Delhi District Court
Sh. Rajja Ram vs Sdmc on 22 October, 2024
(OLD CASE)
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
Ref: F.24(81)/ND/201/11/Lab./964-968
Dated: 25.06.2013
POIT NO.: 632/2016
Workman
Sh. Raja Ram S/o Sh. Inder Singh
R/o H. No. 177, Village Samay Pur,
PO & Tehsil Balabhgarh,
Distt. Faridabad, Haryana
Represented by Delhi Municipal Workers Union,
4/7, Asaf Ali Road,
New Delhi - 110002.
Vs.
The Management of
M/s Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi-110092.
Earlier known as
South Delhi Municipal Corporation,
Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg,
New Delhi-110002.
Date of Institution : 12.07.2013
Date of Arguments : 22.10.2024
Date of Award : 22.10.2024
AWARD
POIT No. 632/2016 Page 1 of 17
1.The Labour Department, Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Tribunal with following terms of the reference:-
"Whether the demand of Shri Raja Ram S/o Sh. Inder Singh, for grant of pay scale of Rs. 260-400 (pre-revised) for the post of Mason w.e.f. 01.04.1979 with all consequential benefits is justified ; and if so, what directions are necessary in this respect?"
2. Statement of claim has been filed on behalf of the workman, wherein it has been stated that the workman Raja Ram S/o Sh. Inder Singh, has been regularised from Beldar to Mason as skilled workman w.e.f. 01.04.1979 and he was promoted for the post of Mason w.e.f. 01.04.1979and there was no post of junior Mason. He has been superannuated w.e.f. 30.04.2009. It has been further stated that the work of Mason is classified as skilled workman under the Central Pay Commission. The Board of Arbitration (JCM) revised the pay scale of skilled workers of the aforesaid categories including Mason from Rs. 260-350 to Rs. 260-400 (pre-revised) with effect from 01.01.1973 notionally. It has been further stated that the actual benefits in terms of arrears of pay etc. accrued to them only w.e.f. 01.03.1973 and this benefit may be also extended to Municipal employees who have entered in Municipal service after 01.03.1973 to the categories as skilled workers including Mason. It has been further stated that the management wrongly and arbitrarily classified POIT No. 632/2016 Page 2 of 17 the concerned workman as unskilled workman for the work of Mason and granted him the lower pay scale of Rs. 810- 1150 w.e.f. 01.04.1979 in the semi-skilled category and further revised him in the pay scale of Rs. 2650-4000 w.e.f. 01.01.1996 (instead of Rs. 3050-4590) (pre-revised Rs. 260-400) and the workman has not been given arrears of salary thereof. It has been further argued that the Delhi Municipal Workers Union raised the dispute in favour of workman for grant of skilled pay scale which could not be settled as Management did not accept the contention of the workman. It is further submitted that workman approached the union, who took up the matter of the workman with the Commissioner MCD, Delhi vide legal notice dated 28.07.2011, however, no response of the management was received and thereafter, the Union took up the matter of the workman and passed resolution in the meeting held on 12.03.2011.
3. It is, therefore, prayed by the workman to grant him pay scale of Rs. 260-400 (pre-revised) from time to time w.e.f. 01.04.1979, his regularization date and also to pay all the arrears of salary due to the workman.
4. Written Statement was filed on behalf of the management wherein it has taken objections that the present dispute is not an Industrial Dispute as provided u/s 2(k) of the I.D. Act, as it is not espoused by massive majority of same category of workers or by any trade union; the claim does not come within the purview of definition of workman as provided u/s 2 (s) of the Industrial POIT No. 632/2016 Page 3 of 17 Disputes Act; no demand notice has been served upon the management prior to raising the present dispute; this dispute is not maintainable on the ground of latches/ belated stage as the workman was regularised to the post of Mason on 22.01.1980 in the pay scale of Rs. 210-270/- i.e. after 30 years; that the claimant was given the pay scale as per his entitlement and once he has accepted the said pay scale, now at the fag end of his career and after his retirement cannot seek change in his service conditions; that the claim of the workman for the pay scale of Rs. 260-400 (revised pay scale of Rs.950-1500) is not justified on the main ground that there were two categories of the post of mason in the management i.e. Mason and Senior Mason (which is promotional post); Rest of the contents of the Statement of claim have been denied by the management.
5. Rejoinder was filed by workman to the written statement of management wherein contents of claim were reiterated and reaffirmed and those of written statement were denied.
