereafter he admits
that the documents placed on record by the management wherein it is

POIT-54-23 Page No. 11/31

 stipulated that he was paid salary for performing the duties of a Cook,
and thereafter he failed to answer citing lack of knowledge if the
workman was working as Cook-cum-caretaker. The stance of
management witness kept fluctuating and has not remained intact,
hence this tribunal cannot rely solely on the words of the management
witness due to this contradictory statements.
25. The Hon’ble Delhi High Court in Mujahid Qasim (supra) has
analyzed the employer-employee relationship in the following manner,
which is also relevant to the present case. The relevant portion of the
judgment is as follows:

“51. By applying the above tests, analyzing the case laws cited,
and perusing the documents on record, as also the findings of the
CGIT, there is no doubt that an employer-employee relationship
exists between the Bank and the drivers. This is clear from an
analysis of the documents placed on record which establishes the
following facts:
(a) All Respondents were working as drivers with various
Executives of the Petitioner Bank.
(b) At the time of appointment, the biodata of the drivers was
submitted to the Bank, which was thereafter forwarded to the
personnel administrative division of the Bank, located in the
Head Office at Mangalore.
(c) The salary for the drivers was being reimbursed by the bank
to the Executives concerned, by means of vouchers.
(d) The drivers have served in the Bank for several years.
(e) The drivers did not merely work for the Executives, but also
did various other sundry jobs such as collection/delivery of
documents/packets/parcels/items/equipment from various
locations for the Bank.
(f) Expenses incurred by them were reimbursed by the Bank.
(g) The Bank has issued letters confirming the salaries earned by
the drivers.

POIT-54-23 Page No. 12/31

 (h) The Bank has facilitated the driving license being obtained
by the drivers, by issuing them certificates that they are working
in the Bank. The text of one such certificate is set out below:—
“This is to certify that Sh. Naresh kumar, s/o Sh.
Daya ram is an employee of our bank. He is
working with us since last four years. As per our
records he is residing at D-5/103, Tisra Pusta, Vijay
Colony, new Usman Pur, Delhi-110053.
This certificate is issued in his specific request as he
has to produce for making driving license.
We confirm the same.”
(i) The vouchers issued by the Bank for the monthly
payments to the drivers, mention the particulars as
“amount drawn for reimbursement of driver” or the
“amount paid to the driver. Reimbursed” @ page 120, 121
of the paper books “cash paid to Surinder on account of
car driver salary month of May 2006 by AGM” @ page
124; etc.
(j) Copies of logbooks showing the details of travel of the
car, petrol consumed, purpose etc.
52. The above facts have been gleaned from the large
number of documents placed on record and cannot be
disputed by the Bank.
53. The documents on record also show that the drivers
have not been exclusively used for the executives of the
Bank but have also been serving the Bank in various roles
including picking up parcels, computers, running errands,
claiming reimbursements, taking delivery of cars and
other sundry jobs. Further, the Bank has given them letters
and certificates, repeatedly confirming that they are the
drivers of the Bank for issuance of licenses and for
renewal of driving licenses. The initial appointment was
also made after confirmation with the Head Quarters of
the Bank. Complete reimbursement of salaries and well as
expenses of the drivers has been given by the Bank. A
logbook also has been maintained to supervise their day-
to-day movements and activities.

POIT-54-23 Page No. 13/31

 54. Therefore, irrespective of whichever test is applied,
whether it be the control test, or the integration test or any
of the other tests, the above facts clearly show that the
functions performed by the drivers was integral to the
everyday working of the bank. The documents establish
the existence of employer-employee relationship and that
the drivers were the employees of the Bank. They were
not retained through an independent contractor and that is
not even the case of the Bank. The Bank's case that the
drivers were exclusively working for Executives is also
negated, as it has been proved, on record, that the drivers
would continue to remain in the same place irrespective of
the transfer or retirement of the Executive and they would
be placed under different Executives or the incumbent.
The case of the Bank that they were employees of the
Executives is thus belied.
55. Hence, in view of the above facts and discussion, this
Court has no doubt that the drivers were the employees of
the Bank.”

