Delhi District Court
The vs The on 20 January, 2009
1
IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.94/07
The Workman
Madan Kumar S/o Sh. Ram Phal, Beldar, through Municipal Employees' Union,
Agarwal Bhawan, G.T.Road, Tis Hazari-Delhi-110054.
Vs.
The Management
Management of Delhi Jal Board through its Chief Executive Officer, Varunalaya
Phase-II, Jhandewalan, New Delhi.
AWARD
1.Workman Madan Kumar had raised industrial dispute against Delhi Jal Board and on failure of conciliation proceedings, Govt of NCT of Delhi had referred the dispute to this Tribunal in the following terms:-
''Whether Sh. Madan Kumar S/o Sh. Ram Phal was engaged for specific period for specific work and was disengaged after completion of work or his services have been terminated illegally and /or unjustifiably by the Management and if so, to what relief including regularization on the post of Beldar in the proper pay scale and allowances from the initial date of joining is he entitled and what directions are necessary in this respect ?''
2. Notices of reference were issued to both the parties. Workmen appeared and filed statement of claim and Management has also filed WS followed by rejoinder by the workman.
3. The facts briefly stated in statement of claim are that workman was allegedly employed by erstwhile Delhi Water Supply and Sewage Disposal 2 Undertakings w.e.f. 9.4.1991. It is alleged that workman was initially assigned the duty of a ''Mate'' which he discharged till 30.6.1991 and since July, 1991 onwards he was assigned the job of a Beldar. It is alleged that from initial date of his joining, workman had been working against a regular and permanent post but was being treated as a monthly paid muster roll worker and was being paid wages under the Minimum Wages Act whereas his counterparts were being treated as regular employees and were getting salary in regular pay scale apart from other facilities like uniform, E.L.,C.L. Etc. It is alleged that workman continously discharged his duties till 30.6.02 except artificial breaks given in between. It is alleged that from July, 2002 onwards, no work was assigned to the workman by the Management. He was allegedly given false assurances but ultimately his services were terminated on 1.7.02 without assigning any reason. It is alleged that he was employed against a job which was of permanent and regular nature. Secondly, it is alleged that though he had been working on the job of permanent nature nevertheless he was being treated as muster roll worker/ daily wager which amounts to unfair labour practice under Industrial Dispute Act which is violation of constitutional mandate and amounts to sheer exploitation of labour. It is alleged that after completion of 90 days of continuous employment as provided in the Model Standing Orders framed under the Industrial Employment ( Standing Orders) Act, 1946, he had acquired the status of permanent employee from the initial date of joining into the employment after completing 240 days of continuous employment on regular basis. It is alleged that workman was entitled to be regularized and was entitled 3 to equal pay as was being given to his counterparts during the course of his employment. It is alleged that services of the workman were terminated without holding any inquiry and without payment of retrenchment compensation as provided u/s 25 of I.D.Act. According to him, his juniors have been retained in services whereas his services were terminated, therefore, termination of his services is violative of section 25 of the I.D. Act. He is alleged to have served a notice of demand on the Management on 13.1.05 claiming reinstatement and regularization yet no action seems to have been taken on this notice by the Management, hence, he invoked conciliatory process and on failure thereof, present reference was made to this Tribunal.
