Delhi District Court
Seema Devi vs Sdmc on 24 February, 2024
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref: F.24/(240)/Lab/SD/2020/6232
Dated 19.03.2020
DLCT130037312020
POIT NEW NO.: 52/2023
OLD LIR NO. 1309/2020
Workmen
Smt. Seema Devi and Smt. Sheetal,
working as Anxiliary Nurse Mid-wives (ANM's),
Maternity Homes Vishnu Garden,
South Delhi Municipal Corporation
through General Secretary,
Municipal Employees Union (Registration No. 793),
Agarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-110054.
Vs.
The Management of
M/s South Delhi Municipal Corporation,
Control Room No. 01123220010
through it's Commissioner (South),
Dr. S.P Mukherjee Civic Centre,
J.L. Nehru Marg, New Delhi-110 002
Date of Institution : 05.04.2021
Date of presentation : 06.03.2023
before this court
Date of Arguments : 24.02.2024
Date of Award : 24.02.2024
POIT NEW NO.: 52/2023 Page 1 of 33
AWAR D
1. The Labour Department, Govt. of the National
Capital Territory of Delhi has referred this dispute arising
between the parties named above for adjudication to this
Tribunal with following terms of the reference:-
"Whether the demand of the workmen Smt. Seema Devi
D/o Sh. Om Prakash & Smt. Sheetal D/o Sh. Vasudev
Hooda are entitled for regularization of services on the
post of ANMs with retrospective effect from their
respective initial dates of joining into the employment
in the regular pay scale of Rs 5,200-20,200/- revised
from time to time with all consequential benefits
monetary and non-monetary and entire difference of
salary on the principle of "Equal Pay for Equal Work"
from the initial date of joining onwards and
consequential benefits thereof, is legal and 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 on behalf of the
two workmen wherein workmen have stated that Smt. Seema
Devi D/o Sh. Om Prakash & Smt. Sheetal D/o Sh. Vasudev
Hooda were appointed as ANMs. The details of workmen is
given as follows:
S. Name & Fathers Date of Post Place of Posting
No Name appointment
1 Smt. Seema Devi D/o 23.05.2013 Anxiliary Nurse Maternity Homes
Sh. Om Prakash Mid-wives (ANM's) Vishnu Garden, South
Delhi Municipal
Corporation.
2 Smt. Sheetal D/o Sh. 08.05.2013 Anxiliary Nurse Maternity Homes
Vasudev Hooda Mid-wives (ANM's) Vishnu Garden, South
Delhi Municipal
Corporation.
POIT NEW NO.: 52/2023 Page 2 of 33
3. It is the case of the workmen that workmen joined into
the employment of the management w.e.f. 23.05.2013 and
08.05.2013 respectively on contract basis. Appointment
letters were issued to the workmen and they were paid fixed
wages which were revised from time to time as per the sweet
will of the management, while their counterparts doing the
identical work and the work of same value but who were
being treated as regular employees are being paid their salary
in proper pay scale. The regular counter-parts of the workmen
concerned are being paid their salary in the pay scale of Rs.
5,200-20,200. Both the workmen are continuously
discharging their services with the management aforesaid
since the dates mentioned above.
4. It is further the case of the workmen that the co-
employees of the workmen have raised an Industrial Disputes
(I.D. No. 166/13) regarding regularization of their services.
The said dispute was decided by the Court Sh. Chander
Gupta, Ld. POIT vide its award dated 05.05.2017 and the
management was directed to regularize the services of the co-
employees of the workmen w.e.f the dates of their first
appointment with the management in the same pay scale of rs
5200-20,200/- with all benefits as the management indulged
in unfair labour practice.
5. It is further the case of the workmen concerned that
non-regularization of services of the workmen since their
initial dates of joining on the post of ANMs in proper pay-
POIT NEW NO.: 52/2023 Page 3 of 33
scale and allowances and non-payment of difference of salary
on the principle of equal pay for equal work with all arrears
thereof is totally illegal, bad, unjust and malafide. The
management has exploited the services rendered by the
workmen and the action of the management is also violative
of Article 39 (d) read with Article 14 of the Constitution of
India as the management is not paying equal pay for equal
work to the workmen concerned.
