Delhi High Court
The Management M/S. Water Supply And ... vs The Presiding Officer Industrial ... on 12 May, 2000
Equivalent citations: 2000IVAD(DELHI)816, 86(2000)DLT390
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. This writ petition is filed against award dated 29.2.1996 passed by Industrial Tribunal No. III in ID No. 45/91. Industrial dispute was referred to the Tribunal with the following terms of reference:-
"Whether Sh.Birpal as entitled to be regularised as Mason from the date of his initial appointment in proper pay scale and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. The case of the respondent workman before the Tribunal was that since the workman was performing the duties of Mason from the date of his initial appointment, he was entitled to be regularised as Mason and he was also entitled to get the pay of Mason since he was working as such. It was an admitted case of the parties that workman was not employed on permanent basis but was employed on daily rated basis. After discussion the evidence on record as well as various pronouncements of Supreme Court and this Court, the relief of regularisation to the respondent workman was denied by observing as under:-
"In the light of the above discussions, I find that the contention of the workman that he would be treated to have been regularly appointed either from the date of his initial appointment or after three months of service or even after 240 days his service is not tenable and he cannot be held to be of regularisation entitlement as is prayed by him as per terms of reference or even as per statement of claim. The workman cannot be directed to be regularised on the only ground that he has put in work for 240 days or more days."
3. Thereafter the Industrial Tribunal proceeded to decide the question as to whether respondent workman was entitled to get the salary of Mason on the ground that he was discharging the same duties as are being discharged by Masons appointed on regular basis. Labour Court had noted that although the management had tried to set up the case that duty of daily wager is different from the work performed by regular employees but the management had miserably failed to establish the same and the returned the findings that daily wagers were also performing the same duties are being performed by regular employees. Relying on various judgments, Industrial Tribunal gave the direction to the petitioner to pay the respondent workman salary of wages equivalent to minimum salary paid to regular employees namely Mason/Beldar w.e.f. 1.3.1996 with other allowances and benefits till he is regularised. The relevant portion of the award reads as under:-
"In the light of the above observations and assuming that Sh.Birpal has not been regularised so far, award is passed that he will be paid salary or wages equivalent to the minimum salary paid to the regular employees namely Mason/Beldar w.e.f.1.3.1996 with other allowances and benefits till he is regularised. He will also be absorbed as per policy of the phased programme the M.C.D. as per his turn in pursuance of seniority. Award is passed accordingly."
It is against this direction that the present writ petition has been filed.
4. The petitioner has advanced two-fold submissions challenging the aforesaid direction namely (i) the Tribunal has gone beyond the scope of reference. It was submitted that the reference made to the Tribunal was in respect of regularisation of the respondent workman as Mason. This issue was decided in favour of the petitioner by holding that the respondent workman was not entitled to be regularised. After this finding, Tribunal could not have travelled beyond the scope of reference and considered the question as to whether respondent workman was entitled to salary/wages or equivalent minimum salary paid to regular employee and as terms of reference did not contemplate this aspect and ii) even otherwise principle of "equal pay for equal work" was not applicable because respondent workman being daily wager could not claim the wages/salary payable to regular employees, more particularly when the mode of recruitment besides the educational qualifications made the distinguishing features between the two categories namely daily wager and regularly employed.
