Delhi District Court
Surender Singh Tomar vs Edmc on 31 August, 2024
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
F. No. 24(88)/E/Lab/17/3549
Dated: 24.08.2018
DLCT130011022019
POIT NO.: 349/2019
Workman:
Sh. Surender Singh Tomar S/o Sh. Anand Singh Tomar
R/o 1/6138m, Street No. 2,
Near MCD Office East Rohtash Nagar Shahdara, Delhi-32.
Working as Driver, in R. R. Depot, Shahdara South Zone,
East Delhi Municipal Corporation,
Represented through General Secretary
Municipal Employees Union,
Agarwal Bhawan, G. T. Road,
Tis Hazari, Delhi - 110054.
Vs.
The Management of:
East Delhi Municipal Corporation
Through its Commissioner (East),
Udyog Sadan, 2nd Floor, Plot No. 419,
Patparganj, Industrial Area, Delhi.
Date of Institution : 14.02.2019
Date of Arguments Heard : 20.08.2024
Date of Judgment Reserved : 20.08.2024
Date of Award : 31.08.2024
AWAR D
1. The Labour Department, Govt. of the National Capital Territory
of Delhi has referred this dispute arising between the parties named
POIT-349-19 Page No. 1/30
above for adjudication to this Tribunal with following terms of the
reference:-
"Whether the demand of workmen Sh. Nepal Singh & 25
Ors. (As per annexure-A) for regularization of their
services on the post of Driver with retrospective effect from
their respective initial dates of joining into the employment
and to pay them entire difference of salary on the principle
of "Equal Pay for Equal Work" from their initial joining till
regularization and all consequential benefits thereof, is
legal and justified; and if so, what relief are they entitled
and what directions are necessary in this respect?"
2. At the very outset, it is pertinent to mention here that Ld.
Predecessor Tribunal vide its order dated 14.02.2019 observed that
reference has been filed in respect of 26 workmen, but since the facts of
each workmen are different, hence, AR for workmen was directed to
file separate statement of claim for all the workmen and case bearing
ID No. 309/18 titled as Nepal Singh Vs. M/s. EDMC was ordered to be
treated as main case and Ahlmad was directed to take appropriate steps
to separate the file of 26 workmen and to get the cases registered
separately.
3. The details of all the workmen have been mentioned in Annexure-
A annexed with reference and same is reproduced herein below:
Sl. Name and Father's Designation Date of Date of Present posting
No. Name appointment regularization
1. Sh. Nepal Singh Driver 09.06.1995 01.04.2003 RR Depot Shahdara
S/o Sh. Jagmal Singh North Zone Delhi.
2. Sh. Ram Chander Driver 07.06.1995 01.04.2003 RR Depot Shahdara
S/o Sh. Amar Singh South Zone Delhi.
3. Sh. Ram Kumar Driver 26.09.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Raj Singh South Zone Delhi.
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4. Sh. Ravinder Singh Driver 22.08.1996 01.04.2004 RR Depot Shahdara
S/o Late Sh. Sukhbir South Zone Delhi.
Singh
5. Sh. Deepak Kumar Driver 27.07.1999 01.04.2006 RR Depot Shahdara
S/o Prem Pal Singh North Zone Delhi.
6. Sh. Janesh Kumar Driver 11.09.1998 01.04.2005 RR Depot Shahdara
S/o Sh. Dayala Ram North Zone Delhi.
7. Sh. Raj Kumar Driver 26.09.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Nanak Chand North Zone Delhi.
8. Sh. Sunil Kumar, Driver 23.09.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Sukhbir Singh North Zone Delhi.
9. Sh. Ameen Kuma Tyagi Driver 23.09.1999 01.04.2006 RR Depot Shahdara
S/o Sh. Trilok Chand North Zone Delhi.
Tyagi
10. Sh. Ashok Kumar S/o Driver 01.08.1995 01.04.2003 RR Depot Shahdara
Sh. Bhim Singh North Zone Delhi.
11. Sh. Ramesh Kumar Driver 23.09.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Kaptan Singh North Zone Delhi.
12. Sh. Jagdish Prasad Driver 22.08.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Phool Singh North Zone Delhi.
13. Sh. Dharam Pal Driver 30.06.1999 01.04.2006 RR Depot Shahdara
S/o Sh. Roop Chand North Zone Delhi.
14. Sh. Om Singh Pawar Driver 25.09.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Bhagwan Singh South Zone Delhi.
15. Sh. Surender Singh Driver 03.07.1995 01.04.2003 RR Depot Shahdara
Tomar South Zone Delhi.
S/o Sh. Anand Singh
Tomar
16. Sh. Ram Lakhan Driver 09.07.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Rahtudas South Zone Delhi.
17. Sh. Raj Kumar Driver 11.06.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Risal Singh South Zone Delhi.
18. Sh. Deshpal Singh Driver 25.09.1996 01.04.2004 RR Depot Shahdara
Tomar South Zone Delhi.
S/o Sh. Bharm Singh
19. Sh. Shoulal Singh Driver 25.09.1996 01.04.2004 RR Depot Shahdara
S/o Sh. Sheo Prasad South Zone Delhi.
20. Sh. Brijeshwar Singh Driver 05.07.1995 01.04.2003 RR Depot Shahdara
S/o Sh. Bankey Singh South Zone Delhi.
