Delhi District Court
Sh. Ram Niwas vs Delhi Jal Board on 2 January, 2024
IN THE COURT OF SH. AJAY GOEL: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE
AVENUE DISTRICT COURTS, NEW DELHI.
Ref. No.: F.24(50)/12/Lab./CD/453
Dated : 10.07.2012
NEW POIT No. 664/16
OLD POIT No 90/12
Workman
Sh. Ram Niwas
S/o Sh. Sodan Singh
as represented by
Municipal Employees Union
Aggarwal Bhawan, G. T. Road
Tis Hazari, Delhi-110 054
Vs.
The Management of
M/s Delhi Jal Board
Varunalya Building
Phase-II, Karol Bagh
New Delhi-110 005
Date of institution : 01.09.2012
Date of presentation : 15.04.2023
before this court
Date of reserving award : 18.12.2023
Date of award : 02.01.2024
AWAR D
1. Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
POIT No. 664/16 Page No. 1 of 30
parties named above for adjudication to this Tribunal with
following terms of the reference:-
"Whether the demand for regularization
of Sh. Ram Niwas S/o Sh. Sodan Singh,
on the post of Asst. Pump Driver in the
proper pay scale and allowances from
the date of his initial appointment is
legal and justified and if so; to what
directions are necessary in this respect?"
2. Statement of claim has been filed by the
claimant/workman, wherein it is claimed:
(a) Workman joined the employment of management in the
year January, 2000 as an Asst. Pump Driver. He was
treated as a muster roll employee and was paid wages as
fixed and revised from time to time under the Minimum
Wages Act while his other counter parts were getting
their salary in proper pay scale and allowances;
(b) Thereafter, w.e.f. 28.09.2002, workman was appointed as
a Beldar on muster roll basis, though he was discharging
the duties of an Asst. Pump Driver;
(c) Vide order dated 19.02.2009, workman was regularized
as Beldar, w.e.f. 01.04.2007 though he was supposed to
be regularized as an Asst. Pump Driver;
(d) The post of Beldar is lower than the post of Asst. Pump
Driver and even after his regularization on the post of
Beldar, he was discharging the duties of an Asst. Pump
POIT No. 664/16 Page No. 2 of 30
Driver;
(e) The job of Asst. Pump Driver against which the
workman was working since his initial date of joining
was of a permanent and regular nature of job;
(f) Workman has acquired the status of permanent Asst.
Pump Driver from the initial date of his joining in the
employment after completing 240 days of continuous
employment;
(g) Since his initial date of joining, workman was
continuously performing the duties of an Asst. Pump
Driver, which carries a higher pay scale. However, the
management has not paid him the salary of an Asst.
Pump Driver from the period of his initial date of joining
which is against the principle of "Equal Pay for Equal
Work";
(h) Workman is entitled to the pay of the post of Asst. Pump
Driver but the same was denied to him whereas his
counterparts who were working as Asst. Pump Driver
were paid their salary for the said post and by denying
the workman of those facilities for the period since his
initial date of joining is unfair labour practice;
(i) The action of management is discriminatory in nature as
counter-parts of the workman namely, Sh. Suresh Chand,
S/o Sh. Chander Bhan Singh was regularized as A.P.D.
w.e.f. 01.10.2004 and other co-worker namely Ravi Dutt
POIT No. 664/16 Page No. 3 of 30
Son of Sh. Inder Raj was regularized as A.P.D. w.e.f.
01.02.2004 while the workman was ignored in this
regard. Even otherwise, workman was well qualified and
also having Diploma in Mechanical Engineering;
(j) A demand notice was served upon the management by
Regd.A/D post vide communication dated 07.12.2010,
which was duly received in their office but no reply was
received and it was presumed that the demand has been
rejected;
(k) 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 on the post of Asst. Pump Driver with
retrospective effect from the initial date of joining in the
employment in proper pay scale and allowances and also workman
is entitled to be paid the entire difference of salary on the principle
of "Equal Pay for Equal Work" and all arrears thereof. The cost of
litigation is also prayed for.