5. In this case, the respondent workman had claimed regularisation as Mason and pay scale of Mason on the ground that he has been working as Mason for a long period. In fact respondent had claimed that he was working w.e.f. 1.5.1983 although the petitioner denied the date from which the respondent workman has been working as Mason but even in this writ petition, it is mentioned that the initial appointment of respondent workman was as Beldar on casual basis and appointment of the respondent workman as Mason came w.e.f. July 1984 and a consolidated salary of Rs.1150/- was being paid to him. Thus even the petitioner admits that at least from July 1984, the respondent workman was working as Mason and was paid the consolidated salary. It is in the light of these facts that the respondent had claimed regularisation as Mason in proper pay scale from the date of his initial appointment. Therefore it can be said that respondent was claiming regularisation as well as payment in proper pay scale. If the Industrial Tribunal found that respondent workman was not entitled to regularisation accepting the contention of the petitioner that it was being done in phased manner, the Industrial Tribunal could definitely go into the question as to whether respondent workman was entitled to proper pay scale. Terms of reference also include 'To what relief is he entitled and what directions are necessary in this respect? Thus even if relief or regularisation was denied, as per terms of reference Industrial Tribunal could still go into the question of payment of pay scale to the respondent workman. The reference order cannot be interpreted narrowly in the manner suggested by the petitioner. Therefore, I am not inclined to accept the submission of the petitioner that Industrial Tribunal went beyond the scope of reference.
6. The next question which falls for determination is as to whether Industrial Tribunal was right in giving the award that respondent No.2 workman will be paid salary or wages equivalent to the minimum salry paid to regular employees w.e.f. 1.3.1996 with other allowances and benefits till he is regularised. As already pointed out above, it was argued by learned counsel for the petitioner that this direction was bad in law inasmuch as principle of "equal work for equal work" was not applicable as petitioner being daily wager could not claim parity with regular employees. Although the counsel for the petitioner did not cite any judgment in support of this proposition, I may observe that Supreme Court has recently given certain pronouncements holding that daily wager could not equate himself with regular workman for the purpose of his wages nor can he claim minimum of regular pay scale of regularly employed. (Reference State of Haryana Vs. Jasmer Singh , State of Haryana Vs. Surinder Kumar & Ors., ) There is also a judgment of Full Bench of Punjab & Haryana High Court to the same effect namely Ranbir Singh & anr. Vs. State of Haryana & Ors. reported in 1998 (4) SLR page 11. I have referred to these judgments and other judgments of the Apex Court in the case of MCD Vs. Presiding Officer, Industrial Tribunal-II & Ors. reported in 2000 II AD (DELHI) 442 and after detailed discussion on the subject in the said case, it was found that Courts came to the conclusion where there was a basis or an explanation for difference in not giving the salary to the daily rated worker then it could be denied. The thrust of these judgments is that daily rated workers are not required to possess the qualifications prescribed for regular workers, they do not have to fulfill the requirement of the age at the time of recruitment, they are not selected in the manner in which regular employees are selected, they are not subjected to same service conditions such as liability of a member of service to be transferred, disciplinary jurisdiction, not performing the same duties which are being performed by regular employees. In paras 17, 18 & 19 of the aforesaid judgment the discussion was summed up in the following manner:
"Para 17 :The question to be determined is as to whether there is a basis or an explanation for the different in not giving the same salary to the daily rated worker, which is given to regular employee. Answer to that is provided by the Apex Court itself in the case of State of Haryana Vs. Jasmer Singh (Supra) and State of Haryana Vs. Surinder Kumar & Ors.(supra) wherein it hs held that daily wagers cannot claim same pay-scale as regular employees as there are qualitative and other differences between the two types of employees.
Para 18 : Further a perusal of Full Bench judgment of Punjab & Haryana High Court in Ranbir Singh's case (supra) would show that Division Bench had held that daily wagers were entitled to the same salary as regularly appointed person on the principle of equal pay for equal work and the Division Bench had referred to almost same judgments as referred to by the Industrial Tribunal in the instant award. However, applying the ratio laid down in the case of Jasmer Singh (supra) the Full bench over-ruled the judgment of Division Bench and dismissed the petition of the petitioners i.e. the daily wagers who were claiming same pay as was given to regular employees.
Para 19: From the aforesaid discussion it is clear that the daily wagers are not entitled to the salary and the increments etc.payable to the employees working on regular basis. Therefore, the impugned award by which the Industrial Tribunal has held that these daily wage/casual/muster roll mates working in the Engineering Department of Municipal Corporation of Delhi are entitled to pay/allowances in regular pay scale from the date of their respective initial appointment as has been enjoyed by the regularly recruited mates in the said departments cannot be sustained and therefore direction contained in the award to the aforesaid effect is hereby set aside."