4. Management appeared and filed WS. In their WS, case of the Management was that workman was employed as daily wager/ muster roll in exigency of work without undergoing any selection procedure for the period June to September, 1993 as a Beldar against specific sanctions and for a specified period and his services stood disengaged after completion of work. It is alleged that he was again engaged for cleaning of nalas durinjg mansoon in the year 1996 for a short period. During the year 1998-99, workman worked with MCD for a short duration. It is alleged that he was again engaged on daily wages muster roll in the Management in march, 2001 for a short duration against specific work and was disengaged on 10.6.2001 on completion of work. It is alleged that Delhi Jal Board came into existence in 1998 by an act of Legislature of Delhi and was entrusted with the work of supply of potable water to Delhi and prior to that said work was being carried out by Delhi Water 4 Supply and Sewage Disposal Undertaking which was a part of MCD. It is alleged that after April, 1998 Delhi Jal Board and MCD are two separate independent organizations. It is alleged that in April, 2000 maintenance of sewerage system was also transferred from MCD to Delhi Jal Board and in order to carry out these activities, Delhi Jal Board has to undertake various projects from time to time such as laying of water line, construction of under ground reserviors, construction of water treatment plant, construction of Booster Pumping Station, laying of sewer lines etc. It is the workman who was allegedly engaged from time to time in one division or the other division as per requirement on daily wage/ muster roll for a short duration as a beldar against specific sanction and against specific work, therefore, he can not equate himself with regular employees who have been appointed against regular sanctioned post after undergoing selection procedure. It has been denied that workman continuously worked till 30.6.02. It is alleged that workman was lastly engaged in March, 2001 for a short duration against a specific sanction and his services stood disengaged on 10.6.01 and thereafter he did not work with the Management. It is alleged that since workman worked on muster roll post against specific sanction without undergoing any selection procedure and his services stood disengaged after expiry of sanction and on completion of the project, therefore, he is not entitled to be regularized on the post of Beldar nor is he entitled to wages as paid to a regular employee. It is denied that workman had put in service of 240 days with the Management in a calender year. It is denied that disengagement of workman was retrenchment. It is alleged that no 5 seniority list of daily wager/ muster roll was maintained by the Management inasmuch as Management is a big organization and different divisions of the Management are empowered to engage extra hands as per their requirement against sanction and against specific project. It is alleged that workman is not entitled for any reliefs as claimed in statement of claim.
5. In the replication, the workman has reiterated and reaffirmed all the facts as contained in statement of claim and denied all the facts as embodied in the WS.
6. After going through pleading of the parties, following issues were framed by my Ld Predecessor:-
(1) Whether the workman had worked for 240 days continuously with the Management?
(2) Whether the reference is belated ?
(3) As per terms of the reference.
7. In order to prove his case, workman has filed his affidavit Ex WW1/A. On the other hand, Management has filed affidavit of Ratan Lal Ex MW1/A.
8. I have heard ld AR for the parties and have carefully gone through record of the case. My issuewise findings are as under :-
Findings on issue No 1
4. Issue No 1 is whether the workman has worked for 240 days continuously with the Management ? Case of the workman was that he had continuously put in service of 240 days. On the other hand, case of the Management is that he had never put up in continuous service of 240 days. To 6 prove this case, WW-1 Madan Kumar in his affidavit has proved Ex WW1/4 working certificate given to the workman by Zonal Engineer, Delhi Jal Board.
According to Ex WW1/4, workman was employed in April, 1998 and worked till June, 2001. According to Ex WW1/4, workman worked with the Management as per table given below:-
5. Month Working days April, 1998 14 May 22 June 25 July 23 August 26 September 26 October 6 November 13 December 26 Total 181 January, 1999 26 February 23 March 27 April 26 May 12 June Nil July 16 7 August 27 September 26 Total 183 March, 2001 14 April 25 May 27 June 10 Total 76.
6. On the other hand, MW-1 Ratan Lal in his affidavit has deposed that workman worked with the management for a short duration during the years 1996, 1998 and 1999 on daily wages/ muster roll without undergoing selection procedure against specific sanction and for specified project. It is also deposed that for the same purpose, workman was employed in 2001 and was disengaged on 10.6.01 after completion of the work, therefore, he did not work for 240 days in any calender year in any of the years mentioned above. In para No 6 of his affidavit, MW-1 Ratan Lal has stated that Management had not terminated services of the workman w.e.f. 1.7.02 and infact the workman worked with the management for a total period of 76 days from March to June, 2001. It is deposed that workman had not worked for a period of 240 days in a calender year. In his cross examination, MW-1 had produced muster rolls No 27241,47111,47124,56917, 56967, 56991, 59048, 59137, 43544, 43550, 47329 and 47365 mentioned in Ex WW1/4 and has stated that said number of muster rolls mentioned in Ex WW1/4 are correct. He has stated that other numbers of 8 muster rolls mentioned in Ex WW1/4 are not correct. This witness has admitted the number of working days mentioned against the remaining muster rolls mentioned in Ex WW1/4. He has added that those muster rolls are not available with them and same were not traceable in their records. He has also admitted that Ex WW1/3 was issued to the workman but it is stated that first page is not signed by the Executive Engineer. He has denied that workman had continuously worked w.e.f. 9.4.91 till 30.6.02 with artificial breaks.
