Delhi District Court
Dilshad Ahmed vs M/S North Delhi Municipal Corporation on 2 April, 2024
DLCT130042752018
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW
DELHI.
F.24(28)/ND/324/2011/Lab./224
Dated 11.02.2013
POIT NO.: 245/2018
Workman:
Shri Sanjay Kumar and 6 Ors. (Dilshad Ahmad S/o
Shabuddin)
as represented by Municipal Employees' Union,
Agarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-54
Vs.
The Management of:
Municipal Corporation of Delhi, Town Hall,
Chandni Chowk, Delhi-110006,
through it's Commissioner, now after trifurcation of erstwhile
Municipal Corporation of Delhi, North Delhi Municipal
Corporation through it's Commissioner, Dr. S.P. Mukherjee Civic
Centre, J.L. Nehru Marg, New Delhi-110 002
Date of Filing : 25.09.2018
Date of presentation before this court : 01.04.2024
Date of Arguments : 02.04.2024
Date of Award : 02.04.2024
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between
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the parties named above for adjudication to this Tribunal
with following terms of the reference:-
"Whether demand of workmen Sh. Sanjay
Kumar S/o Late Sh. Prabhu Dayal and 6 Ors.
(Annexure-A) for regularization of their
services on the post of Cattle Catcher from their
respective date of joining or as per policy of the
management and difference of salary on the
principle of "Equal Pay for Equal Work" from
19.08.2008, is justified, and if so, what
directions are necessary in this respect?"
2. It is pertinent to mention here that in this case, the
terms of reference pertains to seven workers namely (1)
Sh. Sanjay Kumar S/o late Sh. Prabhu Dayal; (2) Sh.
Santosh Kumar S/o late Sh. Suraj Bhan; (3) Sh.
Mukesh Kumar S/o Sh. Ram Kumar; (4) Sh. Mahesh
Kumar S/o Late Sh. Lekh Ram; (5) Sh. Vikas Sharma
S/o late Sh. Madan Gopal Sharma; (6) Sh. Dilshad
Ahmad S/o Sh. Shabuddin and (7) Sh. Deepak S/o Sh.
Azad Singh. However, as per order dated 25.09.2018,
separate statement of claim were filed. This award
pertains to workman Sh. Dilshad Ahmad S/o Sh.
Shabuddin.
3. In his statement of claim workman Sh. Dilshad Ahmed S/o
Sh. Shabuddin who was appointed w.e.f. 19.08.2008 and
working as Cattle Catcher, in Central Zone, South Delhi
Municipal Corporation, Delhi and since then he is
continuously discharging his service to the entire
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satisfaction of his superiors and has unblemished and
uninterrupted record of services to his credit. It would be
pertinent to mention here that the management has
illegally engaged the workman aforesaid on contractual
basis though the job on which he is discharging his duties
is of regular and permanent nature. Infact the management
has no right at all to engage the workman on contractual
basis on the job of a permanent nature. It is further stated
that since the workman is continuously discharging his
services from August, 2008 and as such his services are
required to be regularized on permanent basis and he is
also entitled to his salary in proper pay scale and
allowances. That though the workman aforesaid is entitled
to be treated as regular and permanent employee from the
initial date of his joining but the management has not
taken any step to regularize his service in proper pay scale
and allowance with retrospective effect i.e. from
19.08.2008. It is further stated that non-regularization of
services of the workman w.e.f. 19.08.2008 on the post of
Cattle Catcher in proper pay-scale and allowances and
denial of proper salary at par with his counter parts on the
principle of equal pay for equal work with all arrears
thereof is totally illegal, bad, unjust and malafide. It is
further stated that the post against which the workman
aforesaid has been working is of a permanent and regular
nature of job and employing persons on regular nature of
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jobs and treating them as a monthly paid/muster roll
workers and paying them lesser remuneration than those
doing the identical work and the work of same value
amounts to unfair labour practice as provided in Section 2
(ra) read with Item No.10 of Fifth Schedule and read with
Section 25 T punishable under Section 25 U of the
Industrial Dispute Act, 1947. Through this claim workman
has prayed that an Award be made in his favour holding
therein that the workman is entitled to be regularized on
the post of Cattle Catcher with retrospective effect from
the initial date of his joining into the employment or as per
policy adopted by the management and to pay him entire
difference to salary on the principle of "Equal Pay for
Equal Work" for the period from 19.08.2008 onwards.
