Delhi District Court
Workmen vs . on 20 December, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 99/03
Workmen
Workmen as represented by Vyopar Tatha Udyog Karamchari Sangh, 118,
Kishan Ganj Market, Old Rohtak Road, Kishanganj, Delhi 110007.
Vs.
Management
M/s Indraprastha Gas Limited, Jeevan Bharti Building, Tower II, 10th Floor,
Connaught Circus, New Delhi 110001.
Date of institution 31.07.2003
Date of reserving award 07.12.2011
Date of award 20.12.2011
Ref.: F.24 (1186)/2002/Lab.9331-35 dated 18.07.2003
AWARD
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 the workmen performing the duties of D.S.M. and Technician are entitled to be regularised with the management in corresponding Pay-Scale and I.D. No.99/03 Page 1 of 9 posts, if so, what directions are necessary in this respect?
2. Statement of claim has been filed by the workmen, wherein it is stated that the workmen have been working with the management as Technicians and D.S.M. and are entitled to be regularised with the management at the corresponding posts and pay scales. It is submitted that work of the workmen is conducted at about 20 pump stations of management since the date of their appointments. It is submitted that management has given these pumps stations to commission agents for supervision for last few months. It is submitted that management is not providing legal facilities to the workmen like weekly off, festival off, national holiday, medical leaves, annual increment etc on the basis of equal pay for equal work. It is submitted that the work of the workmen has been satisfactory. It is submitted that the Technicians and DSMs have been working with the management for a long time but they have not been regularised. It is submitted that demand notice dated 15.8.02 was sent to the management through Union by Regd. Post which was not replied. Thereafter, conciliation proceedings also failed and hence, this claim.
3. It is prayed that workmen be regularised with management from the date of their appointments as DSMs and Technicians.
4. In written statement filed by the managements, it is stated that the Union has no locus standi to represent the case. It is submitted that the claim has to be signed by concerned persons and the power to sign the claim cannot be delegated. It is submitted that the claimants have never been in the employment of management and that they are in the employment of various contractors. It is submitted that there is contract I.D. No.99/03 Page 2 of 9 between the management and various contractors and that management i.e. M/s Indraprastha Gas Ltd is the principal employer having the Registration Certificate under CLRA Act and the respective contractors have the license. It is submitted that PF and ESI are deducted and deposited by the contractors and thus, there is no master servant relationship between the claimants and the management. It is denied that claimants are working continuously for a very long period as DSMs and Technicians at the CNG stations of management.
5. Rejoinder has been filed by the workmen, to the written statement of management, wherein they have denied all the averments made in the WS and have reiterated the contentions made in the statement of claim.
6. On the basis of pleadings of the parties, following issue was framed by my Ld Predecessor vide order dated 15.01.2004:-
1. Whether the cause of workmen has been duly espoused? OPW
2. Whether the claimants are employees of management?
3. Whether the workmen are entitled for regularisation with the management in the corresponding pay scale?
4. In terms of reference.
7. Workmen have examined Sh. Ram Lakhan Yadav, General Secretary of Vyopar Tatha Udyog Karamchari Sangh (Regd.) as WW 1. In his affidavit, he has reiterated the contents of statement of claim and have proved 13 documents on record including also authority letter executed by the workman and copy of demand notice sent through Union. In his I.D. No.99/03 Page 3 of 9 cross-examination, he has stated that workers told about their grievances on 10.8.02 and that about 60-65 workers were present in the first meeting. It is denied that claimants are not employees of management or that petrol pumps are operated through operators. It is further denied that work is got done through the commission agents of management. It is denied that management has never had any control or supervision on claimants. It is denied that claimants are employees of contractors. It is denied that statutory benefits are being extended by contractors and not by management.
8. Two workmen namely Shokeen Pal and Nihal Singh have been examined as WW 2 and WW 3, who have deposed in the examination-in- chief as well as cross-examination on the similar line of WW 1.
9. Management has examined Sh. Ashim Batra, its General Manager (Marketing) as MW 1. He has deposed in his affidavit that management approached the Director General/ Resettlement, Ministry of Defence, for sponsoring suitable names of retired defence personnel for providing services to different CNG stations and the management was provided with names of suitable candidates and the management selected some of them. MW 1 has proved on record copies of operating agreements with different contractors, licenses, renewal, bank guarantees, Registration Certificate under CLRA Act etc as Ex. MW1/1 to Ex. MW 1/151.
10. In his cross-examination, MW 1 has denied that operators have been appointed without any sanction or authority from anybody. It is denied that workmen are in the employment of management. It is denied that claimants are entitled to be regularised.
11. Management has examined various contractors from MW 2 to I.D. No.99/03 Page 4 of 9 MW 18, who have proved their operating agreements with management for providing service to management at its CNG stations. In their cross- examination, they have deposed that claimants are their employees and have denied that claimants are employees of management.
12. Management has also examined officials from various EPF and ESI Department branches of Delhi, who have produced the record of pertaining to PF and ESI in the name of contractors. These witnesses have been examined as MW 19 to MW 38.