3. Written statement filed by the management, wherein
objections have been taken:
(a) Workman was not having the technical qualification
to the post of A.P.D. He possesses the qualification of
Mechanical Engineering whereas as per the RRs of the
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post of APD, one should have possessed the Wireman
Certificate from the ITI;
(b) Workman has given citation of co-workers, who
were regularized as APD. After going through the
records, it was noticed that both co-workers having the
requisite technical qualification to the post of APD;
(c) At the time of acceptance of the offer to the post of
Beldar, workman did not refuse to accept the post of
Beldar;
(d) Workman cannot equate himself with the regular
workman on the analogy of their regular pay scale;
(e) Workman was regularized as Beldar on 19.02.2009
w.e.f. 01.04.2007 under the phased programme of the
regularisation of M/roll Beldar; since the application was
not having the requisite technical qualification i.e. ITI
Wireman certificate and8 th passed, the workman was
regularised as Beldar.
(f) Workman was engaged as APD without undergoing
any selection procedure. Due to not having the requisite
qualification to the post of APD the workman was re-
designated as Beldar on M/roll;
(g) Workman was engaged on the post of APD on M/roll
basis without undergoing any selection procedure and
this was a temporary stop gap arrangement of work. So it
cannot be termed as permanent and regular nature of
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work;
(h) Management of DJB has framed the policy of
regularisation of muster roll/ part time workers;
(i) Workman acquired the status of a permanent
employee from his initial date of joining in the
employment. There is a phased programme of the
regularisation of M/roll worker framed in DJB in which
there is no policy of 90 days of continuous employment
is applicable;
(j) Workman was continuously performing the duties of
the post of APD. As the workman was not possessed the
technical qualification to the post of APD, he was re-
designated as Beldar on 28.09.2002;
(k) That the contention of the workman are wrong that
Sh. Suresh Chand S/o Sh. Chander Bhan Singh
regularized as APD w.e.f. 01.10.2004 as he is having the
Trade Certificate of Electrician and fulfills the technical
qualification of this post as per RRs. Same is the case
with Sh. Ravi Dutt S/o Sh. Inder Raj who was also
regularized as APD w.e.f. 01.02.2004 and possessed the
technical qualification.
(l) That the workman does not possess fulfill the
technical qualification of this post as he does not have
the wireman/electrician certificate issued from the ITI
which is an essential technical qualification to the post
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of APD. The workman possesses only the Diploma in
Mechanical Engineering which is not the required
qualification to the post of APD as per the RRs of DJB.
4. Rest of the contentions of the statement of claim more
or less are denied.
5. On the basis of pleadings of the parties, following issues
were framed by Ld. Predecessor vide order dated 08.03.2013:-
"1. Whether statement of claim is not
maintainable on ground of latches/
belated stage? OPM
2. 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. WW1/17.
Thereafter, ld. AR for the management had cross examined WW1.
7. Workman in order to prove espousal has examined Sh.
Surender Bhardwaj, General Secretary of the Union as WW2. He
tendered his evidence by way of affidavit, Ex.WW2/A. Thereafter,
WW-2 was also cross-examined by ld. AR for the management.
8. To prove its case, management examined one Sh. Amit
Kumar Jain, Assistant Commissioner (G-1) of the management as
MW1. He tendered his evidence by way of affidavit Ex.MW1/A in
which he has affirmed the contents of the written statement.
Thereafter, ld. AR for the workman cross-examined MW1.
9. Thereafter, vide order dated 14.02.2019, an application
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of the management for leading additional evidence was allowed and
management examined Sh. Shekhar Kumar, Assistant
Commissioner (G)-1 of the management as MW2. He tendered his
evidence by way of affidavit Ex.MW2/A in which he has affirmed
that he was the authorized officer of the management and as such
well conversant with the facts of the case. He has also relied upon
documents Ex.MW2/1 (colly.) to Ex.MW2/3 and Mark A and Mark
B. MW-2 was also duly cross-examined by ld. AR for the workman.
10. Final arguments have been heard at length as advanced
by Sh. Rajiv Aggarwal, Ld. AR for workman and Sh. S. C. Joshi,
Ld. AR for management.
11. I have gone through the entire records of the case
including pleadings of the parties, evidence led and documents
proved during evidence. I have also gone through the written
arguments filed on behalf of both the parties.
