Delhi District Court
I.D. No. 169/16 (Old No.202/11) vs The on 13 April, 2022
IN THE COURT OF SH. JITENDRA KUMAR MISHRA:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE
AVENUE DISTRICT COURTS , NEW DELHI.
Ref. No.: F.24(162)/ND/535/2011/Lab/2133
Dated : 14.12.2011
I.D. No. 169/16 (Old No.202/11)
Workman
Sh. Nirmal Singh
S/o Sh. Dhum Singh
as represented by
Delhi Nagar Nigam Workshop Karamchari Union
14-A, Purani Market
Timarpur, Delhi
Vs.
The Management of
M/s Municipal Corporation of Delhi
through its
Commissioner
Town Hall, Chandni Chowk
Delhi-110 006
Date of institution : 22.12.2011
Date of reserving award : 04.04.2022
Date of award : 13.04.2022
(MORE THAN 10 YEARS OLD CASE)
AWAR D
1. Labour Department, Govt. of the National Capital
Territory of Delhi, office of the Deputy Labour Commissioner
(District North) has referred this dispute arising between the
parties named above for adjudication to this Tribunal vide
notification No. F.24(162)/ND/535/2011/Lab/2133 dated
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 1 of 31
14.12.2011 with following terms of the reference:-:-
"Whether the demand of Sh. Nirmal Singh
S/o Sh. Dhum Singh for grant of pay
scale of Rs.260-400 (950-1500) 3050-4590
revised from time to time for the post of
Painter w.e.f. 01.04.1979 with all
consequential benefits along with
benefits of first ACP scheme w.e.f. 9/8/99
and 2nd benefits w.e.f. 1/4/2003 is
justified; and if yes, what directions are
necessary in this respect?"
2. Statement of claim has been filed by the
claimant/workman, wherein it is claimed:
(a) Workman was working as Painter with MCD in
Engineering Department and was posted with M-II, Ward
No. 206, Jal Vihar, Lajpat Nagar, Central Zone of MCD;
(b)Workman was appointed as Beldar on muster roll in the
year 1972 and thereafter, he was re-engaged / promoted
as Painter on muster roll w.e.f. 15.06.1976 and got wages
of skilled worker;
(c) Workman was regularized on the post of Beldar w.e.f.
01.04.1979 vide office order dated 19.03.1980 in the pay
scale of Rs.196-232 instead of the post of Painter in the
pay scale of Rs.260-400 (950-1500) as the workman was
working on the post of Painter on the date of order of
regularization. Workman pmade representations to the
concerned authorities for regularization on wrong post.
Thereafter, he was regularized on the post of Painter
w.e.f. 01.04.1981 vide office order dated 15.01.1982 but
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 2 of 31
in the wrong pay scale of Rs. 210-270 whereas the
workman ought to have been regularized w.e.f.
01.04.1979 in the pay scale of Rs. 260-400 on the basis
of post to post regularization policy. In fact, pay scale of
Rs.260-400 (950-1500) was adopted by the MCD as per
3rd Pay Commission and resolutions were passed by MCD
to this effect;
(d)There was a post to post regularization policy of
management and according to this policy, workman was
to be regularized on the post of Painter as he was working
on the post of Painter on muster roll at the time of his
regularization but failed to adopt its own policy and
regularized the workman on earlier post. Management
has already regularized several other co-workers on the
post on which they were working at the time of their
regularization in terms of judgment of Hon'ble High Court
in the case of Lalit Mohan & Others Vs MCD in Civil
Writ Petition No. 1373/80 dated 04.02.1987 and paid
arrears while regularizing them on the same posts in
higher pay scales. Junior workers of the workman were
getting pay scale of Rs.3050-4590 on higher posts
whereas workman was getting pay scale of Rs.2550-3200
which is absolute illegal and unconstitutional ;
(e)Management has already granted pay scale of Rs.260-
400 revised from time to time to several other similarly
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situated workmen and also paid arrears of back wages
along with all consequential benefits, details of which are
given in para no.4 of statement of claim;
(f) MCD has ever adopted the recommendations of pay
commissions and has passed resolution from time to
time. As per resolution no. 682 dated 13.12.1973, MCD
has adopted the recommendations of 3 rd pay commission
and pay scale of Rs.260-350(260-400) was passed for the
post of Painter. Thereafter, another resolution No. 1294
dated 24.02.1987 adopting the 4 th pay commission
recommendations wherein pay scale of Rs.950-1500 was
passed for the post of Painter. In spite of aforesaid pay
scale for the post of Painter, these pay scales have not
been granted to the workman;
(g)MCD has passed a resolution no.273 dated 27.06.1988
and according to which muster roll employees appointed
in Horticulture department on the post of Painters and
Fitters were regularized w.e.f. 1.04.1988 on the posts of
Painters and Fitters in the pay scale of Rs.950-1500;
(h)In other departments of MCD and in CPWD the pay scale
of Rs.260-400 (950-1500) was paid to workers working
on the post of Painter. Moreover, in MCD similarly
appointed workers and those who were transferred from
DDA to MCD were also paid pay scale of Rs.260-400
(950-1500);
(i) Post of workman Painter is skilled. Workman was being
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paid wages of skilled worker while working on muster roll.