21. Sh. Kamal Singh Driver 03.07.1995 01.04.2003 RR Depot Shahdara
W/o Sh. Bir Singh North Zone Delhi.
22. Sh. Vijya Singh Driver 28.06.1995 01.04.2003 RR Depot Shahdara
S/o Sh. Umed Singh South Zone Delhi.
23. Sh. Rajinder Singh Driver 25.09.1996 01.04.2004 DHO, Malaria Dept.
S/o Sh. Bhim Singh Shahdara North
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Zone.
24. Sh. Yogender Kumar Driver 25.09.1996 01.04.2004 EDMC HQ
S/o Sh. Mani Ram
25. Sh. Dildar Khan S/o Sh. Driver 04.07.1995 01.04.2003 RR Depot Shahdara
Keena Khan South Zone Delhi.
26. Sh. Ravinder Kumar Driver 17.11.1998 01.04.2005 RR Depot Shahdara
S/o Sh. Kalu Ram South Zone Delhi.
4. Statement of Claim was filed separately on behalf of the workman,
Sh. Surender Singh Tomar stating that he joined into the employment of
the management as Driver w.e.f. 03.07.1995. He was taken on job as
daily rated/muster roll worker and paid wages in accordance with
minimum wages act, whereas on the other hand his regular counterparts
performing the identical work and of the same value were treated as
regular employees and paid their salary in regular pay scale. It is further
submitted that the workman has been continuously discharging his
services with the management since his initial date of joining with an
unblemished record of service to his credit. It is the grievance of the
workman that the management should have regularized his services
from his initial date of joining instead of on 01.04.2003. It is contended
that non-regularization of his services from his initial date of joining
and non-grant of arrears of difference of salary on the principle of equal
pay for equal work is illegal on the following grounds:
5. The job against which the workman was working is regular and
permanent in nature, and he has been performing his duties to the
satisfaction of the management. It is contended that employing persons
on regular nature of job and treating them as monthly paid/muster roll
workers and paying them lesser remuneration than those doing the
identical work of same value amounts to unfair labour practice as
POIT-349-19 Page No. 4/30
provided in section 2(ra) r/w section 25T punishable under section 25U
of the I.D. Act. Such an action of the management amounts to sheer
exploitation of labour and is in violation of Article 14, 16 & 39(d) of
the Constitution of India. It is argued that the denial of equal pay for
equal work is against the Equal Remuneration Act, 1976.
6. The workman has stated to be served a demand notice to the
management vide communication dated 16.07.2017 which was also
received in their office but no reply was given to the same, subsequent
to which it was presumed that his demand was rejected, and thereafter
conciliation proceedings were initiated which resulted in failure, hence,
this reference. It is prayed by the workman that an award be passed in
his favour to regularize his services on the post of Driver in proper pay
scale and allowances w.e.f. his initial date of joining i.e. 03.07.1995
along with granting him arrears for difference of wages on the principle
of equal pay for equal work and a litigation cost u/s 11(7) of the I.D.
Act was also sought by the workman.
7. The management filed its Written Statement and submitted that the
present dispute is not an industrial dispute as it is not properly espoused
by the union, therefore, the reference is also bad in law. It is also
averred that no demand notice has been served upon the management
and as such the present dispute is not an industrial dispute. The
management has stated to have its own regularization policy i.e. Phased
Manner Regularization Policy, as per which the management
regularizes its daily wager/part-time worker and muster roll employee
subject to the availability of posts and funds. As per the management,
its policy has also been upheld in various cases by the Hon'ble Delhi
High Court, therefore, based on the said policy the workman cannot
POIT-349-19 Page No. 5/30
claim regularization from his initial date of joining. As far as the
question of equal pay for equal work is concerned the management has
relied upon the judgment of State of Haryana vs. Jasmer Singh, (1996)
11 SCC 77 as per which the daily wagers/part-time workers cannot be
equated with the regular employees of the management as the former
does not possess the qualification prescribed for the regular workers.
Further reliance is also placed upon MCD vs. POIT-II, 2000 AD
(Delhi) 442. For regularization the judgment of Uma Rani vs. Registrar
Cooperative Societies (2004) 7 SCC 112 and Secretary, State of
Karnataka vs. Uma Devi, (2006) 4 SCC 1 is relied upon by the
management.
8. On merits the management has admitted that the claimant was
engaged as daily-rated/muster roll worker and was paid wages in
accordance with minimum wages act and the employment of the
workman w.e.f. 03.07.1995 is a matter of record. The management has
admitted that the services of the workman were regularized w.e.f.
01.04.2003. Based on these averments, the management has prayed that
the case of the workmen be dismissed as being devoid of merits.