7. It has been argued on behalf of workman that he was employed on
9.4.1991 and his services were dispensed with on 30.6.02 w.e.f. 1.7.02, therefore, he has put in service of more than 240 days.
8. On the other hand, it is argued on behalf of the Management that in any of the years, workman had been employed, he did not complete 240 days of continuous service.
9. From perusal of Ex WW1/4, I find that it is a certificate which purports to have been issued by Zonal Engineer ( III) NW-IV, Delhi Jal Board. Though, it does not bear any date, yet it mentions details of the period during which workman worked with the Management in the year 1998,1999 and 2001. If version of MW-1 Ratan Lal as regards working days as mentioned in Ex WW1/4 and admitted by this witness is taken as correct, then workman had worked with the management in the month of April, November and December 1998 to December for 53 days, in January, February, April, May, 1999 ( for 87 days) and from March to June, 2001 for 76 days.
10. However, even if version of workman as given in Ex WW1/4 is taken 9 to be true, then he worked in 1998 from April to December for a total period of 181 days, from January to September, 1999 for a total period of 183 days and from March, 2001 to June, 2001 for a total period of 76 days. When workman has not been able to prove that he worked with the Management for a period of 240 days in any of the calender years, it can not be said that he has put in 240 days of continuous services in any year. Therefore, workman has not been able to prove that either in 1998, 1999 or in 2001, he worked for 240 days. Secondly, there was a complete break of one year during year 2000 when workman did not work with the management. If it is so, then it can not be said that he had put in 240 days continuous service in any of calender years. Therefore, on the basis of evidence on record, I come to the conclusion as concluded earlier that workman did not work for a continuous period of 240 days in any of the calender years. This issue is accordingly decided in favour of management and against the workman.
Findings on issue No 2
11. Issue No 2 is whether the reference is belated ? Case of the workman is that he was employed by the Management on 9.4.1991 and he continuously worked upto 30.6.02 and his services were dispensed with by the Management w.e.f. July, 2002. According to the Management, raising of the dispute by the workman is belated one. Reference in this case was made by the Labour Secretary on 15.11.07. The workman has proved on record demand notice served by him on the management. Demand notice has been proved as Ex WW1/A which is dated 13.1.2005. Postal receipt showing dispatch of the 10 demand notice to the management has been proved as Ex WW1/2.
12. MW-1 Ratan Lal in his affidavit has stated that no such notice was received. However, address on the same is admitted to be correct.
13. No argument has been advanced on this issue. According to the workman, his services were dispensed with by the Management w.e.f. 1.7.02. workman served demand notice on the Management on 13.1.05 after a lapse of about two and half years. However, provisions of Limitation Act are not applicable on the proceedings under Industrial Dispute Act. When no statutory period has been prescribed for raising industrial dispute or making reference to the Labour Court or Tribunal, it can not be said that reference is belated one. This issue is accordingly decided.
Findings on issue No 3
14. Issue No 3 is '' as per terms of reference''. Terms of reference are '' whether Madan Kumar S/o Sh. Ram Phal was engaged for a specific period and was disengaged after completion of work or his services have been terminated illegally or unjustifiably by the Management and if so, to what relief including regularization on the post of Beldar in the proper pay scale and allowances from the initial date of joining is he entitled and what directions are necessary in this respect ?''
