Delhi District Court
Workmen vs . on 5 May, 2017
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL,
KARKARDOOMA COURTS, DELHI
I.D. No 166/16 (Old No.197/11)
Workmen
Smt. Vandana and 22 Ors, represented by Hospital Employees Union,
Agarwal Bhawan, GT Road, Tis Hazari, Delhi 110054
Vs.
Management
Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi
110006
Date of institution 22.12.2011
Date of reserving award 07.04.2017
Date of award 05.05.2017
Ref : F.24 (167)/ND/59/2011/Lab/23222326 dated 19.12.2011
A W A R D
1. Workmen have raised the present industrial dispute through Union
and on failure of conciliation proceedings, GNCT of Delhi referred the
dispute to this Tribunal for adjudication in following terms of reference:
''Whether demand of Smt. Vandana and 22 others (as
per Annexure 'A') for regularization of their services
I.D. No 166/16 Page 1 of 75
on the post of Auxilliary Nurse Midwives (ANMs)
with retrospective effect from their respective initial
date of joining or any other date in the pay scale of
Rs.520020,200/ and with all benefits is justified,
and if so, to what relief are they entitled and what
directions are necessary in this respect?
2. Statement of claim has been filed by the workmen, wherein it is
stated that workmen were appointed as ANM (Auxiliary Nurse Midwife)
during the period from the year 2001 to 2008 on different dates on
contract basis and were paid fixed wages revised from time to time as per
the sweet will of the management, while their counter parts doing the
identical work of same value were being treated as regular employees and
were being paid salary in proper pay scale and allowance, but the same
has been denied to the workmen herein. It is stated that a large number of
posts of ANMs carrying the regular pay scale is lying vacant. It is stated
that initially workmen were paid Rs.5000/ pm and from September 2007
@ Rs.8100 pm but the regular counter parts of the workmen are being
paid their salary in the pay scale of Rs.520020,200 and in order to
circumvent the law, they have been given one day break from July, 2003
onwards. It is stated that the workmen fulfill the Recruitment Regulations
(RRs) for the appointment on the post of ANM. It is stated that while
appointing them as ANMs the posts were advertised in the newspaper and
I.D. No 166/16 Page 2 of 75
in response to the same workmen applied for the same and they were
given offer of appointment and were duly appointed, however in May,
2007, these workmen were declared failed by the selection board for
ulterior reasons. However, they continued to work till date without any
complaint. It is stated that the workmen are continuously discharging
their duties with the management since the dates of their appointment but
the management has not regularised them. It is stated that similarly
situated workmen employed with Govt of NCT of Delhi discharging
similar duties and designated as contractual ANMs are getting Rs.15000/
pm. It is stated that workmen after completing 90 days of continuous
service have acquired the status of permanent employees from the initial
date of their joining as per the Model Standing Orders framed under the
Industrial Employment (Standing Orders) Act, 1946. It is stated that
employing the workmen on contract basis and continue them as such for
years together with the object of depriving them of th e status of
permanent workmen amounts to unfair labour practices. It is stated that
demand notice dated 19.11.2010 was duly served upon the management in
this regard and thereafter conciliation proceedings were also held, but the
same resulted in failure.
I.D. No 166/16 Page 3 of 75
3. It is, therefore, prayed that award be passed in favour of workmen
regularising the workmen on the post of ANMs with retrospective effect
from the respective initial date of joining or any other date in the pay scale
of Rs.520020200/ with all benefits. Cost of litigation has also been
prayed for.
4. In the written statement filed by the management, it is stated that
present dispute is not an industrial dispute as defined u/s 2(k) of Industrial
Disputes Act, 1947 and as such the same is not maintainable and that the
present dispute is not properly espoused by the union. It is stated that
claimants are contract workers and as such they are not the 'workman' as
defined u/s 2(s) read with Section 2(oo) (bb) of Industrial Disputes Act,
1947 and as such the present claim is liable to be dismissed. It is stated
that no demand notice has been served upon the management.
5. It is stated that present case is bad in law and is contrary to the rules
and regulations as well as settled policy of the management. It is stated
that as per the RRs for the post of ANM, the same is liable to be filled up
by way of passing the test conducted by the DSSSB and the claimants
have been engaged on contract basis for the specific period till the proper
recruitment is made through DSSSB. It is stated that it is well settled that
the appointments made dehors the recruitment regulations is illegal.
I.D. No 166/16 Page 4 of 75
6. It is stated by the management in its WS that there is no policy of
regularisation of contract ANMs in the MCD and the regularisation policy
in the management is only for daily wage workers, whereas the claimants
have been engaged on contract which they duly accepted. It is stated that
present case is not maintainable in view of the judgment of Hon'ble
Supreme Court in case of Uma Rani vs. Registrar Cooperative Societies
(2004) 7 SCC 112 as well as the case titled as Secretary, State of
Karnataka vs. Uma Devi. Other averments made in the statement of claim
have been denied and dismissal of the claim has been prayed for.
7. On the basis of pleadings of the parties, following issues were framed
vide order dated 27.08.2012:
1. Whether present dispute is an Industrial
Dispute as defined in section 2(k) of Industrial
Disputes Act? OPW
2. Whether the present claim of the workmen
has been properly espoused by the Union? OPW
3. Whether claimants are workmen as defined
under section 2(s) of Industrial Disputes Act?
OPW
4. Whether any notice of demand was served
upon the management, if so its effect? OPW
5. As per terms of reference.
I.D. No 166/16 Page 5 of 75
8. Workmen examined themselves as WW 1 to WW 23. In their
affidavit by way of their examination in chief, they have reiterated more
or less the contentions made in the statement of claim. In cross
examination, workmen have deposed that they do not know if regular
ANMs are being appointed by the management through Delhi Subordinate
Service Selection Board, GNCTD or that if DSSSB conducted
examination for selection of ANMs in MCD. It is admitted that they were
engaged as ANMs on contract basis for specific period. They have
deposed that at the time of their engagement as ANMs they were not
aware that they would not be regularised because of being appointed on
contract basis. It is admitted that they were executing agreement with the
management. They again said that they were giving only affidavit in this
regard and no agreement in this regard was signed by them. It is deposed
that contract agreements were signed by them after reading the same.
They voluntarily deposed that the have no choice as they had to sign the
same or lose their jobs. It is deposed that in response to the advertisement
given by the management, they submitted the application for the job of
ANM and they were given offer letter for the job of ANM and also they
submitted their acceptance to the same. It is denied that as per terms of
offer letter, they are not entitled for regularisation in service. It is deposed
I.D. No 166/16 Page 6 of 75
that as per recruitment rules for the post of ANM, they fulfill the
requirement of the same. It is denied that they were not appointed against
the vacant post of ANM carrying the regular pay scale. It is deposed that
they have not appeared for the examination of DSSSB for the post of
ANMs as no such opportunity was given to them by the management. It
is deposed that they are registered with Nursing Council of India
immediately after completing their diploma in ANM. They do not
remember whether the legal demand notice was served upon the
management or not. They have deposed that they do not know about the
policy of regularisation of service in MCD or that it is only for daily
wager and not for contract employees. It is deposed that meeting of the
union was held before raising the present dispute.
9. WW 2 Sh. Surender Bhardwaj, General Secretary of Municpal
Employes Union in his examination in chief by way of affidavit, has
relied upon the resolution of the union dated 02.11.2010 Ex. WW 1/6.
WW 2 has deposed that he is General Secretary of the union and that the
workmen approached the union with their grievances regarding
regularisation of their service and the union vide its resolution dated
02.11.2010 espoused the cause of the workmen. In cross examination,
he has deposed that he has not filed on record constitution of the union nor
I.D. No 166/16 Page 7 of 75
any document regarding recognition of the union by MCD. He
voluntarily deposed that he can produce the same. He deposed that he has
not placed document regarding annual return before the Registrar of Trade
Union, but he can produce the same. He deposed that all 15 executive
members were present in the meeting held on 02.11.2010.
10. Management examined Sh. CV Adyalkar, its Administrative Officer
as MW 1. In his affidavit filed by way of his examination in chief, he has
reiterated the contents of written statement filed by management. The
said witness was not produced by the management for his cross
examination.
11. Management examined Sh. Louis Daniel, its Administrative Officer as
MW 2. In his affidavit filed by way of his examination in chief, he has
reiterated the contents of written statement filed by management. In his
cross examination, he has deposed that he has been working in MCD for
last about 30 years and that the concerned workmen have not worked with
him under his control and supervision at any time. He deposed that the
address shown at point A on Ex. WW 1/1 is correct. Same was his my
reply in regard to Ex. WW 1/3. He deposed that Ex. WW 1/4 has address
of management but same is incomplete. He deposed that as per this
address a common person can easily reach to the office of MCD
I.D. No 166/16 Page 8 of 75
Commissioner. He deposed that Ex. WW 1/5, 2/1, 7/1, 3/1, 4/1, 5/1, 6/1,
18/1, 15/1, 16/1, 17/1, 19/1, 8/1, 9/1, 10/1, 23/1, 22/1, 11/1, 14/1, 12/1,
13/1, 21/1, 20/1 were issued by MCD. He did not know whether the
conciliation proceedings was already done in this matter or not. He
deposed that he did not attend the conciliation proceedings on behalf of
management at any time. He deposed that the above mentioned 23
workmen fulfill Recruitment Rules for the post of Auxilliary Nurse
Midwife. He did not have any knowledge whether their work and conduct
is satisfactorily or not. It is admitted that abovesaid workmen are doing
same job as done by the regular ANMs and even their working hours are
also same. He deposed that the concerned workmen are paid only Rs.
25000/ whereas regular counter parts are given their salary in pay scale of
Rs. 520020200 which comes to around Rs. 50,000/ approximately per
month. It is admitted that management demands from these workmen
giving undertaking that they will not raise any dispute or go to the court
nor they will claim their regularisation of services and that in case the
workman does not submit abovesaid undertaking her job is not continued
any further and will lose her job. It is deposed that before appointment of
the workmen an advertisement was given in newspaper for the post of
ANM and in response to the advertisement the concerned workmen and
I.D. No 166/16 Page 9 of 75
others applied for the job of ANMs. He did not know if documents were
examined and interview was conducted before giving employment to
these concerned workmen. He did not have any knowledge whether other
candidates also applied alongwith these workmen and were not qualified
and were not kept in the employment. He deposed that the interview
board in regard to these workmen was created to take their interview.
However, he was not in this department at that time. He deposed that Ex.
MW 1/W1 is correct statement in regard to the total sanctioned post of
ANM and the vacant post of ANM which is at point A and Ex. MW 1/W1
was issued by management. It is admitted that in other department there
are many other posts of ANM and many of them are lying vacant since
long. It is admitted that concerned workmen are working against
sanctioned vacant post of ANM since their appointment.
