Delhi District Court
Shri Ram Shyam S/O Late Desh Raj vs Dy. Director (Hort.) on 2 July, 2015
BEFORE THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII, KKD COURTS, ROOM NO. 22: DELHI
LCA 05/10.
Unique ID No.02402C0026892010.
IN THE MATTER OF:
Shri Ram Shyam S/o Late Desh Raj
C/o Room No.95, Barracks No. 1/10.
Jam Nagar House, Shahjahan Road, New Delhi.
..............Claimant
Versus
Dy. Director (Hort.)
PWD DivisionII, Maintenance Division 324,
13th Floor, MSO Building, I.P. Estate, New Delhi110002.
...........Management
DATE OF INSTITUTION : 27.01.2010.
DATE ON WHICH ORDER RESERVED : 01.07.2015.
DATE ON WHICH ORDER PASSED : 02.07.2015.
O R D E R:
1. This order shall dispose of petition under Section 33 C(2) of the Industrial Disputes Act 1947 ( hereinafter" the Act") for recovery of sum of Rs.6,98,701/ for the period from 12.09.1989 to 31.01.2010.
2. Claimant's case is that he was appointed as Motor Lorry Driver (MLD) on 12.09.1989 and his services were LCA 05/10 Page 1 of 10 terminated on 05.07.1993 against which he raised industrial dispute No.116/1994 and Mr. M.K. Gupta, the then POLCIX, Karkardooma Court, awarded his case on 04.01.2002 granting him reinstatement with full back wages and consequential benefits w.e.f. 15.07.1993. The said award was challenged by the management in the Hon'ble High Court in Writ Petition 825/2003, but the same was dismissed on 31.01.2003 holding that the claimant was a daily wager and that he was not working on contract basis. The management filed appeal against that order bearing LPA No.2596/05, but the appeal was also dismissed. Ultimately, the claimant was reinstated on 21.12.2004 and he was paid a sum of Rs.2,58,711/ fixed for skilled worker under the Minimum Wages Act from 15.07.1993 to 21.12.2004. The management was required to pay him the wages equal to the wages provided to the counterparts, because the same was mandated by the departmental circulars issued on 21.10.1990 and 28.01.1991. It is further mentioned that as per the order of Director General (Works) CPWD dated 18.08.1993, the work order employees were also to be treated as daily rated workers. The claimant has cited the case of Mr. Satya Pal whose services LCA 05/10 Page 2 of 10 were terminated. He was reinstated by the award of Central Government Tribunal cum Labour Court which was challenged in the Hon'ble High Court, but the writ petition was dismissed rejecting the contention of the management that the work order employees were not the daily rated workers. The order passed in the writ petition was challenged in LPA No. 116/06 but the Division Bench had dismissed the same on 24.04.2006. As per the annexed chart, the claimant had withdrawn Rs.6,41,238/ from the management, but his total due was Rs.12,39,939/ and in this way an amount of Rs.6,98,701/ is still outstanding.
3. Written statement is to the effect that the claimant is entitled only to the amount provided under the provisions of Minimum Wages Act, 1948 and that amount has already been paid to him. As per the calculation chart annexed with the written statement, the claimant has withdrawn a sum of Rs.6,41,152/ from the management.
4. Following issues were framed on 28.02.11:
1. Whether the workman is entitled to any amount LCA 05/10 Page 3 of 10 against the management? If so, to what amount? OPW.
2. Relief.
5. Claimant examined himself as WW1 in order to substantiate his case. He deposed all the facts which he had mentioned in statement of claim. He relied upon the following documents :
a) Ex.WW1/1 award dated 04.01.2002 passed by the Court of Mr. M.K. Gupta, the then POLC.
b) Ex.WW1/2 order of Hon'ble High Court of Delhi passed in CWP 825/03 dated 31.01.2003.
c) Ex.WW1/3 order dated 02.02.2006 vide which LPA No.2596/05 of the management was dismissed by the Hon'ble High Court.
d) Ex.WW1/4 office memo dated 21.10.10.
e) Ex.WW1/5 clarification dated 28.01.1991 issued by
Director of General of Works (CPWD).
f) Ex.WW1/6 office memorandum dated 10.10.2008.
g). Ex.WW1/7 order by Mr. S.K. Srivastav, Director of
Administration, to all the Chief Engineers.
h) Ex.WW1/8 judgment dated 10.11.2009 by the Hon'ble Apex Court in a case titled as CPWD Vs. Satya Pal. LCA 05/10 Page 4 of 10
6. The management examined its Deputy Director Mr. Rajender Prasad as MW1 who deposed that the claimant has already been paid the wages to which he was entitled as per prevalent minimum wages under the Minimum Wages Act, 1948.
ISSUE NO. 1.
7. Ld. ARM argued that the claimant cannot be paid as regular employee because he was not engaged on muster roll and hence there was no relationship of employer and employee between management and claimant. No appointment letter was issued to him. Rather he was providing services of Motor Lorry Driver on contract basis on certain terms and conditions for certain period on specific rates. It is further argued that there is no policy / rules to pay equal wages to a contracted man deployed on contract basis. He further submitted that claimant has failed to prove that he was a daily rated worker. He relied upon State of Karnataka Vs. Uma Devi and others to argue that the claimant had accepted the appointment knowing well the nature of his appointment and its consequences.