12. Ld. AR for the workman has also relied upon following
judgments:
(a) Ram Singh Vs. CPWD, 2015 SCC OnLine Del 12105;
(b)Bhagwati Prasad Vs. Delhi State Mineral
Development Corporation, (1990) 1 SCC 361;
(c) Project Director, Department of Rural Development
Vs. its workmen through D.P.V.V.I.E. UN, W.P.(C)
17555/2005;
(d)Project Director vs. its workmen through
D.P.V.V.I.UNSLP (Civil) Diary No (s.) 34164/2019;
(e) Amrish Kumar Vs. IIMC, 2020 OnLine Del 1915.
13. Ld. AR for the management has also relied upon
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following judgments:
(a) Surendra Kumar & Ors. Vs. Greater Noida Industrial
Development Authority & Ors., VI (2015) SLT 536
(SC);
(b)Secretary, State of Karnataka and Ors. Vs. Umadevi &
Ors., III (2006) SLT 539 (SC).
14. My issue wise findings are as follows:-
Issue no.1:
"1. Whether statement of claim is not
maintainable on ground of latches/
belated stage? OPM
15. The management has contended that the present
statement of claim has been filed at highlight belated stage after the
expiry of prescribed time limited as mentioned in Section 10(4A) by
way of and section 10 (4A) was added by Delhi State Amendment
w.e.f. 22.08.2003, which is as under:
"(4A) Notwithstanding anything contained in Section
9C and in this section, in the case of a dispute falling
within the scope of section 2A, the individual workman
concerned may, within twelve months from the date of
communication to him of the order of discharge,
dismissal, retrenchment or termination or date of
commencement of the Industrial Disputes (Delhi
Amendment) Act, 2003 whichever, is later, apply in the
prescribed manner, to the Labour Court or the
Tribunal, as the case may be for adjudication of the
dispute and the Labour Court or Tribunal, as the case
POIT No. 664/16 Page No. 9 of 30
maybe, shall dispose of such application in the same
manner as a dispute referred under sub-section (1)"
16 The management has placed reliance upon the aforesaid
section stating the present claim was filed after the expiry of 12
years, since the workman joined in the year January 2000, whereas
statement of claim filed in October 2012. However, this reliance will
not be of any help to the management, as the aforesaid section is
applicable to the cases which falls under Section 2A of I.D. Act and
relates of discharge, dismissal, retrenchment or termination and
gives an alternative mechanism of directly raising an industrial
dispute by way of filing the same before the Labour Court /
Industrial Tribunal, instead of taking the route of referral u/s 10 from
appropriate government. It has no applicability on matters except for
the ones specifically mentioned in the said section. The present case
pertains to the issue of regularization of services of Sh. Ram Niwas
on the post of Asst. Pump Driver in proper pay scale and allowances,
which has no relation to the discharge, dismissal, termination or
retrenchment. Hence, the reliance of the management on this
provision for stating that the present dispute is highly belated is
misplaced in law.
17. Even otherwise, the Hon'ble Supreme Court in the case
of Kuldeep Singh vs. G.M., Instrument Design Development and
Facilities Centre and Anr., AIR 2011 SC 455, the court after
dealing with the case of Nedungadi Bank Ltd. v. K.P.
Madhavankutty and others (supra) AIR 2000 SC 839 has
POIT No. 664/16 Page No. 10 of 30
observed the following in Para 21 of the judgment:
"21. 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 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
POIT No. 664/16 Page No. 11 of 30
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 that one day his
grievance would be considered by the Management or
by the State Government."
18. 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
in 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 till the date he raised the demand regarding
his illegal retrenchment/ termination or dismissal."
19. In view of the judgments above, even though the
limitation act does not apply to the proceedings under Industrial
POIT No. 664/16 Page No. 12 of 30
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, there is no such delay as the action of the management by not
regularizing the services of the workman is a continuing wrong on
their part. 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. 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, this
issue is decided in favour of the workman and against the
management.
Issue No. 2: Terms of reference.