12. MW 2 did not have any knowledge why the concerned workmen were
not regularised or confirmed as regular ANM. It is denied by MW 2 that
management indulged in unfair labour practice in May 07 by not selecting
them or that management has indulged in unfair labour practice by not
granting them salary and status of the post against which they are working
or that management has done this in violation of principle of equal pay for
equal work. He did not know if Hospital Employees Union is one of the
I.D. No 166/16 Page 10 of 75
largest union of the employees of MCD in health department. It is
admitted that union can raise demand of concerned workmen. He deposed
that the workmen after completing six months of service given one day
break by management because they are not regular employees. He
deposed that there is no rule or regulation under which MCD can give one
day break as in this case. He did not know as to who gives prescribed
proforma of undertaking. It is admitted that in Recruitment Rules no
where mentioned that selection process of the workmen will be conducted
by DSSSB. MW 2 had nothing to show that there is any rule or resolution
that selection of post of ANM/ these workmen will be done by DSSSB.
It is deposed that management has blatently indulged in unfair labour
practice treating the workmen as contract workers and not granting status
and salary of a regular employee.
13. Management has also examined Dr. Devender Kumar Seth, Director
Hospital Administration as MW 3, who in his affidavit filed by way of
examination in chief has more or less reiterated the contents of written
statement filed on behalf of the management. In his cross examination, he
has deposed that it is the policy of Delhi Govt. that all appointments to the
posts of Group B and C would be made through Delhi State Staff
Selection Board which policy is being followed/adopted by the
I.D. No 166/16 Page 11 of 75
management and he was not having any document to show the above fact
presently. It is denied that MCD is totally independent of the Delhi Govt.
It is deposed that MCD is a creation of DMC Act, 1957 and it is not
mentioned in the Act that the MCD is a part of Delhi Govt. It is denied
that MCD can assign the recruitment process of posts belonging to B and
C Category with the management to any agency other than the DSSSB.
It is deposed that it is not mentioned in the RRs of the of the post of
ANM Ex. MW 1/80 that the recruitment would be through DSSSB. He
deposed voluntarily that DSSSB did not exist at the time when the RRs
were notified. He deposed that no amendment has been made in the RRs
for the post of ANM after coming into existence of DSSSB. It is deposed
that at the time of appointment of the workmen, post was advertised and
the selection board duly appointed them on the post of ANM but on
contract basis. He deposed that management had not taken any test of the
workmen after their initial appointment. He deposed that he has seen the
attendance register pertaining to the present workmen. It is denied that it
is deliberately being shown a break of one day after six months in respect
of the workmen, though they are working continuously with effect from
the date of their initial appointment with the management. He deposed
that the Commissioner is empowered under DMC Act to make
I.D. No 166/16 Page 12 of 75
appointments by way of renewable contracts as is being done in the case
of the workmen. He deposed that the contract of service of the workmen
is of the duration of six months each which is being renewed on its expiry
and there is no mandatory one day break in between renewal of the
contracts. He deposed that the work and conduct of the workmen are
satisfactory. It is admitted that workmen are fulfilling the conditions as
laid down in RRs for the post of ANM. He deposed that the address of
the management at point A on Ex. WW 1/1 as also on Ex. WW 1/2 and
Ex. WW 1/3 are correct.
14. I have heard arguments from Sh. Sh. Rajiv Agarwal, Ld. AR for
workmen and Sh. Umesh Gupta, Ld. AR for the management.
15. Ld. AR for workman has relied upon following authorities:
1. Rajender Singh vs Union of India 2015 (147) DRJ
113
2. Umrala Gram Panchayat vs. The Secretary,
Municipal Employees Union and Ors. 2015 LLR 449
3. Ajaypal Singh vs. Haryana Warehousing
Corporation MANU/SC/1231/2014
4. Maharashtra State Road Transport Corporation and
Anr vs. Casteribe Rajya P. Karmchari Sangatana
2009 (123) FLR 136
16. Ld. AR for management has relied upon following authorities:
1. Mrs. Seema Bansal vs. Universit of Delhi and Ors.
WP (C) No.1771/2003 Decided on 14.03.2017
2. Rahul Singh Bhadoria and Ors. vs. Life Insurance
Corporation WP (C) No.3640/2016 and CM
No.15564/2016 decided on 05.12.2016
I.D. No 166/16 Page 13 of 75
3. Parmod Kumar Dhailwal vs. GNCT of Delhi 221
(2015) Delhi Law Times 110
4. Secretary, State of Karnataka and Ors. vs. Uma
Devi and Ors. III (2006) SLT 539
17. I have carefully gone through record of the case. My findings on the
issues are as under :
Findings on issues no.1 and 2
18. Issue no.1 is : Whether present dispute is an Industrial Dispute as
defined in section 2(k) of Industrial Disputes Act? OPW. Issue no.2 is :
Whether the present claim of the workmen has been properly espoused by
the Union? OPW. These two issues are interconnected and are taken up
together.
19. Objection of the management in the written statement is that present
dispute is not an industrial dispute and that the same is not espoused by
the union.
20. Section 2(k) of I.D. Act defines the term "industrial dispute". Same is
reproduced as below:
"industrial dispute" means any dispute or
difference between employers and employers, or
between employers and workmen, or between
workmen and workmen, which is connected with
the employment or nonemployment or the terms
of employment or with the conditions of labour,
of any person;
21. WW 24 Sh. Surender Bhardwaj, General Secretary of Hospital
Employees' Union has proved on record copy of resolution passed by the
union in respect of the instant industrial dispute raised by the workmen
I.D. No 166/16 Page 14 of 75
against the management i.e. of their regularisation on the post of ANM
with the management w.e.f. date of their initial appointment to the same
on the part of the management in the proper pay scale with all
consequential benefits as Ex. WW 1/6, in respect whereof it is seen from
the cross examination of WW 24 on behalf of management in workmen
evidence, the competency of the subject union viz. Hospital Employees
Union to espouse the cause of the workmen in the instant reference vide
Ex. WW 1/6, as abovesaid, has not been specifically questioned/
challenged, to which it is further seen from the testimony of MW 2 Sh.
Louis Daniel, Administrative Officer (Health) of the management / MCD
that it has been admitted that union can raise demand of the concerned
workmen. In view of this specific document, it is clear that the claim of
the workman has been espoused by the Union.
22. Moreover, in State of Bihar vs. Kripa Shanker Jaiswal, AIR 1961 SC
304; (1961) 2 SCR 1, it has been held that a dispute becomes an industrial
dispute even where it is sponsored by union which is not registered or
where the dispute raised is by some only of the workmen. Similar
observations were made in Nazrul Hassan Siddiqui, Petitioner vs
Presiding Officer, Central Government IndustrialcumLabour Court no.2,
Bombay and Others, Respondents, 1997 LAB I.C. 1807.
I.D. No 166/16 Page 15 of 75
23. Hence, in view of above proposition of law and facts and circumstances of the case, it is held that the claim of the workman has been properly espoused by the Union and thus, the present dispute is an industrial dispute as defined u/s 2(k) of I.D. Act. Issues no.1 and 2 are decided accordingly.
Findings on issue no.3
24. Issue no.3 is Whether the claimants are workmen as defined under Section 2(s) of Industrial Disputes Act? OPW
25. Vide Section 2(s) of Industrial Disputes Act, 1947, definition of 'workman' is as follows: "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
I.D. No 166/16 Page 16 of 7526. It is seen from the record that workmen have been working on the post of Auxiliary Nurse Mid Wife (ANM) with the management w.e.f. the dates as mentioned against their names vide Annexure A to the instant reference i.e. w.e.f. 01.08.2001 alongwith other dates as mentioned against their names in the same which post/appointment of the workmen with the management is admittedly of the nature of manual skilled workmen and with no assertion whatsoever on the part of the management that they are working in any managerial or administrative capacity with the management or even that they were working in any supervisory capacity with the management drawing wages in excess of Rs.10,000/ per mensem at the time of raising of industrial dispute, the claimants are accordingly held to be 'workman' under the definition of 'workman' u/s 2(s) of Industrial Disputes Act, 1947(as amended up to date). Issue no.3 is decided accordingly in favour of the workmen.
Findings on issue no.4
27. Issue no.4 is : Whether any notice of demand was served upon the management, if so its effect? OPW
28. Copies of two legal demand notices dated 19.11.2010 have been proved by WW 1 as Ex. WW 1/1 & Ex. WW 1/3 and their postal receipts have been proved as Ex. WW 1/2 and 1/4 respectively. In view of these I.D. No 166/16 Page 17 of 75 specific documents, it is clear that demand notice has been duly served upon the management. Though, management vide its written statement and its witnesses has denied the receipt of the same, however, in Shambu Nath Goyal vs. Bank of Baroda, Jullundur, (1978), 2 SCR 793, Hon'ble Supreme Court after referring to section 2(k) of the Industrial Disputes Act, 1947, held as below:
"A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or nonemployment or terms of employment or with the conditions of labour of any person, there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming intoexistence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 2 forbids going on strike without giving a strike notice."
29. In view of above judgement, receiving of demand notice by the management will have no material effect on the award as no such notice was required to be given. This issue is accordingly decided in favour of workmen.
Findings on issue no.5
30. Issue no.5 is : As per terms of reference. Terms of reference are :
''Whether demand of Smt. Vandana and 22 others (as per Annexure 'A') for regularization of their services on the post of Auxilliary Nurse Mid I.D. No 166/16 Page 18 of 75 Wives (ANMs) with retrospective effect from their respective initial date of joining or any other date in the pay scale of Rs.520020,200/ and with all benefits is justified, and if so, to what relief are they entitled and what directions are necessary in this respect?
For the sake of record, Annexure 'A' is reproduced herein below: Sl. Name and father's/ Husband's Design Date of Present place of posting No. Name ation appointment 1 Vandana w/o Sh. Sandeep ANM 01.08.2001 M&CW Center, Kumar Karawal Nagar.
2 Sushila w/o Sh. Jitendra ANM 01.08.2001 M&CW Center, E4,
Nand Nagari
3 Rachna Rana d/o Sh. Jagdish ANM 01.08.2001 Mty. Home Karawal
Rana Nagar.
4 Monika Bhardwaj d/o Sh. ANM 01.08.2001 Mty. Home Khichri Pur
C.L. Sharma
5 Parmila w/o Sh. Parveen ANM 01.08.2001 Mty. Home Geeta
Colony.
6 Babita d/o Sh. Jai Bhagwan ANM 01.08.2001 M&CW Center,
Babar Pur
7 Dimple Kumari d/o Sh. ANM 01.08.2001 M&CW Center, Geeta
Satveer Singh Colony.
8 Sheela Rani w/o Sh. Bihay ANM 23.08.2001 Kamla Nehru Mty.
Kumar Home.
9 Neetu w/o Sh. Sandeep ANM 01.08.2001 Mty. Home,
Chandiwalan
10 Urmila Devi w/o Sh. Sat ANM 05.10.2001 M&CW Center,
Narain Sagarpur, Delhi
11 Sunita d/o Sh. Sube Singh ANM 01.08.2001 M&CW Center,
Mangolpuri, S Block,
Delhi.
12 Sushila w/o Sh. Ved Prakash ANM 22.08.2001 Mty. Home Shakti
Nagar.