9. After completion of pleading of both the parties, following issues
were framed vide order dated 29.08.2020:
1. Whether the present dispute has not been properly
espoused by the Union?OPM
2. Whether no demand notice was sent by the workmen to
the management? OPM
3. As per terms of reference?
4. Relief.
10. To prove its case, the workman Sh. Surender Singh Tomar S/o Sh.
Anand Singh Tomar examined himself as WW-1 and filed his Affidavit
POIT-349-19 Page No. 6/30
(Ex. WW1/A) in his examination-in-chief. He relied upon Ex. WW-1/1
to Ex. WW1/8 - Legal Demand Notice dated 16.07.2017, its Postal
Receipt, Statement of Claim filed before the Conciliation Officer,
espousal dated 03.07.2017 passed by the union, copy of award dated
03.10.2016 passed by Sh. A. C. Dogra, Presiding Officer, CGIT-01,
Delhi, copy of office order dated 21.06.1995, copy of office order dated
03.07.1995 and copy of office order dated 09.07.2005 all issued by
management. The workman witness duly tendered his documents and
was also cross-examined by the AR for the management. Pursuant to
which the workman's evidence was closed.
11. Per contra, the management examined Sh. Pawan Kumar Jolly
posted as Administrative Officer, CED, MCD (HQ) as MW-1. He also
filed his Affidavit Ex. MW1/A and relied upon documents as detailed
in his affidavit. After completion of the tendering process, the
management witness (MW-1) was cross-examined by the AR for the
Workman and thereafter, the management evidence was closed.
12. Final arguments have been heard at length as advanced by both
the parties. This Tribunal has gone through the documents, pleadings as
well as arguments of both the parties and the same are dealt with by
this Tribunal in following paras. My issue wise findings are as follows:
13. Issue No. 1. Whether the dispute has not been properly espoused
by the Union?OPM
14. The onus to prove this issue was on the management.
15. Here Tribunal has to see if the case of the workman has been
properly espoused by the union or not?
16. The management has taken objections in its written statement that
the present dispute is not an industrial dispute as the same is not
POIT-349-19 Page No. 7/30
properly espoused by the union. In order to prove the proper espousal,
the Ld. A.R. for the workman has placed reliance upon Ex. WW1/4 i.e.
resolution dated 03.07.2017 passed by the Municipal Employees Union
for raising an industrial dispute in favour of the workmen. He also
placed reliance upon the judgment of the Hon'ble Delhi High Court in
Omji Srivastava and Ors. vs. P.W.D./C.P.W.D., 2023/DHC/002013
decided on 17.03.2023, wherein the Hon'ble Delhi High Court after
relying upon the case of Hon'ble Supreme Court in J. H. Jadhav v. M/s
Forbes Gokak Ltd., Civil Appeal No. 1089 of 2005, decided on
11.02.2005 has observed that there is no strict format required for a
union espousing the cause of the workman, and this can vary and may
also include resolutions or other forms of evidence depending on the
case to case. Even in the absence of formal resolution, the court relied
upon various documents such as statement of claim filed before the
conciliation officer, legal demand notice, authorization letters etc.
among other documents and held that the cause of the workman have
been properly espoused by the union.
17. Likewise, the issue of espousal if any has to be taken at the first
instance i.e. when the case is pending before the conciliation officer,
and it should not be an afterthought plea. Reliance in this regard is
placed upon the Division Bench judgment of Hon'ble Kerala High
Court in Mangalam Publications (India) Pvt. Ltd. v. Saju George, W.A.
No. 964 of 2020, decided on 01.12.2020, wherein the management
failed to take the plea of espousal at the initial stage, and subsequently,
when the dispute was taken up for consideration by the Tribunal after
being referred by the union, the court held that it is not permissible for
POIT-349-19 Page No. 8/30
the management to argue that the cause of the workman was not
supported by the union.
18. Also the Hon'ble Delhi High Court in the case of Pratap Singh &
Anr. vs. Municipal Corporation of Delhi, WP(C) No. 676/2013 vide
order dated 04.02.2013 reversed the findings of the Ld. Labour Court
on the issue of espousal by categorizing it as hyper-technical and held
that the cause of the workman is properly espoused by the union.
19. Even otherwise, in the present case, the statement of claim (Ex.
WW1/3) filed before the conciliation officer by the Municipal
Employees Union is placed on record. The resolution dated 03.07.2017
i.e. Ex. WW1/4, wherein the union decided to raise an industrial
dispute in favour of the workmen have also been placed on record.
Even the legal demand notice Ex. WW1/1 was sent on the letter head of
the union. The workman witness in his affidavit also deposed that he is
a member of Municipal Employees Union and stated his membership
number. He further stated that he approached union for redressal of his
dispute and consequently on 03.07.2017, a resolution was passed to
raise the said grievances by way of raising a dispute. Therefore, in view
of the above discussed documents and evidence, this Tribunal does not
have any reasons to cast doubt on the espousal passed by the Municipal
Employees Union for raising an industrial dispute in favour of the
workmen. In view of the above discussion, it is clear that the workman
has placed sufficient material on record, this Tribunal is of the opinion
that the cause of the workman has been properly espoused by the
Municipal Employees Union. Accordingly, Issue no. 1 is decided in
favour of the workman and against the management.
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20. Issue No. 2: Whether no demand notice was sent by the workmen
to the management? OPM
21. The management has contended that no demand notice has been
served upon them prior to raising the present industrial dispute, hence
the same is not maintainable.
22. On the other hand, the workman has placed reliance upon Ex.
WW1/1 i.e. copy of legal demand notice dated 16.07.2017 and its
postal receipt Ex. WW1/2 to establish that he had duly served the
demand notice to the management but no reply was received from them
and consequently it was presumed that his demand was rejected.