15. In his affidavit, workman has stated that he was employed by the management initially as a '' mate'' and he worked as such from 30.6.91 to July, 1991. It is also deposed that he worked with the Management for more than 240 days continuously but his services were dispensed with w.e.f. 1.7.02 11 without assigning any reasons. In his testimony, he has proved two important documents, namely, muster roll book Ex WW1/3 and working certificate as Ex WW1/4. According to muster roll book Ex WW1/3, workmen purports to have worked in 1993 for 9 days in June, 17 days in July, 26 days in August and for 26 days in September, 1993, In all, he worked for 78 days in 1993. In 1996, he is deposed to have worked for 16 days in May, 25 days in June, 2 days in October, 26 days in November, and for 25 days in December. Therefore, he worked for 94 days in 1996. However, according to this document, workman did not work during the years 1994 and 1995. In 1998, he purports to have worked for 14 days in April, 22 days in May, 25 days in June, 23 days in July, 26 days in August, 26 days in September, 6 days in October, 13 days in November and 26 days in December 1998. Therefore, 1998, workman purports to have worked for a total period of 181 days. However, as per this document, workman did not work at all in 1997. In 1999, workman purports to have worked for a period of 26 days in January, 23 days in February, 27 days in March, 26 days in April, 12 days in May, 16 days in July, 27 days in August and 26 days in September, 1999. In all, he purports to have worked for total period of 171 days in 1999. After 1999, there is no entry in the muster roll books showing that he worked in 2000 or 2001. However, MW-1 in his cross examination has admitted that he worked for 76 days during march, 2001 to June, 2001.
16. It has been argued on behalf of workman that since workman had continuously worked for more than 240 days against a regular type of work, 12 termination of his services is in violation of section 25(F) as illegal and bad. Secondly, it is argued that even otherwise if a workman was employed temporarily nevertheless his services should have been terminated according to his seniority and since Management has retained his juniors and his services were terminated, action of the Management is in violation of section 25(G) of the I.D. Act. On the other hand, it has been argued on behalf of the Management that workman has not put in continuous service of 240 days in any of the calender years, therefore, his claim that termination of his service is not in violation of section 25 of I.D. Act. It is also argued that since workman was employed due to exigency of work of temporary nature and on completion of work, his services came to end. Thirdly, it is argued that since workman was not employed against any work of permanent nature, Management did not maintain any seniority list for daily wagers/ muster roll employees, dispensation of services of the workman on completion of the work is not violative of section 25(G) of the I.D.Act.
17. In Ex WW1/3 workman has claimed his date of birth as 13.9.1977. if it is so, then he was only 16 years of age in 1991 incapable of being employed by any Government Agency or State Instrumentality. Secondly, he worked with management against a specified work for a specified period in 1993 has not been by any Competent Authority, therefore, it does not appeal to the reasons that he worked during 1993 and on this point, this document is of no use to the workman.
18. During 1996, workman had worked only for 94 days only in the month 13 of May, June, October, November and December. He did not work even for a single day in 1997 with the management. During 1998, workman worked with the management for 181 days. During 1999, he worked with the Management for 183 days and in 2001, he worked for 76 days only. This shows that workman was employed only against a work of temporary nature as and when it had arisen and since he did not work for continuous period of 240 days in any year, termination of his services did not amount to retrenchment within the meaning of section 25 of I.D. Act. In State Bank of India vs N. Sundera Money, AIR 1976 SC 1111, it has been held that if the workman swings into the harbour of section 25 F, he can not be retrenched without payment at the time of retrenchment, compensation computed as prescribed under section 25B(2) of I.D.Act. In another authority reported in Sur Enamel and Stamping Works Ltd vs Workman AIR 1963 SC 1914 and D.S. Nakara vs UOI AIR 1986 SC 132, it has been held that a workman who has not been engaged for a period for 12 months would not satisfy the requirements of section 25 B and would not be entitled to benefit of section 25 F. In view of the fact that from record of the workman, it stands proved that he was employed intermittently against sanction for a specified work or for a period less than 240 days in a year, he is not entitled for benefit of section 25 of the Industrial Dispute Act. It also stands proved on record that he worked against specified work of temporary nature and did not work against work of permanent nature.
19. AR for the workman has relied upon authorities reported as MCD vs Sh. Khacheru and another 1993 ILR 5, Samistha Dube vs City Board, 14 Etawah and another ( 1999) 3 SCC 14, Amar Pal and Anr vs MCD 2006 II AD ( Delhi) 43, U.P. Electricity Board vs Pooran Chandra Pandey & Ors JT 2007 ( 12) SC 179, in these authorities, it has been held that while resorting to retrenchment, employer is bound to follow the principle of '' last come first go'' and if the principle has not been followed, retrenchment would not be justified.
