Delhi District Court
) vs 4.1982 With All Consequential Benefits ... on 9 October, 2018
1
IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
ID No. 376/16
Sh Nannu
s/o Sh Jafaruddin
as represented by Delhi Municipal Workers Union
4/7, Asaf Ali Road
New Delhi02.
Vs
M/s Municipal Corporation of Delhi,
Through its Commissioner, Town Hall,
Chandni Chowk, Delhi6.
Date of Institution: 13/08/2010
Date of Order:09/10/2018
O R D E R
1) Workman has raised the present dispute and on failure of
conciliation proceedings, GNCT of Delhi referred the dispute to this
Tribunal for adjudication in the following term of reference:
2
"Whether the demand of Sh Nannu son of Sh
Jafaruddin for grant of pay scale of Rs.260400
(prerevised) for the post of Carpenter w.e.f.
1.4.1982 with all consequential benefits is justified, and if so what directions are necessary in this respect?"
2) Statement of claim was filed on behalf of the workman. In the statement of claim, workman has stated that he was initially appointed as Carpenter on 03/4/1978 on muster roll and was being paid the wages for the skilled workman as a carpenter under the Minimum Wages Act. The workman was regularized on the post of carpenter w.e.f. 01/04/82. However, he was not given the grade pay scale of Rs.260350 (Rs.260400) for the skilled post of carpenter. The workman was granted the lower pay scale of Rs.210270/, which was meant for Asstt Carpenter instead of Rs.260400/ for the skilled workmen. It is also the claim of the workman that according to 2 nd pay commission the management passed a resolution accepting the grade of Rs.110155/ for the skilled workmen such as mason, carpenters, painter and fitter etc and after 3rd pay commission grade of Rs.110155 became Rs.260 350 and then (JCM) enhanced the grade to Rs.260400 in the 4 th pay commission. This grade was again revised to Rs.9501500 and the management also accepted this after passing the resolution. The post of carpenter falls in the category of skilled worker and the management of the MCD did not consider it appropriate to grant the sanctioned pay scale of skilled worker to the category of carpenter. It is the claim of the 3 workman that CPWD implemented the award of Board of Arbitration as per the direction of the Hon'ble High Court and issued the office memorandum dt 20/01/97 and dt 07/05/97 directing the Chief Engineer and Superintending Engineer to merge all the Asstt Categories with the corresponding main categories and the merged category is re classified as skilled workman. The workman had made several representation to the management to grant him pay scale of skilled worker ie Rs.260400/ from the date of his initial appointment and he may also be paid arrears of pay i.e. difference from the pay of Asstt Carpenter to Carpenter but the management has not taken any action.
3) Management/MCD has filed the written statement wherein they have taken the preliminary objections that the present dispute is not an Industrial Dispute, as the same has not been espoused by the union.
No demand notice has been served by the workman, hence the present claim is not maintainable and is liable to be dismissed. The statement of claim is not maintainable on the ground of latches, since workman was regularized long back on 01/04/1982. The claim of the claimant is not maintainable in view of the fact that there are two categories of the post of carpenter in the management ie Jr Carpenter/Carpenter and Senior Carpenter. The post of Jr Carpenter and Carpenter are the same. The pay scale of Jr Carpenter in 3 rd pay commission was Rs210270/, as such for Sr Carpenter, the pay scale in 3rd CPC was 260400. The daily wager Carpenter who were engaged on muster roll have been regularized in the entry post of Carpenter in the pay scale of Rs.210270/ (revised pay scale of Rs8001150) as per Recruitment Rules of the post. The claim of the workman for the pay scale of Rs.260400/ is not justified since this scale is of the post of Sr 4 Carpenter as per Recruitment Rules of the post. As per Recruitment Rules, Jr Carpenter/ Carpenter is promoted to the post of Sr Carpenter. The workman is claiming regularization in the higher promotional grade. There is no provision for grant of promotional post directly on regularization. The workman was regularized on the entry grade with the proper pay scale. The management vide its resolution no. 902 dt 05/03/2007 has merged both the categories of Carpenter and Sr Carpenter and placed the same in the pay scale of Rs.30504590 w.e.f. 1/1/96 and accordingly the pay scale of the claimant has also been revised from 01/01/96 and he has also been paid the arrears of difference of salary and nothing is due towards the claimant. With these submissions, it has been prayed by the management that statement of claim of the workman should be dismissed.
4) In replication, the workman has denied the allegations as made out in the Written Statement.