23. Even though the management has taken this objection that no
legal demand notice was served upon them, it would not have any
impact on the present dispute because the same is not mandatory before
raising the present dispute. Reliance is placed upon Workmen of
M.C.D. vs. M.C.D., W.P.(C) No. 13023/2005 decided on 06.08.2007,
wherein the Hon'ble Court has held that making a written demand is
not a sine qua non for raising an industrial dispute. Once the
appropriate Government has passed an administrative order referring an
industrial dispute for adjudication to the industrial adjudicator, it has to
be assumed that an administrative decision was arrived at by the
Government after examining the material placed on the record that
there exists an industrial dispute.
24. Accordingly, Issue no. 2 is also decided in favour of the workman
and against the management.
25. Issue No. 3: As per terms of reference.
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26. Now dealing with the regularization aspect of the case, the AR
for the Management has drawn attention of this Tribunal to the case of
Secretary, State of Karnataka and others vs. Umadevi and others,
appeal (civil) 3595-3612 of 1999, decided on 10.04.2006 and Uma
Rani vs. Registrar Co-operative Society as reported in (2004) 7 SCC
112, wherein it was held regularization is not and cannot be a mode of
recruitment by any State within the meaning of Article 12 of the
Constitution of India or any body or authority governed by a statutory
Act or the Rules framed thereunder. Regularization furthermore cannot
give permanence to an employee whose services are ad-hoc in nature. It
was also held that the fact that some persons had been working for a
long time would not mean that they had acquired a right for
regularization. Further, it was also argued that the management has its
own policy of regularization i. e. phase manner regularization policy
and the management regularizes its daily wage muster roll-employees
as per availability of the posts and funds and the said policy was upheld
by the Hon'ble Delhi High Court in MCD vs. Gauri Shankar & Ors.,
WPC No. 601/1997 dated 31.08.1999 and MCD vs. Brij Mohan, WPC
No. 17932/2004 dated 27.10.2005.
27. The workman representative has argued that the management has
committed unfair labour practice as enumerated in Section 2 (ra) read
with item 10 of Fifth Schedule of the Industrial Disputes Act and
further submitted that employing the workman for performing the
permanent and perennial nature of work of Driver and treating them as
mere temporary workman and to continue them for several years with
the object of depriving the status of permanent workman amounts of
unfair labour practice as regularizing their services would mandate the
POIT-349-19 Page No. 11/30
management to pay the salary in regular pay scale to the workman. He
placed reliance upon the judgment of Hon'ble Supreme Court titled as
Chief Conservator of Forest and Anr., (1996) 2 SCC 293 and the
judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. Of
Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796.
28. This Tribunal has considered all the material on record as well as
legal submissions of the parties and have perused the judgments cited
by the both parties. As far as the powers of Labour Courts and
Industrial Tribunals are concerned, the Constitution Bench of the
Hon'ble Supreme Court in the case of Bidi, Bidi Leaves' and Tobacco
Merchants Association vs. The State of Bombay, Civil Appeals Nos.
415 to 418 of 1960 decided on 15.11.1961 has held that the tribunal has
the wide powers to create new rights and liabilities upon the employer.
The relevant portion of the judgment is reproduced below:
"15. It is well settled that industrial adjudication under the
provisions of the Industrial Disputes Act 14 of 1947 is
given wide powers and jurisdiction to make appropriate
awards in determining industrial disputes brought before it.
An award made in an industrial adjudication may impose
new obligations on the employer in the interest of social
justice and with a view to secure peace and harmony
between the employer and his workmen and full co-
operation between them. Such an award may even alter the
terms of employment if it is thought fit and necessary to do
so. In deciding industrial disputes the jurisdiction of the
tribunal is not confined to the administration of justice in
accordance with the law of contract. As Mukherjea, J., as
he then was, has observed in Bharat Bank Ltd., Delhi v.
Employees of the Bharat Bank Ltd., Delhi the tribunal can
confer rights and privileges on either party which it
considers reasonable and proper, though they may not be
within the terms of any existing agreement. It has not
merely to interpret or give effect to the contractual rights
POIT-349-19 Page No. 12/30
and obligations between them which it considers essential
for keeping industrial peace". Since the decision of the
Federal Court in Western India Automobile Association v.
Industrial Tribunal, Bombay it has been repeatedly held
that the jurisdiction of Industrial Tribunals is much wider
and can be reasonably exercised in deciding industrial
disputes with the object of keeping industrial peace and
progress (Vide: Rohtas Industries, Ltd. v. Brijnandan
Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna
Electric Supply Workers' Union)."
29. Likewise, the Industrial Tribunal in the case of Chief Conservator
of Forest and Anr. (supra), and Project Dir. Dep. Of Rural
Development v. Its Workmen, (supra), have also dealt with the powers
of Industrial Tribunals and granted regularization to the workers
working for certain schemes for several years. The relevant portion of
the aforesaid judgment is reproduced below:
"28. The decisions relied upon by the learned counsel for
the respondents in Ajaypal Singh (supra), ONGC (supra)
and Umrala Gram Panchayat (supra), also leave no
manner of doubt that the Supreme Court has specifically
observed that the prohibition laid down for regularisation
in Uma Devi (supra) does not apply to industrial
adjudication and that the Industrial Tribunal has the power
to direct regularisation of services in cases where pursuant
to unfair labour practices, employees have been made to
render services for long periods of time on causal basis for
work that should ordinarily be done by regular
employees."
