Delhi District Court
2 vs J. K. Thakur on 4 April, 2007
1
IN THE COURT OF MS. REKHA RANI : POLC - XIII : KARKARDOOMA
COURTS : SHAHDARA : DELHI
ID NO. 271/2006
BETWEEN
MANAGEMENT OF
M/S MUNICIPAL CORPORATION OF DELHI
Through its Commissioner,
TOWN HALL, CHANDNI CHOWK,
DELHI - 110006.
AND
WORKMAN
SH. ROHTASH KUMAR, S/O SH. CHHITAR MAL,
R/O JHUGGI NO. 31/521, SATYAWATI COLONY,
ASHOK VIHAR, PHASE - III,
NEAR KOTI NO. C - 231,
DELHI - 52.
AWARD
1. The Secretary (Labour) has referred the dispute No. F.24(588)/2002
Lab./1132630 dated 21.06.2002 for adjudication under section 10(1)(c) of the
Industrial Disputes Act, 1947 (hereinafter called the Act) with the following terms of
reference :
"Whether Sh. Rohtash Kumar S/o Sh. Chhitar Mal has abandoned
the services at his own or his services have been terminated
illegally and/or unjustifiably by the management, and if so, to
what sum of money as monetary relief along with consequential
benefits in terms of existing laws/Govt. Notifications and to what
other relief is he entitled and what directions are necessary in this
respect?"
ID NO. 271/2006
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2. The claim filed by the workman reads as follows :
He joined the MCD (hereinafter referred to as Management)
w.e.f. 03.08.1992 as ' Beldar' at West Zone in the Horticulture Department. He was
being treated as a daily rated/casual/muster roll worker. He was paid wages as fixed
and revised from time to time under the Minimum Wages Act by Delhi
Administration. Many other workers, who were doing identical work as the
claimant, were treated as regular employees and being paid salary in the proper pay
scale with usual allowances admissible under the rules. He was denied benefits like
earned leave/gazetted leave/festival/restricted holidays and medical leave etc. He
worked continuously form 03.08.1992 to 31.12.1999 yet he was not regularized,
although the nature of duties he was performing were permanent in nature. He was
being discriminated against qua regular employees which amounts to unfair labour
th
practice as defined under section 2(ra) read with item no. 10 of the 5 Schedule and
read with Section 25 T punishable under section 25 U of the Act. It is also violative
of Article 14, 16 and 39 (d) of the Constitution of India as it amounts to sheer
exploitation of the labour. He had completed 240 days of continuous service in a
year and thereby acquired the status of a permanent employee. He was further
discriminated against as his juniors namely Nek Pal and Satish Kumar were
regularized in service. No seniority list was ever displayed by the management
ID NO. 271/2006
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which is violative of section 25 F, G & H of the Act read with Rules 76, 77 and 78
of the Industrial Disputes (Central) Rules, 1957. Management has terminated his
services on 31.12.1999 unlawfully and he is unemployed since then. He sent
demand notice to the management by registered post calling upon it to reinstate him
but no reply has been received by him from the management. He initiated
conciliation proceedings, which failed due to adamant attitude of the management.
He has prayed for his reinstatement with continuity of service and full back wages.
3. Management contested his claim vide its written statement. It is stated that
the claimant was engaged as a daily wager/muster roll employee w.e.f. 03.08.1992
and was paid minimum wages as fixed and revised from time to time by Delhi
Administration under the Minimum Wages Act. It is further stated that the nature of
his job was different from the nature of job of regular employees. So he was treated
differently and the same does not amount to hostile discrimination against him. It is
denied that he worked continuously without any breaks from 03.08.1992 to
14.08.1999. It is stated that he worked with breaks in service from time to time. It is
stated that he had not completed 240 days of service in a calender year. It is also
stated that he was engaged for specific work so there was no need to display
seniority list of such daily wagers and no unfair labour practice was ever followed
by the management. It is denied that any junior to the claimant has been
ID NO. 271/2006
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regularized. It is denied that the service of the claimant was terminated. It is stated
that he absented from duty wilfully and without any intimation to the management.
It is denied that any demand notice was served on the management. It is denied that
he has remained unemployed since 14.08.1999. It is stated that he is not entitled to
any relief in view of the latest judgment of the Hon'ble Apex Court holding that
daily wagers have no right to the post.
4. Following issues were framed by my Ld. Predecessor vide his order dated
29.05.2004 :
1. As per terms of reference.
2. Relief.
5. Workman examined himself as WW1 and thereafter closed his evidence.
Management examined Sh. Harender Singh, Assistant Director (Horticulture) as
MW1 and thereafter closed its evidence.
6. I have carefully perused the material available on the record and have
heard AR for both sides.
ID NO. 271/2006
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ISSUE NO. 1 & 2
7. Claimant has himself admitted that he was being treated as a daily
rated/casual/muster roll worker w.e.f. 03.08.1992 when he joined the service of the
management (Para 2 Page 2 of statement of claim). His grievance is that even after
having rendered continuous and uninterrupted service from 03.08.1992 to
31.12.1999 he was neither regularized nor treated at par with regular employees. It
is stated that he was discriminated against vis.a.vis regular employees. It is stated
that although he did identical work he was not given benefits like uniform, casual
leave, gazetted holidays, medical leave etc. It is alleged that denial of such
facilities amount to unfair labour practice and also violative of Article 14, 16 and
39 (d) of the Constitution of India. It is contended on behalf of the management that
the claimant accepted his employment on daily wages with open eyes. It is stated
that a daily rated casual employee cannot be treated at par with regular employees
as nature of work and service conditions of the two are different. It is further argued
that a daily rated muster roll employee cannot claim to be regularized after serving
for some period as he does not hold any post.