13. No arguments were advanced earlier by either of the parties. However, on an application moved by the management of M/s Indraprastha Gas Limited, arguments on its behalf were heard on 19.12.2011. I have carefully gone through record of the case. My findings on the issues are as under :-
14. Findings on issue No 1 Issue no.1 is 1. Whether the cause of workmen has been duly espoused? OPW.
15. It is the case of management that Union has no locus standi to file the present claim as the claim has not been signed by the claimants individually and that power to sign cannot be delegated to other person.I.D. No.99/03 Page 5 of 9
16. In the reference order, name of the Union as mentioned is Vyopar Tatha Udyog Karamchari Sangh and the claim has been filed by the said Union. Therefore, it cannot be stated that the said Union has no locus standi to file the claim. Moreover, WW 1 has proved on record authority letter given by the workmen in favour of Union to raise the present dispute as Ex. WW1/8 and copy of demand notice sent through Union as Ex.
WW1/10. In view of documents Ex. WW1/8 and 1/10, it is held that the cause of the workmen has been properly espoused.
17. Further, in M/s Payen and Talbros Ltd., vs Hans Raj and others DLT 1968 Vol. IV Page 130 it was held by Hon'ble Delhi High Court that:-
that the language of section 2(k) of the Industrial Disputes Act in itself is wide enough to cover a dispute between an employer and a single employee but having regard to the scheme of the Act and the purpose for which it was enacted and the use of the word "workmen" in this definition clause, industrial dispute has been construed by the courts to mean a collective dispute, i.e. a dispute where workmen as a body or a considerable section of them make a common cause with the individual workman and raise a demand. It would not appear that the condition of an espousal or of a body or a considerable section of workmen making a common cause with the particular dispute arises only when individual dispute per se is of the nature of an inividual dispute concerning a particular workman as opposed to collective dispute involving all the workmen. Where the dispute which was referred to the Tribunal related to gratuity scheme sought to be introduced for the benefits of all the workmen employed in a particular company, it was per se an industrial dispute. No espousal or support was needed for such a dispute.
18. The above judgment implies that espousal is not necessary in case of bulk workmen. Therefore, even if it is presumed that that there is no proper espousal in this case, the same would not affect the case of the workmen adversely. Issues no.1 is decided accordingly.
I.D. No.99/03 Page 6 of 919. Findings on issue no.2 Issue no.2 is Whether the claimants are employees of management?
20. Sh. Ashim Batra, MW 1 has proved on record copies of operating agreements with different contractors, licenses, renewal, bank guarantees, Registration Certificate under CLRA Act etc as Ex. MW1/1 1/151.
21. Management has also examined various contractors from MW 2 to MW 18, who have proved their operating agreements with management for providing service to management at its CNG stations.
22. As per the operating agreements proved by the management witnesses, Contractors shall provide services to management, which is in the business of dispensing CNG to automobiles and supplying Piped Natural Gas to domestic and commercial customers. A per term 6(g) of the said agreements, the Operators can appoint their personnels including Driver Sales Man (DSM), Technicians, Security Guards etc. on a fixed term co-terminus with the agreement period.
23. From the above agreement, it is clear that the personnel for providing service to management shall be provided by Operator/ Contractor M/s Ruby Enterprises.
24. Management has also examined officials from various EPF and ESI Department branches of Delhi, who have produced the record of pertaining to PF and ESI in the name of contractors.
25. From the above discussion and documents, it is clear that there were agreements between management and various contractors that personnel shall be provided by contractors for the services to be rendered I.D. No.99/03 Page 7 of 9 at CNG stations of management. Thus, it is revealed that power to appoint workers including Driver Sales Man and Technicians, the designation of workmen herein, was with contractors. Hence, it is held that workmen are in the employment of contractors and not in the employment of management of M/s Indraprastha Gas Limited. Issue no.2 is decided accordingly.
26. Findings on issue no.3 Issue no.3 is Whether the workmen are entitled for regularisation with the management in the corresponding pay scale?
27. As decided vide issue no2, workmen are not employees of management of M/s Indraprastha Gas Ltd. Therefore, question of regularization of workmen with M/s Indraprastha Gas Limited does not arise, being not their employees. This issue is, therefore, decided in favour of management and against the workmen.
28. Findings on issue no.4 Issue no.4 is As per terms of reference. Terms of reference are Whether the workmen performing the duties of D.S.M. and Technician are entitled to be regularised with the management in corresponding Pay- Scale and posts, if so, what directions are necessary in this respect?
29. This issue has been answered vide decision of issues no.2 and 3, whereby it has been held that workmen are not employees of management of M/s Indraprastha Gas Ltd but are employees of contractors. Thus, it is held that workmen performing the duties of D.S.M. and Technician are not entitled to be regularised with the management in corresponding Pay- Scale and posts and no directions are necessary in this respect. Award is passed accordingly and reference is answered in these terms.
I.D. No.99/03 Page 8 of 930. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court
on 20.12.2011 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No.99/03 Page 9 of 9