5) On 27/09/2011, following issues were framed by my Ld Predecessor:
1) Whether the present dispute is an industrial dispute as defined in section 2 (K) of Industrial Dispute Act?OPW
2) Whether any notice of demand was served upon the management , if so, its effect?OPW
3) Whether the statement of claim is not maintainable on ground of latches/belated stage?OPM
4) As per terms of reference.
6) After framing of issues, workman has led his evidence and in 5 support of his case, workman has appeared as WW1 and has tendered his affidavit in evidence as Ex WW1/A. Workman has also relied upon documents Ex. WW1/1 to Ex WW1/10.
7) From the side of management, no witness has been examined by the management despite several opportunities, hence Management Evidence had been closed by my Ld Predecessor vide order dt 25/09/2017.
8) Arguments were heard from Ld A.R for the parties.
9) I have considered the evidence led by the workman, the arguments advanced by Ld Authorized Representatives of the parties and gone through the file. After considering the same, my issue wise findings are as under:
ISSUE NO. 1 : " Whether the present dispute is an industrial dispute as defined in section 2 (K) of Industrial Dispute Act?OPW
10) Industrial dispute has been defined in Section 2 (k) of Industrial Dispute Act. For better understanding Section 2 (k) is reproduced as under:
"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 nonemployment or the terms of employment or with the condition of labour, of any person"
11) Thus from the definition of Industrial Dispute given in section 2 (k) 6 of the Industrial Dispute Act, it is clear that any dispute between the employer and employer or between the employer and workmen or workmen & workmen, which is connected with the employment or non employment or terms and conditions of the employment would be treated as an industrial dispute. It is also to be noted that section 2 (k) of Industrial Dispute deals with the dispute of 'workmen' and not 'workman' ie any dispute of an individual workman, unless the same is espoused or sponsored or supported by the union of workmen will not be treated as industrial dispute.
12) It has been held in various cases as early as in the year 1955 that unless the dispute of individual workman is supported by the union of the workmen or sponsored by the group of workmen the dispute will not be an industrial dispute u/s 2 (k) of the Industrial Dispute Act.
13) In case Workmen of M/s Dharampal Prem Chand (Saugandhi) vs M/s Dharampal Prem Chand (Saugandhi) (1965) 3 SCR 394, Hon'ble Supreme Court of India dealt with the issue of espousal of individual dispute of workman. In this case, Hon'ble Supreme Court had held that:
"The decisions of this court have consistently taken the view that in order that a dispute between a single employee and his employer should be validly referred under section 10 of the Act, it is necessary that it should have been taken up by the Union to which the employee belongs or by a number of employees. On this view, a dispute between an employer and a single 7 employee cannot, by itself, be treated as an industrial dispute, unless it is sponsored or espoused by the Union of the workmen or by a number of workmen."
14) After the decision of case Workmen of M/s Dharampal Prem Chand (Saugandhi) vs M/s Dharampal Prem Pal (Saugandhi) (mentioned above), Section 2 A of Industrial Dispute Act has been added in the Act, in 1965, which provides that any individual workman who has been discharged, dismissed, retrenched or otherwise terminated from the services by the employer, then all the dispute between that workman and his employer connected with or arising out of such discharge, dismissal or retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman or any "union of workmen" is party to the dispute. Thus, from the joint reading of section 2 (k) of Industrial Dispute Act and Section 2A of Industrial Dispute Act, it is clear that individual workman can raise the industrial dispute only in respect of the dispute arising out of his discharge, dismissal or retrenchment or termination. And all other causes of dispute is to be espoused by the union of the workmen.
15) In J.H. Jadhav vs Forbes Gokak Ltd, 2005 AIR (SC) 998, Hon'ble Supreme Court had observed that:
"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 8 workmen, which is connected with the employment or nonemployment 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 the Workmen of M/s Dharam Pal Prem Chand (Saugandhi), 1965 (3) SCR 394 wherein it was held that for the purpose of Section 2 (k) it must be shown that (1) the dispute is connected with 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 union of a minority of the workmen (3) the establishment had no union on its own and some of the employees had joined the Union of another 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 9 establishment concerned.
16) Later on in case of Management of M/s Hotel Samrat Vs Govt of NCT and orsWPC No 6682 and WP C 6247 of 2004 decided on January 4, 2007, Hon'ble High Court of Delhi has dealt with the issue of espousal of industrial dispute. In this case, Hon'ble Mr Justice S.N. Dhingra has elaborated the requirement of espousal of individual dispute of workman by the union. In this case Hon'ble High Court had observed:
"The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workman 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.