26. The workman has provided ample evidence of his long-standing

engagement with the management since 1994, getting his salary from
the management. The guest house wherein he was posted was owned
and maintained by the management. He had been working continuously
and uninterruptedly with the management for about 28-29 years.
Whereas, the management failed to produce documentary evidence to
support their claim of the workman being an “independent service
provider,” nor did they present any contract agreement to this effect.
This tribunal, therefore, cannot accept the management’s version based
solely on their assertions, more so, when the workman has placed on
record sufficient material to show his engagement with the

POIT-54-23 Page No. 14/31

 management. In view of this discussion above, this tribunal is of the
opinion that the workman is the employee of the management.

27. Issue No. 2. Whether workman does not come within the
definition of workman as per section 2(s) of the ID Act?OPM
28. The onus to prove this issue was on the management.
29. The management has refuted that the claimant does not fall within
the definition of workman as per section 2(s) of the I.D. Act. At this
point, it is important to refer to the section 2(s) of the I.D. Act, which
defines the ‘workman as follows:

“workman means 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, whether
the terms of employment be express or implied, and for the purposes of
any proceeding under this Act in relation to an industrial dispute,
includes any such person who has been dismissed, discharged or
retrenched in connection with, or as a consequence of, that dispute, or
whose dismissal, discharge or retrenchment has led to that dispute, but
does not include any such person–
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army
Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other
employee of a prison; or
(iii) who is employed mainly in a managerial or administrative
capacity; or
(iv) who, being employed in a supervisory capacity, draws wages
exceeding 59[ten thousand rupees] per mensem or exercises, either by
the nature of the duties attached to the office or by reason of the powers
vested in him, functions mainly of a managerial nature.

POIT-54-23 Page No. 15/31

 30. The bare perusal of the definition suggest that there is no
distinction between the full time, temporary or regular or permanent
employee. The Hon’ble Delhi High Court in the case Delhi Cantonment
Board vs. Central Govt. Industrial Tribunal and Ors., L.P.A. No.
30/2004, has discussed the scope of the workman as per section 2(s) of
the I.D. Act and stated the following after placing reliance upon Section
2(s) of the Act:
“7. A perusal of the above definition shows that there is no distinction
in industrial law between a permanent employee and a temporary
employee. As long as the person is employed to do any manual,
unskilled, skilled, technical, operational, clerical or supervisory work
for hire or reward, he is a workman under the Industrial Disputes Act,
and will get the benefits of that Act.”

31. In para no. 4 of the statement of claim, the workman has alleged
himself to be a caretaker cum cook which is not denied by the
management to the extent that he was caretaker. Nevertheless it is clear
that he was not in managerial capacity. Therefore, in view of the settled
position of the law, the contention of the management does not hold
any water. More so no basis has been shown as to why the claimant will
not fall under the definition of workman in accordance with Section
2(s) of I.D. Act. This tribunal holds that the claimant, by virtue of his
nature of work, clearly falls under the definition of workman under
section 2(s) of the I.D. Act. Therefore, this issue is decided in favour of
the workmen and against the management.

32. Issue No. 3: Whether the industrial dispute raised by the

workman has not been validly espoused by a Trade Union, if not
what are the consequences?OPM

POIT-54-23 Page No. 16/31

 33. The management has contended that the present dispute was not
properly espoused by the union, as the claim before the conciliation
officer was filed in an individual capacity without any union
involvement. This implies that at the time of making the reference,
there was no espousal of the present dispute by any union whatsoever.
Furthermore, it is also contended that the union which passed the
resolution/espousal regarding the present dispute lacks representative
character, as the present dispute has not been espoused by the
recognized union of DIC India Ltd. Additionally, the management has
placed reliance upon the judgments of the Hon’ble Supreme Court in
Bombay Union of Journalists v. ‘Hindu’ Bombay, (1962) 3 SCR
893; Workmen v. Dharam Pal Prem Chand, (1965) 3 SCR 394;
and Workmen of Indian Express Newspaper Pvt. Ltd. vs. The
Management of Indian Express Newspaper Pvt. Ltd.
34. The workman has argued that the claim of the workman has been
properly espoused by the union. He has placed reliance upon Ex.
WW2/1, wherein the Delhi Labour Union passed a resolution to
support the industrial dispute pertaining to the workman against the
management of DIC for the regularization of his services from his
initial date of joining. As far as the question of espousal at the time of
making the reference is concerned, the workman has argued that no
such contention was raised before the conciliation officer at the time of
making the reference by the management. Once the appropriate
government has decided that a case is an industrial dispute and refers
the same to the concerned labour court/tribunal, there is an assumption
that the said dispute has been properly espoused by the union. Reliance
is placed upon the judgment of the division bench of the Hon’ble