6. After completion of pleadings, the following issues were framed by the Ld. Predecessor on 25.07.2014.
"1. Whether claimant is 'workman' as defined under Section 2 (s) of Industrial Disputes Activate?OPW
2. Whether present dispute is an Industrial Disputes 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 POIT No. 632/2016 Page 4 of 17
4. Whether statement of claim is not maintainable on ground of latches/belated stage ? OPM
5. As per terms of reference."
5. To prove his case, the workman examined himself as WW-1 and filed his affidavit Ex. WW1/A and relied upon document Ex. WW1/1. This witness was duly cross-examined by ld. AR for the management. Workman also examined Sh. Ashok Kumar Tiwari, Office Assistant, Delhi Municipal Workers Union as WW2 and relied upon documents Ex. WW2/1 to Ex. WW2/3 and thereafter, matter was fixed for ME.
6. On the other hand, management examined one Sh. Syed Mohsin Raza Zaidi, Asst. Engineer, South Zone, MCD as MW-1, who filed his affidavit as Ex. MW1/1 and relied upon documents Ex. MW1/A and Ex. MW1/C. He was duly cross-examined by ld. AR for the workman and thereafter, matter was fixed for final arguments.
7. Final arguments have been heard at length as advanced by counsels for both the parties.
8. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence.
9. My issue wise findings are:-
Issue no. 1: Whether claimant is 'workman' as defined under Section 2(s) of Industrial Disputes Activate?OPW POIT No. 632/2016 Page 5 of 17
10. The management has taken this objection in their written statement stating that the claimant has admittedly been retired from the services, therefore, the claimant does not come within the purview of definition of workman as provided under section 2 (s) of the Industrial Disputes Act, 1947.
11. It is a matter of record that the present dispute is filed under Industrial Disputes Act for seeking grant of pay scale of Rs. 260- 400/- (pre-revised) for the post of Mason w.e.f. 01.04.1979 with all consequential benefits. The Industrial Dispute Act has its own definition of workman which is mentioned in Section 2(s) of the I.D. Act. Therefore, the question whether or not the claimant is workman under the Industrial Disputes Act has to be seen in accordance with Section 2(s) of I.D. Act, and the definition of workman given in the Employees Compensation Act, will not be of any help to the management.
12. Section 2(s) of the I.D. Act defines the workman as follows:
"[(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--POIT No. 632/2016 Page 6 of 17
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]"
13. As per the definition of workman, workers performing the manual and skilled nature of work will fall under the category of workmen. However, it is to be seen if the dispute relates to the period when he/she was in employment or not. It is the admitted case of both the parties that the workman concerned was initially appointed as a Mason on Muster Roll and thereafter his services were regularised on the post of Mason on 22.01.1980 w.e.f. 01.04.1979 and granted payscale of Rs. 210-270 instead of payscale of Rs. 260-400 (pre-revised) w.e.f. 01.04.1979.
14. Apparently, the dispute with regard to aforesaid issue pertains/relates to the period when the workman was actually employed with the management. Hence, the objection taken by the management that the claimant does not come within the purview of definition of 'workman' as provided under section 2 (s) of the Industrial Disputes Act, 1947 (as he has already retired), does not hold any water specifically in view of the fact that the present POIT No. 632/2016 Page 7 of 17 dispute is related to the service of workman, when he was actually employed with the management. Accordingly, this issue is decided 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 the Industrial Disputes Act? OPW
15. For deciding this issue, the AR for the workman has drawn attention to the definition of "industrial dispute" mentioned in Section 2(k) of the I.D. Act, 1947. The relevant portion is reproduced below:
"2(k) industrial disputes - 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"
16. The bare perusal of the definition clarifies the present dispute between the employer i.e. management and the employee i.e. workman regarding grant of pay scale of Rs. 260-400 (pre-revised) w.e.f. 01.04.1979 revised from time to time alongwith all consequential benefits squarely falls within the definition of industrial disputes as the same is connected with the employment, or non-employment or the terms of employment or with the conditions of labour. Thus, Issue no. 2 is decided in favour of the workman and against the management. Issue disposed of accordingly.
POIT No. 632/2016 Page 8 of 17Issue No. 3: Whether present dispute has been properly espoused by the Union?