On the other hand, ld. ARW argued that against the LCA 05/10 Page 5 of 10 reinstatement award passed by POLC in favour of the claimant, the management had filed civil writ petition 825/03 which was disposed of by the Hon'ble High Court on 31.01.2003 holding that there was relationship of master and servant between the claimant and the management. He relied upon PWD through Deputy Director Vs. Satya Pal, 2006 VIII AD (Delhi) 810 saying that the cited case is based upon the similar facts and was decided by the Hon'ble High Court on the basis of observation in writ petition civil No.825/03. He cited the cases of Director General (Works) CPWD Vs. Karam Singh WP.(C) No.6552/2012 decided by Hon'ble High Court of Delhi on 15.07.2013 and Executive Engineer PWD Vs. Prempal Singh, W.P.(C) No. 16815/06 decided by Hon'ble High Court of Delhi on 02.12.2008.
8. It is not in dispute that management had filed a writ petition in the Hon'ble High Court against the reinstatement award passed in favour of the claimant. Following observation of the High Court in the said writ petition is relevant : "The work orders issued by the petitioner for engaging the respondent and on which reliance LCA 05/10 Page 6 of 10 has been placed by the petitioner, clearly show that the respondent had admittedly worked continuously from 1989 to 1993, though on three months basis, and in my opinion, the work orders issued by the petitioner were only camouflage to avoid regularisation of the services of the respondent... Respondent had full control and supervision over the work of the respondent which also show that there was a relationship of master and servant between the parties and respondent was not an independent contractor."
Above observation was relied upon by the High Court while deciding PWD through Deputy Director Horticulture Vs. Satya Pal (supra). Observations of the High Court in these two cases completely cut to size the arguments of Ld. ARM that there was no relationship of employer and employee between management and the claimant.
9. There is office letter No.45/01/87EO.X(Vol.IV) dated 11.05.1990 issued by Kendriya Lok Nirman Vibhag. Following contents of that letter are highly relevant : "Subject: Implementation of the judgment of the Supreme Court dated 17.01.1986 in the case of Shri Surinder Singh And Others Vs. EngineerInChief, CPWD. LCA 05/10 Page 7 of 10 Sir, In continuation of this Directorate's letters of even number dated 19.06.89 and 08.10.89 wherein Govt.'s decision to the payment of same salary and allowances to all daily rated muster roll workers of the CPWD which are admissible to their regular & permanent counterparts on the Workcharged Establishment of CPWD for the period from 17.01.86 to 31st March, 1987 was conveyed, a copy of Ministry of Urban Development O.M. No. 45/1/87EO.X(pt.)/EW2 dated 30.04.90 containing the clarification th at the orders contained in their O.M. No. 45/1/87EO.X(Pt.)EW2 dated 12.6.89 would apply to all daily rated workers of the Central P.W.D and not only to the muster roll employees, as mentioned therein is enclosed for information and necessary action."
10. Contents of above letter prove beyond doubt that even daily rated workers are entitled to salary and allowances which are admissible to their regular and permanent counterparts. This conclusion gains support from office memo No.45/1/87 EO.X(Vol.IV) dated 21.10.1990. Vide said office memo, the CPWD directed the concerned officials to implement the Supreme Court's judgment dated 17.01.1986 in Surinder Singh's case regarding equal pay for equal work. Office memorandum has further been explained by letter No.45/1/87EO.X(Vol.IV) dated LCA 05/10 Page 8 of 10 28.01.1991 issued by Directorate of General Works CPWD. There is office memorandum No.22/23/2008 issued by Directorate of General Works, CPWD vide which recommendations of Sixth Pay Commission have been made applicable even to casual workers of muster roll and hand receipt etc. In view of contents of these, letters and office memorandum, ld. ARM is not justified to argue that there is no rule / policy for equal work and equal pay.
11. In calculation chart filed by the claimant along with petition under Section 33C(2) of the Act, the balance is Rs.6,98,701/. The management was directed to file the calculation chart as per office memorandum dated 21.10.90 and as per Surinder Singh's case. The calculation chart as per that order certified by Deputy Director Horticulture has been filed and as per that chart, the claimant is entitled to Rs.6,19,152/ from 12.02.1989 to 31.01.2010. There is a variation of about Rs. 80,000/ between this chart and the chart filed by the claimant. ARW submitted that he had prepared the calculation chart manually and the chart filed by the management has been prepared on computer and hence has high accuracy. In the end, he admitted LCA 05/10 Page 9 of 10 that the chart filed by the management is quite accurate and correct one.
ISSUE NO. 2.
12. The calculation chart filed by Deputy Director Horticulture shows that the claimant is entitled to a sum of Rs.6,19,152/ from the management. That chart has been admitted true and correct by ARW. So, the management is directed to pay a sum of Rs.6,19,152/ to the claimant with interest at the rate of 9% per annum from 01.11.2010 till the realization of amount. File be consigned to Record Room.
Dictated to the Steno and announced in the open Court on 02.07.2015.
( UMED SINGH GREWAL) POLC/KKD/DELHI/XVII.
LCA 05/10 Page 10 of 10