I.D. No 166/16 Page 19 of 75
13 Indu Bala w/o Sh. Virender ANM 18.08.2001 M&CW Center,
Kumar Sagarpur, Delhi
14 Chanchal Rani w/o Sh. Sunil ANM 01.08.2001 Mty. Home Chandi
Kumar Walan.
15 Jolly Joseph d/o Sh. Joseph ANM 01.08.2001 Mty. Home/M&CW
Cherian Center, Sarai Mohalla
16 Shashi Bala w/o Sh. Ashwani ANM 01.08.2001 M&CW Center, Nangal
Kumar Raya, New Delhi.
17 Pinki Mann d/o Sh. Niranjan ANM 15.09.2005 Maternity Home
Singh Bakhtawarpur
18 Kamla Kujur d/o Sh. Daya ANM 04.09.2008 Maternity Home
Kishore Bakhtawarpur
19 Babita Verma d/o Sh. ANM 21.10.2005 Maternity Home Geeta
Brahmanand Verma Colony
20 Ranjana Mitra w/o Sh. Manoj ANM 31.12.2008 Maternity Home Geeta
Kumar Colony
21 Poonam Rana d/o Sh. Satbir ANM 13.09.2005 Maternity Home
Singh Bakhtawarpur
22 Ms. Neelam w/o Sh. Kuldeep ANM 26.12.2005 Maternity Home RP
Singh Bagh.
23 Nidhi d/o Sh. Raj Singh ANM 08.12.2005 Maternity Home
Jawahar Nagar.
31. It is seen from the record that it has been deposed vide the testimonies of WW 1 to WW 23 in workmen evidence interalia that they had joined into the employment of the management on the post of ANM w.e.f. the dates of their appointments as mentioned against their names vide Annexure A to the instant reference and accordingly they are working with the management on the said posts continuously w.e.f. the dates of their first appointment apparently on contract basis vide appointment letters issued by the management in their respect which are Ex. WW 1/5, I.D. No 166/16 Page 20 of 75 Ex. WW 2/1 to Ex. WW 23/1 on fixed salary of Rs.5000/ pm., as also vide Ex. MW 1/1 to Ex. MW 1/23, on record.
32. It has further been deposed that large number of posts of ANM on regular basis are lying vacant; that the workmen were taken into the job on contract basis as mentioned in their appointment letters issued by the management and they were paid fixed wages which were revised from time to time as per sweet Will of the management while their counter parts were getting salaries in proper pay scale and allowances; that large number of posts of ANM on regular basis are lying vacant; that initially they were paid Rs.5000/ pm and thereafter they were paid Rs.8100/ pm., however regular counter parts of the workmen were paid salary in the pay scale of Rs.520020200; that the management was taking some illegal undertaking from them; that they fulfill the RRs for the appointment on the posts of ANM; that while appointing them as ANM, posts were advertised in the newspaper and in response to the advertisement, they had applied for the same and thereafter interview was taken by the selection board and after successfully passing through the interview and medical test, they were given offer for appointment and were duly appointed; that they have been working continuously on their post of ANM with no complaint in their working; that they are working against the vacant post I.D. No 166/16 Page 21 of 75 of ANM since their induction and have undergone rigorous employment procedure at the time of initial appointment with the management, infact they are continuously discharging services with the management since their initial joining and they have unblemished and uninterrupted record of service to their credit; that though they are supposed to be regularised since their initial joining but no steps have been taken by the management till date; that similarly situated workmen employed with GNCT of Delhi and discharging similar duties and designated as contractual ANM are getting Rs.15000/ pm; that as such the action of the management regarding nonregularization of their service is totally illegal and unjustified and their services are supposed to be regularised in proper pay scale and allowances and they are entitled to difference of salary on the principle of equal pay for equal work with all arrears.
33. It has further been deposed by the workmen that the job against which they were working is of a regular and permanent nature of job and the action of the management in employing persons on regular nature of job and treating the workmen as monthly paid/ muster roll worker and paying them lesser remuneration is totally illegal and unjustified; that the management exploited the services rendered by the workmen; that workmen have acquired the status of a permanent employees from the I.D. No 166/16 Page 22 of 75 initial date of their joining after completing 90 days of continuous employment and furthermore, the action of the management in employing the workmen as contractual or temporary and to continue them as such for years together with the object of depriving them of the status and privileges of permanent workmen amounts to unfair labour practice; that the work and conduct of the workmen has been extremely satisfactory and there has been no complaint against their work; that furthermore the workmen have been meted out with hostile discrimination as juniors to them have been regularised in service in proper pay scale and allowances since their initial dates of joining but the workmen have been completely ignored in this matter; that Sh. Surender Bhardwaj Secretary of Hospital Employees' Union sought certain information regarding yearwise details of the posts of ANMs lying vacant in health department of MCD to which a reply dated 15.12.2010 has been received from the office of IPP VII (Health Department) MCD and as per the said reply number of posts of ANMs are lying vacant; that a demand notice was also sent to the management by Regd. AD post vide communication dated 19.11.2010, which was duly received in their office but no reply has been received and it is presumed that the demand has been rejected; that thereafter conciliation proceedings were also initiated but same resulted into failure I.D. No 166/16 Page 23 of 75 due to adamant and non cooperative attitude of the management.
34. In their cross examination, WW 1 to WW 23 have deposed interalia that it is correct that they have been engaged as ANMs on contract basis for specific period and that they were not aware that they would not be regularised in service because of their appointment being on contract basis; that it was correct that they were executing agreements with the management and again said that they were giving only affidavits in this regard and no agreements in this regard were signed by them; that they have also tendered similar agreements as were filed by WW 1 to WW3 at the instance of management that it was wrong to suggest that they have given these documents of their own; they have signed the above documents after reading the same. They voluntarily deposed that they had no choice as they had to sign the above mentioned affidavits or lose their jobs. It was further deposed that it was correct that above mentioned agreements were signed in front of the witnesses; that in response to advertisement given by management, they submitted their applications for the job of ANM; that it was correct that they were given offer letters for the job of ANM and they submitted their acceptance to the same; that it was wrong to suggest that in terms of offer letter, they were not entitled for regularisation in service; that they were fulfilling the requirements of I.D. No 166/16 Page 24 of 75 RRs for the post of ANM; that the qualification for the post of ANM is tenth class passed and diploma in ANM; that they have filed their qualification certificates with the management at the time of their appointment; that they have stated correct facts in para 4 of their affidavits in regard to appearance before the selection board and the selection board was constituted for regular appointment; that it was wrong to suggest that they were not appointed against the vacant post of ANM carrying the regular pay scale; that it was wrong to suggest that they have wrongly stated that they were working continuously and uninterruptedly since the date of their joining with management; that they were registered with Nursing Council of India in various years immediately after completing their diploma in ANMs; that they did not know if DSSSB conducted the exam for ANMs in 2008 also; that they did not know about the policy of regularisation of services in MCD or that it is only for daily wagers and not for employees working on contract basis; that it was wrong to suggest that they are not entitled for regularisation in service as they are contract employees; that it was wrong to suggest that they are not entitled for pay scale of regular ANMs; that they did not remember the contents of advertisement in response to which they applied for the post of ANMs in 2001; that meeting of the union was held on 02.11.10 before raising the I.D. No 166/16 Page 25 of 75 present industrial dispute; that it was wrong to suggest that they are not entitled for the relief claimed i.e. regularisation on the post of ANM in proper pay scale w.e.f. their respective initial date of joining with all consequential benefits as per terms of reference.
35. In the management evidence, management has led evidence of MW 2 Sh. Louis Daniel, Administrative Officer (Health) of the North DMC who has deposed vide his affidavit by way of evidence Ex. MW 2/A to the effect interalia that claimants have been given appointment letter in which it was clearly mentioned that claimants were being engaged on contract basis for a period of 06 months or till the time same is filled up on regular basis; that all the claimants had joined duties only after accepting terms and conditions of the offer letter issued to them which are Ex. MW 1/1 to Ex. MW 1/23, copies of the latest application for further extension of contracts, written by each of the claimants are exhibited as Ex. MW 1/24 to Ex. MW 1/46, copies of the latest contract entered into between each of the claimants and the management are Ex. MW 1/47 to Ex. MW 1/69, copies of the latest office orders issued by the management in respect of the claimants are Ex. MW 1/70 to Ex. MW 1/79 and copy of Recruitment Rules for the post of ANM are Ex. MW 1/80.I.D. No 166/16 Page 26 of 75
36. It has further been deposed by MW 2 that regular recruitments for the post of ANM are being made by the Delhi Subordinate Services Selection Board, Govt of Delhi (in short known as DSSSB) on the requisition of the management; that DSSSB advertises the vacancies on the basis of requisition of the management and selects candidates after conducting written examination of the willing candidates; that the DSSSB vide office order no.48 dated 13.08.2008 selected 49 ANMs under unserved category, 13 ANMs under SC category, 24 ANMs under OBC category and 6 ANMs under ST category, copy of which are Ex. MW 1/81 to 1/85; that the management had further made requisition of 325 posts of ANMs alongwith other posts i.e. PHN, A Grade Staff Nurse and Statistical Clerk etc. from the DSSSB vide their letter no.AO(H)/SDMC/2012/146 dated
31.08.2012, copy of which is Ex. MW 1/86 to Ex. MW 1/89; that it is not out of contest to mention here that due to some typographical error, the post of ANMs were mentioned as 325 instead of 225 for which clarification has been made vide letter no.AC(H)/SDMC/2013/735 dated 04.06.2013, copy of which is Ex. MW 1/90, but till date no recruitment has been made by the DSSSB; that at the time of initial appointment on contract basis, all the claimants very well knew about the fact that the posts were being filled up on contract basis on a consolidated monthly I.D. No 166/16 Page 27 of 75 salary and they cannot be regulrised at any point of time.
37. MW 3 Dr. Devender Kumar Seth, Director, Hospital Administration, North DMC has deposed on the same lies as MW 2. He has further deposed that DSSSB advertised said posts of ANM vide advertisement no.1/14, post code 14/14; that the DSSSB has declared part result of 132 vide Result Notice 520 dated 01.08.2010, copy of which is Ex. MW 3/1;
that at the time of initial appointment on contract basis as well as at each and every subsequent extension, all these claimants have been well aware about the fact that their engagement is on contract basis for a period of six months or till such time the list of selected candidates for the post of ANM is received from DSSSB, whichever is earlier and they cannot be regularised at any point of time; that it is pertinent to mention here that the ANMs are being paid the salary in the pay scale of Rs.520020200 + GP 2400+DA (Variable)+ HRA + Other usual allowances vide office order No. AO(H)/NDMC/2014/1346 dated 29.09.2014 and their submission in the claim application that they are not paid salary in the pay scale of Rs.520020200 is totally wrong and the copy of the office order dated 29.09.14 is Ex. MW 3/2.