4. Written Statement has been filed on behalf of management
wherein it is contended that It is contended that the present
dispute is not an industrial dispute as defined under
Section 2(k) of the I.D. Act & as such the present claim is
not maintainable; that the Municipal Employee's Union
has no Locus Standi to raise the present dispute as the
aforesaid union is not recognized Union of the
management North DMC; that the present dispute has not
been properly espoused by the Union; that no demand
notice has been served upon the management as such the
present dispute is not an industrial dispute and therefore
reference is bad in law and liable to be rejected; that the
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present case is bad in law and is contrary to the rules and
regulations as well as settled policy of the management. It
is further contended that the Recruitment of cattle catchers
on contract basis was made in august 2008 Initially for a
period of four months on fixed amount of Rs 3470/- per
month. The Employment Officer of the Distt. North was
requested to sponsor, names of suitable candidates within
the age of 18 years to 27 years & with minimum required
VIII passed qualification vide letter dated 08.05.2008
followed with reminder dated 03.06.2008 Subsequently,
after sponsoring 224 candidates, the selection process was
undergone with two Kilometer physical race in Chatterasal
Stadium, Model Town, including medical examination
report furnished by Dr S.Kumar, CMO (LAW), Hindu Rao
Hospital being one of the Members of the Selection Board.
On the basis of best timings of individual candidates
achieved during two Kilometer physical race, fulfilling of
other laid-down parameters, 84 candidates were selected
for the same by the Department. The claimants had been
engaged on contract basis for the period upto 31.12.2008
for the purpose of launching special campaigns vigorously
to comply with the directions dated 31.05.2007 for the
removal of stray cattle and illegal Fairies in Delhi, till the
proper recruitment is made by the department on regular
basis whichever is earlier. These contractual cattle catchers
are being continued upon getting satisfactory work
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performance reports from the Zonal Authorities from time
for the purpose of removal of stray cattle & Illegal dairies
and are being paid monthly remuneration on minimum
wages basis revised from time to time. It is a well settled
law that the appointment made de-hors the recruitment
regulations is not legal, in view of the same, the present
claim is liable to be dismissed. It is further contended that
there is no policy of regularisation of Cattle Catchers in
the Management/ North DMC for contract
employees/Cattle Catchers. The regularisation policy in
the management is only for the daily waged workers in a
phased manner. It is further contended that the present
claim is not maintainable in the light of the judgement of
the Hon'ble Supreme Court passed in case of Uma Rani
Versus Registrar Cooperative Societies as reported in
(2004)7 Supreme Court Cases 112 as well as case titled as
"Secretary, State of Karnatake vs Uma Devi " & other
bearing appeal No. 3595- 3612/1999.. Rest of the
contentions of the statement of claim were also denied.
5. On the pleadings of parties, following issues were framed
vide order dated 14.01.2019:
1. Whether present dispute is an industrial
dispute as defined in section 2 (K) of Industrial
Dispute Act?OPW
2. Whether the present claim of the workmen
has been properly espoused by the union? OPW
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3. Whether the Municipal Employees union has
locus standi to raise the present dispute?OPW
4. Whether any notice of demand was served
upon management, if not its effect?
5. As per the terms of reference.
6. Relief.
6. In evidence, workman Dilshad Ahmed produced himself in
witness box as WW-1 and filed his evidence by way of
affidavit Ex. WW-1/A and relied upon several documents.
He was duly cross-examined by AR for management.
Workman also examined one Sh. Surender Bhardwaj, the
General Secretary of Municipal Employees Union as
WW2, who filed his evidence by way of affidavit Ex.
WW-2/A and relied upon Ex. WW1/15. He was also duly
cross-examined by AR for management. Thereafter, W.E.
was closed by AR for workman.
7. On the other hand, in defence, the management produced
one Sh. Sanjay Sharma, Administrative Officer, Veterinary
Services (HQ) MCD as MW-1 who filed his affidavit Ex.
MW-1/A and relied upon documents Ex. MW1/1 to Ex.
MW1/2. He was duly cross-examined by AR for
management. Thereafter, M.E. was closed.
8. I have heard the arguments and perused the entire records
of the case including pleadings of the parties, evidence led
and documents proved during evidence. The issue wise
findings of this Tribunal are as under:-
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Issue No. 1 Whether present dispute is an
industrial dispute as defined in section 2 (K) of
Industrial Dispute Act?OPW
Issue No. 2. Whether the present claim of the
workmen has been properly espoused by the
union? OPW
Issue No. 3. Whether the Municipal Employees
union has locus standi to raise the present dispute?
OPW
9. The issue no. 1, 2 & 3 are taken up together as they are
interconnected with each other.