POIT-54-23 Page No. 17/31

 Kerala High Court in K.M. Mangalam Publications (India) Pvt.
Ltd. vs. Saju George, W.A. No. 964 of 2020, decided on
01.12.2020.
35. The workman, to prove the proper espousal of the present case,
has placed on record Ex. WW2/1, which is the resolution passed by the
Delhi Labour Union in the meeting held on 8 January 2024. The
resolution unanimously supports the industrial dispute pertaining to the
workman Kanhai @ Kannu Si against the management of M/s DIC
India Ltd for the regularization of his service as Care Taker-cum-Cook
um from the initial date of joining with all consequential benefits. The
said resolution bears the signature of the general secretary and is also
signed by the workman concerned. The workman has also examined
Sh. Surender Bhardwaj, who is the executive member of the Delhi
Labour Union. He deposed during his cross-examination that Sh.
Kanhai and Sh. Narayan Bahadur enrolled themselves as members of
his union in the year 2019 and he can bring documents in this regard.
He stated that a meeting was held on 8 January 2024, and the case of
the workman was espoused therein. From the perusal of the court
records, it depicts that the cause of the workman was supported by the
Delhi Labour Union during the course of the present proceedings.
36. The Hon’ble Supreme Court in Bombay Union of Journalists
v. ‘Hindu’ Bombay, (1962) 3 SCR 893, opined that if the dispute
was initially an individual dispute and continued to be such until the
date of the reference by the Government of Bombay, it could not be
converted into an industrial dispute by support subsequent to the
reference, even of workmen interested in the dispute. It was already
held that subsequent withdrawal of support would not take away the

POIT-54-23 Page No. 18/31

 jurisdiction of an Industrial Tribunal. On the same reasoning,
subsequent support would not convert what was an individual dispute
at the time of reference into an industrial dispute. The resolution of the
Indian Federation of Working Journalists, assuming it has any value,
would not be sufficient to convert what was an individual dispute into
an industrial dispute.
37. However, in the subsequent judgment of the Hon’ble Supreme
Court in Workmen v. Dharam Pal Prem Chand, (1965) 3 SCR 394,
while observing that the ruling of Bombay Union (supra) is
inapplicable to the facts and circumstances therein, observed there is no
hard and fast rule or any universal application or test for industrial
adjudication. Instead, the industrial tribunal/labour courts were
supposed to be pragmatic based on the peculiar facts and circumstances
of each case. The relevant portion of the judgment is as follows:

“12. It is well-known that in dealing with industrial

disputes, industrial adjudication is generally reluctant to
lay down any hard and fast Rule or adopt any test of
general or universal application. The approach of industrial
adjudication in dealing with industrial disputes has
necessarily to be pragmatic, and the tests which it applies
and the considerations on which it relies would vary from
case to case and would not admit of any rigid or inflexible
formula. There is no doubt that the limitations introduced by the
decisions of this Court in interpreting the effect of the definition
prescribed by Section 2(k) of the Act were based on such
pragmatic considerations. It may also be conceded that if the
dismissal of an individual employee working in an establishment
in Delhi is taken up by the union of workmen in a place away
from Delhi, that would clearly not make the dispute an industrial
dispute. Section 36 of the Act which deals with the
representation of parties, incidentally suggests that the union

POIT-54-23 Page No. 19/31

 which can raise an individual dispute as to a dismissal validly,
should be a union of the same industry. Generally, it is the union
of workmen working in the same establishment which has
passed the impugned order of dismissal. But in a given case, it is
conceivable that the workmen of an establishment have no union
of their own, and some or all of them join the union of another
establishment belonging to the same industry. In such a case, if
the said union takes up the cause of the workmen working in an
establishment which has no union of its own, it would be
unreasonable to hold that the dispute does not become an
industrial dispute because the union which has sponsored it is
not the union exclusively of the workmen working in the
establishment concerned. In every case where industrial
adjudication has to decide whether a reference in regard to
the dismissal of an industrial employee is validly made or
not, it would always be necessary to enquire whether the
union which has sponsored the case can fairly claim a
representative character in such a way that its support to
the cause would make the dispute an industrial dispute.
“Industry” has been defined by Section 2(j) of the Act and
it seems to us that in some cases, the union of workmen
working in one industry may be competent to raise a dispute
about the wrongful dismissal of an employee engaged in an
establishment belonging to the same industry where workmen in
such an establishment have no union of their own, and an
appreciable number of such workmen had joined such other
union before their dismissal. In fact, the object of trade union
movement is to encourage the formation of larger and
bigger unions on healthy and proper trade union lines, and
this object would be frustrated if industrial adjudication
were to adopt the rigid Rule that before any dispute about
wrongful dismissal can be validly referred under Section
10(1) of the Act, it should receive the support of the union
consisting exclusively of the workmen working in the
establishment concerned.”