6. The workmen concerned served a demand notice upon the
management by registered A.D. post vide communication
dated 18.07.2017 which was duly received in their office, but
in vain. Through this claim the workmen prayed that an
Award be passed in favour of the workmen holding thereby
that the workmen aforesaid are entitled to be regularized their
services on the post of ANMs with retrospective effect from
their respective initial date of joining into the employment in
the regular pay scale of Rs 5,200-20,200 (revised from time to
time) on the principle of "Equal Pay for Equal work" with all
consequential benefits thereof either monitory or otherwise.
The cost of litigation as provided in Section 11(7) of the
Industrial Disputes Act, 1947 may also be awarded to the
workmen.
7. The management/SDMC filed Written Statement,
wherein it took plea that management has its own policy of
regularization i.e. Phase Manner Regularization Policy and
the management regularizes its Daily Wager Muster Roll
POIT NEW NO.: 52/2023 Page 4 of 33
Employees as per availability of the posts and funds, that too
strictly as per their seniority. It is further submitted that no
employee has been regularized from the date of his initial
engagement as a Daily Wager. The claim of the workmen for
"equal pay for equal work" for the period of their service
spent as daily wager Muster Roll Field Worker is not
maintainable in view of the judgments passed in case titled as
"State of Haryana vs. Jasmer Singh" reported as (1996) 11
SCC 77, case titled as "MCD vs. POIT-II"reported as 2000 II
AD (Delhi) 442 and case titled " Uma Rani vs. Registrar co-
operative Societies", reported as (2004) 7 Supreme Court
Cases 112 as well as in case titled as "Secretary, State of
Karnataka vs. Uma Devi" reported as (2006)4 SCC 1. It was
prayed that the present claim petition be dismissed.
8. After completion of pleadings, the following issues
were framed by the Ld. Predecessor on 07.05.2022.
"i. Whether the present dispute is covered within
section 2(s) r/w Section 2 (oo) (bb) of the I.D. Act,
1947? OPW
ii. Whether th present dispute has been properly
espoused by the Union in favour of workman? OPW
iii. As per terms of reference.
9. To prove their case, workmen namely Smt. Seema Devi
and Smt. Sheetal examined themselves as WW-1 and WW-2.
Both tendered their evidence by way of affidavit Ex. WW1/A
to Ex. WW2/A. Sh. Surender Bhardwaj examined himself as
WW-3. They all relied upon documents Ex. WW1/1 to Ex.
POIT NEW NO.: 52/2023 Page 5 of 33
WW1/8 and Ex. WW-2/1. All these workmen witnesses were
duly cross-examined by ld. AR for the management.
Thereafter, workmen evidence was closed and matter was
kept for management evidence.
10. To prove their case, Sh. Vinod Kumar was examined as
MW-1. He was duly cross-examined by ld. AR for workmen.
Thereafter management' evidence was closed and matter was
kept for final arguments.
11. Final arguments have been heard at length as advanced
by counsels for both the parties. File and record have been
perused. My issue-wise findings are given below:
12. Issue no. 1: Whether the present dispute is covered
within Section 2(s) r/w Section (oo)(bb) of the I.D. Act.
13. This issue seems to have been improperly framed, as the
management has contended during the course of argument
that claimants are not covered under the definition of
workman as defined in 2(s) as they are merely the contractual
workers.
14. Section 2(oo)(bb) will not be applicable to the present
facts and circumstances as it pertains to the termination of the
service of workman due to expiration of contract period and
will not be covered under the definition of retrenchment as
defined in 2(oo) of I.D. Act. The present case pertains to the
demand of regularization and admittedly the workmen are
working in the establishment of management to till date.
POIT NEW NO.: 52/2023 Page 6 of 33
15. At this point, it is important to refer to the section 2(s)
of the I.D. Act, which defines the "workman" 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 (45 of 1950), or
the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62
of 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 59[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."