10. The Ld. AR for the management has contended that the
present dispute is not an industrial dispute u/s 2(k) of the
Industrial Disputes Act, hence, the same is not
maintainable. It is also contended that the Municipal
Employees' Union does not have the locus standi to raise
the present industrial dispute as the same is not a
recognized union of the management of MCD. It is further
contended that the present dispute has not been properly
espoused because it is not supported by the massive
majority of the same category of workmen.
11. On the other hand, Ld. AR for the Workman in order to
prove the proper espousal has placed reliance upon Ex.
WW1/15 i.e. resolution dated 10.10.2011 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.,
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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 have been properly espoused by the union.
12. Likewise, the issue of espousal if any has to be taken at the
first instance i.e. when the case is pending before the
conciliation officer, and it should not be an afterthought
plea. Reliance in this regard is placed upon the Division
Bench judgement of Hon'ble Kerala High Court in
Mangalam Publications (India) Pvt. Ltd. v. Saju
George, W.A. No. 964 of 2020, decided on 01.12.2020,
wherein the management failed to take the plea of espousal
at the initial stage, and subsequently, when the dispute was
taken up for consideration by the Tribunal after being
referred by the union, it is not permissible for the
management to argue that the cause of the workman was
not supported by the union. Moreover, the Hon'ble Delhi
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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 categorising
it as hypertechnical and held that the cause of the
workman is properly espoused by the union.
13. Similarly, the workman has filed Ex. WW1/15 i.e. the
resolution dated 10.10.2011 passed by the Municipal
Employees Union stipulating that "it is unanimously
resolved to raise an industrial dispute in favour of Shri
Sanjay Kumar S/o Late Sh. Prabhu Dayal, Shri Santosh
Kumar s/o late Shri Suraj Bhan, Shri Mukesh Kumar s/o
Sh. Ram Kumar, Shri Mahesh Kumar s/o Late Sh. Lekh
Ram, Shri Vikas Sharma s/o late Shri Madan Gopal
Sharma, Shri Dilshad Ahmad s/o Sh. Shabuddin and Shri
Deepak S/o Sh. Azad Singh, Cattle Catcher, MCD, for
securing their regularization in services of the workmen
aforesaid on the post of Cattle Catcher with retrospective
effect from the initial date of their joining into the
employment or as per policy adopted by the management
and to pay them entire difference to salary on the
principle of "Equal Pay for Equal Work" for the period
from 19.08.2008 onwards."
14. The aforesaid resolution was signed by the General
Secretary of the Municipal Employees Union, who also
appeared before this Tribunal and was examined as WW-2.
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He filed his Affidavit as Ex. WW2/A and deposed that the
workman, along with other workers who were working as
Cattle Catchers in MCD, approached the Municipal
Employees Union in September 2011 for the redressal of
their grievances for securing regularisation in services on
the post of Cattle Catcher w.e.f. their initial dates of
joining or as per the policy adopted by the management,
and for the payment of the difference in salary on the
principle of equal pay for equal work from 19.08.2008
onwards. Consequently, a resolution was stated to be
passed in the meeting of the union held on 10.10.2011,
which is marked as Ex. WW1/15. The witness also
deposed that his union is registered under the Trade Union
Act, 1926, and its Registration No. is 793. The
management failed to cross-examine him despite the grant
of several opportunities. His testimony remained
uncontested and unrebutted, therefore, this Tribunal does
not have any reason to cast doubt on the same.
15. The testimony of the General Secretary corroborates with
the version of the workman, who had stated to be a
member of the Municipal Employees Union since 2011
and duly paid his subscription fees as well. He stated that
the meeting of the union was chaired by the secretary of
the Union, Sh. Surender Bhardwaj, and was also attended
by his co-employees. On the other hand, the management
witness in his cross-examination dated 01.04.2024 has
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conceded that the Municipal Employees Union is one of
the largest unions of workers. Further, the documents,
including Ex. WW1/15 filed by the workman on the
court's record, are admitted by the said witness to be
correct and authentic.
16. Hence, the documentary evidence, as well as the oral
testimony of both parties, clearly establish that the cause
of the workman has been properly espoused by the union,
and the Municipal Employees Union indeed has the locus
standi to file the present case on behalf of the workman.
Moreover, the management has failed to show if they had
taken objection pertaining to espousal at the first instance
when the case was pending before the conciliation officer.