Workman was paid pay scale of semi-skilled worker after
regularisation;
(j) Vide office order dated 12.07.1982, it was accepted by
MCD that the post of Painter is skilled and the pay scale
of Rs.260-350 for the post of Painter was increased to
Rs.260-400 w.e.f. 01.01.1973 and which was revised to
Rs.950-1500 as per 4th pay commission. Workman was
not given the pay scale of Rs.950-1500 on the post of
Painter in terms of aforesaid office order;
(k) Workman has sent request letters regarding grant of pay
scale of Rs.950-1500 on 01.09.1989, 27.10.1989,
16.12.1989, 10.04.1992, 13.01.2006, and on 27.04.2006
but no reply was received from the department;
(l) Union of workman sent a 15 days demand notice to the
management on 20.06.2006 but no reply was received by
the Union;
(m) Workman was a member of the Union for the
last several years;
(n)Thereafter, on failure of the conciliation proceedings, the
present dispute has been referred for adjudication before
this Tribunal.
It is prayed in the Statement of claim to pass an award in
favour of the workman and the management be directed to
regularize the workman in the pay scale of Rs.260-400 (950-1500)
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 5 of 31
revised from time to time on the post of Painter w.e.f. 01.04.1979
along with all consequential benefits and interest.
3. Written statement filed by the management, wherein
objections have been taken:
(a) Claimant was not the workman as defined u/s 2 (s) of
the I.D. Act;
(b) Claimant was already retired from the management on
30.04.2012 and as such, there was no employer-
employee relationship between them;
(c) Present dispute is not an Industrial Dispute as defined
u/s 2(k) of the I. D. Act
(d) Present dispute is not properly espoused by the
Union;
(e) Statement of claim is not maintainable on the ground
of latches/ belated stage, since claimant is claiming pay
scale of Rs.260-400 w.e.f. 01.04.1979, whereas the
present claim was filed in the year 2011 i.e. after the lapse
of more than 32 years;
(f) Claimant has not come to this Tribunal with clean
hands and suppressed the material facts;
(g) Claimant was initially engaged on the post of Beldar
on daily wage basis and was accordingly regularized on
the same post in the pay scale of Rs.196-232 without any
protest at the relevant time;
(h) Claimant was neither got promoted to the post of
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Painter nor even passed any trade test for the post of
Painter. Hence, the claim of the claimant for the post of
Painter w.e.f. 01.04.1979 is without any basis and
contrary to the recruitment rules. As per recruitment rules
for the post of Painter, one should have a certificate of
painting from ITI or other recognized institution and
incumbent has to pass the trade test. The claimant is
claiming the pay scale of a Painter w.e.f. 01.04.1979,
whereas, he has obtained the certificate of a Painter only
in the year 1988. However, he had never passed the trade
test which was mandatory for the post of Painter;
(i) Claimant in connivance with some staff had been able
to obtain an office order dated 15.01.1982 without
obtaining the sanction of the competent authority/
appointment authority for treating him on the post of
Painter in the pay scale of Rs.210-270 w.e.f. 01.04.1981,
even though, neither any office order was ever passed in
favour of the claimant assigning him the duty of a Painter
nor he was promoted to the post of Painter and at the
relevant time, even he was not having the eligibility for the
post of Painter;
(j) Management deserves its right to recover the excess
amount paid to the claimant due to any discrepancy as
and when found in case of the claimant;
(k) Claim of the claimant is not maintainable in view of the
fact that he was a regular employee of the management.