38. Meaning thereby, the support of the union has to be considered

based on the facts and circumstances of each case, and there should not

POIT-54-23 Page No. 20/31

 be any straight-jacket formula for deciding whether or not the dispute
falls under the category of an industrial dispute as defined under
Section 2(k) of the I.D. Act. In the present case, there is nothing on
record to show that any objection/plea was raised when the matter was
pending before the conciliation officer. Moreover, when there is no
plea/objection by the management on the issue of espousal, the
workman is not required to prove the undisputed facts before the
conciliation officer at the time of making reference. The parties to the
dispute are only required to prove the disputed facts and not the
undisputed facts. When the plea/objection regarding espousal was
raised by the management, the workman examined the executive
member of the Delhi Labour Union and also placed on record Exhibit
WW2/1, that is the resolution passed in support of the workman for the
regularization of his service as a Care Taker-cum-Cook with effect from
his initial date of joining. Furthermore, it cannot be ignored that any
plea/objection regarding espousal must be raised at the first instance
itself. The Hon’ble Division Bench of the Kerala High Court in
Mangalam (Supra) observed the following:
“7… There is no doubt about the fact that the workman was a
member of the concerned WA No.964/2020 union. According to
the workman, the cause of the workman was undertaken by the
union even at the initial stage. Apparently, there was no
objection from the side of the management during the relevant
time. Thereafter, the matter was considered and ultimately the
dispute had been referred for consideration by the Tribunal.
Once a reference had been made at the instance of the union, it is
not open for the management to contend at this stage of the
proceedings that the cause of the workman had not been
espoused by the union.”

POIT-54-23 Page No. 21/31

 39. Notably, the management has failed to place any document on
record to show that they had contended on the issue of espousal when
the matter was pending before the conciliation officer. It is required to
raise this issue at the first instance itself so that if there is any technical
objection, it would have been resolved right then and there. Moreover,
the need for espousal has to be considered at the time of making the
reference and not before or after the reference is made. Yet, when no
such objection was raised by the management before the conciliation
officer, the workmen cannot be burdened to prove espousal in the
absence of objections by the management. At this stage of final
arguments, the cause of the workmen has been supported by the Delhi
Labour Union and is properly espoused by them. This tribunal is of the
opinion that merely because nothing has been placed on record by the
workman to show that the Union had espoused its cause at the time of
making a reference to this tribunal/labour court, this case cannot be put
to a halt. More so when the worker was never asked to prove the same
at the time of making reference by the concerned authority.
40. Further, it can also be seen from the court records that a union,
namely the Delhi labour union, has indeed espoused the cause of the
workman. Now, if the workman are told at this stage that this does not
amount to espousal for the purpose of section 2(k) of the I.D. Act and
the case is disposed of in these terms, then the worker will be
eventually resorted to raising another industrial dispute with the Delhi
Labour Union between the same parties and cause of action. This will
not only amount to the wastage of judicial resources and time but
would also lead to the multiplicity of litigation merely on the
technicalities of espousal. Therefore, this tribunal is of the opinion that

POIT-54-23 Page No. 22/31

 the case of the workman has been espoused by the union and will also
be qualified as proper espousal in the peculiar facts and circumstances
of the present case where the management itself failed to object to the
issue of espousal at the time of the dispute when it was pending before
the conciliation officer as well as at the time of making reference to the
Ld. Tribunal/labour court. Therefore, this tribunal is of the opinion that
the present case has been properly espoused by the union of the
workman. Hence, this issue is decided in favor of the workman.