16. The bare perusal of the definition suggests that there is
no distinction between the full time, part time, contractual,
any temporary or regular or permanent employee as far as
Industrial Disputes Act is concerned. The AR for the
workmen has also drawn attention to judgment of Hon'ble
Delhi High Court in Delhi Cantonment Board vs. Central
Govt. Industrial Tribunal and Ors., L.P.A. No. 30/2004, has
POIT NEW NO.: 52/2023 Page 7 of 33
discussed the scope of the workman as per section 2(s) of the
I.D. Act and stated the following after placing reliance upon
Section 2(s) of the Act:
"7. A perusal of the above definition shows that there is no
distinction in industrial law between a permanent employee
and a temporary employee. As long as the person is employed
to do any manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward, he is a
workman under the Industrial Disputes Act, and will get the
benefits of that Act."
17. Likewise, the Hon'ble Supreme Court in the case of
Div. Manager, New India Assurance Co. Ltd. vs. A.
Sankaralingam, Civil Appeal No. 4445 of 2006 , decided
on 03.10.2008, has categorically held that part time
employees are covered under section 2(s) of the I.D. Act. The
relevant portion is reproduced as follows:
"14. Likewise in G.M. Telecom, Nagpur's case (supra), it has
been observed thus:
The definition of 'workman' as given in the Act does not
make any distinction between full time employee and part
time employee. It does not lay down that only a person
employed for full time will be said to be a workman and that
the one who is employed for part time should not be taken as
a workman. What is required is that the person should be
employed for hire to discharge the work manual, skilled or
unskilled etc. in any industry. If this test is fulfilled, a part
time employee can also be said to be a 'workman'. Now, if
this test is applied to the present case, it can very well be said
that respondent No. 1, who was appointed as a part-time
sweeper and was required to do manual and unskilled work is
a 'workman' within the meaning assigned to the said terms in
the Act and as he worked for more than 240 days in a year,
the provisions of Section 25F of the Act are applicable to the
POIT NEW NO.: 52/2023 Page 8 of 33
case in hand and as neither any notice, as contemplated under
Section 25F of the Act, was served upon the respondent No. 1
nor he was paid compensation in lieu of the said notice, nor
was paid retrenchment compensation, it cannot be said that
the provisions of Section 25F of the Act were duly complied
with. It has been time and again held by this Court as well as
by the Apex Court that the noncompliance of the mandatory
provisions of Section 25F of the Act would render the
termination of service void ab initio. I am fortified in this
view by a decision of the Apex Court in the case in Mohanlal
v. Management of Bharat Electronics Ltd.
MANU/SC/0327/1981 : (1981)IILLJ70SC .
..............
16 . The question as to whether a part-time workman would be covered within the definition in Section 2(s) of the Act and whether he would be entitled to the benefit of continuous service under Section 25B and the benefit of Section 25F, is answered in favour of the workman-respondent. The appeal is accordingly dismissed.
18. From the catena of judgments laid down by the Hon'ble Supreme Court as well as Hon'ble Delhi High Court it has become a well settled position of law that the definition of workman has not created any distinction in contractual, daily wagers, part-time, full time, temporary, permanent etc. So long as the workmen are performing the nature of work as defined in section 2(s), they are covered under the ambit of industrial disputes act. Therefore, in view of the settled position of the law, the contention of the management does not hold any water. This tribunal holds that the claimants, despite being a contractual worker clearly falls under the definition of workman as defined in section 2(s) of the I.D. POIT NEW NO.: 52/2023 Page 9 of 33 Act. Therefore, this issue is decided in favour of the workmen and against the management.