20. Before moving on to the merits of this case, this tribunal
has to see if the present case has proper espousal. The AR for the
Workman in order to prove the proper espousal has placed reliance
upon Ex. WW1/14 i.e. resolution dated 23.12.2010 passed by the
Municipal Employees Union for raising an industrial dispute in
favour of the workman. 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 held that
POIT No. 664/16 Page No. 13 of 30
the cause of the workman is properly espoused by the union. The
relevant portion of the judgment is reproduced below:
"20. Based on the said legal principle, this Court
examined the evidence adduced by the
Petitioners/Workmen. The Petitioners/Workmen proved
on record Exhibit WW-2/1 (Statement of Claim dated
23.12.2002 filed by the Hindustan Engineering
General Mazdoor Union on behalf of the Petitioner
before the Conciliation officer), Exhibit WW2/2(AD
card for the legal notice issued by the Union), Exhibit
WW-2/3 (Authorisation letter dated 23.12.2002 issued
by the Petitioners/Workmen to Hindustan Engineering
General Mazdoor Union), Exhibit WW2/4 to Exhibit
WW2/7 (Demand letters dated 23.12.2002 &
05.02.2002 issued by the Hindustan General Mazdoor
Union to the Respondent No. 1 Management espousing
the cause of the Petitioners/Workmen). These documents show that the Petitioners/Workmen authorized the Hindustan General Mazdoor Union to take up the cause. In pursuance of the said authorisation, the said union issued demand letters and filed the claim petition before the Conciliation Officer. Based on the said claim Petition, the appropriate Government referred the said dispute to the learned Labour Court for adjudication. Just because there was no witness from the Union, it cannot be said that the cause of the Petitioners/Workmen has not been espoused by the Union."
"21. As held by Hon'ble Supreme Court in J.M Jhadav vs. Forbes Gokak Ltd reported as MANU/SC/0103/2005 : 2005 (3) SCC 202, there is no particular form prescribed to effect the espousal. Generally, Union passes resolutions, however sometimes proof of support by the Union may also be available aliunde. It would depend upon the facts of POIT No. 664/16 Page No. 14 of 30 each case. In the present case, even though no resolution was placed on record on behalf of the Union, from the documents placed on record by the Petitioners/Workmen, i.e. Exhibit WW2/1 to WW2/7, it is evident that the Hindustan General Mazdoor Union has espoused the cause of the Petitioners/Workmen."
21. The similar issue came up before the Division Bench of Hon'ble Kerala High Court in the matter of Mangalam Publications (India) Pvt. Ltd. v. Saju George, W.A. No. 964 of 2020, decided on 01.12.2020 and held:-
"7... There is no doubt about the fact that the workman was a member of the concerned WA No.964/2020 union. According to the workman, the cause of the workman was undertaken by the union even at the initial stage. Apparently, there was no objection from the side of the management during the relevant time. Thereafter, the matter was considered and ultimately the dispute had been referred for consideration by the Tribunal. Once a reference had been made at the instance of the union, it is not open for the management to contend at this stage of the proceedings that the cause of the workman had not been espoused by the union."
22. Moreover, the Hon'ble Delhi High Court in the case of Pratap Singh & Anr. vs. 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. The relevant portion of the jugedment is reproduced below:
POIT No. 664/16 Page No. 15 of 30"Learned counsel for the respondent fairly cannot dispute the position that the view taken by the Labour Court on the issue of espousal of the petitioners cause is hyper technical. There is no dispute about the fact that the union had held its meeting on 22.10.2005 and decided to espouse the petitioners cause, on which date, the espousal letter was also issued by the union. Merely because Sh. B.K. Prasad may not have been the president of the union on the said date and he became the president in the year 2007, would make no difference. Such a hyper technical view defeats the objective of the Industrial Disputes Act, 1947. The mere wrong description of the designation of Sh. B.K. Prasad in the espousal letter would not render the fact of espousal of the petitioners cause unreliable. Pertinently, the MCD General Mazdoor Union is a recognized union and the said union has not come forward to claim that they had not espoused the cause of the petitioners on 22.10.2005. Accordingly, the decision of the Labour Court on issue no.2 is reversed. It is held that the petitioners cause was duly espoused by the MCD General Mazdoor Union."