........
61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party POIT-349-19 Page No. 13/30 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.."
30. The recent judgment of Hon'ble Supreme Court in ONGC v.
Krishan Gopal, (2021) 18 SCC 707 after discussion its various judgments on the aspect of power of Labour Court and Industrial Tribunal to grant regularization has laid down the following propositions:
"28. The following propositions would emerge upon analysing the above decisions:
28.1. Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularization, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution.
28.2. The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages.
28.3. The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service.
28.4. Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit on a par with the workmen who have been regularised to POIT-349-19 Page No. 14/30 make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14.
28.5. In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of Vth Schedule to the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen."
31. In the instant case, it is not disputed that the management has sanctioned the posts of Drivers in their establishment, in fact the workman was appointed against the vacant post as admitted by the management witness in his cross-examination. This is suggestive of the fact that the management indeed has a permanent and sanctioned post of Drivers. Hence, in the presence of sanctioned posts of Drivers, the limitations of ONGC (Supra) will not be applicable to the present case. On the contrary it affirms the power of the Industrial Tribunal to grant regularization pursuant to the findings of unfair labour practice. Furthermore, the argument with respect to Uma Devi (supra) was also dealt with in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 by the Hon'ble Supreme Court, which has observed that the managements have resorted to using Uma Devi (supra) as a tool to further exploit the services of the worker and not regularizing them. The relevant portion of the judgment is as follows:
"7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage POIT-349-19 Page No. 15/30 basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of POIT-349-19 Page No. 16/30 paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."
32. Hence, the reliance of the management on the judgments of Uma Devi (supra) to argue that this tribunal does not have the power to regularise the services of the workman concerned is misplaced in law. Notably, the Hon'ble Supreme Court in Chief Conservator of Forest (supra) and the Constitution Bench of the Hon'ble Supreme Court in Bidi Leaves (supra) clearly establish that Industrial Tribunals possess wide ranging powers, which include power to create new rights and liabilities, alter terms of employment, and impose new obligations on employers in the interest of social justice and industrial peace. Furthermore, the Hon'ble Supreme Court in Sheo Narain Nagar (supra) highlights the misuse of the Umadevi (supra) to further perpetuate exploitative employment practices, rather than adhering to its true spirit, which emphasises on regular employment. This Tribunal, therefore, is not only empowered but also obligated to rectify such injustices by regularizing the services of workmen who have been subject to unfair labour practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
33. Now moving to the factual matrix of this case, the service particulars of the workman i.e. date of joining, designation and date of regularization are not disputed and the same were also admitted by the management witness during his cross-examination. The question before this Tribunal is whether the workman is entitled for regularization of his services from his initial date of joining or his services have been POIT-349-19 Page No. 17/30 rightly regularized in accordance with their phased manner policy of regularization.
34. The workman has placed on record initial appointments orders dated 21.06.1995 and 03.07.1995 (Ex. WW1/6 and Ex. WW1/7), stating that the names of the workmen were called from the Employment Exchange and the workman concerned was posted against the vacant post of Driver. The regularization order dated 09.07.2005 (Ex. WW1/8) has also been placed on record by which the services of the workman were regularized w.e.f. 01.04.2003 on the post of Driver.
35. Further, in his cross-examination dated 01.06.2022, the workman witness (WW-1) deposed that he was engaged by the management w.e.f. 03.07.1995 as Driver on daily-wage basis. He stated that working hours of regular employers are 8 hours and he is also doing his job for 8 hours.
36. Attention is also drawn towards the cross-examination of management witness dated 29.08.2023, wherein he has made certain admission on the disputed facts. He admitted that Sh. Surender Singh Tomar S/o Sh. Anand Singh Tomar joined into the employment of the management as Heavy Vehicle Driver on 03.07.1995 and that his services were regularized in the regular payscale with attendant benefits w.e.f. 01.04.2003. Therefore, there does not remain any dispute with respect to the service particulars of the workman. He also conceded that the workman has been working with the management continuously and uninterruptedly till date. He also admitted that the concerned workman is performing the same nature of duties and same working hours before and after his regularization in service for the period from 03.07.1995 to 31.03.2003. The witness, however, volunteered to state that the muster POIT-349-19 Page No. 18/30 roll employees are given the work of Kuda/Garbage, whereas, the regular employees are given the work of driving the vehicles of senior officials of management/MCD. As per this admission, it is also proved that there were no changes in the work and working conditions i.e. working hours, nature of work of the workers both prior and after their regularization. Hence, being a daily wager they discharged the same duties with same working hours and roles and responsibilities and after their regularization they worked in the similar manner. Further, as far as the question of regular drivers being assigned to drive the vehicle of higher officials, the regularization order issued by the management to the workman is completely silent on this aspect. Moreover, the workman despite his regularization continues to drive heavy vehicles as admitted by the management witness which is contrary to his earlier statement that regular drivers are assigned to drive the vehicle of higher officials. The management stated to have no written policy or any supporting document in this regard.