19. Issue No. 2: Whether the present dispute has been properly espoused by the union in favour of workman? OPW
20. The onus to prove this issue was on the workman. 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 Hospital 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 held that the cause of the workman is properly espoused by the union. The relevant portion of the judgment is reproduced below:
"20. Based on the said legal principle, this Court examined the evidence adduced by the Petitioners/Workmen. The Petitioners/Workmen proved on record Exhibit WW-2/1 (Statement of Claim dated 23.12.2002 filed by the Hindustan Engineering General Mazdoor Union on behalf of the Petitioner before the Conciliation officer), Exhibit WW2/2(AD card for the legal notice issued by the Union), Exhibit WW-2/3 (Authorisation letter dated 23.12.2002 issued by the Petitioners/Workmen to Hindustan Engineering General Mazdoor Union), Exhibit WW2/4 to Exhibit WW2/7 POIT NEW NO.: 52/2023 Page 10 of 33 (Demand letters dated 23.12.2002 & 05.02.2002 issued by the Hindustan General Mazdoor Union to the Respondent No. 1 Management espousing the cause of the Petitioners/Workmen). These documents show that the Petitioners/Workmen authorized the Hindustan General Mazdoor Union to take up the cause. In pursuance of the said authorisation, the said union issued demand letters and filed the claim petition before the Conciliation Officer. Based on the said claim Petition, the appropriate Government referred the said dispute to the learned Labour Court for adjudication. Just because there was no witness from the Union, it cannot be said that the cause of the Petitioners/Workmen has not been espoused by the Union."
"21. As held by Hon'ble Supreme Court in J.M Jhadav vs. Forbes Gokak Ltd reported as MANU/SC/0103/2005 : 2005 (3) SCC 202, there is no particular form prescribed to effect the espousal. Generally, Union passes resolutions, however sometimes proof of support by the Union may also be available aliunde. It would depend upon the facts of each case. In the present case, even though no resolution was placed on record on behalf of the Union, from the documents placed on record by the Petitioners/Workmen, i.e. Exhibit WW2/1 to WW2/7, it is evident that the Hindustan General Mazdoor Union has espoused the cause of the Petitioners/Workmen."
21. The similar issue came up before the Division Bench of Hon'ble Kerala High Court in the matter of Mangalam Publications (India) Pvt. Ltd. v. Saju George, W.A. No. 964 of 2020, decided on 01.12.2020 and held:-
"7... There is no doubt about the fact that the workman was a member of the concerned WA No.964/2020 union. According to the workman, the cause of the workman was undertaken by the union even at the initial stage. Apparently, there was no objection from the side of the management during the relevant time. Thereafter, the matter was considered and ultimately the dispute had been referred for consideration by POIT NEW NO.: 52/2023 Page 11 of 33 the Tribunal. Once a reference had been made at the instance of the union, it is not open for the management to contend at this stage of the proceedings that the cause of the workman had not been espoused by the union."
22. Moreover, 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 hypertechnical and held that the cause of the workman is properly espoused by the union. The relevant portion of the judgment is reproduced below:
"Learned counsel for the respondent fairly cannot dispute the position that the view taken by the Labour Court on the issue of espousal of the petitioners cause is hyper technical. There is no dispute about the fact that the union had held its meeting on 22.10.2005 and decided to espouse the petitioners cause, on which date, the espousal letter was also issued by the union. Merely because Sh. B.K. Prasad may not have been the president of the union on the said date and he became the president in the year 2007, would make no difference. Such a hyper technical view defeats the objective of the Industrial Disputes Act, 1947. The mere wrong description of the designation of Sh. B.K. Prasad in the espousal letter would not render the fact of espousal of the petitioners cause unreliable. Pertinently, the MCD General Mazdoor Union is a recognized union and the said union has not come forward to claim that they had not espoused the cause of the petitioners on 22.10.2005. Accordingly, the decision of the Labour Court on issue no.2 is reversed. It is held that the petitioners cause was duly espoused by the MCD General Mazdoor Union."
23. The workman in order to prove the proper espousal has placed on record, Ex. WW1/1 which is the copy of legal demand notice 18.07.2017 sent on the letter head of the POIT NEW NO.: 52/2023 Page 12 of 33 Hospital Employees Union. Further reliance is also placed upon Ex. WW1/3 which is the statement of claim filed by the Hospital Employees Union before the conciliation officer of the Govt. of NCT of Delhi. The union has also filed its resolution dated 03.07.2017 i.e. Ex. WW1/4, wherein the union decided to raise an industrial dispute in favour of the workman. The workmen witness, in their cross-examination conducted on 06.02.2020 have deposed that they are the member of Hospital Employees Union much prior to raising the present dispute and also duly pay their subscription fees regularly. They further stated that the meeting of the union for espousing their cause took place on 03.07.2017. They stated to have approached the union in the month of June 2017 for espousing their cause in writing. The workmen also examined WW-3, Sh. Surender Bhardwaj, Executive Member of Hospital Employees Union. He has corroborated the stance of the workmen concerned with respect to espousing their cause. The testimony of workmen witnesses remained unrebutted as far as espousal is concerned. Therefore, this tribunal does not have any reasons to disbelieve the same.