41. Issue No. 4: As per terms of reference:

42. The AR for the Management has argued that the case of the
workman for regularization of his services is not maintainable in view
of the judgment of the Hon’ble Supreme Court in Secretary, State of
Karnataka Vs. Uma Devi reported as AIR 2006 SC 1806 wherein
the Hon’ble Court has dealt with casual and contingent Employees. It
has held that if it is a contractual appointment, the appointment comes
to an end at the end of the contract. If it were an engagement or
appointment on daily wages or a casual basis, the same would come to
an end when it is discontinued. Similarly, a temporary employee cannot
claim to be made permanent on the expiry of his term of appointment.
It has also clarified that merely because a temporary employee or a
casual wage worker is continued for a time beyond the term of his
appointment, he would not be entitled to be absorbed in regular service
or made permanent merely on the strength of such continuance. If the
original appointment was not made by following due process of
selection as is envisaged by the relevant Rules, it is not open to the
Court to prevent regular recruitment at the instance of employees

POIT-54-23 Page No. 23/31

 whose period of employment has come to end or of ad-hoc employees
who, by the very nature of their appointment, had not acquired any
right. Hence, the law is well settled that a daily wager, temporary or
contractual employee cannot demand regularization of his services.
Further reliance is also placed upon the judgments of Vibhuti Shanker
Pandey vs. State of Madhya Pradesh & Ors., AIR 2023 SC 832,
Desh Deepak Srivastava vs. Delhi High Court & Anr.
43. The representative of the workman argued that the action of the
management by non-regularising the services of the workman
constitutes an unfair labor practice under Section 2(ra) read with item
10 of the Fifth Schedule of the Industrial Disputes Act, as the
management has employed workman for performing the permanent and
perennial nature of work of Caretaker-cum-cook treated him as merely
an “independent service providers”, and continuing this practice for
years with the intent of denying them permanent status constitutes
unfair labor practice. It is because regularizing their services would
require the management to pay salaries at the regular pay scale.
Reliance is placed upon the judgment of the Hon’ble Supreme Court
titled as Chief Conservator of Forest and Anr., (1996) 2 SCC 293 ,
and the judgment of the Hon’ble Delhi High Court titled as Project
Dir. Dept. of Rural Development v. Its Workmen, 2019 SCC
OnLine Del 7796, in support of their argument.
44. This tribunal has considered all the material on record as well as
legal submissions of the parties and is of the opinion that this tribunal
has power to regularize the services of the workman in the light of the
judgment of Hon’ble Supreme Court titled as Chief Conservator of
Forest and Anr. (supra), the judgment of Hon’ble Delhi High Court

POIT-54-23 Page No. 24/31

 titled as Project Dir. Dep. Of Rural Development v. Its Workmen,
(supra). The relevant portion of the aforesaid judgment is reproduced
below:

“28. The decisions relied upon by the learned counsel for the
respondents in Ajaypal Singh (supra), ONGC (supra) and
Umrala Gram Panchayat (supra), also leave no manner of doubt
that the Supreme Court has specifically observed that the
prohibition laid down for regularization in Uma Devi (supra)
does not apply to industrial adjudication and that the Industrial
Tribunal has the power to direct regularization of services in
cases where pursuant to unfair labour practices, employees have
been made to render services for long periods of time on causal
basis for work that should ordinarily be done by regular
employees.”
……..
61. We would now examine the process by which an Industrial
Tribunal comes to its decisions and I have no hesitation in
holding that the process employed is not judicial process at all.
In settling the disputes between the employers and the workmen,
the function of the Tribunal is not confined to administration of
justice in accordance with law. It can confer rights and privileges
on either party which it considers reasonable and proper, though
they may not be within the terms of any existing agreement. It
has not merely to interpret or give effect to the contractual rights
and obligations of the parties. It can create new rights and
obligations between them which it considers essential for
keeping industrial peace..”