23. The workman in order to prove proper espousal has placed on record, Ex. WW1/1, i.e., copy legal demand notice dated 07.12.2010 sent on letterhead of the Municipal Employees Union. Likewise, Statement of Claim Ex. WW1/5 is filed by the Municipal Employees Union before conciliation officer of the Govt. of NCT of Delhi. The union has also filed its resolution dated 23.12.2010 i.e. Ex.WW1/14, wherein the union decided to raise an industrial dispute in favour of workman. Workman also examined WW-2, General Secretary of the union to prove espousal. In view of evidence placed on record as well as settled position of law, this tribunal is of the opinion that the present dispute is properly espoused by the POIT No. 664/16 Page No. 16 of 30 Union of the workman.
24. Now moving on to the merits of this case, the key facts pertinent to this dispute are as follows: The workman, Shri Ram Niwas, was employed by the management w.e.f. January 2000 for performing the work of an Assistant Pump Driver. This fact of his initial appointment as an Assistant Pump Driver is acknowledged by the management in their written statement filed before this tribunal. Sh. Ram Niwas performed the work of an Assistant Pump Driver from January 2000 to 28 September 2002. This tenure is documented in Exhibit WW1/4 i.e. his muster roll register, which confirms his employment as an Assistant Pump Driver during the said period.
25. The grievance of the workman stems from the decision of the management to reassign him from his position as Assistant Pump Driver to a Beldar on 28.09.2002, and eventually regularizing his services in the lower-ranking and less remunerative position of Beldar, w.e.f. 01.04.2007 as opposed to Assistant Pump Driver. The workman contends that this demotion amounts to hostile discrimination, especially when contrasted with the treatment of his co-workers, Shri Suresh Chandra and Shri Ravi Dutt. His co- workers, who joined along with the workman in the year January 2000, were regularized as Assistant Pump Drivers by the management, w.e.f. 01.10.2004 and 01.02.2004, respectively. The workman asserts that the action of the management constitutes hostile discrimination and unfair labour practices. The AR for the POIT No. 664/16 Page No. 17 of 30 workman argued that, despite the original appointment of workman as an Assistant Pump Driver, the management overlooked him for regularization and instead chose to regularize him in the lower post of Beldar, a position with lower status and salary compared to that of an Assistant Pump Driver.
26. On the other hand, the management has contended that the workman lacks the technical qualifications required for the post of Assistant Pump Driver, specifically an 8th Class Pass and Wireman certificate from an ITI or any recognized institution. According to the Recruitment Rules for the post of Assistant Pump Driver, these qualifications are mandatory. The workman, although possessing a diploma in mechanical engineering, does not hold a wireman certificate from any ITI or other recognized institution. The management discovered that several workers, including the concerned workman, who were appointed as Assistant Pump Drivers, did not meet the technical qualifications for this role. Consequently, instead of removing them from their services altogether, they were offered employment as Beldars. The workman agreed to be appointed as Beldar and gave his written consent for the same. After giving his consent for this role and subsequent regularization on the post of Beldar, the workman is now estopped from claiming that he has been wrongly regularized by the management on the post of Beldar as opposed to Assistant Pump Driver. As far as the question of regularization of co-workers is concerned, the management stated that the co-workers, Shri Suresh POIT No. 664/16 Page No. 18 of 30 Chandra and Shri Ravi Dutt, who were regularized by the management, indeed possess the necessary technical qualifications for the post of Assistant Pump Driver, in line with the recruitment rules of the management. Therefore, their services were regularized as Assistant Pump Drivers. On the contrary, since the workman did not have the required technical qualifications, he could not be regularized on the post of Assistant Pump Driver.
27. It is an undisputed fact that the workman, Sh. Ram Niwas, was initially appointed as an Assistant Pump Driver in January 2000 and worked as such until 28.09.2002. Subsequently, the management reassigned him to the post of Beldar from Assistant Pump Driver, citing his lack of the requisite technical qualifications for the former role. To substantiate his qualifications for the post of Assistant Pump Driver, the workman has presented several key documents: Ex. WW1/10, his high school mark sheet, Ex. WW1/11, his high school certificate and Ex. WW1/12, his diploma in mechanical engineering from Board of Technical Education, U.P. The said documents placed on record by the workman have not been contested by the management, leading this tribunal to find no reason to doubt their authenticity. Furthermore, the management has acknowledged in its written statement that the workman does indeed hold a diploma in mechanical engineering. In Exhibit WW1/6, which is prepared by the management, Ram Niwas is listed as an Assistant Pump Driver, with his educational qualifications specified as having passed the 10th Class and holding a diploma in mechanical POIT No. 664/16 Page No. 19 of 30 engineering. This document, being issued by the management itself, also indicates their awareness of his qualification, i.e., a diploma in mechanical engineering.