24. The contention of the management appears to be a technical one and is taken for the sake of it. This tribunal has also gone through Ex. WW1/5 which is the reply filed by the management to the statement of claim before the conciliation officer. No objection pertaining to espousal was taken by the management when the matter was pending before the conciliation officer. The same appears to be an afterthought, POIT NEW NO.: 52/2023 Page 13 of 33 and without any basis whatsoever. Hence, in view of the documentary as well as oral evidence placed on record, this tribunal holds that the cause of the workmen has been duly espoused by the Hospital Employees Union. This issue is decided in favour of the workmen and against the management.
25. Issue No.3: As per terms of reference?
26. Now, this tribunal has to adjudicate on the demand of the workmen, Smt. Seema Devi and Smt. Sheetal, for the regularization of their services on the post of ANMs, w.e.f. their respective initial dates of joining, in the regular pay scale of Rs.5200-20,200 (revised from time to time), along with all consequential benefits, either monetary or otherwise, as well as for the grant of difference in salary based on the principle of equal pay for equal work from the initial date of joining onwards, is legal and justified.
27. The management has further argued that it adheres to its own policy of regularization i.e. the "Phase Manner Manual Regularization Policy". According to this policy, the management regularizes its daily wage/muster roll employees based on the availability of posts and funds and in accordance with their seniority. It is further contended that no employee has been regularized from the date of their initial engagement as a daily wage worker. The policy of regularization adopted by the management has been upheld by the Hon'ble Delhi High Court in various cases. Therefore, the workmen are POIT NEW NO.: 52/2023 Page 14 of 33 estopped from claiming regularization from their initial dates of joining.
28. Further, 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.
29. The workman representative has argued that the management has committed unfair labour practice as POIT NEW NO.: 52/2023 Page 15 of 33 enumerated in Section 2 (ra) read with item 10 of Fifth Schedule of the Industrial Disputes Act and further submitted that employing the workman against the sanctioned vacant post of ANMs and treating them as mere contractual employees 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 management to pay the salary in regular payscale to the workman. He placed his 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.
30. This tribunal has considered all the material on record as well as legal submissions of the parties and is of the opinion that this tribunal has power to regularize the services of the workman in the light of the judgment of Hon'ble Supreme Court titled as Chief Conservator of Forest and Anr. (supra), the judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. Of Rural Development v. Its Workmen, (supra). The relevant portion of the aforesaid judgement is reproduced below:
"28. The decisions relied upon by the learned counsel for the respondents in Ajaypal Singh (supra), ONGC (supra) and Umrala Gram Panchayat (supra), also leave no manner of doubt that the Supreme Court has specifically observed that POIT NEW NO.: 52/2023 Page 16 of 33 the prohibition laid down for regularization in Uma Devi (supra) does not apply to industrial adjudication and that the Industrial Tribunal has the power to direct regularization of services in cases where pursuant to unfair labour practices, employees have been made to render services for long periods of time on causal basis for work that should ordinarily be done by regular employees."
........
61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace."
31. 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 power 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 POIT NEW NO.: 52/2023 Page 17 of 33 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 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)."
32. Further, the Hon'ble Supreme Court in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 has observed the following with regarding to the practice of using Uma Devi (supra) as a tool to further exploit the services of the worker and not regularizing the services of the workmen concerned.
"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 basis in different State departments. We can take judicial notice that widely POIT NEW NO.: 52/2023 Page 18 of 33 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 paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, POIT NEW NO.: 52/2023 Page 19 of 33 when we consider the pith and substance of true spirit in Uma Devi (supra)."