45. The Constitution Bench of the Hon’ble Supreme Court in the case
of Bidi, Bidi Leaves' and Tobacco Merchants Association vs. The
State of Bombay, Civil Appeals Nos. 415 to 418 of 1960 decided
on 15.11.1961 has held that the tribunal has the power to create new

POIT-54-23 Page No. 25/31

 rights and liabilities upon the employer. The relevant portion of the
judgment is reproduced below:

“15. It is well settled that industrial adjudication under the

provisions of the Industrial Disputes Act 14 of 1947 is given
wide powers and jurisdiction to make appropriate awards in
determining industrial disputes brought before it. An award made
in an industrial adjudication may impose new obligations on the
employer in the interest of social justice and with a view to
secure peace and harmony between the employer and his
workmen and full co-operation between them. Such an award
may even alter the terms of employment if it is thought fit and
necessary to do so. In deciding industrial disputes the
jurisdiction of the tribunal is not confined to the administration
of justice in accordance with the law of contract. As Mukherjea,
J., as he then was, has observed in Bharat Bank Ltd., Delhi v.
Employees of the Bharat Bank Ltd., Delhi the tribunal can
confer rights and privileges on either party which it considers
reasonable and proper, though they may not be within the terms
of any existing agreement. It has not merely to interpret or give
effect to the contractual rights and obligations between them
which it considers essential for keeping industrial peace”. Since
the decision of the Federal Court in Western India Automobile
Association v. Industrial Tribunal, Bombay it has been
repeatedly held that the jurisdiction of Industrial Tribunals is
much wider and can be reasonably exercised in deciding
industrial disputes with the object of keeping industrial peace
and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan
Pandey, Patna Electric Supply Co. Ltd., Patna v. Patna Electric
Supply Workers' Union).”

46. Further, the Hon’ble Supreme Court in the case of Sheo Narain
Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 has
observed the following with regarding to the practice of using Uma

POIT-54-23 Page No. 26/31

 Devi (supra) as a tool to further exploit the services of the worker and
not regularizing the services of the workmen concerned”

“7. When we consider the prevailing scenario, it is painful to

note that the decision in Uma Devi (Supra) has not been properly
understood and rather wrongly applied by various State
Governments. We have called for the data in the instant case to
ensure as to how many employees were working on contract
basis or ad-hoc basis or daily-wage basis in different State
departments. We can take judicial notice that widely aforesaid
practice is being continued. Though this Court has emphasised
that incumbents should be appointed on regular basis as per rules
but new devise of making appointment on contract basis has
been adopted, employment is offered on daily wage basis etc. in
exploitative forms. This situation was not envisaged by Uma
Devi (supra). The prime intendment of the decision was that the
employment process should be by fair means and not by back
door entry and in the available pay scale. That spirit of the Uma
Devi (supra) has been ignored and conveniently over looked by
various State Governments/ authorities. We regretfully make the
observation that Uma Devi (supra) has not be implemented in its
true spirit and has not been followed in its pith and substance. It
is being used only as a tool for not regularizing the services of
incumbents. They are being continued in service without
payment of due salary for which they are entitled on the basis of
Article 14, 16 read with Article 34 (1) (d) of the Constitution of
India as if they have no constitutional protection as envisaged in
D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to
grave. In heydays of life they are serving on exploitative terms
with no guarantee of livelihood to be continued and in old age
they are going to be destituted, there being no provision for
pension, retiral benefits etc. There is clear contravention of
constitutional provisions and aspiration of down trodden class.
They do have equal rights and to make them equals they require
protection and cannot be dealt with arbitrarily. The kind of
treatment meted out is not only bad but equally unconstitutional
and is denial of rights. We have to strike a balance to really
implement the ideology of Uma Devi (supra). Thus, the time has

POIT-54-23 Page No. 27/31

 come to stop the situation where Uma Devi (supra) can be
permitted to be flouted, whereas, this Court has interdicted such
employment way back in the year 2006. The employment cannot
be on exploitative terms, whereas Uma Devi (supra) laid down
that there should not be back door entry and every post should be
filled by regular employment, but a new device has been adopted
for making appointment on payment of paltry system on
contract/adhoc basis or otherwise. This kind of action is not
permissible, when we consider the pith and substance of true
spirit in Uma Devi (supra).”