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All the employees of the management are governed by
the Central Civil Services Rules as such in case of any
dispute, the efficacious remedy lies with the Central
Administrative Tribunal;
(l) There are two categories of post of Painter in the
management i.e. Painter and Senior Painter. The post of
Senior Painter is a promotional post to the post of Painter/
Jr. Painter. The pay scale of Painter in III CPC was
Rs.210-270 and as regard Sr. Painter, the pay scale of 3 rd
CPC was Rs.260-400. As per the recruitment rules, the
entry grade for the post of Painter is Rs.210-270 (revised
pay scale Rs.800-1150) and pay scale of Rs.260-400 is
the pay scale for the post of Senior Painter. The claim of
claimant for the pay scale of Rs.260-400 (revised Rs.950-
1500) is not justified since this scale is of the post of Sr.
Painter as per R.R. of post. Moreover, the claim of the
claimant is not maintainable as he has neither been
appointed nor ever been promoted to the post of Painter
or Senior Painter at any point of time;
(m) Alleged office order dated 15.01.1982 is not a
promotion order nor an appointment order, moreover, the
same has been obtained contrary to the rules and
regulations which is liable to be withdrawn;
(n) Management has its own notified recruitment rules
and rules of CPWD are not applicable to the employees of
the management;
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 8 of 31
(o) Workman was initially engaged as daily wager Beldar
and was regularized on the same post in the pay scale of
Rs.196-232 w.e.f. 01.04.1979;
(p) Pay scale for the post of Painter has been revised by
the management by way of resolution No. 902 dated
05.03.2007, vide which both the categories of Painter and
Sr. Painter had been merged and created the post of
Painter in the pay scale of Rs.260-400 (revised Rs.3050-
4590) w.e.f. 01.01.1996. The Claimant was neither ever
promoted/ appointed/ regularized as a Painter nor ever
worked/ promoted as such even the office order is not
applicable in the case of present claimant;
(q) Recruitment rules for the post of Painter and Fitters
belonging to the Horticulture Department of management
is different from the pay scale of Painters working in the
Engineering Department. Claimant was regularized on the
post of Painter was granted the pay scale of Rs.210-270
as per the recruitment rules for the post of Painter in the
Engineering Department. The nature of work of a Painter
in the Engineering Department is absolutely different from
the work of Painter in the Horticulture department. In
Engineering department most of masonic work are got
done by flouting of tenders;
(r) Vide office order dated 12.07.1982, only the existing
pay scale of Rs.260-350 was increased to Rs.260-400
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meaning thereby that the said office order was applicable
only to those category of workers who were already
drawing the pay scale of Rs.260-350.
Rest of the contentions of the statement of claim
more or less are denied.
4. Rejoinder has not been filed by the workman.
5. On the basis of pleadings of the parties, following issues
were framed by Ld. Predecessor vide order dated 06.08.2012:-
"(1) Whether claimant is workman as
defined under Section 2 (s) of Industrial
Disputes Act? OPW
(2) Whether present dispute is an
Industrial Dispute as defined in Section
2(k) of Industrial Disputes Act? OPW
(3)Whether the present claim of the
workman has been properly espoused by
the Union? OPW
(4) Whether statement of claim is not
maintainable on ground of latches/
belated stage? OPM
(5) As per terms of reference."