Further, no basis has been shown by the management as to
why the case of the workman is not properly espoused
when the same union has been contesting the case of the
workman from the very beginning, the union's
representative has also corroborated the stance of the
workman, and the management witness has also
recognized the Municipal Employees Union to be one of
the largest unions of workers. Therefore, in view of the
discussion above, this tribunal is of the opinion that the
cause of the workman has been properly espoused by the
Municipal Employees Union, and it has the locus standi to
raise the dispute on behalf of the workman concerned.
Hence, the matter also falls within the definition of an
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industrial dispute of the I.D. Act. Accordingly, issue no. 1,
2, and 3 are decided in favor of the workman and against
the management.
Issue No. 4. Whether any notice of demand was
served upon management, if not its effect ?
17. The management has contended that no demand notice has
been served upon them prior to raising the present
industrial dispute. On the other hand, the workman has
pleaded that it has duly served the demand notice to the
management but no reply was received from them and
consequently it was presumed that his demand was
rejected. The AR for the management submitted that the
said legal demand notice is placed on record on the main
file of "Sanjay & 06 Ors. vs. MCD '' which was bifurcated
into individual disputes as per the directions of Ld.
Predecessor of Industrial No. 2.
18. Even though the management has taken this objection that
no legal demand notice was served upon them, it would
not have any impact on the present dispute because the
same is not mandatory before raising the present dispute.
Reliance is placed upon Workmen of M.C.D. vs. M.C.D.,
W.P.(C) No. 13023/2005 decided on 06.08.2007, wherein
the Hon'ble Court has held the following:
"5. Keeping in view the aforementioned
judgment, which clearly notes that there is no
specific requirement in the I.D. Act that a dispute
has to be raised only by making a demand in
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writing, any such interpretation given to Section
2(k) of the I.D. Act which narrows the definition
of the term, "industrial dispute" is not
permissible. Thus it cannot be held that merely
because a demand was not given in writing by the
petitioners to the respondent management, there
does not exist any industrial dispute between the
parties. Making a written demand is not a sine
qua non for raising an industrial dispute. Once
the appropriate Government passed an
administrative order referring an industrial
dispute for adjudication to the industrial
adjudicator, it has to be assumed that an
administrative decision was arrived at by the
Government after examining the material placed
on the record that there exists an industrial
dispute."
19. In view of the above, this tribunal holds that requirement
of demand notice is not sine-qua-non for raising an
industrial dispute under I.D. Act.Therefore, the issue no. 4
is decided in favour of the workman and against the
management.
Issue No. 5: As per terms of reference.
20. The AR for the Management has drawn the attention of
this Tribunal to the case of Secretary, State of Karnataka
and others vs. Umadevi and others, appeal (civil) 3595-
3612 of 1999, decided on 10.04.2006, and Uma Rani vs.
Registrar Co-operative Society as reported in (2004) 7
SCC 112. In these cases, it was held that regularisation is
not, and cannot be, a mode of recruitment by any State
within the meaning of Article 12 of the Constitution of
India or any body or authority governed by a statutory Act
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or the Rules framed thereunder. Regularisation
furthermore cannot give permanence to an employee
whose services are ad-hoc in nature. It was also held that
the fact that some persons had been working for a long
time would not mean that they had acquired a right for
regularisation. Further, it was also argued that the
management has its own policy of regularisation, i.e.,
phase manner regularisation policy, and the management
regularises its daily wage muster roll employees as per the
availability of the posts and funds. The said policy was
upheld by the Hon'ble Delhi High Court in MCD vs.
Gauri Shankar & Ors., WPC No. 601/1997 dated
31.08.1999, and MCD vs. Brij Mohan, WPC No.
17932/2004 dated 27.10.2005.
21. The workman representative has argued that the
management has committed an unfair labour practice as
enumerated in Section 2 (ra) read with item 10 of the Fifth
Schedule of the Industrial Disputes Act. He further
submitted that employing the workman on a permanent
sanctioned vacant post of Cattle Catcher and treating them
as mere temporary workman, and continuing them for
several years with the object of depriving them of the
status of a permanent workman, amounts to an unfair
labour practice. Regularising their services would mandate
the management to pay the salary in the regular pay scale
to the workman. He placed his reliance upon the judgment
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of the Hon'ble Supreme Court titled as Chief
Conservator of Forest and Anr., (1996) 2 SCC 293, and
the judgment of the Hon'ble Delhi High Court titled as
Project Dir. Dept. of Rural Development v. Its
Workmen, 2019 SCC OnLine Del 7796.
22. This tribunal has considered all the material on record as
well as legal submissions of the parties and have perused
the judgements cited by the both parties. As far as the
powers of Labour Courts and Industrial Tribunals are
concerned, 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 wide
powers to create new rights and liabilities upon the
employer. The relevant portion of the judgement 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 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
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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)."