28. Even though the management has placed reliance upon the recruitment rules for the post of Assistant Pump Driver, which state that the mandatory technical qualifications are 8th Class pass and a wireman certificate from an ITI or any other recognized institution, it is important to note that the workman, instead of possessing merely a wireman certificate, holds a higher qualification, namely a diploma in mechanical engineering. This diploma encompasses a broader and more comprehensive technical education than what is covered by the wireman certificate. A diploma in mechanical engineering is significantly more advanced qualification, spanning three years, compared to the six-month duration of a Wireman training certificate. It covers a wide range of subjects that provide a deeper understanding and skill set in the mechanical and technical domains. This broader educational foundation is not only relevant but also potentially advantageous for the role of Assistant Pump Driver. Therefore, it is evident that the workman is not only qualified for the position of Assistant Pump Driver but is, in fact, overqualified. His higher qualification should be viewed as an asset rather than a detriment. Penalizing him for possessing qualifications that exceed the minimum prescribed requirements is both unreasonable and unfair on the part of the management. Furthermore, the management's own witness, during POIT No. 664/16 Page No. 20 of 30 cross-examination, has admitted that the work performed by the workman was found to be satisfactory. This acknowledgment also supports that the qualifications of the workman, being above the required standard, have positively contributed to his performance in the role.
29. As far as redesignation from Assistant Pump Driver to Beldar is concerned, it is important to highlight that this alteration was not merely nominal but had significant repercussions on his job status, salary, and other associated benefits. Essentially, the decision of the management to modify the designation of the workman from Assistant Pump Driver to Beldar constituted a penalty for lacking the technical qualifications for a position which he had occupied and worked for two long years. Such a demotion, based on a sudden emphasis on technical qualifications, disregards the principles of natural justice. This action of the management reflects an arbitrary exercise of power, where decisions about the jobs of employees are made based on whims rather than established procedures. It is particularly striking that the management initially appointed the workman without verifying his technical qualifications, but later cited these same qualifications as a reason to deny him the benefits of regularization enjoyed by others.
30. Prior to demoting the workman from the post of Assistant Pump Driver to Beldar, it was incumbent upon the management to provide him with an opportunity to be heard. The management POIT No. 664/16 Page No. 21 of 30 witness conceded in his cross-examination that no enquiry whatsoever was held prior to demoting the workman from the post of Assistant Pump Driver to Beldar. The workman was neither given this opportunity nor was any rationale provided to demonstrate that the demotion was a proportionate response to the alleged lack of qualifications. The rights and job security of lower-paid employees cannot be subject to the arbitrary and unjust decisions of their employers. The principles of natural justice demand that an employee, particularly in the context of punitive actions like demotion, be given a fair hearing to present their defense.
31. At this point, the management argued that the workman was merely a muster roll employee, and he is not entitled for any inquiry proceedings prior to his re-designation from Asst. Pump Driver to Beldar. This tribunal does not find any force in the argument of the management that daily wager/muster roll workers are not entitled for any inquiry proceedings. On this point, the Hon'ble Delhi High Court in South Delhi Municipal Corporation vs. Ramesh Singh., W.P.(C)No.11226/2020 decided on 05.01.2021 has observed that principles of natural justice are equally applicable to daily wagers irrespective of their permanent status. The relevant portion of the judgement is reproduced below as:
"8. Mr. Birbal says that respondent/workman during the course of the inquiry by the vigilance department had made a statement that he had indulged in the aforementioned activity as complained of by Smt. POIT No. 664/16 Page No. 22 of 30 Saroj.