38. In cross examination MW 3 has deposed interalia that it is the policy of Delhi Govt. that all appointments to the posts of Group B and C would I.D. No 166/16 Page 28 of 75 be made through Delhi Subordinate Service Selection Board which policy is being followed/adopted by the management and he is not having any document to show the above fact presently; that it is wrong to suggest that MCD is totally independent of the Delhi Govt.; that it is correct that MCD is a creation of DMC Act, 1957; that it is not mentioned in the Act that the MCD is a part of Delhi Govt.; that it is wrong to suggest that MCD can assign the recruitment process of posts belonging to B and C Category with the management to any agency other than the DSSSB; that it is correct that it is not mentioned in the RRs of the post of ANM Ex. MW 1/80 that the recruitment would be through DSSSB. He voluntarily deposed that DSSSB did not exist at the time when the RRs were notified. MW 3 further deposed that no amendment has been made in the RRs for the post of ANM after coming into existence of DSSSB; that it is correct that at the time of appointment of the workmen, post was advertised and the selection board duly appointed them on the post of ANM; he deposed voluntarily on contract basis. He further deposed that management had not taken any test of the workmen after their initial appointment; that he has seen the attendance register pertaining to the present workmen; that it is wrong to suggest that it is deliberately being shown a break of one day after six months in respect of the workmen, I.D. No 166/16 Page 29 of 75 though they are working continuously with effect from the date of their initial appointment with the management; that the Commissioner is empowered under DMC Act to make appointments by way of renewable contracts as is being done in the case of the workmen;that he cannot tell the provision of law in this regard; that the contract of service of the workmen is of the duration of six months each which is being renewed on its expiry; that there is no mandatory one day break in between renewal of the contracts; that it is wrong to suggest that one day break is being given on completion of six months contract; that whatever he has stated in his deposition is correct and any stipulation to the contrary in Ex. MW 1/77, Ex. MW 1/79 are incorrect; that the work and conduct of the workmen are satisfactory. He voluntarily deposed that is why their contracts have been renewed. He further deposed that it is correct that workmen are fulfilling the conditions as laid down in RRs for the post of ANM; that the address of the management at point A on Ex. WW 1/1 as also on Ex. WW 1/2 and Ex. WW 1/3 are correct; that he has not asked by way of writing any letter to the office of the Commissioner MCD as to whether any demand notice of the workmen/ union Ex. WW 1/1 and Ex. WW 1/3 have been received there; that it is wrong to suggest that he deposed falsely in para 2 of his affidavit; that he can only answer after checking the records as to how I.D. No 166/16 Page 30 of 75 many posts of ANM in different years since 2001 have been vacant; that it is wrong to suggest that the workmen are entitled for the relief claimed by them.
39. It is the submission of Ld. AR for workmen that it is not disputed that the workmen WW 1 to WW 23 viz Vandana and 22 Others as mentioned vide Annexure A to the instant terms of reference and who have filed statement of claim in the same have been working with the management w.e.f. the dates as mentioned against their names in the same i.e. in Annexure A to the terms of reference as also in the statement of claim , on the post of ANM almost continuously as is evident from the testimony of MW 2 Sh. Louis Daniel in his cross examination in ME when he states that it is correct that Vandana and 22 whose names are mentioned in statement of claim are working in MCD as Auxilliary Nurse Midwife; that it is correct that Vandana, Sushila, Rachna, Monika Bhardwaj, Parmila, Babita, Dimple, Sheela Rani, Neeru, Urmila Devi, Sunita, Sushila, Indu bala, Chanchal Rani, Joly Joseph, Shashibala, Pinki Maan, Kamla Kujur, Babita Verma, Ranjana, Poonam, Neelam, Nidhi joined services of management joined into the employment of MCD w.e.f. 1.8.01, 1.8.01, 1.8.01, 1.8.01, 1.8.01, 1.8.01, 1.8.01, 23.8.01, 1.8.01, 5.10.01, 1.8.01, 22.8.01, 18.8.01, 1.8.01, 1.8.01, 1.8.01, 15.9.05, 4.9.08, 21.10.05, I.D. No 166/16 Page 31 of 75 31.12.08, 13.09.05, 26.12.05, 8.12.05 respectively.
40. It is submitted that it is thus evident that the workmen WW 1 to WW 23 have been in the employment of the management MCD on the post of ANM since the date 01.08.2001, in respect of the majority of them and w.e.f. 23.08.01, 05.10.01, 22.08.01, 18.08.01, 15.09.05, 04.09.08, 21.10.05, 31.12.08, 13.09.05, 26.12.05 and 08.12.05 in respect of some of them, accordingly, for considerable period in respect of the workmen who have been in the employment of the management w.e.f. 01.08.01 who are majority in number as mentioned in Annexure A to the terms of reference of the instant industrial dispute as also in the statement of claim filed by the workmen in the same i.e. of more than 16 years in their employment with the management on the said post alongwith others also for considerable period of time w.e.f. date of first appointment with the management on the post of ANM as mentioned against their names vide Annexure A to the instant terms of reference as also in the statement of claim of the workmen in the same.
41. It is the submission of Ld. AR for workmen that making the workmen work on the said post on the part of the management with artificial break of one day after completing 06 months of service and infact continuously as admitted by MW 3 Dr. Devender Kumar Seth, Director Hospital I.D. No 166/16 Page 32 of 75 Administration, North DMC in his cross examination on behalf of the workmen in ME when he states that "There is no mandatory one day break in between renewal of the contracts and it is wrong to suggest that one day break is being given on completion of six months contract" on the pretext of they being contractual workmen appointed on contract basis with the management on the post of ANM for a period of six months which is being renewed continuously without any break or with artificial break of one day each in between, for such a long period of time i.e. w.e.f.
01.08.2001 in respect of majority of workmen WW 1 to WW 23 which is also on the basis of procurement of Adverse Career Certificates from the said workmen to the effect that their contract period be extended and that they would not claim any regularisation of service with the management and/or would not be entitled to any further emolument apart from mentioned in the said contract of service despite being made to work against vacant post of regular appointment of ANM with the management vide Ex. MW 1/1 to Ex. MW 1/79 amounts to unfair labour practice on the part of the management qua the workmen WW 1 to WW 23 in the instant reference, as defined vide clause 10 of Fifth Schedule of Industrial Disputes Act, 1947, which stipulates as under: "To employ workmen as "badlis" casuals or I.D. No 166/16 Page 33 of 75 temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
42. It is further the submission of Ld. AR for workmen that in view of the case of the workmen of they being appointed and working on the post of ANM with the management w.e.f. the dates as mentioned against their names vide Annexure A to the instant reference alongwith statement of claim i.e. w.e.f. 01.08.01 in respect of majority of the workmen WW 1 to WW 23 and other dates viz w.e.f. 23.08.01, 05.10.01, 22.08.01, 18.08.01, 15.09.05, 04.09.08, 21.10.05, 31.12.08, 13.09.05, 26.12.05 and 08.12.05 in respect of others as mentioned in their respect in the same continuously (apart from one day break after every six months of their employment with the management on the said post as per MW 2 and with virtually no break in their employment on the said post with the management w.e.f.
the dates of their first appointment on the same, as abovesaid, with the management as per MW 3) without any blemish whatsoever as also admitted by the management in this regard vide the testimonies of MW 2 and MW 3 in their cross examination on behalf of the workmen in ME alongwith further admission on the part of the said MWs in their cross examination on behalf of the workmen in ME that they were fulfilling the criteria laid down vide the Recruitment Regulations (RRs) for the post in I.D. No 166/16 Page 34 of 75 question for appointment to the same, workmen WW 1 to WW 23 were entitled to regularisation on the said post despite being employed on contract basis with the management on the same and despite having been made to submit Adverse Career Certificates/ Undertakings/affidavits in their respect to the management to the effect that they would not claim regularisation of their services to the post in question despite working against the vacant posts in respect of the same as also fulfilling the criteria as laid down vide the relevant Recruitment Regulations for appointment on the same by virtue of being employed on contract basis with the management on the same Ex. MW 1/1 to Ex. MW 1/79, since the abovesaid practice of the management of making the workmen work against the vacant posts of the subject appointment for days together and for continuous period and in any case over and above 240 days in any particular year of service w.e.f. the date of their first appointment with the management to the same ostensively on contract basis and that too after forcefully obtaining Adverse Career Certificates/ Undertakings/ Affidavits from them in this regard as is evident from the testimony of MW 2 in his cross examination on behalf of the workmen in management evidence when he states that It is correct that in case the workman does not submit abovesaid undertaking, her job is not continued any further and will lose I.D. No 166/16 Page 35 of 75 her job amounts to unfair labour practice as defined vide clause 10 of the Fifth Schedule of Industrial Disputes Act, 1947 (as amended up to date).
Ld. AR for workmen in support of his submissions has relied upon citations as abovesaid.
43. Ld. AR for management argues to the contrary and submits that workmen WW 1 to WW 23 are not entitled to regularisation in their service as ANM with the management w.e.f. the date of their first appointment to the same as mentioned against their names in the subject reference order vide Annexure A thereto as also in statement of claim filed by the said workmen in the same, on record, by virtue of having been appointed on contract basis with the management vide their appointment letters in this regard Ex. MW 1/1 to Ex. MW 1/23, extension of contracts written by each of the claimants/ workmen Ex. MW 1/24 to Ex. MW 1/46, copies of latest contract entered into between each of the claimants and the management Ex. MW 1/47 to Ex. MW 1/69, copies of latest office orders issued by the management in respect of the claimants/ workmen Ex. MW 1/70 to Ex. MW 1/79, copy of RRs for the post of ANM Ex. MW 1/80.
44. It is further the submission of Ld. AR for management that in view of the aforementioned exhibits viz. Offer/appointment letters in respect of I.D. No 166/16 Page 36 of 75 the claimants/ workmen Ex. MW 1/1 to Ex. MW 1/23, the letters of the claimants/ workmen for extension of their contractual period of service with the management Ex. MW 1/24 to Ex. MW 1/46 alongwith the contract of service entered into between the management and the claimants/ workmen for utilisation of their service on the post of ANM on the terms and conditions and period of service as mentioned in the same Ex. MW 1/47 Ex. MW 1/69 alongwith copies of the latest office orders issued by the management in respect of the claimants Ex. MW 1/70 to Ex.
MW 1/79 alongwith copy of RR for the post of ANM Ex. MW 1/80, claimants/ workmen are not entitled to be regularised in their services with the management on the post of ANM on which they were working with the management on contract basis by virtue of having not been appointed on regular basis with the management on the said post through direct process of recruitment which is through Delhi Subordinate Service Selection Board, Govt of NCT of Delhi (in short known as DSSSB) on the requisition of the management in this regard and in this context Ld. AR for management has relied upon contents of paragraph nos. 4 and 5 of the affidavit by way of evidence, Ex. MW 2/A, of MW 2 Sh. Louis Daniel, Administrative Officer (Health), North DMC/ management to the effect that: I.D. No 166/16 Page 37 of 75 "4. That the regular recruitments for the post of ANM are being made by the Delhi Subordinate Service Selection Board, Govt of NCT of Delhi (in short known as DSSSB) on the requisition of the management. The DSSSB advertises the vacancies on the basis of requisition of the management and selects candidates after conducting written examination of the willing candidates. The DSSSB vide office order no.48 dated 13.08.2008 selected 49 ANMS under unserved category, 13 ANMs under SC Category, 24 ANMS under OBC Category and 6 ANMS under ST Category, copy of which is exhibited as Exb.MW1/81 to MW 1/85.