He further admitted to be a matter of record that the workman has been working as Heavy Vehicle Driver against the vacant post of Heavy Vehicle Driver carrying the regular payscale with attendant benefits since 03.07.1995. It is also established that the workman had been working against the sanctioned vacant post of Driver since the beginning till date. Meaning thereby, there remains no controversy to the fact that the posts of Drivers were available at the time of his initial engagement by the management, which is why the workman was appointed against the sanctioned post of Driver and worked as such till date. It is also admitted that from 1995 to 2003, the workman was only paid as per minimum wages fixed and revised from time to time under POIT-349-19 Page No. 19/30 the Minimum Wages Act. He further admitted that the regular post of Heavy Vehicle Driver carries the regular payscale and attendant benefits and that the salary in payscale is much higher that what is period under the minimum wages. Hence, it is also established that despite performing the same work as being performed by the regular and permanent Driver both pre and post regularization, the workman was given minimum wages. The said wages are lesser in comparison to what was being paid to the regular Driver working with the management. The management witness has stated that it has a general policy of regularization which covers even Driver. He admitted that the post of Driver is a Class-III post and that there is no document in writing to show that there is any general policy applicable to Drivers. Further, the management witness also stated that the workman never worked under his control and supervision. He stated to have no material/document to show that the concerned workman was appointed for any specific period and for specific work. There is no dispute about the fact that the workman had been discharging the duties of Driver from his initial date of joining and till date. The management has permanent sanctioned posts of Driver in its establishment which suggests that the work of driver is permanent and perennial in nature. Even though the workman was stated to be engaged on a muster-roll/daily wage basis, however, management failed to show as to why it had to resort to hiring workers as such despite it being a permanent and perennial nature of work.
37. From the aforementioned testimony of the management witness, it is evident that the concerned workman was appointed against the vacant post of Driver w.e.f. 03.07.1995 and has been working POIT-349-19 Page No. 20/30 continuously and uninterruptedly since then. It cannot be disputed that workmen were performing the work of permanent and perennial in nature as the management has a permanent and sanctioned post for the said post. The management witness has also admitted the work, duties, and number of working hours of the workman are identical to those of the regular and permanent employees of management, and there is no change in the nature of work of the workman both prior and post regularization. It is not the case of the management that there were no vacant posts of Driver available, nor have they supported this claim with any documentary evidence. On the contrary, the workman was appointed against the vacant post of Driver from the beginning. It is also not the contention of the management that the workman did not fulfill the requisite qualifications for the post of Driver at the time of his initial appointment. Now, this Tribunal fails to understand why, despite having the requisite qualifications and vacancies available for the post of Driver, the workman was not employed on a regular and permanent basis from the very beginning.
38. Though the management has contended in its written statement as well as in its Affidavit about a phase manner policy of regularization, however, no such regularization policy applicable to Drivers have been placed on record. The management has relied upon Ex. MW1/1 i.e. Resolution No. 273 and submitted that the services of the workman were regularized in accordance with the said policy, and granting him regularization w.e.f. his initial date of joining will eventually disturb the seniority of other workers and industrial peace in the establishment of the management. Reliance in this regard is placed upon Gauri Shankar (supra).
POIT-349-19 Page No. 21/3039. This Tribunal has perused the said Resolution No. 273 of the management. The said policy seems to address the irregularities in the employment practices of the management, where several daily wagers were engaged by the management and were made to work on daily wages. It records that:
"1. The Municipal Corporation vide Resolution No. 709 dated 20.11.1978 laid down a policy to regularise persons engaged on daily wages/muster roll on maintenance work/work of regular nature in phased manner. Under this resolution, it was decided to regularise all such persons engaged upto 31.12.1970 in the year 1978-79 and those engaged subsequently were to be regularised in a block of two years in each financial year. The date of effect of regularisation of all such persons engaged upto 31.12.1970 in the year 1978-79 and those engaged subsequently were to be regularised in a block of two years in each financial year. The date of effect of regularisation was to be the first date of the financial year. Since all such persons engaged upto 1978 was regularised during 1982-83, the matter was referred again to the Corporation for a decision about regularisation policy in respect of such persons engaged after 1978. The Corporation vide resolution no. 936 dated 16.02.1984 decided to continue the existing policy subject to actual need to be verified by the O&MO and regularisation of these persons is being done in pursuance of this resolution.
2. The pace of regularisation of persons engaged after 31.12.1978 has been erratic/slow as the O&M study of the requirement of permanent work force in various department had revealed that some of the department were already overstaffed and in some departments there was no permanent nature of work which called for regularisation persons engaged on daily-wage/muster roll basis.
XXX POIT-349-19 Page No. 22/30
7. It is therefore proposed that regularisation of persons engaged on daily wages/muster roll be done:-
(i) on the basis of actual requirement worked out by each department keeping in view the maintenance/regular nature of work & O & M study be dispensed with &
(ii) with effect from the first day of the financial year in which regularisation is done.
Thereafter, the aforesaid resolution was approved as "resolved that as recommended by the Standing Committee vide its resolution no. 702 dated 19.05.1988 regularisation of all workers engaged on daily wage/muster roll upto 31.12.1984 be also approved and the commissioner be asked to bring up proposals for additional budget/grant required if any."