OPW
12. Ld. AR for the workman in order to prove the proper espousal, has examined WW-2 namely Sh. Ashok Kumar Tiwari, Office Assistant of the Delhi Municipal Workers Union, who placed reliance upon Ex. WW1/15 i.e. the representation of the Delhi Municipal Workers Union dated 28.07.2011, sent to the management with regard to the claim of the workman. He also placed reliance upon the Ex. WW1/16 i.e. espousal dated 12.03.2011, whereby all the members of the Union unanimously espoused the claim of the workman Raja Ram. He also placed reliance upon the judgement of the Hon'ble Delhi High Court in Omji Srivastava and Ors. vs. P.W.D./C.P.W.D., 2023/DHC/002013 decided on 17.03.2023, wherein the Hon'ble Delhi High Court after relying upon the case of Hon'ble Supreme Court in J.H. Jadhav v. M/s Forbes Gokak Ltd., Civil Appeal No. 1089 of 2005, decided on 11.02.2005 has observed that there is no strict format required for a union espousing the cause of the workman, and this can vary and may also include resolutions or other forms of evidence depending on the case to case. Even in the absence of formal resolution, the court relied upon various documents such as statement of claim filed before the conciliation officer, legal demand notice, authorisation letters etc. among other documents and held that the cause of the workman had been properly espoused by the union. Moreover, the Hon'ble Delhi High Court in the case of Pratap Singh & Anr. vs. POIT No. 632/2016 Page 9 of 17 Municipal Corporation of Delhi, WP(C) No. 676/2013 vide order dated 04.02.2013 reversed the findings of the Ld. Labour Court on the issue of espousal by categorizing it as hypertechnical and held that the cause of the workman is properly espoused by the union.
"Even otherwise, in the present case, the statement of claim (Ex. WW1/3) filed before the conciliation officer by the Delhi Labour Union. The resolution dated 13.10.2020 i.e. Ex. WW1/4, wherein the union decided to raise an industrial dispute in favour of the workman have also been placed on record. Even the legal demand notice Ex. WW1/1 was sent on the letterhead of the union. In view of this discussion above, the workman has placed sufficient material on record to show his case has been properly espoused by the union."
13. In view of the above mentioned facts and precedents of law, contention of the management is a mere technical one, and does not stand in light of the evidence placed by the workman on record. Therefore, I hold that the dispute is properly espoused by the Union of the workman. Accordingly, Issue no. 3 is decided in favour of the workman and against the management. Issue disposed of accordingly.
Issue No. 4: Whether statement of claim is not maintainable on ground of latches/belated stage? OPM
14. The onus to prove this issue was on the management. The management has contended in its written statement that the claim of the claimant is not maintainable on account of delay and laches, as the workman was regularised on the post of Mason long back w.e.f.
POIT No. 632/2016 Page 10 of 1701.04.1979 on the semi skilled post of Mason and was granted payscale of Rs. 210-270. Ld. AR for the workman has argued that firstly, the limitation act is not applicable to Industrial Adjudication. Secondly, there is no delay as alleged by the management, because the workman was working on the post of Mason. which was a semi- skilled post and granted him pay scale of Rs. 210-270 instead of pay scale of Rs. 260-400, which amounts to continuous wrong and giving rise to fresh cause of action every day. Even otherwise, the workman kept approaching the management time and again for his grievances, however the management did not pay any heed to it. Ld. AR for the workman argued that the present claim is not hit by delay and latches because limitation act, as such does not apply to the the proceedings under Industrial Disputes Act.
15. Ld. AR for the workman placed reliance upon case law titled as Kuldeep Singh vs. G.M., Instrument Design Development and Facilities Centre and Anr., AIR 2011 SC 455, wherein the Hon'ble Supreme Court has observed the following in Para 21 of the judgment:
"In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time" refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not POIT No. 632/2016 Page 11 of 17 prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping POIT No. 632/2016 Page 12 of 17 that one day his grievance would be considered by the Management or by the State Government.
19. Further, the Hon'ble Supreme Court in the case of Ajaib Singh vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Anr., AIR 1999 SC 1351, observed the following in Para 11 of the judgment:
"11. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman...."
20. In view of the judgments above, even though the Limitation Act does not apply to the proceedings under Industrial Disputes Act, yet the dispute has to be raised within a reasonable time and there should not be any inordinate delay. In the present case, the management classified the concerned workman as unskilled workman for the work of Mason and granted him the lower pay scale of Rs. 260-400 (pre-revised) w.e.f. 01.04.1979. On the other hand, nothing has been placed on record by the management to show that there existed two category of 'Mason' i.e. Junior Mason POIT No. 632/2016 Page 13 of 17 and Sr. Mason. It is notable that no plea pertaining to delay was taken by the management when the conciliation proceedings were ongoing before the conciliation officer. Further, although the management has taken the contention regarding the alleged delay/latches by the workman. However, they have not shown any prejudice suffered due to this purported delay.
21. In view of the discussion above, this tribunal holds that the present dispute is very well maintainable and the same can not be termed as delay in raising the present dispute. Hence, Issue no. 4 is decided in favour of the workman and against the management. Issue disposed of accordingly. Ganesh Issue No. 5 : As per terms of reference.