7. Thereafter, noticing the facts of that case, it was concluded that the workers were entitled to atleast salary at the minimum of pay scale. Discussion in this respect is contained in para 20 of the judgment which reads as under:
"Para 20: However, in view of certain peculiar facts in this case, I am not also inclined to agree to the submission of the petitioner that these mates should be paid only the minimum daily wage as prescribed by the Government by issuing a notification under the Minimum Wages Act. These mates have been working, undisputedly, for long years. Further for becoming regular employees they would not have to undergo any selection process but they would attain this status of a regular employee in due course as per the scheme of the petitioner as and when regular vacancies are there and turn of these mates for regularisation comes as per their seniority. Therefore, I am inclined to adopt middle path so that the position in law is also taken care of and at the same time these workers are also not denied their legitimate due. Both the purposes can be achieved by directing the petitioner to pay these daily wage/casual/muster roll mates working in Engineering Department of Municipal Corporation of Delhi, in respect of whom this dispute was espoused by the union, by paying them the salary at the minimum of the pay-scale +DA+ADA in the pay scale of regular employees without any increment and other allowances. This course adopted by me is not unprecedented. Such directions are given by Supreme Court earlier also, keeping in view the peculiarity of a given case. Further instead of paying the wages in the aforesaid manner from the date of their initial appointment, the same would be made w.e.f. 26.8.1981 when the reference was made to Industrial Tribunal. The award of the Industrial Tribunal is substituted by these directions. It is made clear that this direction is given in view of the peculiar facts of this case, without in any way diluting the principle that normally daily wagers are not to be allowed the same pay as given to regular employees."
8. Coming to the facts of the present case, it may be mentioned that Industrial Tribunal has specifically held that management has not been able to show that workman has not been performing the same duties as are being performed by regular employees. In this writ petition, it is alleged that the work being performed by the respondent workman is not the same as being performed by regular employee. However nowhere it is spelt out as to what are the duties of regular Mason and how they are different from the duties being performed by daily wager Mason like the respondent workman. In support reliance is placed on the written statement before the Tribunal. However a perusal of the written statement would show that no such averments are at all made except bald denial that the work of the respondent workman was not identical to those of regular employees. The allegation that the mode of recruitment and educational qualifications of daily wager and regularly employed Mason being different is stated for the first time in this writ petition and that too remains unsubstantiated. In view of these facts on record. One may conclude that the basis or an explanation for difference in not giving the same salary to daily rated workers which is given to regular employees is missing in the instant case. The petitioner has not been able to produce anything on record to substantiate this. Moreover, the respondent No.2 workman has not to undergo any test etc. for being regularised and as per the policy framed by MCD itself, he would be regularised in due course. Therefore, while maintaining the sanctity of the principle enumerated by the Apex Court in the aforesaid judgments in the peculiar facts of this case, I am not inclined to interfere with the award of the Labour Court in exercise of powers under Article 226 of the Constitution of India. Position may have been different had MCD produced the material of the kind stipulated by Supreme Court in the aforesaid judgments forming the basis for denying minimum of pay scale to the respondent No. 2 workman. There is one more factor which may be relevant in refusing to exercise discretion in this case. As per the petitioner's own admission, respondent has been working as Mason w.e.f. July 1984. The Tribunal in the main award has directed that he be paid salary or wages equivalent to minimum salary paid to regular employees that too w.e.f. 1.3.1996 that is from the date following the date on which award was passed which is dated 29.2.1996. This if an employee who, after working on ad hoc basis for 12 years and while waiting for regular appointment as per scheme and in the meantime performing same duties as regular Mason, has started getting the minimum of pay scale by impugned award, such award does not call for any interference.
This writ petition is without any merit and is dismissed. Rule stands discharged.
No order as to costs.