23. Likewise, the Industrial Tribunal in the case of Chief
Conservator of Forest and Anr. (supra), and Project
Dir. Dep. Of Rural Development v. Its Workmen,
(supra), have also dealt with the powers of Industrial
Tribunals and granted regularisation to the workers
working for certain schemes for several years. The
relevant portion of the aforesaid judgement is reproduced
below:
"28. The decisions relied upon by the learned
counsel for the respondents in Ajaypal Singh
(supra), ONGC (supra) and Umrala Gram
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Panchayat (supra), also leave no manner of doubt
that the Supreme Court has specifically observed
that the prohibition laid down for regularisation
in Uma Devi (supra) does not apply to industrial
adjudication and that the Industrial Tribunal has
the power to direct regularisation of services in
cases where pursuant to unfair labour practices,
employees have been made to render services for
long periods of time on causal basis for work that
should ordinarily be done by regular employees."
........
61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It 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 of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
24. Even the recent judgement of Hon'ble Supreme Court in ONGC v. Krishan Gopal, (2021) 18 SCC 707 after discussion its various judgements on the aspect of power of Labour Court and Industrial Tribunal to grant regularization has laid down the following propositions:
POIT-245-18 Page No. 18/38DLCT130042752018 "28. The following propositions would emerge upon analysing the above decisions:
28.1. Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularization, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution.
28.2. The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages. 28.3. The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service.
28.4. Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit on a par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14.
28.5. In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of Vth Schedule to the ID Act, the employer POIT-245-18 Page No. 19/38 DLCT130042752018 should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.
25. In the instant case, it is not disputed that the management has sanctioned the posts of Cattle Catcher in their establishment. In fact the management witness in his Affidavit Ex. MW1/A has submitted in Para-3 that the workman was appointed against the vacant post of Cattle Catcher. This is suggestive of the fact that the management indeed has a permanent and sanctioned post of Cattle Catcher. Hence, in the presence of sanctioned posts of Cattle Catcher, the limitations of ONGC (Supra) will not be applicable to the present case. On the contrary it affirms the power of the Industrial Tribunal to grant regularisation pursuant to the findings of unfair labour practice. Furthermore, the argument with respect to Uma Devi (supra) was also dealt with in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 by the Hon'ble Supreme Court, which has observed that the managements have resorted to using Uma Devi (supra) as a tool to further exploit the services of the worker and not regularising them. The relevant portion of the judgement is as follows:
"7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State POIT-245-18 Page No. 20/38 DLCT130042752018 Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in POIT-245-18 Page No. 21/38 DLCT130042752018 old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily.
The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."
26. Hence, the reliance of the management on the judgments of Uma Devi (supra) to argue that this tribunal does not have the power to regularise the services of the workman concerned is misplaced in law. Notably, the Hon'ble Supreme Court in Chief Conservator of Forest (supra) and the Constitution Bench of the Hon'ble Supreme Court in Bidi Leaves (supra) clearly establish that Industrial POIT-245-18 Page No. 22/38 DLCT130042752018 Tribunals possess wide ranging powers, which include power to create new rights and liabilities, alter terms of employment, and impose new obligations on employers in the interest of social justice and industrial peace. Furthermore, the Hon'ble Supreme Court in Sheo Narain Nagar (supra) highlights the misuse of the Umadevi (supra) to further perpetuate exploitative employment practices, rather than adhering to its true spirit, which emphasises on regular employment. This Tribunal, therefore, is not only empowered but also obligated to rectify such injustices by regularising the services of workmen who have been subject to unfair labour practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
27. Now, moving on to the factual matrix of this case, it is an undisputed and admitted position that the workman, Sh. Dilshad Ahmed, joined the employment of the management as a Cattle Catcher w.e.f. 19.08.2008. His name was called from an Employment Exchange, and he also underwent the due selection procedure, i.e., physical tests and medical examination. Ex. WW1/2 is the enrollment of the workman in the Employment Exchange, and Ex. WW1/3 is the letter dated 23.06.2008 sent to the workman by the management asking him to attend the selection procedure for the work of a cattle catcher. The POIT-245-18 Page No. 23/38 DLCT130042752018 management witness in his affidavit has also confirmed that the workman was appointed after passing the selection process conducted by the selection board. Para 2 of the Affidavit of MW1, i.e., Ex. MW1/A, stated that, It is submitted that for recruitment of cattle catcher on contract basis, the employment officer of Distt. North GNCTD, Delhi University was requested to sponsor names of suitable candidates between the age of 18 to 27 years & with minimum required VIII passed qualification. Subsequently, after sponsoring 224 candidates the selection process was undertaken with 2 kms physical race in Chhatrashal Stadium, Model Town, including medical examination report furnished by Dr. S. Kumar CMO (Law), Hindu Road Hospital being one of the Members of the selection Board, on the basis of best timings of individual candidates achieved by running 2 KMS physical race, fulfilling of other laid- down parameters, 84 candidates were selected for the same by the Department." It has also come on record that the workman was appointed by the management against the vacant post of Cattle Catcher. The aforesaid affidavit of the management witness at Para No. 3 states that, "the workman Sh. Dilshad Ahmed S/o Shri Sahabuddin, BMID No. 10003149 is working as cattle catcher on contract basis from 19.08.2008 to till now under the control of Veterinary Services Department, MCD. Sh.