40. The initial policy was instituted as a remedial measure to regularize daily wage employees en masse as a one-time measure due to long- standing irregularities in their engagement practices. After the policy expired (i.e. the regularization of the last batch w.e.f. 1982), the management, vide Resolution No. 936 dated 16.02.1984, extended the regularization policy to those who had been engaged for two consecutive years as stipulated therein. Thereafter, the policy was again extended to the daily wagers/muster roll workers engaged up to 31.12.1984. This means the management, despite the initial remedial measure to correct the anomalies in the hiring process and regularize all daily wagers engaged up to 1978, continued to engage workers on a daily wage basis after 1978, fully aware that it would eventually undermine the purpose of the one-time phased regularization policy. Then, the management continued to grant extensions to the policy until 1984 while still engaging workers on a daily-wage/muster roll basis.
POIT-349-19 Page No. 23/30Moreover, the workmen concerned was engaged in 1995, although the policy had only been in place until 1984, and no justification whatsoever has been provided in the form of documentary evidence explaining the need to hire the workman on the daily-wage basis for performing the regular nature of work.
41. This Tribunal emphasizes that no rule/policy of the management can outweigh the Industrial Disputes Act. Whatever the policy may be, it should align with labour laws. The management cannot, under the guise of "policy", perform actions that are strictly prohibited under the Industrial Disputes Act. The Industrial Disputes Act at Item No. 10 of Fifth Schedule outlines Unfair Labour Practice as "to employ workmen as badlies, casual temporaries, and to continue them as such for years with the object of depriving them of the status and privileges of permanent workmen." Such practice is not only prohibited under Section 25T but also punishable under Section 25U of the Industrial Disputes Act.
42. Now, although the phased manner regularization policy was extended by the management vide Resolution No. 936 and Resolution No. 273, this does not give the management the license to continue to employ workers on a temporary/casual/daily wage basis for work of a permanent and perennial nature. The management must remember that the original policy, i.e., Resolution No. 709, was intended to correct historical irregularities, and such extensions cannot become a means to continue hiring workers on a temporary basis, which the earlier policy aimed to correct. Merely having a phased manner policy for the regularization of employees does not automatically rectify the unfair labor practice of appointing workers on a temporary basis for POIT-349-19 Page No. 24/30 permanent and perennial work. Industrial Tribunals must examine the reasons/justification recorded by the management for appointing such workers on a temporary basis and assess these reasons in accordance with the Industrial Dispute Act. Engaging workers for permanent and perennial work and treating them as casual/muster roll/contract/daily wager/temporary workers without recorded reasons will act against the management and suggest an element of unfair labor practice, as it exploits the services of the workers without providing them their due wages, and no justifiable reasons have been recorded by the management.
43. The management, neither in its written statement nor during the course of the proceedings, has provided any reasons as to why it resorted to appointing the workman on a daily-wage basis in the year 1995 (i.e., after 18 years from the implementation of the one-time phased manner regularization policy intended to convert each and every daily wager into regular employment), especially when the work of a Driver is permanent and perennial in nature, and he was appointed against a sanctioned vacant post from the very beginning. It is noteworthy that if the worker, the post of Driver, and the nature of the work remain the same, then the question arises as to why the worker was not treated as regular and permanent from his initial date of appointment. The management has also failed to provide any basis for how the cut-off date of 01.04.2003 was determined with respect to the concerned workman. In the absence of a clear basis, such an action of the management reeks of arbitrariness, as the eight years of service of the workman were eaten away without any justification whatsoever.
POIT-349-19 Page No. 25/3044. The management has also argued that the workman has duly accepted his regularization w.e.f. 01.04.2003 out of his free will with all the terms and conditions without any protest, therefore, at this stage he cannot retract from his acceptance and claim regularization on the post of Driver w.e.f. his initial date of joining. This Tribunal does not find any consensus with this argument of the management. Merely because the workmen has "consented" to his regularization on the post of Driver w.e.f. 01.04.2003, that does not give the license to the management to indulge in unfair labour practices. Given that the workman is a lowly paid employee and considering his socio-economic background, it is unreasonable to assume that he possesses equal bargaining power in determining the terms of his employment, including decisions related to his regularization. Reliance is placed upon the judgment of Hon'ble Supreme Court in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 156.
45. Likewise, the Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors vs State of UP., (1986)1 SCC 637 held that employees, especially those in low-wage categories, often have no choice but to accept employment under exploitative terms offered by the employer due to the prevailing conditions of unemployment and their socio-economic background. The fact that these employees accepted employment with full knowledge of the terms does not absolve the government or the employer from the mandate of equality enshrined in Article 14 of the Constitution, which implies equal pay for work of equal value. Similarly, in the Officer Incharge Defence Standardization Cell vs Mukesh Kumar, 2013(4)SC T108 (Delhi), the Hon'ble Delhi High Court emphasized that the employer cannot use POIT-349-19 Page No. 26/30 contract stipulations as a tool of exploitation. Their unilateral imposition of oppressive and unreasonable conditions of service, which the workman has little choice but to accept, cannot be justified. Therefore, in the present case merely because the workman had given his acceptance his regularization w.e.f. 01.04.2003 does not bar him from raising the present dispute.