6. To prove his case, workman examined himself as WW1.
He tendered his evidence by way of affidavit, which is Ex.WW1/A, in
which he has affirmed the contents of his statement of claim. He
has also relied upon documents Ex.WW1/1 to Ex. WW1/44, which
are:-
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 10 of 31
(a) Ex WW1/1 and Ex.WW1/2 are photocopies of registration
of Union;
(b) Ex.WW1/3 is photocopy of request letter of the workman
bearing signature dated 01.09.1989;
(c) Ex.WW1/4 is photocopy of demand/ legal notice dated
20.06.2006;
(d) Ex.WW1/5 is photocopy of espousal;
(e) Ex WW1/6 is photocopy of office order dated 19.03.1980;
(f) Ex WW1/7 is photocopy of office order dated 15.01.1982;
(g) Ex WW1/8 is photocopy of office order dated 26.02.1985;
(h) Ex. WW1/9 is photocopy of trade certificate of the
workman;
(i) Ex.WW1/10 is attested copy of judgement of Hon'ble High
Court in Civil Writ Petition No. 1373 of 1980;
(j) Ex.WW1/11 is photocopy of resolution No.682 dated
13.12.1973;
(k) Ex.WW1/12 is photocopy of resolution dated 19.05.1982;
(l) Ex.WW1/13 is photocopy of office order dated
12.07.1982;
(m) Ex.WW1/14 is the photocopy of CPWD manual;
(n) Ex.WW1/15 is the photocopy of office memorandum
dated 07.05.1997;
(o) Ex.WW1/16 is the photocopy of resolution No. 1294
dated 24.02.1987;
(p) Ex. WW1/17 is the photocopy of letter dated 17.06.1991;
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 11 of 31
(q) Ex. WW1/18 is the photocopy of resolution No. 273 dated
27.06.1988;
(r) Ex.WW1/19 is the photocopy of office order dated
16.08.1989;
(s) Ex.WW1/20 to Ex.WW1/41 are the photocopies of office
orders of regularisation;
(t) Ex.WW1/42 is photocopy of office order dated
11.06.1999;
(u) Ex.WW1/43 is the photocopy of office order dated
10.04.1991;
(v) Ex.WW1/44 is the photocopy of list of muster roll of the
workman w.e.f. 15.06.1976 to 01.04.1980.
On 29.07.2013, 29.10.2013 and 13.07.2015, Ld. AR for
the management had cross examined WW1.
Thereafter, on 13.07.2015, vide separate statement Ld.
AR for the workman closed workman evidence.
7. To prove its case, management though filed evidence of
MW Sh. Ashok Kumar, Executive Engineer of the management but
despite opportunities, workman has not come forward to cross-
examine the said witness. Accordingly, vide order dated 13.12.2021,
opportunity to cross-examine MW Sh. Ashok Kumar by the
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workman was forfeited and ME was closed.
8. Final arguments have been heard as advanced by Sh.
Sh. Rajeev Kr. Bhardwaj, Ld. AR for management. None appeared
on behalf of workman to advance final arguments despite
opportunity given. Therefore, case has to be decided as per material
available on record.
9. I have gone through the entire record of the case
including pleadings of the parties, evidence led and documents
proved during evidence.
10. My issue wise findings are:-
Issue no.1:
"(i) Whether claimant is workman as
defined under Section 2 (s) of Industrial
Disputes Act? OPW"
The present issue has been raised as preliminary
objections in the written statement filed by the management wherein
it is objected that claimant was retired on 30.04.2012 and thereafter
there is no employer employee relationship between the
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management and the claimant. However, during arguments it is
admitted fact that claimant was employed with the management in
the year 1972 as per Ex. WW1/1 and was regularized vide Ex.
WW1/6. Moreover, during arguments it is submitted by the parties
that the claim before the Conciliation authorities have been raised
by the workman in the year 2011. Moreover, it is not disputed by the
management that the workman had worked with the management
till his retirement i.e. upto 30.04.2012. Therefore, in view of such
facts and submissions made by the parties in their pleadings as well
as in arguments, this issue is answered in favour of workman with
the finding that the workman is workman within the definition of
Section 2(s) of the Industrial Dispute Act. Hence, this issue is
answered in favour of the workman and against the
management.
Issue no.2:
" Whether present dispute is an Industrial
Dispute as defined in Section 2(k) of
Industrial Disputes Act? OPW
Issue no.3:
"(iii)Whether the present claim of the
workman has been properly espoused by
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 14 of 31
the Union? OPW"
This Tribunal is going to decide issues no. 2 and 3 by common
findings as both these issues are legal issues, have to be decided in
the light of facts of the case.
To decide these issues, this Tribunal refers
Section 2(k) of Industrial Disputes Act which defines as:
2(k) "industrial dispute" means any
dispute or difference between employers
and employers, or between employers
and workmen, or between workmen and
workmen, which is connected with the
employment or non-employment or the
terms of employment or with the
conditions of labour, of any person.
Thus, from the plain reading of Section 2(k) of
Industrial Dispute Act, it is clear that every dispute under the
category of Industrial Dispute Act has to be between employers
and employers or between employers and workmen or between
workmen and workmen, but which are connected with the
employment or non-employment or the terms of employment or
conditions of labour of any person. Therefore, to bring the dispute
under the category of Section 2(k) of Industrial Dispute Act, there
should be raising of dispute pertaining to the conditions of
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employment or non employment of any person.