8.1 Mr. Birbal, however, does accept that in the reply to the show cause notice, the stand taken by the respondent/workman was that the said statement was made under coercion.
9. Mr. Birbal also accepts the fact that the respondent/workman was given no opportunity to either cross-examine the complainant i.e. Smt. Saroj or to lead in his defence any evidence before the enquiry officer.
9.1 Mr. Birbal, however, says that since the respondent/workman was a daily-wager this procedure was not adopted.
10. Be that as it may, in my view, if nothing less, the principles of natural justice would definitely apply even to a daily-wager.
11. The respondent/workman, in the very least, should have been confronted by the complainant i.e. Smt. Saroj so that he could have cross-examined her.
32. The management has neither made any plea nor provided any documentary evidence to demonstrate their compliance with the principles of natural justice during the process of re-designating the workman from Assistant Pump Driver to Beldar. Notably, during cross-examination, the management witness (MW-1) acknowledged a critical point: "It is correct that no inquiry was conducted against the workman regarding the alleged re-designation voluntarily because he did not fulfill the recruitment rules for the post of APD." This admission from the management witness substantiates the contention of the workman that in demoting him from the post of Assistant Pump Driver to Beldar, the management failed to adhere to the principles of natural justice.
POIT No. 664/16 Page No. 23 of 3033. So far as the argument of the management that the workman himself consented for his appointment to the post of Beldar from Assistant Pump Driver is concerned, it is important to note that the management cannot rely solely on this purported consent to justify its arbitrary actions. Given that the workman is a lowly paid employee and considering his socio-economic background, it is unreasonable to assume that he possesses equal bargaining power in determining the terms of his employment, including decisions related to his demotion and regularization. During his cross-examination, the workman testified that at the time of his regularization from the post of Assistant Pump Driver to Beldar, he had expressed both written and verbal objections to the management. On the other hand, the management witness demonstrated a lack of knowledge regarding whether the workman had lodged any complaints with his superiors about his alleged re- designation. The testimony from both parties suggests that the workman did not voluntarily consent to his regularization and demotion to the post of Beldar. In fact, it appears he had raised objections to this change before the management.
34. Also, the Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors vs State of UP., (1986)1SC C 637 held that employees, especially those in low-wage categories, often have no choice but to accept employment under exploitative terms offered by the employer due to the prevailing conditions of unemployment and their socio-economic background. The fact that POIT No. 664/16 Page No. 24 of 30 these employees accepted employment with full knowledge of the terms does not absolve the government or the employer from the mandate of equality enshrined in Article 14 of the Constitution, which implies equal pay for work of equal value. Likewise, in the Officer Incharge Defence Standardization Cell vs Mukesh Kumar, 2013(4)SC T108(Delhi), the Hon'ble Delhi High Court emphasized that the employer cannot use contract stipulations as a tool of exploitation. Their unilateral imposition of oppressive and unreasonable conditions of service, which the workman has little choice but to accept, cannot be justified.
35. The principles laid out in the cases of Dhirendra Chamoli (supra) and Defence Standardization Cell (supra) reinforce the notion that employees in such situations cannot be said to have willingly agreed to the terms of their regularization. Therefore, merely because the workmen had given their consent to the demotion as well as regularization on the post of Beldar, which a post lower both in salary and status, does not bar them from raising the present dispute.
36. Furthermore, the management has taken a contradictory stance. On one hand, they argue that the workman does not possess the technical qualifications required for the post of Assistant Pump Driver, leading to his re-designation as a Beldar. However, on the other hand, despite his re-designation to Beldar and his eventual regularization on the said post w.e.f. 01.04.2007, the management POIT No. 664/16 Page No. 25 of 30 continued to take the work of an Assistant Pump Driver from the workman. The management, in its written statement filed before this tribunal, has acknowledged in Para (ix) of Reply on Merits that the workman has continuously performed the duties of an Assistant Pump Driver. Additionally, the workman has deposed in his Affidavit, Ex. WW1/A, at Para No. 2 stating that despite being appointed as a Beldar on a muster roll basis from 28.09.2002, he continued discharging the duties of an Assistant Pump Driver. It is noteworthy that even after his regularization as a Beldar, w.e.f. 01.04.2007, vide order dated 19.02.2009 he has been performing the work of an Assistant Pump Driver alone. Notably, the management did not cross-examine the workman on this crucial aspect, despite having the opportunity to do so. Therefore, this tribunal finds no reason to doubt the testimony of the workman, especially when it has not been directly confronted by the management.