20. To my mind, this authority is not attracted to the facts of the present case. Retrenchment has been defined U/s 2 ( oo) of I.D. Act. Under sub clause ( bb) of section 2 ( oo) termination of service of the workman as a result of non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf. In the present case, it has been seen that workman has worked only for certain specified period intermittently. Therefore, work assigned to workman was not of a regular nature but was of a seasonal nature or due to exigency of work he was employed. That not being the work of regular nature, termination of his service did not attract the provisions of section 25G in view of definition of retrenchment U/s 2(oo)(bb), I.D. Act.
21. AR for the workman has further argued that workman had worked for a considerable period, therefore, he is entitled for regularization. On the other hand, AR for the Management has argued that daily wager workers have no claim of any kind because they are employed due to exigency of work and can not equate with regular employees, therefore, they can not be regularized.
22. I may mention that Delhi Jal Board is a statutory entity created under a Statute, therefore, it comes within the meaning of ''Authority'' as given in 15 Article 12 of Constitution of India. A State Instrumentality is bound by the provisions of Constitution of India, so services are to be governed by rules and regulations having force of law. Selection of more deserving candidates on the basis of competative basis is hallmark of the rule of equality enshrined in Constitution of India. The workmen who are employed on temporary basis and not on competative basis have no right to claim equality as against regular employees.
23. In Madhyamik Siksha Parishad, UP vs Anil Kumar Mishra AIR 1994 SC 1638, it has been held that workers employed on temporary assignment working against unsanctioned posts have no right of regularization. In Surender Kumar Giani vs State of Rajasthan AIR 1993 SC 115, it was held by their lordships of Hon'ble Supreme court that appointment of employees on temporary basis and not on regular basis being not permissible under relevant recruitment rules have no right to claim regularization and termination of their services would not be illegal. Issue again came up for consideration before Hon'ble Supreme court in Secretary, State of Karnataka vs Umadevi and others AIR 2006 SC 1806. In this authority, it was held that employment of daily wager workers confers no right of permanent employees. Secondly, it was held that daily wager employee working on less than wages than regular employees is also not illegal because when they are employed, they know that they were being employed as daily wager purely on temporary basis. It was also held that permanent absorption of daily wager can not be claimed as a matter of right and set of persons can not be preferred over vast majority 16 depriving them of their opportunity to compete for public employment. It was also observed that temporary employees appointed in viola of constitutional scheme do not have an enforceable legal right to be permanently absorbed nor court is competent to direct Government to make them permanent. Relying upon the above observations made by their lordships of Hon'ble Supreme Court, lordships of our own High court in Ajay Kumar Sharma vs The Presiding Officer, Labour Court VI, Tis Hazari in Workman in person ( C) No 5730/1999 decided on 12.9.2006 by Hon'ble Mr. Justice Shiv Narain Dhingra held that Courts can not impose on the State a financial burden on this nature by insisting on regularization or permanence in employment of those who are employed temporarily and are not needed permanently or regularly. It was also observed that burden may become so heavy by such directions that the undertaking itself may collapse under its own weight. It was also observed that rule of equality in public employement is basic feature of our constitution. Unless an appointment is in terms of the relevant rules of recruitment after a proper competition amongst the qualified persons, the same would not confer any right on the appointee. It was also observed that if an appointment is a contractual appointment, it comes to an end at the end of the project. If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. It was also observed that a temporary employee can not claim to be made permanent on expiry of his terms of appointment. It was also held that merely because a temporary employee or a casual worker is continued for a time beyond the terms of his appointment, he 17 would not be entitled to be absorbed in regular service or made permanent.
24. In view of authorities referred to above, I am of the view that no directions can be given by tribunal for regularization of the workman as he was purely working on daily wages basis for a specified work for specific duration and after termination of his service, he has no right to continue in the employment of the management. This issue is accordingly decided.
25. In view of findings on various issues referred to above, I am of the view that workman is not entitled for any relief. Award is accordingly passed. Same be accordingly sent to Govt of NCT of Delhi for publication. File be consigned to record room.
Announced in the open court
on 20.01.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II
Karkardooma Courts, Delhi.