Now, the question arises who can raise this dispute. The
Industrial Dispute can be raised certainly within the frame work of
Industrial Dispute Act and it has to be raised by the Union who can
establish that dispute is of employment or non employment or with
the conditions of labour of any person. Therefore, for this purpose,
the Tribunal has to see whether there is support of sufficient number
of workmen towards raising of that dispute.
This process to raise the dispute by sufficient
numbers of workmen has to be termed as espousal and thus issues
no. 2 and 3 are interconnected inasmuch as if the espousal is there
in favour of the workman to raise the present dispute, then certainly
the dispute covers under the category of Section 2(k) of Industrial
Disputes Act.
For an industrial dispute there should be an
espousal by passing a resolution to raise the dispute. Thus, this
Tribunal has framed issue no. 3.
To prove issue no. 3, workman has relied upon
copy of registration of Union as Ex. WW1/1 and another document
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 16 of 31
Ex. WW1/2 and the copy of espousal as Ex. WW1/5. However, all
these documents are photocopies and workman has not examined
Sh. Ajit Kumar Kalia, General Secretary of the Union to prove the
fact of espousal in favour of the workman. Further, signatures of
Sh. Ajit Kumar Kalia has not been proved on Ex. WW1/5. Hence,
this document is not proved in accordance with law.
Moreover, WW-1 during cross-examination admitted that
he is a member of Delhi Nagar Nigam workshop Karamchari Sangh
for the last 10-12 years. WW-1 admitted that he has not filed any
receipt of payment of subscription to the union to show his
membership. WW-1 further deposed that he did not remember the
date of meeting of the union regarding his present dispute. WW-1
admitted that no notice of minutes of the said meeting has been
filed on record before this court. WW-1 denied the suggestion that
no such meeting of the union was ever held and due to this reason,
he has not filed copy of notice and minutes of the meeting.
Agenda of the meeting/resolution has not been proved in
accordance with the law. It is not proved that any notice was given
to the workmen regarding the agenda of the meeting. No copy of
constitution has been filed on record which could prove that meeting
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could be presided over by General Secretary in place of President.
It is not the case of the workman that majority number of the
workmen have duly represented the cause of the workmen.
Hence, the espousal Ex. WW1/5 is not proved in
accordance with the law.
This tribunal further refers the case laws in this context
which are:
11. In M/s Hotel Samrat vs. Govt. of NCT of Delhi & Ors.
2007 LLR 386 (Hon'ble Delhi High Court), it has been held:-
"12. The dispute between an individual
workman and the employer can be treated as
an industrial dispute only where the workmen
as a body or a considerable section of them,
make common cause with the individual
workman and espoused his demand. The
question arises how the espousal can be
inferred. Espousal means that the dispute of an
individual workman is adapted by union as its
own dispute or a large number of workmen give
support to the cause of an individual workman.
In the instant case, the only evidence available
on record about espousal of the cause is the
statement of the Secretary of the Union made
before the Tribunal. In his statement, he stated
that he requested the management to treat
workman Hira Singh at par with other
employees and grant him regular pay scale and
he met the management for this purpose and
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on his pursuance, the management started
deducting provident fund from salary of the
workman Hira Singh. There is no evidence
apart from this evidence about the espousal of
the cause. Does mere lending of name of the
union by the union secretary while raising the
conciliation proceedings or for issuing notice
amount to 'espousal' of cause'? Union is a
representative body of the workmen. The cause
of any workman can be espoused collectively
by the Executive Body of the union by taking a
decision in this respect. This decision may not
be taken in a formal manner but can be taken
in an informal manner but it has to be a
collective decision of the executive body of the
union. An individual member of the Executive
body cannot take the character of the entire
union and cannot bind the union. Merely
because the union secretary met the
management and requested for giving a regular
appointment letter to the workman, would not
amount to espousal of the cause. In this case,
this is the only evidence available on record in
respect of espousal. In J.H. Jadhav's
case(supra), the Supreme Court observed that
the union must formally express itself in the
form of a resolution which should be approved
by its members. However, the number of
supporting members of the union may be
relevant depending upon facts of each case. In
1961 II LLJ 436 Bombay Union of Journalists v.
Hindi Bombay, the Supreme Court observed
that an individual dispute can take the
character of an industrial dispute only if it was
proved that it was, before it was referred,
supported by union of employees. In each
case, for ascertaining whether an individual
dispute has assumed character of an industrial
dispute, the test is whether on the date of
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reference, the dispute was taken up and
supported by the union of the workmen of the
employer against whom the dispute is raised by
the individual workman or by an appreciable
number of employees. In this case, the
Supreme Court observed that notice of the
meeting for the purpose of considering request
by the members for tenable cause of
concerned workmen was not given to the
employees of the Hindu Board which were not
the members of the union at the relevant time.