17) After observing that individual dispute of workman cannot be called as industrial dispute unless it is espoused by the executive body of the union, Hon'ble High Court held in case of Management of Messers Hotel Samrat (mentioned above) that the dispute was not properly espoused by the union and therefore held not to be an industrial dispute.
18) Coming to the facts in hand, reference has been made in respect 10 of individual workman. Present cause of the workman has not been supported by any union. At this stage, it is essential to note that in the case of Management of Messers Hotel Samrat (mentioned above), Hon'ble High Court of Delhi has very specifically mentioned that cause of individual should be supported by number of workmen and the fact whether the number of workmen had supported the cause of individual workman or not will depend upon case to case. In the present case, Sh Nannu, present workman has placed the document Ex.WW1/4 to be the espousal letter. But same can not be considered to be espousal given by union, as this document is only an excerpt of minutes of meeting of union. This document does not bear signatures of office bearer of union or its members. Hence it cannot be considered that the workman has proved the espousal of his cause by union. Even otherwise, it is required as per law that cause of workman is to be supported or sponsored by the group of workmen and by way of document Ex.PW1/4, it is not clear as to who has sponsored the cause of the workman , as the document only bears the signature of Sh J.P. Khare, General Secretary of the union for certifying it, but he has not been examined by the workman. Neither any resolution passed by the union or any minutes of meeting of union supporting the cause of workman Nannu had been placed or proved on record. Thus, in the absence of these documents, it cannot be said that cause of individual workman had been supported or sponsored by union, to make it an industrial dispute u/s 2 (K) of Industrial Dispute Act.
19) Therefore, I am of the opinion that dispute has not been properly espoused by any union. Hence issue no. 1 is decided in favour of the management and against the workman.11
ISSUE NO: 2 AND 3 & 4
2) Whether any notice of demand was served upon the management, if so, its effect?OPW
3) the statement of claim is not maintainable on ground of latches/belated stage?OPM ISSUE NO. 4) As per terms of reference.
20) It is important to mention herein that in the case of M/s Samrat Hotel ( mentioned above), Hon'ble High Court of Delhi has held that once the dispute referred to the Industrial Tribunal is held not to be an industrial dispute as per section 2 (k) of Industrial Dispute, Industrial Tribunal will have no jurisdiction to deal with the dispute. Hon'ble Mr Justice S.N. Dhingra of Hon'ble Delhi High Court in the case of M/s Samrat Hotel ( mentioned above) has observed that :
"The Tribunal has jurisdiction to adjudicate only an industrial dispute, The Tribunal came to conclusion that the cause of the workmen was not espoused. Once the Tribunal decided the issue of espousal against the workman, the Tribunal lost its jurisdiction to adjudicate the dispute since no industrial dispute existed. However, the Tribunal considered that it was a mere technicality. I consider that the entire 'jurisprudence of Industrial Dispute Act, is in respect of resolution of collective dispute of the workmen. It is not a mere technicality. An individual dispute unless covered under section 2A cannot be raised under Industrial Dispute Act.12
21) Therefore, I am of the opinion that since issue no. 1 has been decided against the workman to the effect that present dispute referred is not an industrial dispute u/s 2 (k) of Industrial Dispute Act, as the same has not been espoused by the union, thus, in view of the judgment of M/s Samrat Hotel ( mentioned above), this court has no jurisdiction to decide issue no. 2, 3 and 4 as the dispute referred to this Tribunal has already been held to be not an industrial dispute. Therefore, issue no. 2, 3 and 4 are also decided against the workman.
22) As all the issues have been decided against the claimant along with the fact that dispute referred to the Tribunal is not an industrial dispute as the same has not been espoused by the union, the reference is answered in negative. Award is passed accordingly.
23) Copy of this award be sent to GNCT of Delhi for publication.
24) File be consigned to record room. Announced in the open Court on (SHAIL JAIN)
this 9th October, 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally signed by SHAIL SHAIL JAIN JAIN Date:
2018.10.09 15:10:42 +0530 13 ID No.. 376/16 Sh Nannu Vs MCD 09.10.2018 Present: None for the parties.
Vide my separate order announced in open court, the reference is answered in negative. Award is passed accordingly.
Copy of the award be sent to GNCT of Delhi for publication, as per rules. File be consigned to record room.
(SHAIL JAIN ) POIT2/SWD/09.10.2018