47. Hence, the reliance of the management on the judgments of Uma

Devi (supra) to argue that this tribunal does not have the power to
regularize the services of the workman concerned is misplaced in law.
Notably, the Hon’ble Supreme Court in Chief Conservator of Forest
(supra) and Hon’ble Delhi High Court in Project Dir. Dep. Of Rural
Development (supra) and the Constitution Bench of the Hon’ble
Supreme Court in Bidi Leaves (supra) clearly establish that Industrial
Tribunals possess wide ranging powers, which include power to create
new rights and liabilities, alter terms of employment, and impose new
obligations on employers in the interest of social justice and industrial
peace. Furthermore, the Hon’ble Supreme Court in Sheo Narain Nagar
(supra) highlights the misuse of the Umadevi (supra) to further
perpetuate exploitative employment practices, rather than adhering to
its true spirit, which emphasizes on regular employment. This Tribunal,
therefore, is not only empowered but also obligated to rectify such
injustices by regularizing the services of workmen who have been
subject to unfair labor practices and prolonged casual employment for
performing the permanent and perennial nature of work typically
performed by regular employees.
POIT-54-23 Page No. 28/31
 48. In the present case, it cannot be disputed that the workman had
been performing the permanent and perennial nature of work as a
Caretaker-cum-cook, having worked from the year 1994 to the year
January 2023, as evidenced by the documentary evidence placed on
record by the workman. He had worked for about 28-29 long years with
the management continuously. It has not been disputed by the
management that the workman does not possess the requisite
qualifications required for performing the work of a Caretaker-cum-
cook. The workman cannot be treated as independent service providers
to management but as an employee of the management. The workman
had been performing the duties throughout the year on a daily basis.
49. Even though the management has argued that the services of the
workman were engaged merely in the exigencies of work, it has failed
to place any order of the management in this regard or explain the
exigency that arose. The workman cannot be made to work on a
temporary basis at the whims and fancies of the management. The
management, having deployed the workman, bears certain
responsibilities towards its employees. Despite working for the past 28-
29 years, the services of the workman were not regularized by the
management. The management has failed to place any documentary
evidence to show the reason for the non-regularization of the services
of the workman. Therefore, in view of the position and the material on
record, this tribunal holds that the management has clearly committed
unfair labor practice by employing the workman for performing the
permanent and perennial nature of work of a Caretaker-cum-cook and
treating him merely as an independent service provider, continuing this

POIT-54-23 Page No. 29/31

 for years with the objective of depriving him of the status and
privileges of a regular and permanent employee.
50. This also finds support from the judgment of the Hon’ble
Supreme Court in Chief Conservator of Forest (supra), wherein the
Hon’ble Supreme Court of India held that employing workers on a
temporary basis for long periods and denying them the status and salary
of a regular employee amounts to unfair labor practice, as giving them
the status and privileges of a permanent employee would require the
management to pay the workman higher than the one fixed under the
Minimum Wages Act. In these circumstances, this tribunal holds that
the workman, Shri Kanhai @ Kannu Si, is entitled to regularization in
service on the post of Caretaker-cum-cook w.e.f. 25.01.1994 in the
regular pay scale. This issue is decided in favor of the workman and
against the management.

51. Relief: In view of my findings on the foregoing issues, this

tribunal is of the opinion that the workman, Shri Kanhai @ Kannu Si, is
entitled to regularization in service on the post of Caretaker-cum-cook
w.e.f. 25.01.1994 in the regular pay scale. It has been also brought to
the notice of this Tribunal that the Guest House wherein the workman
was posted had been closed down by the management in January 2023
and consequently he is no longer working with the management.
52. Admittedly, the management had not taken any permission or
approval from the concerned authority while dispensing with the
services of the workman and the same tantamounts to violation of
Section 33 of I.D. Act. Such an action on the part of the management
holds no legality in the eyes of law and is considered to be void-ab-

POIT-54-23 Page No. 30/31

 inito. Reliance is placed upon the judgments of Jaipur Zila Sahakari
Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, (2002) 2 SCC 2442,
Tops Security Ltd. v. Subhash Chander Jha, 2012 SCC OnLine Del
3691. Consequently, the workman will be deemed to be in service with
the management. The management is directed to implement the award
within 60 days of its publication, failing which the management will be
liable to pay interest at the rate of 8% per annum from the date of terms
of reference i.e. 03.03.2017 to its realization. The award is passed
accordingly.
53. Copy of the award be sent to the appropriate Government for
publication. File be consigned to the Record Room. Digitally
signed by
AJAY AJAY GOEL
Date:
Announced in open Tribunal GOEL 2024.03.01
16:33:51
on this 01.03.2024 (Ajay Goel) +0530
POIT-I/RADC, New Delhi.

POIT-54-23 Page No. 31/31