POIT-245-18 Page No. 24/38DLCT130042752018 Dilshad Ahmed joined the MCD on contractual basis as cattle catcher vide office order no. 1059/VO(ENF)/2008 dated 18.08.2008 initially for a period upto 31.12.2008 at a monthly consolidated pay of Rs. 3470/- for cattle catching activities against the vacant posts."
28. Further, the management witness, Sh. Sanjay Sharma (MW-1), in his cross-examination, has shed light on many disputed facts. He stated that the workman Dilshad Ahmed joined the employment w.e.f. 19.08.2008 as a Cattle Catcher. He was called through an employment exchange along with other applicants. He also admitted that the management constituted a selection board for the selection of cattle catchers and that the workman was found suitable for the post of Cattle Catcher by the selection board of management and thereafter was duly appointed by the management. He conceded that the workman has been working since 19.08.2008 continuously and uninterruptedly to till date and his work and conduct have also been found to be satisfactory. He stated that the job of a cattle catcher is increasing in Delhi as stray cattle are increasing in number. He acknowledged that the job of a cattle catcher is very challenging and that many times the workers are injured by the stray cattle and also beaten up by the people of the locality where they go to catch cattle. He admitted that the workman is paid minimum POIT-245-18 Page No. 25/38 DLCT130042752018 wages fixed and revised from time to time under the Minimum Wages Act. He also admitted that the post of cattle catcher has never been sent to the DSSSB for filling up. The cattle catcher is classified as MTS Veterinary workers. The workman also performed a normal eight-hour duty every day. The management witness also admitted the authenticity of documents filed by the workman on the court's record. He admitted that if the workman does not give an undertaking to the management, the workman would not have been allowed to continue in service. He acknowledged that the undertaking format is given by the management to the workman, and he is asked to sign on the dotted lines in the form of an Affidavit.
29. From the testimonies and material placed on record by both parties, it is established that the management called the name of the workman from the employment exchange. He was appointed by the selection board of the management after passing the selection procedure among many candidates. From his initial date of appointment, he has been working continuously and uninterruptedly, i.e., for about 15 years, against the vacant post of Cattle Catcher to date. He has also been performing his duties for eight hours but paid only the minimum wages as prescribed by the appropriate government. As far as the nature of the work is concerned, it is also established that POIT-245-18 Page No. 26/38 DLCT130042752018 the work of a cattle catcher is increasing due to the increase in cattle, and the same is dangerous because, many times, workers are injured by the cattle or beaten up by the people in localities.
30. The management has contended that the workmen are given a break of one day after the completion of every six months. In response, the workmen contended that the said one-day break is merely an artificial break imposed by the management solely for the purpose of breaking their continuous services. The management has not placed on record any rules or regulations where the management is empowered to grant a one-day break to the workman. In the absence of rules governing the management to grant a break in services to the workman, the management still indulges in such a practice, it leads me to the conclusion that such a break is given intentionally and deliberately to break the continuous and uninterrupted service of the workmen. This is considered an unfair labour practice on the part of the management to deprive the workman of the benefits arising out of regular and permanent employment.
31. In this regard, the Hon'ble High Court of Delhi in the case titled as Ashoka Hotel Vs. Govt. of NCT of Delhi & Ors., W.P.(C) No. 2800/2004, decided on 12.08.2015, in para No. 14, has specifically observed that "the mechanism and device of artificial breaks which ultimately leads to unfair labour practice is nothing but a POIT-245-18 Page No. 27/38 DLCT130042752018 tool to escape from the provisions and the objective of the Industrial Disputes Act, 1947. What is required is harmony and peace in the industry to promote the business activity which would be beneficial to both - the management as well as the workman".