"Whether the demand of Shri Raja Ram S/o Sh. Inder Singh, for gant of pay scale of Rs. 260-400 (pre-revised) for the post of Mason w.e.f. 01.04.1979 with all consequential benefits is justified ; and if so, what directions are necessary in this respect?"
22. Ld. AR for the management argued that the claim of the workman for the grant of pay scale of Rs. 260-400 (revised to Rs.950-1500) is not justified on the ground that there were two categories of the post of mason in the management i.e. Junior Mason and Senior Mason is the promotional post, which carries the pay scale of Rs. 260-400/-. The post of Mason being isolated post, the workman was granted immediate next higher pay scale.
POIT No. 632/2016 Page 14 of 1723. It is admitted position of both the parties that the workman was initially appointed as Mason on Muster roll and thereafter, he was regularised to the post of Mason w.e.f 01.04.1979. The only dispute is with regard to the pay scale as the management granted workman pay scale of Rs. 210-270, whereas the claim of the workman is that the post of Mason carried pay scale of Rs. 260- 400/.
24. It has been argued by the parties that the management had filed a W.P. (C.) No. 11378/2009 titled as Municipal Corporation of Delhi v. Sh. Abid Ali (Carpenter), whereby it challenged an Industrial Award dated 16.10.2006, passed by the Industrial Tribunal holding the workman to be entitled to the pay scale of Rs. 260-400/- as revised from time to time from the date of his regularisation and the Hon'ble Delhi High Court vide order/judgment dated 03.09.2009, dismissed the writ petition of the management/MCD and upheld the award dated 16.10.2006. Thereafter, the management filed LPA against the order dated 03.09.2009, passed by the Single Bench of Hon'ble Delhi High Court among other LPAs before the Division Bench of Hon'ble Delhi High Court. The Division Bench of Hon'ble High Court of Delhi in a common judgment i.e. LPA No. 126/2010 titled "MCD v. Abid Ali & Ors". Even in other similarly situated matters, this fact has come in the knowledge as well as on the record of this Tribunal.
POIT No. 632/2016 Page 15 of 1725. It has been argued by the ld. AR for the management as well as ld. AR for the workman that the management has filed a W.P. (C.) No. 11378/2009 titled as Municipal Corporation of Delhi v. Sh. Abid Ali (Carpenter), whereby it challenged an Industrial Award dated 16.10.2006, passed by the Industrial Tribunal holding the workman to be entitled to the pay scale of Rs. 260-400 as revised from time to time from the date of his regularisation and the Hon'ble Delhi High Court vide order/judgment dated 03.09.2009, dismissed the writ petition of the management/MCD and upheld the award dated 16.10.2006. Thereafter, the management filed LPA against the order dated 03.09.2009, passed by the Single Bench of Hon'ble Delhi High Court among other LPAs before the Division Bench of Hon'ble Delhi High Court.
26. The Division Bench disposed of all the appeals and writ petitions alongwith pending applications thereby directing "the MCD to treat the workmen/Employees as having been regularised in the pay scale of Rs. 260-400/- with effect from 1.4.1980. In other words, they will be entitled to arrears of pay and other benefits for the period 1.4.1980 to 1.1.1996 if they were recruited by then. As we have already noted, the MCD has already granted all the benefits to the Workmen/Employees with effect from 1.1.1996."
27. It has been further argued that thereafter, management further approached Hon'ble Supreme Court of India and filed Special Leave Petitions. However Hon'ble Supreme Court of India vide order dated 13.08.2012, dismissed all the special leave petitions POIT No. 632/2016 Page 16 of 17 filed by the management thereby observing that no ground is made out for their interference with the impugned judgment.
28. It is also admitted position of both the parties that the decision/observation of Hon'ble Delhi High Court in the LPA No. 126/2010 titled "MCD v. Abid Ali & Ors" remained upheld/intact. Thus, in view of the above discussion and dictum of superior courts, the present industrial dispute also falls in the same category. Hence, the concerned workman namely Sh. Raja Ram S/o Sh. Inder Singh, is entitled to the pay scale of Rs. Rs. 260-400 (pre-revised) for the post of Mason w.e.f. 01.04.1979 revised from time to time alongwith all consequential benefits either monetary or otherwise with an interest @ 8 % per annum from the date of accrual i.e. 25.06.2013 to till the final payment is made.
29. The award is passed accordingly. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room. Digitally signed by Mohinder Mohinder Virat Virat Date:
2024.10.22 16:27:44 Announced in open Tribunal +0530 on this 22.10.2024 (Mohinder Virat) POIT-I/RADC, New Delhi.POIT No. 632/2016 Page 17 of 17