5. That the management had further made requisition of 325 posts of ANMS alongwith other posts i.e. PHN, A Grade Staff Nurse and Statistical Clerk etc. from the DSSSB vide their letter no.AO(H)/SDMC/2012/146 dated 31.08.2012, copy of which is exhibited as Exb. ME 1/86 to MW 1/89. It is not out of context to mention here that due to some typographical error, the post of ANMs were mentioned as 325 instead of 225 for which clarification has been made vide letter no.AC(H)/SDMC/2013/735 dated 04.06.2013, copy of which is exhibited as Ex. MW 1/90. But till date no recruitment has been made by the DSSSB."
45. It is thus the submission of Ld. AR for management that the workmen WW 1 to WW 23 who have filed instant statement of claim in the instant reference are not entitled to be regularised on the post of ANM on which they have admittedly been working with the management since the dates of their first appointment with the management to the same as mentioned in Annexure A to the subject reference alongwith statement of claim filed I.D. No 166/16 Page 38 of 75 by the workmen in the same by virtue of having been appointed to the said post on contract basis vide the documents mentioned in management evidence as Ex. MW 1/1 to Ex. MW 1/79, as abovesaid. It is further the submission of Ld. AR for management that workmen knew at the time of signing relevant documents Ex. MW 1/1 to Ex. MW 1/79 i.e. their offer/appointment letters, plea of extension of their contractual period of service, contractual agreement between the parties for rendering the services by the workmen WW 1 to WW 23 on the post of ANM with the management on the terms, conditions and period of service as mentioned in the said contractual agreements signed on the part of the applicants/ workmen with the management, Ex. MW 1/47 to Ex. MW 1/69, alongwith the latest office orders issued by the management in respect of the services of the claimants/ workmen with the management on the post of ANM for the contractual period of service and place of posting as mentioned therein, Ex. MW 1/70 to Ex. MW 1/79, alongwith the RRs of the management for the post of ANM Ex. MW 1/80 in the evidence of MW 2 Sh. Louis Daniel, Administrative Officer, (Health) North DMC/ management in management evidence that they were working with the management on the said post on contract basis and were not entitled to be regularised on the part of the management on the same.
I.D. No 166/16 Page 39 of 7546. It is further the submission of Ld. AR for management that thus by virtue of the claimants/ workmen being appointed on contractual basis with the management for rendering of their service on the post of ANM with the management vide the documents exhibited on the part of the management in its management evidence Ex. MW 1/1 to Ex. MW 1/90 as abovesaid, the workmen are not at all entitled for their regularisation on the post of ANM w.e.f. the date of their first appointment to the same as mentioned in Annexure A to the instant reference alongwith statement of claim filed by the claimants/ workmen in the same and as claimed by them vide the terms of reference in the instant order of reference between the parties referred by the appropriate government to this tribunal for adjudication and disposal in accordance with law i.e. ''Whether demand of Smt. Vandana and 22 others (as per Annexure 'A') for regularization of their services on the post of Auxilliary Nurse Midwives (ANMs) with retrospective effect from their respective initial date of joining or any other date in the pay scale of Rs.520020,200/ and with all benefits is justified, and if so, to what relief are they entitled and what directions are necessary in this respect?
47. It is further the submission of Ld. AR for management that recruitment to the post of ANM with the management is carried out I.D. No 166/16 Page 40 of 75 through Delhi Subordinate Service Selection Board, Govt of NCT of Delhi (in short known as DSSSB) on the requisition of the management which advertises vacancies for the said post on the basis of requisition by the management and selects candidates after conducting written examination of the willing candidates and has relied upon Ex. MW 1/81 to Ex. MW 1/90 alongwith Ex. MW 3/1 and Ex. MW 3/2 in this regard.
48. He has relied upon deposition of MW 3 Dr. Devender Kumar Seth, Director Administration (Health) of management/ North DMC by way of his affidavit by way of evidence, Ex. MW 3/A, in management evidence in this regard, as under: "5. That the regular recruitments for the post of ANM are being made by the Delhi Subordinate Services Selection Board, Govt. of NCT of Delhi (in short known as DSSSB) on the requisition of the management. The DSSSB advertises the vacancies on the hbasis of requisition of the management and selects candidates after conducting written examination of the willing candidates. The DSSSB vide office order no.48 dated 13.08.08 selected 49 ANMs under Unserved Category, 13 ANMs under SC Category, 24 ANMs under OBC Category and 6 ANMs under ST category. Copy of the office order is already exhibited as Ex. MW 2/81 to Ex. MW 2/85.
6. That the management had further made requisition of 325 posts of ANMs alongwith other posts i.e. PHN, AGrade Staff Nurse and Statistical Clerk etc. from the DSSSB vide their letter no.AO (H)/ SDMC / 2012/146 dated 31.08.2012, copy of I.D. No 166/16 Page 41 of 75 which is already exhibited as Ex. MW 2/86 to Ex. MW 2/89. It is not out of contest to mention here that due to some typographical error, the post of ANMs were mentioned as 325 instead of 225 for which clarification has been made vide letter no.AC(H)/SDMC/2013/735 dated 04.06.2013, copy of which is already exhibited as Ex. MW 2/90. The DSSSB has advertised the said posts of ANMs vide their advertisement no.1/14, post code 14/14. The DSSSB has declared part result of 132 posts vide Result Notice 520 dated 01.08.2016, copy of which is exhibited as Ex. MW 3/1.
7. That at the time of initial appointment on contract basis as well as at each and every subsequent extension, all these claimants have been well aware about the fact that their engagement is on contract basis for a period of six months till such time th elist of selected candidates for the post of ANM is received from DSSSB, whichever is earlier and they cannot be regularised at any point of time. It is pertinent to mention here that the ANMs are being paid salary in the pay scale of Rs.520020200+G.P. 2400+DA (variable)+HRA +other usual allowances vide office order No.AO (H)/NDMC/2014/1346 dated 29.09.2014 and their submission in the claim application that they are not paid salary in the pay scale of Rs.520020200 is totally wrong. Copy of the office order dated 29.09.2014 is exhibited as Ex. MW 3/2."
Ld. AR for management has relied upon citations as above mentioned.
49. It is seen from the record that it is not disputed that the workmen WW 1 to WW 23 are working on the post of ANM w.e.f. dates of their first appointment with the management/ North DMC as mentioned in I.D. No 166/16 Page 42 of 75 Annexure A to the instant reference (also reproduced hereinabove) as also in the statement of claim filed on their behalf in the same. It is not in dispute that they have been working almost continuously on the said post with the management w.e.f. the said dates (with artificial break of one day on the expiry of every six months as per the deposition of MW 2 Sh.
Louis Daniel, Administrative Officer (Health) of the management, though he admits that there is no rule or regulation under which MCD can give one day break as in this case and with no break whatsoever as per the deposition of the MW 3 Dr. Devender Kumar Seth, Director, Hospital Administration of the management/ North DMC in their cross examination on behalf of the workmen in management evidence). It is further not in dispute that the workmen WW 1 to WW 23 have been appointed and are working against the vacant and sanctioned posts of ANM with the management/ North DMC w.e.f. their dates of first appointment with it, as abovesaid, on record. It is further not in dispute that WW 1 to WW 23 have been appointed to the said post of ANM with the management for which they are seeking regularisation of their services with the management/ North DMC with all consequential benefits vide the instant reference on issuance of advertisement on the part of the management for being appointed on the same to which the workmen have I.D. No 166/16 Page 43 of 75 applied and on being found fit as per the RRs for the said post by the interview board of the management/ North DMC constituted in this regard have been appointed to the same as is evident from the deposition of MW 2 Sh. Louis Daniel Administrative Officer (Health) of management/ North DMC in his cross examination on behalf of the workmen in management evidence, on record, when he states that: It is correct that before appointment of the workmen an advertisement was given in newspaper for the post of ANM. It is correct that in response to the advertisement the concerned workmen and others applied for the job of ANMs. I do not know if documents were examined and interview was conducted before giving employment to these concerned workmen. I do not have any knowledge whether other candidates also applied alongwith these workmen and were not qualified and were not kept in the employment. The interview board in regard to these workmen was created to take their interview. However, I was not in this department at that time. Ex. MW 1/W1 is correct statement in regard to the total sanctioned post of ANM and the vacant post of ANM which is at point A. Ex. MW 1/W1 is issued by management. It is correct that in other department there are many other posts of ANM and many of them are lying vacant since long. It is correct that concerned workmen are working against sanctioned vacant post of ANM since their appointment.
as also it is seen from the deposition of MW 3 Dr. Devender Kumar Seth, Director, Hospital Administration of the management/ North DMC I.D. No 166/16 Page 44 of 75 in his cross examination on behalf of the workmen in management evidence when he states that: It is correct that at the time of appointment of the workmen, post was advertised and the selection board duly appointed them on the post of ANM. Vol. On contract basis. Management had not taken any test of the workmen after their initial appointment. I have seen the attendance register pertaining to the present workmen. It is wrong to suggest that it is deliberately being shown a break of one day after six months in respect of the workmen, though they are working continuously with effect from the date of their initial appointment with the management........ The contract of service of the workmen is of the duration of six months each which is being renewed on its expiry. There is no mandatory one day break in between renewal of the contracts. It is wrong to suggest that one day break is being given on completion of six months contract. Whatever I have stated in my deposition is correct and any stipulation to the contrary in Ex. MW 1/77, Ex. MW 1/79 are incorrect. The work and conduct of the workmen are satisfactory. Vol. That is why their contracts have been renewed. It is correct that workmen are fulfilling the conditions as laid down in RRs for the post of ANM.
50. It is further seen from the record that in respect of the alleged stipulation in the contract of service of the management with the workman for the post in question i.e. ANM with the management and/or in affidavit/ undertaking given by the workmen WW 1 to WW 23 to the effect that their appointment to the post in question is only for the period of contract I.D. No 166/16 Page 45 of 75 in question or till the time regular appointments are made to the same by way of recruitment by the management to the same through DSSSB or that the workmen would not seek any claim for regularisation of their services to the said post, it has been explained by the workmen WW 1 to WW 23 in their cross examination on behalf of the management in workmen evidence that: I am graduate. I understand English Language. Ex. WW 1/M2 is the photocopy of the affidavit filed by me. Ex. WW 1/M1 and M2 was purchased by me.