Hence, by mere passing of a resolution by
other members of the union, the case of the
appellant that the cause of concern workmen
was supported by the other employees of
Hindu Board, could not be supported. The
Supreme Court observed that unless an
individual dispute was taken up by union of
employees of the employer or by appreciable
number of employees of the union, it remains
as an individual dispute and does not become
an industrial dispute. In 2001(89) FLR 458
Prakash and Ors v. Superintending
Engineer(ELEL) and Ors, the Karnataka High
Court observed that an individual can raise a
dispute, only for removal, termination or
dismissal. If the workman wants to raise a
dispute for his absorption and regularization,
that can only be done through the union on
behalf of workman or workmen."
12. In Tirupathi Cotton Mills Ltd Vs. Labour Court and anr,
(1968) II LLJ 723 AP it has been held in para no. 10:
"It is unnecessary to multiply cases
Sufficient to say that unless there is a
concerned action evidencing indication on
the part of a substantial or appreciable
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number of workmen of the establishment it
will be impossible to hold that the dispute,
which on the face of it must be regarded as
an individual dispute, has been converted
into an industrial dispute. It is only then we
may assume that it was a collective
bargaining on the part of the workers with the
employers. This concerned action may as
well be evinced by a union which is
substantially interested in the dispute as
having a large number of members of the
employees of that establishment.
13. In J. H. Jadhav Vs. M/s Forbes Gokak Ltd Appeal
(Civil) 1089 of 2005 it has been held by Hon'ble Supreme Court as:
"............The definition of "Industrial Dispute" in Section
2(k) of the Act shows that an Industrial dispute means any
dispute or difference between an employer and employers
or between employers and workmen, or between workmen
and workmen, which is connected with the employment or
non-employment or the terms of the employment or with
the condition of labour, of any person. The definition has
been the subject matter of several decisions of this Court
and the law is well settled. The locus classicus is the
decision in Workmen of M/s Dharampal
Premchand(Saughandhi) Vs. M/s Dharampal Premchand
(Saughandhi) 1965 (3) SCR 394 where it was held that for
the purposes of Section 2(k) it must be shown that (1) the
dispute is connected with the employment or non
employment of a workman (2) the dispute between a single
workman and his employer was sponsored or espoused by
the Union of workmen or by a number of workmen. The
phrase "the union" merely indicates the Union to which the
employee belongs even though it may be a Union of a
minority of the workmen. (3) the establishment had no
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 21 of 31
union on its own and some of the employees had joined the
Union of other establishment belonging to the same
industry. In such a case it would be open to that Union to
take up the cause of the workmen if it is sufficiently
representative of those workmen, despite the fact that such
Union was not exclusively of the workmen working in the
establishment concerned. An illustration of what had been
anticipated in Dharam Pal's case is to be found in the
Workmen of Indian Express Newspaper (Pvt.) Ltd Vs.
Management of Indian Express Newspaper Private Ltd AIR
1970 SC 737 where an 'outside' union was held to be
sufficiently representative to espouse the cause.........."
14. Hon'ble High Court of Madras in Buckingham
and Carnatic Co. Ltd, Madras Vs. Buckingham and Carnatic
Mills Staff Union and anr. AIR 1960 Mad 106 in para no. 5 held:
"5. In an early case in this Court, Kandan Textiles
vs. Industrial Tribunal, MANU/TN/0159/1951:
(1949) NULLLLJ 875 Mad, which was decided by
a Division Bench of which one of us was a party,
it was definitely held that there could be no
collective dispute unless at least a substantial
number of the employees in the establishment as
a whole or in the concerned part of the
establishment should be at dispute. It was also
pointed out that it was not necessary that before
the Government could make a valid order
referring a dispute to the Tribunal the majority of
the workmen should be ranged as one of the
parties. A collective dispute is thus described:
A dispute between the employer on the
one hand and the entire establishment or part of
the establishment on the other hand in which
case it is reasonable to presume that at least a
substantial number of the employees in the
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 22 of 31
establishment as a whole or in the concerned
part of the establishment should be at dispute.