32. The management has contended that the workers were engaged on a contract basis till 31.12.2008 for the purpose of launching special campaigns vigorously to comply with the "time-bound directions" dated 31.05.2007 of the Hon'ble Delhi High Court for the removal of stray cattle and illegal dairies in Delhi until proper recruitment is made by the department on a regular basis. This argument of the management does not hold any water, as the management witness himself admitted that the workman has been working continuously and uninterruptedly from his initial date of joining to till date. Had the workman been engaged by the management for "time-bound directions", his appointment would also have ended by 31.12.2008. Instead, under the guise of "time-bound directions", the management appointed the workman against the permanent and perennial nature of work as a cattle catcher and posted him against the vacant post of a cattle catcher. More importantly, after the passage of 15 long years, the workman still continues to perform the duties of a cattle catcher on a contract basis. Furthermore, the management also admitted that the work of a cattle POIT-245-18 Page No. 28/38 DLCT130042752018 catcher is increasing due to an increase in the number of cattle, contrary to their claims that the work of a cattle catcher is time-bound only.
33. The management has also argued that the workman submitted his joining, accepting the terms and conditions on 19.08.2008, and pursuant to which he was allowed to join duties as a contractual cattle catcher w.e.f. 19.08.2009. Therefore, once he had accepted to work in MCD on a contractual basis as per the terms and conditions mentioned in the office order, they cannot retract from the same and claim unfair labour practice on the part of the management. This tribunal does not find consensus on this argument of the management. Merely because the workmen accepted their appointment on a contract basis does not give the license to the management to post the workman against the vacant post of a cattle catcher and indulge in unfair labour practices by extracting work associated with the said post, and paying merely minimum wages for the same. Given that the workman is a lowly paid employee and considering his socioeconomic background, it is unreasonable to assume that he possesses equal bargaining power in determining the terms of his employment. The Hon'ble Supreme Court in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 156 has held that:
POIT-245-18 Page No. 29/38DLCT130042752018 "92.....The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type.
No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is POIT-245-18 Page No. 30/38 DLCT130042752018 equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction.
In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.
93. It is not as if our civil courts have no power under the existing law. Under Section 31(1) of the Specific Relief Act, 1963 (Act No. 47 of 1963), any person against whom an instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the court may in its discretion, so adjudge it and order it to be delivered up and cancelled.
94. Is a contract of the type mentioned above to be adjudged voidable or void? If it was induced by undue influence, then under Section 19A of the Indian Contract Act, it would be voidable. It is, however, rarely that contracts of the types to which the principle formulated by us above applies are induced by undue influence as defined by Section 16(1) of the Indian Contract Act, even though at POIT-245-18 Page No. 31/38 DLCT130042752018 times they are between parties one of whom holds a real or apparent authority over the other. In the vast majority of cases, however, such contracts are entered into by the weaker party under pressure of circumstances, generally economic, which results in inequality of bargaining power. Such contracts will not fall within the four corners of the definition of "undue influence"
given in Section 16(1). Further, the majority of such contracts are in a standard or prescribed form or consist of a set of rules. They are not contracts between individuals containing terms meant for those individuals alone, Contracts in prescribed or standard forms or which embody a set of rules as part of the contract are entered into by the party with superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable, are injurious to the public interest. To say that such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to court to have the contract adjudged voidable. This would only result in multiplicity of litigation which no court should encourage and would also not be in the public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void. While the law of contracts in England is mostly judge-made, the law of contracts in India is enacted in a statute, namely, the Indian Contract Act, 1872. In order that such a contract POIT-245-18 Page No. 32/38 DLCT130042752018 should be void, it must fall under one of the relevant sections of the Indian Contract Act. The only relevant provision in the Indian Contract Act which can apply is Section 23 when it states that "The consideration or object of an agreement is lawful, unless . . . the court regards it as . . . opposed to public policy."
34. During cross-examination, the management witness himself stated that if the workman does not give an undertaking to the management, the workman would not be allowed to continue in service. It is also established that while signing the so-called affidavit, the role of the workman was limited only to signing on the dotted lines, and even the format of the undertaking is provided by the management itself. In such a situation, the workman cannot be said to have an equal bargaining position to change the terms and conditions when he knows that if he dares to do such an act, he will not be provided the job by the management.
35. The Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors vs State of UP., (1986)1 SCC 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 these employees accepted employment with full knowledge of the terms POIT-245-18 Page No. 33/38 DLCT130042752018 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 emphasised 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. Therefore, in the present case, merely because the workman had accepted the terms and conditions and knew that he would be treated as contract workers, this does not bar him from raising the present dispute.