33. Hence, the reliance of the management on the judgments of Uma Devi (supra) to argue that this tribunal does not have the power to regularize the services of the workman concerned is misplaced in law. Notably, the Hon'ble Supreme Court in Chief Conservator of Forest (supra) and Hon'ble Delhi High Court in Project Dir. Dep. Of Rural Development (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 emphasizes 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 labor practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
34. Now moving on to the factual matrix of this case, the service particulars of the workmen have been admitted as a POIT NEW NO.: 52/2023 Page 20 of 33 matter of record by the management in its written statement filed before this tribunal. The workmen in support of the same has placed on record Ex. WW1/7 i.e. office order pertaining to posting of Smt. Seema Devi and Ex. WW2/1 i.e. office order pertaining to engagement of Ms. Sheetal. The management has also not disputed that a large number of posts of ANM carrying the regular pay scale are lying vacant within the management. It is also not disputed that the regular counterparts of the workmen are paid their salary in the pay scale of Rs.5200-20,200. Furthermore, it is not disputed that the workmen concerned are paid their salary in accordance with the minimum wages, as fixed and revised from time to time by the appropriate government. It is also not disputed that the workmen fulfill the requisite qualifications required for the post of ANM. The management has not disputed that, upon advertising the posts in the newspaper, many applied in response, including the workmen concerned. A selection board was constituted for the selection of employees for the post of ANM, and the workmen were selected against the vacant and sanctioned posts after successfully completing the interview and medical test, as they fulfilled the required qualifications for the post of ANM. The bare perusal of engagement orders placed on record by the management dated 08.05.2013 in respect of both the workmen states that the workmen were appointed to the post of Auxiliary Nurse Midwife (ANM) on contract basis at a fixed emolument of Rs.13,072/- per month for a period of 06 POIT NEW NO.: 52/2023 Page 21 of 33 months or till such time the post is filled up on regular basis through DSSSB, whichever is earlier. Hence, their engagement letters also support that the workmen were appointed against the vacant post of ANM. It is also not disputed by the management that the concerned workmen have been working continuously and discharging their services w.e.f. their initial dates of joining, with an unblemished record of service to their credit.
35. The workmen witnesses, during their cross-examination, denied the management's suggestion that they were appointed only for a period of six months. They further stated that they have been working continuously for the management since their initial dates of joining. They also admitted that it is correct that their appointment letter states they were appointed to the post of ANM and that their appointment was for six months or until the post is filled up on a regular basis through DSSSB, whichever is earlier. They further denied that they were given a one-day break after performing services for six months. They also denied that they are not qualified for the post of ANM or that they do not meet the requisite qualifications for the said post. They further denied that their post was not advertised. They also refuted that the procedure adopted for the appointment of regular and permanent ANMs is different from that for those appointed on a contract basis. They also denied that regular and permanent ANMs have more experience and qualifications than ANMs appointed on a contract basis.
POIT NEW NO.: 52/2023 Page 22 of 3336. The management witness was also cross-examined and also shed lights on the crucial disputed facts in his cross- examination. The relevant portion of the cross-examination of the management witness is reproduced below:
"The documents filed by the workman on the court records are not disputed by the management and the same are admitted. It is correct that Smt. Seema Devi and Smt. Sheetal, whose particulars given in para-1 of the statement of claim are correct. It is correct that the concerned workmen are working continuously and uninterruptedly from their initial dates of joining i.e., 23.05.2013 and 08.05.2013. The workmen given one day break after completion of their six months service. It is correct that the management is having service rules and regulations. It is correct that these service rules does not provide one day break after six months of service. Vol. The service rules are meant for regular employees and not for contractual employees.