Vol. At the instance of the management. Ex. WW 1/M1 and M2 is based on the proforma, in terms of language etc. is provided by the management. It is wrong to suggest that I have been given these above mentioned documents of my own. I have signed the above documents after reading the same. Vol. I had no choice as I have to sign the above mentioned affidavits or lose my job. It is correct that Ex. WW 1/M1 and M2 are contract agreements and signed by the witnesses in front of me.
as also it has been deposed by MW 2 Sh. Louis Daniel, Administrative Officer (Health) of management/ North DMC vide his cross examination on behalf of the workmen in management evidence that:
It is correct that we demand from these workmen giving undertaking that they will not raise any dispute or go to the court nor they will claim their regularisation of services. It is correct that in case the workman does not submit abovesaid undertaking her job is not continued any further and will lose her job.I.D. No 166/16 Page 46 of 75
51. It is further seen from the record that though the Ld. AR for management has relied upon contents of Ex. MW 1/81 to Ex. MW 1/90 as also Ex. MW 3/1 in support of his submission that recruitment to the post of ANM with the management has to be made through DSSSB which conducts written examination of the willing candidates for the said post on the requisition of the management to the DSSSB in this regard i.e. advertisement of the vacancy for the said post on the basis of requisition of the management and selects candidates after conducting written examination of the willing candidates for the said post and has specifically relied upon contents of Ex. MW 1/81 to Ex. MW 1/85 which are the result notice of the DSSSB (Ex. MW 1/85) in respect of the office order no.48 dated 13.08.08 in respect of the ANM, post code no.072/07 vide which it has been sated that on the basis of written examination held on 03.05.08, 49 ANMs under unreserved category, 13 ANMs under SC category, 24 ANMs under OBC category and 06 ANMs under ST category have been selected for appointment to the said post subject to fulfilling of all the conditions of the eligibility for the post applied for, submission of documents and also the correctness of information submitted by them in their application form; the competent authority of the department I.D. No 166/16 Page 47 of 75 concerned will issue the appointment letter to the candidate after satisfying themselves their eligibility as laid down in recruitment rules.
However, no appointment letter issued by the management in respect of any of the selected candidate has been proved on the part of the management in its ME, on record. It is further seen from the record that vide Ex. MW 3/1, the management is again relying upon its submission/ contention that the recruitment to the post in question viz ANM is to be done through selection by DSSSB by conducting written examination of the willing candidates in the same on the requisition of the management to the said DSSSB in respect of the same which thereafter advertises vacancies on the basis of requisition of the management and selects candidates after conducting written examination of the willing candidates, which again is only part result of 132 candidates for the post of ANM, post code 14/14/ MCD of the DSSSB in respect of the same dated 01.08.2016 with the final result having not been proved on the part of the management in its ME, on record or even any appointment letter issued to the successful candidates vide the instant result notice dated 01.08.16 of DSSSB in respect of the post of ANM with the management/ MCD till date in its management evidence, on record.
I.D. No 166/16 Page 48 of 7552. In this view of the matter, it is thus seen from the record that management has not proved even a single appointment letter in respect of having appointed any candidate to the post in question by way of direct recruitment through DSSSB which is the authority as per the management to make the selection and recommendation for appointment of successful candidate to the post in question viz. ANM with the management/ MCD, in its management evidence in the instant reference w.e.f. the date of institution of the same in this court i.e. 22.12.11 till date i.e. date of this judgment despite it having opportunity to prove the same in its management evidence in the instant reference and the statement of claim filed by the workmen in the same, on record.
It is further seen from the record that it has been admitted by the MWs 2 and 3 in their cross examination on behalf of the workmen in management evidence that;
MW2: It is correct that in recruitment rules nowhere mentioned that selection process of the workmen will be conducted by DSSSB. I have nothing to show that there is any rule or regulation or resolution that selection of post of ANM/these workmen will be done by DSSSB.
MW3: It is correct that it is not mentioned in the RRs of I.D. No 166/16 Page 49 of 75 the post of ANM Ex.MW1/80 that the recruitment would be through DSSSB. Vol. DSSSB did not exist at the time when the RRs were notified. No amendment had been made in the RRs for the post of ANM after coming into existence of DSSSB.
53. It is thus, evident that the management is making the workmen work on the post of ANM continuously w.e.f. the date of their first appointment to the same as mentioned in Annexure A to the instant terms of reference/order of reference as also in the statement of claim filed by the workmen in the same till date i.e. for considerable period of about 16 years in respect of majority of them and for periods ranging about/over 10 years in respect of the others w.e.f. the date of their first appointment with the management to the posts in question, as abovesaid, on record, against the vacant sanctioned posts with further admission on the part of the management witnesses appearing in management evidence that they are fulfilling the conditions and requirements of RRs in respect of the said post of ANM alongwith work and conduct of the workmen on the said post being satisfactory (deposition of MW 3 Dr. Devender Kumar Seth in this regard in his cross examination on behalf of the workmen in management evidence) on payment of consolidated sum of Rs.25000/ I.D. No 166/16 Page 50 of 75 only for the same work being done by regular ANMs of the management as admitted by MW 2 Sh. Louis Danial in his cross examination on behalf of the workmen in management evidence when he states that: It is correct that abovesaid workmen are doing same job as done by the regular ANMs and even their working hours are also same. The concerned workmen are paid only Rs. 25000/ whereas regular counter parts are given their salary in pay scale of Rs. 520020200 which comes to around Rs. 50,000/ approximately pm. which action of the management amounts to unfair labour practice qua the workmen as outlined/ stipulated vide clause 10 of the Fifth Schedule of the Industrial Disputes Act, 1947, (as amended up to date) viz. "To employ workmen as "badlis" casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen" and as also argued by Ld. AR for workmen in this regard.
54. It is further seen from the record that it has in fact been admitted by MW 2 Sh. Louis Daniel, Administrative Officer (Health) of the management/ North DMC in this regard when he states in his cross examination on behalf of the workmen in management evidence that "It is correct that management has blatently indulged in unfair labour I.D. No 166/16 Page 51 of 75 practice treating the workmen as contract workers and not granting status and salary of a regular employee".
55. Though Ld. AR for management has relied upon citation Secretary, State of Karnataka and others vs. Uma Devi (3) and others (2006) 4 SCC 1, vide provisions of para 53 of the above mentioned citation, it has been held that: One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarjan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have been continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders or the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
I.D. No 166/16 Page 52 of 7556. It is admitted position, vide observations hereinabove, that the workmen WW 1 to WW 23 have been continuously working on the post of ANM w.e.f. the dates of their first appointment to the said post with the management as mentioned against their names in Annexure A to the instant reference as also in the statement of claim filed by the workmen in the same from which it is seen that the majority of them have been working with the management on the said post w.e.f. 01.08.2001 till date i.e. for almost continuous period of about 16 years with the others also for periods ranging about/above ten years from the date of their first appointment with the management to the posts in question continuously as is evident from the deposition of MW 3 Dr. Devender Kumar Seth, Director, Hospital Administration, North DMC when he states in his cross examination on behalf of the workmen in management evidence that "There is no mandatory one day break in between renewal of the contracts. It is wrong to suggest that one day break is being given on completion of six months contract" and thus even in accordance with para 53 of the above mentioned judgment, workmen had worked for ten years or more in duly sanctioned posts but not under cover of orders of the court or of tribunal. It is seen from the record that it is the admitted case between the parties that workmen WW 1 to WW 23 had been working on I.D. No 166/16 Page 53 of 75 the post of ANM continuously w.e.f. date of their first appointment with the management to the same as mentioned as abovesaid, on record, against vacant and sanctioned posts as also that they had been duly appointed on the said posts on the mode of selection as was prevalent at the time of their first appointment/ induction on the said posts on the part of the management i.e. through advertisement and through selection by Selection Board duly constituted by the management in this regard apart from fulfilling the conditions/ criteria for appointment to the posts in question viz. Auxiliary Nurse Midwives with the management as laid down vide the Recruitment Regulations of the management Ex. MW 1/80 in respect of the same as per the admissions of MW 2 and MW 3 when they state in their cross examination on behalf of the workmen in management evidence that: MW 2: It is correct that Vandana and 22 whose names are mentioned in statement of claim are working in MCD as Auxilliary Nurse Midwife. It is correct that Vandana, Sushila, Rachna, Monika Bhardwaj, Parmila, Babita, Dimple, Sheela Rani, Neeru, Urmila Devi, Sunita, Sushila, Indu bala, Chanchal Rani, Joly Joseph, Shashibala, Pinki Maan, Kamla Kujur, Babita Verma, Ranjana, Poonam, Neelam, Nidhi joined services of management joined into the employment of MCD w.e.f. 1.8.01, 1.8.01, 1.8.01, 1.8.01, 1.8.01, 1.8.01, 1.8.01, 23.8.01, 1.8.01, 5.10.01, 1.8.01, 22.8.01, 18.8.01, 1.8.01, 1.8.01, 1.8.01, 15.9.05, 4.9.08, 21.10.05, 31.12.08, 13.09.05, 26.12.05, 8.12.05 respectively.....The above mentioned 23 workmen fulfill I.D. No 166/16 Page 54 of 75 Recruitment Rules for the post of Auxilliary Nurse Midwife...... It is correct that before appointment of the workmen an advertisement was given in newspaper for the post of ANM. It is correct that in response to the advertisement the concerned workmen and others applied for the job of ANMs. I do not know if documents were examined and interview was conducted before giving employment to these concerned workmen. I do not have any knowledge whether other candidates also applied alongwith these workmen and were not qualified and were not kept in the employment. The interview board in regard to these workmen was created to take their interview. However, I was not in this department at that time. Ex. MW 1/W1 is correct statement in regard to the total sanctioned post of ANM and the vacant post of ANM which is at point A. Ex. MW 1/W1 is issued by management. It is correct that in other department there are many other posts of ANM and many of them are lying vacant since long. It is correct that concerned workmen are working against sanctioned vacant post of ANM since their appointment.
MW 3: It is correct that at the time of appointment of the workmen, post was advertised and the selection board duly appointed them on the post of ANM. Vol. On contract basis. Management had not taken any test of the workmen after their initial appointment. I have seen the attendance register pertaining to the present workmen. It is wrong to suggest that it is deliberately being shown a break of one day after six months in respect of the workmen, though they are working continuously with effect from the date of their initial appointment with the management.......... There is no mandatory one day break in between renewal of the contract. It is wrong to suggest that one day break is being given on completion of six months contract. Whatever I have stated in deposition is correct and any stipulation to the contrary in Ex.MW1/77, Ex.MW1/79 are incorrect......It is correct that workmen are fulfilling conditions as laid down in RRs for the post of ANM.
I.D. No 166/16 Page 55 of 75along with work and conduct of the workmen WW 1 to WW 23 being satisfactory as admitted by MW 3 Dr. Devender Kumar Seth, Director, Hospital Administration, North DMC in his cross examination on behalf of the workmen in management evidence when he states that the work and conduct of the workmen are satisfactory.