In Manager, United Commercial Bank Ltd
Vs. Commissioner of Labour, Madras,
MANU/TN/0015/1951: (1951) I LLJ 1 Mad,
Viswanatha Sastri J, agreed with this view of an
industrial dispute and said:
"The distinction between an individual
dispute and an industrial dispute is, if I may
respectfully say so, well brought out in the
judgment of my Lord in MANU/ TN/0159/1951:
(1949) NULLLLJ 875 Mad, citing inter alia a
passage from the judgment of Isaacs J. in
George Hudson Ltd Vs. Australian Timber Works
Union, (1922) 32 CLR 413, ....if the resuming
workman or a substantial body of them or a
union of workmen takes up the cause of the
victimised employee and demands his
reinstatement, there is an industrial dispute.
In Sri Ram Vilas Service Ltd Vs. State of
Madras, AIR 1956 Mad 115, this view was again
followed by Rajagopalan J.A different view was
however taken, though not by this Court. The
point was considered in detail by Venkatarama
Aiyer J, in C.P. Transport Service Ltd, Nagpur Vs.
Raghunatha Gopal, (S) MANU/SC/ 0067/1956:
(1957) I LLJ 27 SC. His Lordship referred to the
three different views taken by the High Courts
and Industrial Tribunals in the country, namely,
(1) a dispute which concerns only the rights of
individual workers cannot be held to be an
industrial dispute, (2) a dispute between an
employer and a single employee can be an
industrial dispute and (3) a dispute between an
employer and a single employee cannot per se
be an industrial dispute but it may become one if
it is taken by the Union or a number of workmen.
Venkatarama Aiyar J, was of the opinion that
there was considerable reason behind the third
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 23 of 31
of the views and the preponderance of judicial
opinion was clearly in favour of it.
He observed:
Notwithstanding that the language of
Section 2(k) is wide enough to cover a dispute
between an employer and a single employee, the
scheme of the Industrial Disputes Act does
appear to contemplate that the machinery
provided therein should be set in motion, to settle
only disputes which involve the rights of
workmen as a class and that a dispute touching
the individual rights of a workman was not
intended to be the subject of an adjudication
under the Act, when the same had not been
taken up by the Union or a number of workmen.
6. In another case, namely, Newspapers Ltd
Vs. State Industrial Tribunal, U.P(S) MANU/SC/
0078/1957: (1957) II LLJ 1 SC, the Supreme
Court expressly approved the view taken by this
Court in MANU/TN/0159/1951: (1949) NULLLLJ
875 Mad and other cases following it.
Therefore, in view of facts and law discussed here-in-
above, this Tribunal is of the considered view that workman is not
able to prove issues no. 2 and 3. There is no espousal in favour of
the present workman to raise the present dispute. Since, there is no
espousal to raise the present dispute, therefore, this is not an
industrial dispute. Therefore, both issues no. 2 and 3 are answered
against the workman.
Issue no.4:
"(iv) Whether statement of claim is not
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 24 of 31
maintainable on ground of latches/
belated stage? OPM"
The onus to prove issue no. 4 is upon the management. Ld. AR for
management had contested that even though no limitation has been
provided in raising industrial dispute but it has to be raised within a
reasonable period, otherwise it would be barred by limitation.
In the present case the demand for grant of higher pay
scale revised from time to time for the post of painter w.e.f
01.04.1979 with all consequential benefits along with benefits of first
ACP and 2nd ACP benefits w.e.f 01.04.2003 has been made. It is
admitted fact of the parties that present reference has been made
by the office of Labour Commissioner on 14.12.2011 and as per the
case of the claimant, demand notice was sent to management
herein on 20.06.2006, thus admittedly the demand notice has been
issued after 27 years from the cause of action.
It is settled proposition of law that no period of limitation
has been provided in Industrial Dispute Act for raising an industrial
dispute, therefore, the Limitation Act cannot be applied to the
provisions of Industrial Dispute Act. But simultaneously by way of
several decisions of Hon'ble Supreme Court and Hon'ble High
I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 25 of 31
Courts, it has been held that dispute must be raised within the
reasonable period of time i.e. before the dispute becomes stale or
cease to exists.