36. Therefore, it is evident that the concerned workman was appointed against the vacant post of Cattle Catcher w.e.f. 19.08.2008 and has been working continuously and uninterruptedly since then. It cannot be disputed that the job he is performing is permanent and perennial in nature when the management had a regular and permanent post for the said category. It is also not disputed that the workman was working against the vacant post of cattle catcher and discharging the duties associated with the said post. It is also conceded that the work and conduct of the workmen have been found satisfactory by the management. This tribunal has failed to understand why, POIT-245-18 Page No. 34/38 DLCT130042752018 despite undergoing the selection procedure, being appointed against the sanctioned vacant posts of Cattle Catcher, performing the work for the sanctioned post of Cattle catcher, fulfilling the requisite qualification for the post of Cattle Catcher, and having satisfactory work and conduct, yet the services of the workmen have not been regularised by the management to till date. Instead, the management indulged in the practice of granting an artificial break in the continuous services of the workmen.
37. In view of the admitted position and the material on record, this tribunal holds that the management has clearly committed an unfair labour practice as stipulated in Item No. 10 of the Fifth Schedule r/w Section 2(ra) of the I.D. Act by employing the workman on a contract basis for performing the permanent nature of work of Cattle Catcher and continuing him for 15 long years with the intent of depriving him of the status and privileges of a regular and permanent employee. This view is supported by the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra) and Project Director (supra), wherein the Hon'ble Supreme Court of India as well as the Hon'ble Delhi High Court has held that employing workers as temporary workers for long periods and denying them the status and salary of a regular employee amounts to an unfair labor practice. This is because giving them the status and privileges of a POIT-245-18 Page No. 35/38 DLCT130042752018 permanent employee would require the management to pay the workman a salary higher than the one fixed under the Minimum Wages Act. Therefore, in the instant case it is clearly established that the management has committed unfair labour practices and the same is covered by Para 28.2 & 28.5 of the Krishan Gopal (supra), wherein the Hon'ble Supreme Court has held that Industrial Tribunals are empowered to grant regularisation.
38. The management in its written statement as well as Affidavit submitted that the management does not have any policy of regularisation for contract employees vis-à- vis cattle catchers. The regularisation policy of the management is only for daily wage workers, whereas the workman was engaged on a contract basis. When there is no policy of regularisation, this tribunal cannot be a mute spectator to an unfair labour practice and allow the workman to work endlessly for performing the permanent work of a cattle catcher.
39. As far as regularisation on the post of cattle catcher is concerned, the management witness has stated that the post of cattle catcher is now classified as MTS Veterinary Worker, and the MTS are given the salary in Level-1 of the Pay Matrix (Group-C, scale of Rs. 18000-56,900) as per the recommendations of the 7th CPC.
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40. Hence, in these circumstances, when the management does not have any regularisation policy with respect to cattle catchers, this tribunal is of the opinion that the workman is entitled to regularisation in service on the post of Cattle Catcher/MTS Veterinary Worker w.e.f. 19.08.2008 in the regular pay scale with all consequential benefits, either monetary or otherwise. This tribunal also holds that the workman was performing the duties associated with the post of Cattle catcher from the very beginning, i.e., 19.08.2008, therefore, he is also entitled to the difference in salary on the principle of equal pay for equal work from 19.08.2008 onwards. Hence, the terms of reference are answered in favour of the workman and against the management.
Relief:
41. In view of my findings on the foregoing issues, this tribunal holds that the workman Dilshad Ahmad S/o Sh.
Shabuddin is entitled to regularisation in service on the post of Cattle Catcher/MTS Veterinary Worker w.e.f. 19.08.2008 in the regular pay scale with all consequential benefits, either monetary or otherwise. This tribunal also holds that the workman was performing the duties associated with the post of Cattle catcher from the very beginning, i.e., 19.08.2008, therefore, he is also entitled to the difference in salary on the principle of equal pay for equal work from 19.08.2008 onwards. The management is POIT-245-18 Page No. 37/38 DLCT130042752018 directed to implement the award within 60 days of its publication, failing which it will be liable to pay an interest @ 8% per annum from the date of reference, i.e., 11.02.2013, to till the final payment is made. 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 signedAJAY by AJAY GOEL Date: 2024.04.02 Announced in open Tribunal GOEL 15:34:27 +0530 on this 02.04.2024 (Ajay Goel) POIT-I/RADC, New Delhi. POIT-245-18 Page No. 38/38