57. Vide the provisions of citation ONGC Ltd. vs. Petroleum Coal Labour Union and Ors., MANU/SC/0475/2015, it has been held that: "11. On behalf of the workmen concerned, it was contended before the Single Judge of the High Court that the dispute falls within the jurisdiction of the Tribunal under the provisions of the Act and that the Tribunal had sufficient jurisdiction to adjudicate the dispute referred to it. It was further contended on behalf of the workmen concerned that they have been working on temporary basis from the year 1988 and continuing their services on temporary basis is an unfair labour practice on the part of the corporation. Therefore, it was contended that the Tribunal was right in directing the workmen concerned to be regularised and that the law laid down in Umadevi (3) (State of Karnataka vs. Umadevi (3) MANU/SC/1918/2006: (2006) 4 SCC 1: 2006 SCC (L&S) 753) had no application to cases of industrial adjudication.
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27. Further, it is very clear from the facts that all the workmen concerned have got the qualifications required for their regularization, except one of them and have been employed by the Corporation even prior to 1985 in the posts through various irregular means. The Tribunal has got every power to I.D. No 166/16 Page 56 of 75 adjudicate an industrial dispute and impose upon the employer new obligations to strike a balance and secure industrial peace and harmony between the employer and workmen and ultimately deliver social justice which is the constitutional mandate as held by the Constitution Bench of this Court in a catena of cases. This abovesaid legal principle has been laid down succintly by this court in Bharat Bank Ltd vs. Employees MANU/SC/0030/1950: AIR 1950 SC 188, the relevant paragraph of the said case is extracted hereunder:(AIR p.209, para 61) "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. An industrial dispute as has been said on many occasions is nothing but a trial of strength between the employers on the one hand and the workmen's organization on the other and the Industrial Tribunal has got to arrive at some equitable arrangement for averting strikes and lockouts which impede production of goods and the industrial development of the country. The Tribunal is not bound by the rigid rules of law. The process it employs is rather an extended form of the process of collective bargaining and is more akin to administrative than to judicial function. In describing the true position of an Industrial Tribunal in dealing with labour disputes, this Court in Western India I.D. No 166/16 Page 57 of 75 Automobile Assn. vs. Industrial Tribunal [(194950) 1 FCR 321] quoted with approval a passage from Ludwig Teller's wellknown work on the subject, where the learned author observes that: (FCR p. 345) '... industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements.' The views expressed in these observations were adopted in its entirety by this Court. Our conclusion, therefore, is that an Industrial Tribunal formed under the Industrial Disputes Act is not a judicial tribunal and its determination is not a judicial determination in the proper sense of these expressions."
It has been further held by this Court in LIC vs. D.J. Bahadur [MANU/SC/0305/1980: (1981) 1 SCC 315:
1981 SCC (L&S) 111], as follows: (SCC p. 334, para
22) "22. The Industrial Disputes Act is a benign measure, which seeks to preempt industrial tensions provide the mechanics of dispute resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counterproductive battles and the assurance of industrial justice may create a climate of goodwill."
Thus, the powers of an Industrial Tribunal/ Labour Court to adjudicate the industrial dispute on the points of dispute referred to it by the appropriate government have been well established by the legal principles laid down by this court in a catena of cases referred to supra. Therefore, the Tribunal has rightly passed an I.D. No 166/16 Page 58 of 75 award directing the Corporation to regularise the services of the concerned workmen.
28. Whether the appointment of the workmen concerned in the services of the Corporation is irregular or illegal?
In the case on hand, the workmen concerned were employed by the Corporation initially through contractors. Thereafter, on issuance of the Notification dated 08.12.1976 by the Central Government abolishing contract labour for the posts for watch and ward, dusting and cleaning jobs in the Corporation under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, the Corporation and the workmen concerned arrived at a settlement under Section 18(1) of the Act, wherein a cooperative society was formed in the name of "Thai Security Service Priyadarshini Indira Cooperative Society" for their welfare, thus dispensing with intermediary contractors. During the pendency of the sanction from the Central Government of the alleged "policy decision", the workmen concerned were appointed directly from 13.01.1988 to 29.02.1988 and thereafter, they were employed continuously without written orders by the Corporation. It is the contention of the learned Senior Counsel on behalf of the Corporation that the services of the workmen concerned cannot be regularised as their appointment was originally and initially through contractors and thereafter, without following any procedure of selection and appointment as per the Recruitment Rules and therefore, the same is illegal by placing reliance on the decision of this Court in para 43 of Umadevi (3) case [State of Karnataka v. Umadevi (3), MANU/SC/1918/2006: (2006 4 SCC 1: 2006 SCC (L&S) 753. Further, this court in Ajaypal Singh vs. Haryana Warehousing Corpn. [MANU/ SC/ 1231/ 2014: (2015) 6 SCC 321: (2014) 13 Scale 636] opined I.D. No 166/16 Page 59 of 75 that when a workman is initially appointed in violation of Articles 14 and 16 of the Constitution of India, then the employer at the time of reemployment of the retrenched workman cannot take the plea that the initial appointment was in violation of the abovementioned provisions. The relevant paragraph of Ajaypal Singh case [MANU/SC/1231/2014: (2015) 6 SCC 321: (2014) 13 Scale 636] is extracted hereunder: (SCC p.329, para 17) "17. The provisions of the Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3) case [State of Karnataka vs. Umadevi (3) MANU/SC/1918/2006: (2006) 4 SCC 1: 2006 SCC (L&S) 753]. The issue pertaining to unfair labour practice was neither the subjectmatter for decision nor was it decided in Umadevi (3) case [State of Karnataka v. Umadevi (3), MANU/SC/1918/2006: (2006) 4 SCC 1: 2006 SCC (L&S) 753]."
The plea of the Corporation that the reason for not regularising the workmen concerned under the Certified Standing Orders of the Corporation is allegedly due to the fact that the appointment of the workmen concerned was made without following due procedure under the Recruitment Rules and that their appointments were illegal. This plea cannot be accepted by us in view of the legal principle laid down by this Court in the above decision, wherein it is clearly laid down that the Corporation cannot deny the rights of the workmen by taking the plea that their initial appointment was contrary to Articles 14 and 16 of the Constitution.
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41. Further, it has been contended by the learned senior counsel on behalf of the Corporation that in the I.D. No 166/16 Page 60 of 75 absence of any plea taken by the workmen in their claim statement regarding unfair labour practice being committed by the Corporation against the concerned workmen, the learned single Judge and the Division Bench ought not to have entertained the said plea as it is a well settled principle of law that such plea must be pleaded and established by a party who relies before the Tribunal. In support of the above contention reliance was placed by him on the decision of this Court in Siemens Limited and Anr. v.
Siemens Employees Union and Anr.
MANU/SC/1215/2011: (2011) 9 SCC 775.
The said contention of the learned senior Counsel on behalf of the Corporation is wholly untenable in law and the reliance placed on the aforesaid case is misplaced for the reason that it is an undisputed fact that the workmen have been appointed on term basis vide memorandum of appointment issued to each one of the concerned workmen in the year 1988 by the Corporation who continued their services for several years. Thereafter, they were denied their legitimate right to be regularised in the permanent posts of the Corporation. The said fact was duly noted by the High Court as per the contention urged on behalf of the Corporation and held on the basis of facts and evidence on record that the same attracts entry Item No.10 of Schedule V of the Act, in employing the concerned workmen as temporary employees against permanent posts who have been doing perennial nature of work and continuing them as such for number of years. We affirm the same as it is a clear case of an unfair labour practice on the part of the Corporation as defined Under Section 2(ra) of the Act, which is statutorily prohibited Under Section 25T of the Act and the said action of the Corporation warrants penalty to be imposed upon it Under Section 25U of the Act. In fact, the said finding of fact has been recorded by both the learned single Judge and I.D. No 166/16 Page 61 of 75 the Division Bench of the High Court in the impugned judgment on the ground urged on behalf of the Corporation. Even if, this court eschews the said finding and reason recorded in the impugned judgment accepting the hyper technical plea urged on behalf of the Corporation that there is no plea of unfair labour practice made in the claim statement, this Court in this appeal cannot interfere with the award of the Tribunal and the impugned judgment and order of the High Court for the other reasons assigned by them for granting relief to the concerned workmen. Even in the absence of plea of an act of unfair labour practice committed by the Corporation against the concerned workmen, the Labour Court/ High Court have got the power to record the finding of fact on the basis of the record of the concilation officer to ensure that there shall be effective adjudication of the industrial dispute to achieve industrial peace and harmony in the industry in the larger interest of public, which is the prime object and intendment of the Industrial Disputes Act. This principle of law has been well established in a catena of cases of this Court. In the instant case, the commission of an unfair labour practice in relation to the concerned workmen by the Corporation is exfacie clear from the facts pleaded by both the parties and therefore, the courts have the power to adjudicate the same effectively to resolve the dispute between the parties even in the absence of plea with regard to such an aspect of the case."
58. It has been further held vide provisions of Urmala Gram Panchayat vs. The Secretary, Municipal Employees Union and Ors. MANU/SC/0354/ 2015 that: "10. On a perusal of the same, we have come to the conclusion that the High Court has rightly dismissed I.D. No 166/16 Page 62 of 75 the case of the Appellant as the Labour Court has dealt with the same in detail in its reasoning portion of the Award in support of its findings of fact while answering the points of dispute and the same cannot be said to be either erroneous or error in law. In support of the above said conclusions arrived at by us, we record our reasons hereunder:
It is an admitted fact that the work which was being done by the concerned workmen was the same as that of the permanent workmen of the Appellant Panchayat. They have also been working for similar number of hours, however, the discrepancy in the payment of wages/salary between the permanent and the non permanent workmen is alarming and the same has to be construed as being an unfair labour practice as defined Under Section 2(ra) of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which is prohibited Under Section 25(T) of the ID Act. Further, there is no documentary evidence produced on record before the Labour Court which shows that the present workmen are working less or for lesser number of hours than the permanent employees of the Appellant - Panchayat. Thus, on the face of it, the work being done by the concerned workmen has been permanent in nature and the Labour Court as well as the High Court have come to the right conclusion on the points of dispute and have rightly rejected the contention of the Appellant Panchayat as the same amounts to unfair labour practice by the Appellant Panchayat which is prohibited under Section 25(T) of the ID Act and it also amounts to statutory offence on the part of the Appellant Under Section 25(U) of the ID Act for which it is liable to be prosecuted.
11. xxxxxxxxxxxx
12. xxxxxxxxxxxx
13. Further, Section 25(T) of the ID Act clearly states that unfair labour practice should not be encouraged and the same should be discontinued. In I.D. No 166/16 Page 63 of 75 the present case, the principle "equal work, equal pay" has been violated by the Appellant - Panchayat as they have been treating the concerned workmen unfairly and therefore, the demand raised by the RespondentUnion needs to be accepted. The High Court has thus, rightly not interfered with the Award of the Labour Court as the same is legal and supported with cogent and valid reasons.