8. A similar situation arose before the Hon'ble Apex Court in Indian Drugs &
Pharmaceuticals Ltd. JT 2006 (10) SC 216 while dealing with the case of 10 casual
daily rated workers who were appointed on compassionate basis and were
ID NO. 271/2006
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continued in employment for a long time. Labour Court gave an award in their
favour regularizing their services. In writ petition Hon'ble High Court held that they
were not entitled to regularization but they were held entitled to be continued in
service. Hon'ble Apex Court depricated such employment as "back door entry" or
"litigious employment". It was observed that a person employed on daily wages
accepts such employment with open eyes knowing fully well the nature of
employment and the consequences flowing from it. So, even if, he continued in
employment for a long time, it does not give him right to ask for regularization on
the basis of his long employment. It was held that he cannot claim to be treated at
par with regular employees.
So the claimant cannot have the grievance that he was not treated at par
with regular employees and that the same amounts to unfair labour practice or is
violative of Article 14, 16 & 39 (d) of the Constitution of India. The Hon'ble Apex
Court observed that unless and until his employment was made by a due process of
law he is not entitled to be made permanent or regularized on the basis of his long
continuous service. Although, in this case it is disputed that the claimant rendered
240 days of service in a calender year the same, even if not disputed, does not
entitle daily rated employee to be treated at par with regular employees.
In cross examination of MW1 AR for the workman suggested to him that
management used to give breaks in service of the workman so that the workman
ID NO. 271/2006
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could not complete 240 days in a year to deny him status of a permanent workman.
As discussed earlier completion of 240 days of service in a calender year would not
automatically grant the benefit of regularization to the claimant. Hon'ble Apex
Court has gone to the extent of observing that merely because the workman has
rendered long continuous service he would not be entitled to be regularized and
made permanent unless his appointment was followed by observing due process of
law.
9. It is also observed In Indian Drugs & Pharmaceuticals Ltd (Supra) that
there is no fundamental right of those who have been employed on daily wages or
temporarily or on contractual basis to be regularized because they are not holders of
any post.
10. The workman has alleged that the management terminated his services on
31.12.1999. Management has denied the same. Onus is on the workman to prove
the same. In his cross examination he admitted it to be correct that management did
not give him any termination order. Management has pleaded that the workman has
abandoned his employment. Although, there is no cogent evidence to corroborate
the plea of abandonment, the consequences remain the same as the workman
cannot claim reinstatement or to be absorbed in service on his disengagement for
ID NO. 271/2006
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whatever reasons be it abandonment or termination.
11. In National Fertilizers Ltd. & Ors. v. Somvir Singh JT 2006 (11) SC 279
it was true that workers had been working for a long time. It was also true that they
had not been paid wages at regular scale of pay. Hon'ble Apex Court held that the
same did not amount to unfair labour practice because they did not hold any post.
So they were not entitled to be paid salary on a regular scale of pay. It was also held
that they were not entitled to be regularized merely on the strength of long
continuous service.
12. In Delhi State Industrial Development Corporation Ltd. vs. J. K. Thakur
2001 LLR 830 it was held that a daily wager cannot claim regularisation as a matter
of right because of having remained in engagement for few years unless any
rules/circular/policy of the employer provide for such deeming regularization on
completion of a specific period of engagement. It was further observed that it is
elementary that the right of enquiry and hearing arises on holding a post which is
fairly well settled by several judgments of Supreme Court right from Purushotam
Lal Dhingra's case (1958 SLR 828). Therefore it is not that this right is available in
all events and circumstances and to everyone irrespective of his nature of
employment and the rules and procedure regulating it. Where an employee is not
ID NO. 271/2006
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holding a post, he was liable to be sent out on terms of his appointment/contract.
13. In M/s The Hindu, Ins. Building vs. The Presiding Officer, Industrial
Tribunal No. II, Delhi & Anr., 2002 LLR 151 the worker was engaged as Driver on
daily wages to drive the car for special correspondent. Management alleged that the
driver abandoned the job. Driver alleged that there was unlawful termination of his service. Dispute was referred for adjudication. Tribunal directed reinstatement of the workman with full back wages. Management challenged the award. Our own Hon'ble High Court referred to the decision of the Supreme Court in the case of Himanshu Kumar Vidyarthi v. State of Bihar, reported in (1997) 4 SCC 391 in which it was held that when temporary employees work on daily wages and they are disengaged from service, the same cannot be construed as retrenchment under the Industrial Disputes Act and observed that concept of retrenchment cannot be stretched to such an extent as to cover those employees who work on daily wages. It was also held that the daily wage employees have no right to the post and, therefore, their disengagement cannot be termed as retrenchment and such disengagement cannot be held to be arbitrary also. Reference was also made to the decision of the Hon'ble Supreme Court in the case of Executive Engineer (State of Karnataka) v. K. Somasetty, reported in (1997) 5 SCC 434.
ID NO. 271/2006 10
14. In Manager (Now Regional Director), RBI and Gopinath Sharma and another, 2006 (110) FLR 803 It was held as follows :
22. In our view, respondent No. 1 was not appointed to any regular post but was only engaged on the basis of the need of the work on day to day basis and he has no right to the post and that his disengagement cannot be treated as arbitrary."
15. There is nothing on record to show that juniors to the claimant who were appointed on daily wages have been regularized and thus claimant was discriminated against.
16. In view of the same the reference is answered against the workman and in favour of the management. As such it is held that the claimant is not entitled to any relief. Appropriate government be informed. File be consigned to record room.
Announced in the open court PRESIDING OFFICER
today. LABOUR COURT NO. XIII
DATE : 04.04.2007 KARKARDOOMA COURTS
DELHI
ID NO. 271/2006