46. In view of the admitted position and the material on record, this Tribunal holds that the management has clearly committed an unfair labour practice as enumerated in Item No. 10 of the Fifth Schedule read with Section 2(ra) of the Industrial Disputes Act by employing the workman against the sanctioned vacant post of Driver but treating him merely as a daily wager for performing the permanent nature of work of a Driver and continued him for years with the intent of depriving him of the status and privileges of a regular and permanent employee. The management subsequently wrongly regularized the workmen concerned w.e.f. 01.04.2003 under the guise of a phased manner regularization policy intended for Class-IV employees, despite him performing the same work as his regular and permanent counterparts. This view is supported by the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra), wherein the Hon'ble Supreme Court of India held that employing workers as temporary workers for long periods and denying them the status and salary of a regular employee amounts to an unfair labour practice. This is because giving them the status and privileges of a permanent employee would require the management to pay the workman a salary higher than the one fixed under the Minimum Wages Act.
POIT-349-19 Page No. 27/3047. Moreover, this Tribunal, in the case of Pradeep Rana & Ors. vs. NDMC (I.D. No. 212/2016), decided on 11.08.2023, after arriving at the finding that the management had indulged in unfair labour practice by employing workers on a temporary basis for several years of continuous and uninterrupted service despite them having the requisite qualifications, directed the regularization of their services from their respective initial dates of joining, with all consequential benefits. The management challenged the said award before the Hon'ble High Court in W. P.(C) No. 3339/2024, titled Municipal Corporation of Delhi vs. Pradeep Rana & Ors., wherein the Hon'ble Single Judge upheld the award passed by this Tribunal. Thereafter, the management again challenged the decision of the Hon'ble Single Judge before the Hon'ble Division Bench vide L.P.A. No. 720/2024 titled as Municipal Corporation of Delhi vs. Pradeep Rana & Ors.. The Hon'ble Court rejected the contention of the management that regularizing them would lead to seniority disputes, financial burden, and was against the principles laid down in the Umadevi (supra). The Hon'ble Division Bench has categorically held that the Umadevi Doctrine would operate only in writ forums and not in industrial adjudications. In industrial adjudications, where the employer has kept the permanent posts unfilled and indulged in the unfair labour practice of keeping workmen on a temporary basis over prolonged periods of time, the statutory power of the industrial adjudicator to grant relief to the workmen, including the status of permanency, continues. The workmen therein approached the Industrial Tribunal, claiming it was an unfair labour practice to keep them in temporary jobs for several years. The industrial adjudicator, based on evidence, arrived at the finding of POIT-349-19 Page No. 28/30 unfair labour practice by the management, holding that the work was permanent and perennial in nature. The workers, who fulfilled the requisite qualifications and performed the same work as their regular counterparts but were paid lesser wages, were treated as temporary workers while the management failed to fill the sanctioned posts. The court also rejected the management's argument that the workers voluntarily accepted contractual terms, noting that individuals in dire need of employment and livelihood have limited choices and would accept whatever lawful opportunity comes their way in the absence of any choice. Hence, the Division Bench of the Hon'ble Delhi High Court in Pradeep Rana (supra) has settled the position of law that the industrial tribunal has power to grant the relief of regularization pursuant to the findings of unfair labour practice.
48. In these circumstances, this Tribunal holds that the workman Sh.
Surender Singh Tomar S/o Sh. Anand Singh Tomar is entitled to regularization in service on the post of Driver w.e.f. 03.07.1995 in the regular pay scale with all consequential benefits, either monetary or otherwise. This Tribunal is also mindful of the caution given by the Hon'ble Delhi High Court in MCD vs. Gauri Shankar & Ors. (supra), and acknowledges the potential disruption to the seniority of other workers. Therefore, this Tribunal, keeping it in mind, holds that the seniority of the workman will not be disturbed due to his regularization from the initial date of joining and the same be counted w.e.f. 01.04.2003. As far as the question of equal pay for equal work is concerned, since the workman is performing the same work as being performed by his regular counterparts and there was no change in his work, working hours, roles, and responsibilities both pre and post-
POIT-349-19 Page No. 29/30regularization, this Tribunal holds that he is entitled to the difference in wages on the principle of equal pay for equal work for the period 03.07.1995 to 31.03.2003. Hence, the terms of reference/Issue no. 3 is also answered in favour of the workman and against the management.
49. Relief: In view of my above findings, it is held that the workman Sh. Surender Singh Tomar S/o Sh. Anand Singh Tomar is entitled to regularization in service on the post of Driver w.e.f. 03.07.1995 in the regular pay scale with all consequential benefits, either monetary or otherwise. His seniority will be counted from 01.04.2003 onwards. He is further entitled to the difference in wages on the principle of equal pay for equal work for the period 03.07.1995 to 31.03.2003. The management is directed to implement the award within 60 days of its publication failing which the management will be liable to pay an interest at the rate of 8% p.a. from the date of terms of reference i.e. 24.08.2018 to till its realization. The award is passed accordingly.
50. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room. Digitally signed by Mohinder Mohinder Virat Virat Date:
2024.08.31 15:56:30 +0530 Announced in open Tribunal on this 31.08.2024 (Mohinder Virat) POIT-I/RADC, New Delhi.POIT-349-19 Page No. 30/30