14. Therefore, the learned single Judge as well as the Division Bench of the High Court have exercised the power Under Articles 226 and 227 of the Constitution of India and have rightly held that the Labour Court has jurisdiction to decide the Industrial Dispute that has been referred to it by the Dy. Commissioner of Labour, Ahmedabad, Reliance has been placed upon the decision of this Court in the case of Maharashtra State Road Transport Corporation and Anr. vs. Casteribe Rajya P. Karmchari Sanghatana MANU/SC/1554/2009:
(2009) 8 SCC 556, wherein it has been held thus:
32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
Further, reliance has been placed upon the decision of this Court in the case of Durgapur Casual Workers Union vs. Food Corporation of India MANU/SC/1135/2014: (2014) 13 SCALE 644 wherein it has been held thus:
19. Almost similar issue relating to unfair trade I.D. No 166/16 Page 64 of 75 practice by employer and the effect of decision of Umadevi MANU/SC/1918/2006: (2006) 4 SCC 1, in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil Appeal No.6327 of 2014 decided on 9 th July, 2014. In the said case, this Court observed that held as follows:
20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees....
15. Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner.
16. The reliance placed by the learned senior Counsel for the Appellant upon the decision of this court in Secretary, State of Karnata and Ors. Vs Umadevi and Ors. MAN/SC/1918/2006: (2006) 4 SCC 1, does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below.
17. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year I.D. No 166/16 Page 65 of 75 from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law.
18. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them."
59. Vide the citation Ajaypal Singh vs. Haryana Warehousing Corporation MANU/SC/1231/2014 it has been held that: "17. The effect of Constitution Bench decision in State of Karnataka v. Umadevi MANU/ SC/ 1918/ 2006: (2006) 4 SCC 1, in case of unfair labour practice was considered by this court in Maharashtra State Road Transport and Another vs. Casteribe Rajya Parivahan Karmchari Sanghatana MANU/ SC/ 1554/ 2009: (2009) 8 SCC 556. In the said case, this Court held that Umadevi's case has not over ridden powers of Industrial and Labour Courts in passing appropriate order, once unfair labour practice on the part of employer is established. This Court observed and held as follows:
"34. It is true that Dharwad Distt PWD Literate Daily Wages Employees' Assn. v. State of Karnataka MANU/SC/0164/1990: (1990) 2 SCC 396 arising out of industrial adjudication has been considered in State of Karnataka v. Umadevi MANU/SC/ 1918/2006 (2006) 4 SCC 1 and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi MANU/SC/1918/2006: (2006) 4 SCC 1 leaves no I.D. No 166/16 Page 66 of 75 manner of doubt that what this Court was concerned in Umadevi MANU/SC 1918/2006: (2006) 4 SCC 1 was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognised by the rules or procedure and yet orders of their regularisation and conferring them status of permanency have been passed.
35. Umadevi MANU/SC/1918/2006: (2006) 4 SCC 1 is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi MANU/SC/1918/2006 : (2006) 4 SCC 1 does not denude the Industrial and Labour Court of their statutory power Under Section 30 read with Section 32 of the M.R.T.U. and P.U.L.P. Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist.
MANU/SC/1918/2006 : (2006) 4 SCC 1 cannot be held to have overriden the powers of the Industrial and Labour Courts in passing appropriate order Under Section 30 of M.R.T.U. and P.U.L.P. Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
"47. It was strenuously urged by the learned Senior Counsel for the Corporation that the Industrial Court having found that the Corporation indulged in unfair labour practice in employing the complainants as casuals on piecerate basis, the only direction that I.D. No 166/16 Page 67 of 75 could have been given to the Corporation was to cease and desist from indulging in such unfair labour practice and no direction of according permanency to these employees could have been given. We are afraid, the argument ignores and overlooks the specific power given to the Industrial/Labour Court Under Section 30 (1) (b) to take affirmative action against the erring employer which as noticed above is of wide amplitude and comprehends within its fold a direction to the employer to accord permanency to the employees affected by such unfair labour practice."
18. In Umadevi's case this Court held that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution of India.
19. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the suject matter for decision nor was it decided in Umadevi's case.
20. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees."
I.D. No 166/16 Page 68 of 7560. Vide citation Sudarshan Rajpoot vs. UP State Road Transport Corporation MANU/SC/1052/2014, it has been held that:
"20. The finding of fact recorded by the Labour Court in its award on proper appreciation of undisputed facts and evidence on record, has been rightly held that the termination order amounts to retrenchment and non compliance of the statutory provisions under Sections 6N, 6R and 6Q of the U.P.I.D. Act has rendered the order of termination void ab initio in law. Therefore, the Labour Court was justified in passing the award of reinstatement after setting aside the order of termination and awarded consequential benefits and such as backwages from the date of termination till date of reinstatement and further direction to pay future salary to the appellant workman.
21. In the order of termination, it is alleged that on account of negligent driving of the bus by appellant workman the accident of the vehicle happened, the said allegation was neither proved in the inquiry required to be conducted nor producing evidence before the Labour Court by the respondent Corporation. Therefore, the High Court has failed to examine the above vital aspects of the case on hand and erroneously interfered with the award passed by the Labour Court in exercise of its extraordinary and supervisory jurisdiction under Articles 226 & 227 of the Constitution of India. This exercise of power is contrary to the law laid down by this Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation MANU/SC/0060/2010: (2010)3 SCC 192, wherein this Court held thus:
17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and I.D. No 166/16 Page 69 of 75 other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" State of Mysore v. Workers of Gold Mines MANU/SC/0110/1958: AIR 1958 SC 923.
Therefore, we have to hold that the High Court has erroneously exercised its supervisory jurisdiction under Articles 226 & 227 of the Constitution of India, in interfering with the findings of fact recorded in the award by the Labour Court and setting aside the same and in lieu of the same it awarded retrenchment compensation from the date of appointment till the date of disengagement. The impugned Judgment and order passed by the High Court is not only erroneous but suffers from error in law as it has failed to follow the principles laid down by this Court in the above case. Therefore, the same is liable to be set aside.
22. Further, the reliance placed upon the decision of this Court on Uma Devi (supra) case by the High Court to reverse the finding of fact recorded in the award in favour of the workman in answering the points of dispute in the negative, is not tenable in law in view of the judgment of this Court in Maharashtra State Road Transport Corpn. & Anr. v. Casteribe Rajya Parivahan Karmchari Sanghatan MANU/ SC/ I.D. No 166/16 Page 70 of 75 1554/2009: (2009) 8 SCC 556, wherein, this Court after adverting to Uma Devis case (supra) at para 36, has held that the said case does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of the Schedule IV where the posts on which they have been working exist. Further, this Court held that Uma Devi's case cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of the Schedule IV is established.
23. We are of the opinion that the view taken in Maharashtra State Road Transport Corpn. & Anr. (supra) at para 36 after distinguishing Uma Devi's case is the plausible view. Therefore, we have to hold that the finding of the High Court in setting aside the finding of fact recorded by the Labour Court in its award by applying Uma Devi case (supra) is wholly untenable in law. Therefore, the same is set aside by this Court.
24. This Court in the later judgment in the case of Hari Nandan Prasad & Anr. v. Employer I/R to Management of Food Corporation of India & Anr.
MANU/SC/0103/2014: (2014) 7 SCC 190, after adverting to the law laid down in U.P. Power Corporation v. Bijli Mazdoor Sangh MANU/ SC/7304/2007: (2007) 2 SCC 755 and Maharashtra State Road Transport Corpn. & Anr. (supra) wherein Uma Devis case is adverted to in both the cases, held that on a harmonious reading of the two judgments, even when there are posts available, in the absence of any unfair labour practice the Labour Court cannot I.D. No 166/16 Page 71 of 75 give direction for regularisation only because a worker has continued as dailywage worker/ad hoc/temporary worker for number of years. Further, such a direction cannot be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules. It was held at para 32 in the Hari Nandan Prasad case (supra) as under:
32. However, the Court in Maharashrtra SRTC case also found that the factual position was different in the case before it. Here the post of cleaners in the establishment were in existence. Further, there was a finding of fact recorded that the Corporation had indulged in unfair labour practice by engaging these workers on temporary/casual/dailywage basis and paying them paltry amount even when they were discharging duties of eight hours a day and performing the same duties as that of regular employees.
Further, Hari Nandan Prasad & Anr. (supra) referred at para 36, the case of LIC v. D.J. Bahadur MANU/SC/0305/1980: (1981) 1 SCC 315 in which the relevant para 22 of LIC (supra) case extracted as under : "36.....22". The Industrial Disputes Act is a benign measure which seeks to preempt industrial tensions, provide the mechanics of dispute resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counterproductive battles and the assurance of industrial justice may create a climate of goodwill. In order to achieve the aforesaid objectives, the Labour Courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice. Way back in the year 1950 i.e. immediately after the enactment of Industrial Disputes Act, in one of its first and celebrated judgment in the case of Bharat Bank Ltd. V. I.D. No 166/16 Page 72 of 75 Employees of Bharat Bank Ltd.
MANU/SC/0030/1950: (1950) LLJ 921, 948 49 (SC) this aspect was highlighted by the Court observing as under:
"61.......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.
And again at para 37, observing that the aforesaid sweeping power conferred upon the Tribunal is not unbridled and is circumscribed by this Court in New Maneck Chowk Spg. & Wvg. Co. Ltd. v. Textile Labour Assn. MANU/SC/0212/1960: AIR 1961 SC 867, the relevant para 6 of which is extracted as under:
"37....6.... This, however, does not mean that an Industrial Court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subjectmatter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature or by this Court. "
"38. It is, thus, this fine balancing which is required to be achieved while adjudicating a particular dispute, keeping in mind that the industrial disputes are settled by industrial adjudication on principle of fair play and justice. "
25. In view of the aforesaid statement of law laid I.D. No 166/16 Page 73 of 75 down by this Court after adverting to the powers of the Industrial Tribunal and the Labour Court as interpreted by this Court in the earlier decisions referred to supra, the said principle is aptly applicable to the fact situation of the case on hand, for the reason that the Labour Court recorded a finding of fact in favour of the workman that the termination of services of the appellant herein is not legal and valid and further reaffirmed the said finding and also clearly held that the plea taken in the order of termination that he was appointed on contract basis as a driver is not proved by producing cogent evidence. Further, we hold that even if the plea of the employer is accepted, extracting work though of permanent nature continuously for more than three years, the alleged employment on contract basis is wholly impermissible. Therefore, we have held that it amounts to an unfair labour practice as defined under Section 2(ra) of the I.D. Act, 1947 read with Sections 25T which is prohibited under Section 25U, Chapter VC of the I.D. Act, 1947. We have to hold that the judgment of the High Court in reversing the award is not legal and the same is set aside by us."
61. In view of the case law as abovesaid as also in view of the facts and circumstances of the case as abovesaid, I find from the record that the workmen WW 1 to WW 23 have been able to make out a case for regularisation of their services with the management on the post of Auxilliary Nurse Midwives (ANMs) w.e.f. the dates of their first appointment with the management to the same as mentioned vide Annexure A to the instant order and terms of reference as also in the statement of claim filed by WW 1 to WW 23 in the same in the pay scale of Rs.5,20020,200/ I.D. No 166/16 Page 74 of 75 with all benefits as in the present terms of reference. Reference is answered accordingly and award is passed in these terms.
62. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal
on 05.05.2017 (CHANDRA GUPTA)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No 166/16 Page 75 of 75