37. Therefore, in view of the of the admitted position and the material on record, this tribunal holds that the management has clearly committed unfair labour practice by employing the workmen concerned for the post of Assistant Pump Driver on muster roll basis for performing the work of permanent nature of job, and subsequently demoted him to the post of Beldar citing lack of technical qualification without complying the principles of natural justice. The workman was subsequently regularised to the post of Beldar w.e.f. 01.04.2007 yet the management kept extracting the work of Asst. Pump Driver at the salary of Beldar. Such an action of POIT No. 664/16 Page No. 26 of 30 the management indicates unfair labour practices and the same is being done solely with the object of depriving the workmen the status and privileges of a regular and permanent Asst. Pump Driver. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest and Anr., (1996) 2 SCC293 wherein the Hon'ble Supreme Court of India had held that employing workers on muster roll/contract basis for long periods and denying them the status and salary of a regular employee amounts to unfair labor practice as giving them the status and privileges of permanent employee would require the management to pay the workman higher than the one fixed under the Minimum Wages Act.
38. This tribunal has the power to grant regularization pursuant to the unfair labour practice and it can create new rights and liabilities upon the employer and employees. Reliance is placed upon the judgement of the Constitution Bench of the Hon'ble Supreme Court in the case of Bidi, Bidi Leaves' and Tobacco Merchants Association vs. The State of Bombay, Civil Appeals Nos. 415 to 418 of 1960 decided on 15.11.1961 has held that the tribunal has the power to create new rights and liabilities upon the employer. The relevant portion of the judgment is reproduced below:
"15. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes POIT No. 664/16 Page No. 27 of 30 brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay it has been repeatedly held that the jurisdiction of Industrial Tribunals is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna Electric Supply Workers' Union ).
39. In light of the facts and circumstances of this case, this tribunal holds that the workman is entitled to regularization on the post of Assistant Pump Driver. As far as the benefits of regularization are concerned, attention is drawn to Ex. WW1/5, which is an order dated 30.03.2000 issued by the management. According to this order, the workman, Ram Niwas, was working as an Assistant Pump Driver (APD), similar to his co-workers Suresh POIT No. 664/16 Page No. 28 of 30 Chand and Ravi Dutt, who were mentioned at Sr. No. 2 and 3 respectively. Ex. WW1/8, which is the regularization orders of the management, indicates that the aforesaid co-workers, namely Shri Ravi Dutt and Suresh Chand, are listed at page 4, serial numbers 60 and 64 respectively. They were regularized by the management on the post of Assistant Pump Driver w.e.f. 01.02.2004 and 01.10.2004 respectively.
40. Based on the regularization orders of the co-workers of the workman, this tribunal is of the opinion that the claim of the workman for seeking regularization from his initial date of joining is not tenable, as it would disrupt the seniority granted to other workers in its peculiar facts and circumstances. Hence, the interest of justice will be met if the workman is granted the benefits of regularization to the post of Assistant Pump Driver w.e.f. 01.02.2004 in parity with his co-workers. Therefore, the terms of reference are answered in favor of the workman and against the management.
Relief:
41. In view of my findings above this tribunal holds that the workmen Shri Ram Niwas is entitled to be regularized on the post of Assistant Pump Driver w.e.f. 01.02.2004 in regular pay scale with all consequential benefits either monetary or otherwise. The management is directed to implement the award within 60 days of its publication failing which it will be liable to pay an interest at the rate of 8% per annum from the date of reference i.e. 10.07.2012 to POIT No. 664/16 Page No. 29 of 30 till its realization. The award is passed accordingly.
42. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room. Digitally signed by AJAY AJAY GOEL Date:
Announced in the open Tribunal on this 02.01.2024. GOEL 2024.01.03 15:51:42 +0530 (Ajay Goel) POIT-I/RADC, New Delhi POIT No. 664/16 Page No. 30 of 30