In Nedunagadi Bank Ltd Vs. K. P. Madhavankutty and
ors 2000 SCC(L&S) 282, Hon'ble Supreme Court was dealing with
the similar matters of delay, when the dispute was raised by the
workman against his termination after 7 years. While discussing the
relevant provision and application of Limitation Act on Industrial
Dispute Act, Hon'ble Supreme Court has held that:
"Law does not prescribe any time limit for
the appropriate Government to exercise its
power under Section 10 of the Act, it is not that
this power can be exercised at any point of time
and to revive matters which had since been
settled. Power is to be exercised reasonably and
in a rational manner. There appears to us to be
no rational basis on which the Central
Government has exercised powers in this case
after a lapse of about seven years of the order
dismissing the respondent from service. At the
time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject matter of reference under section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 26 of 31 the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from services were reinstated. Under what circumstances they were dismissed and subsequently reinstated is no where mentioned. Demand raised by the respondent for raising an industrial dispute was ex-facie bad and incompetent."
Further in Haryana State Coop Land Development Bank Vs. Neelam (2005) 5 SCC -91, Hon'ble Supreme Court has held that:
"It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Dispute Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio".
Applying these principles in Ramesh Kumar Vs. Delhi Jal Board in W.P(C) 1034/2011, Hon'ble High Court of Delhi has held that unexplained delay of six and half years in raising industrial I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 27 of 31 dispute by workman disentitled him from any relief by the Industrial Tribunal.
Similarly, in S. Shalimar Works Limited Vs. Their Workmen AIR 1959 SC 1217, it was held that "though no limitation is prescribed for making reference of the dispute to an Industrial Tribunal, nevertheless, it has to be made within a reasonable period. In that case delay of 4 years in raising industrial dispute was held to be fatal". Similar view was reiterated in S. M. Nilajkar and others Vs. Telecom District Manager, Karnataka 2003(4) SCC
27. Relying upon above said authorities, our own Hon'ble High Court in Satbir Singh Vs. Management of Supdtt, Engineer and others 138(2007) DLT 528(DHC) has held that:
"inordinate and unexplained delay in raising industrial dispute would defeat the rights of the workman and would disentitle him to any relief."
From referred judgements, it is clear that although there is no limitation provided in raising industrial dispute but dispute is to be raised within the reasonable period after the dispute has risen between the parties. Raising of industrial Dispute for claiming the relief as prayed herein, cannot be considered to be reasonable period. It is not the case of the workman that he was stopped to I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 28 of 31 raise the dispute for years together for any reason beyond his control. In this case, the workman has claimed the relief for the post of painter w.e.f 01.04.1979 and second ACP benefits with effect from 01.04.2003 whereas the present claim has been referred in the year 2011. The notice of demnd was issued on 20.6.2006. Therefore, after issuing demand notice what stopped the workman to keep mum for about 5 years, has not been explained. What stopped the workman to issue notice after more than three years, again not explained and what stopped him since 1979 to the year 2006 to raise the dispute, again not explained. Therefore, all these gaps of years which have not been explained by the workman, disentitles the workman to claim the relief as there is inordinate delay to prefer the present claim.
Apart therefrom, workman has not proved any document to substantiate his allegation that he was appointed as beldar on muster roll in the year 1972. He has also not proved any representation as alleged by him in para no. 3 of Ex. WW1/A which have been made time to time to the concerned authorities for regularization on wrong post.
Therefore, in my considered view and in the guidance of I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 29 of 31 law discussed here-in-above, this Tribunal is of the considered view that the workman/claimant has not raised the dispute within reasonable time. It is argued by ld. AR for management that there is inordinate delay in filing the present dispute as cause of action has arisen in the year 1979 when he was posted as muster roll employee but no action was taken till 2006.
Therefore, this issue is answered against the claimant with the finding that the claim of the claimant is not maintainable on ground of delay and latches.
Issue No.5 As terms of reference As the claim of the claimant is barred by latches and delay, hence, reference is also answered against the claimant.
In view of such observations, claimant is not entitled to any relief in view of the above findings and observations of issues no. 2, 3 and 4.
15. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record I. D. No. 169/16 (Old No.202/11) Nirmal Singh Vs. MCD Page No. 30 of 31 Room.
Announced in open Tribunal Digitally signed
JITENDRA by JITENDRA
on this 13th day of April, 2022 KUMAR KUMAR MISHRA
Date: 2022.04.13
MISHRA 16:10:32 +0530
(Jitendra Kumar Mishra)
POIT-I/Rouse Avenue Courts, New Delhi
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