It is correct that the concerned workmen are working against the vacant posts of ANM which carry the regular payscale and attendant benefits. It is correct that hundreds of post of ANM are lying vacant since 2013 to till date. It is correct that the work and conduct of the workmen are satisfactory. It is correct that every six months their work and conduct is appraised by the higher authorities and thereafter only they are given further extension. They are again re-engaged. It is correct that the nature of work and working hours and responsibility of the concerned workmen and their counterparts who are treated as regular and permanent ANM are the same and identical. The workmen fulfill the requisite qualification of ANM. It is correct that the regular counterparts are given much higher salary and attendant benefits compared to what is given to the concerned workmen. Only annual increment is not given to the concerned workmen. The payscale of regular ANM post is Rs. 5200-20200 as per 6th Pay POIT NEW NO.: 52/2023 Page 23 of 33 Commission which has been revised to Pay Level - IV as per 7th Pay Commission. I cannot say if an advertisement in the daily newspaper was published for appointment of ANM by MCD. I cannot admit or deny if the selection board was constituted by the management. I cannot admit or deny if the workmen appeared before the selection board duly constituted by the management. I cannot admit or deny if the workmen were duly selected by the Selection board and then they were appointed by the management. I cannot admit or deny if a large number of other applicants were rejected or could not qualify by the Selection Board. I do not have any record to say as to why these workmen were not appointed as a regular ANM in the regular pay scale from their initial date of joining and as to why they were treated as contractual employees, as the DSSSB takes 8 to 10 years to take examination and the the management has to carry out the work of ANM. It is correct that the difference between regular ANM and contractual ANM is only the nomenclature and nothing else.
It is correct that the management is not having any policy/scheme of regularization in regard to ANM like the concerned workmen. Since the concerned workmen are contractual workmen, it is correct that the job of ANM has been ongoing since 1958 when the corporation came into existence to the present date and is likely to continue in the foreseeable future."
37. The management witness has admitted the authenticity of the documents filed on behalf of the workmen. He further admitted that the service particulars, which include their dates of joining, are not disputed. He also conceded that the workmen have been working continuously and uninterruptedly from their respective initial dates of joining with the management. Regarding the granting of a one-day break to the workmen after six months of service, the POIT NEW NO.: 52/2023 Page 24 of 33 management confirmed that its service rules and regulations do not mention granting a one-day break to the workers after six months of service. The management failed to explain the purpose of granting a one-day break to the services of the concerned workmen. In the absence of any rules and regulations in this regard, it appears that a break of one day is given to the workers to interrupt their continuous service.
38. The management witness also admitted that workmen have been working against the vacant post of ANM, which carries a regular pay scale and attendant benefits. There is also an admission that hundreds of posts of ANM are lying vacant in the MCD. The work and conduct of the workmen have also been found to be satisfactory, as admitted by MW1. He confirmed that the workmen have been discharging the same nature of work, working hours, and responsibilities as the regular and permanent ANMs. He admitted that the difference between regular ANM and contractual ANM is merely in nomenclature and nothing else. He also acknowledged that the regular counterparts are given a much higher salary and attendant benefits compared to what is given to the present set of workers, who receive only annual increments. He confirmed the pay scale of a regular ANM is Rs.5200-20,200 as per the sixth pay commission, which has been revised in the seventh pay commission.
39. On the selection procedure of the workmen, the witness showed his lack of knowledge about whether an POIT NEW NO.: 52/2023 Page 25 of 33 advertisement was published in the daily newspaper for the appointment of ANMs by the MCD. He failed to answer if a selection board was constituted by the management. He could not confirm or deny if the workmen appeared before the selection board constituted by the management. He could not explain if the workmen were duly selected by the selection board and then appointed by the management. The witness failed to present any records to explain why the workmen were not appointed as regular ANMs on the regular pay scale from their initial dates of joining and why they were treated as merely contractual employees, especially when the DSSSB takes 8 to 10 years to conduct examinations and the management has to carry out the work of an ANM. Despite availability of records with the management, the witness failed to answer the same based on its records.
40. He also admitted that the workmen fulfill the requisite qualifications for the post of ANM. He acknowledged that the management does not have any policy or scheme of regularization concerning ANMs like the concerned workmen since they are contractual workers. He also confirmed the permanent and perennial nature of the work of an ANM and stated it is correct that the job of ANM has been ongoing since 1958 when the corporation came into existence and is likely to continue in the foreseeable future. Now, this tribunal fails to understand why, despite having the requisite qualifications, and vacancies available for the post of ANMs, appointed through the rigorous selection procedure the POIT NEW NO.: 52/2023 Page 26 of 33 workmen were not employed on a regular and permanent basis from the very beginning.
41. In view of the admitted position and the material on record, this tribunal holds that the management has clearly committed unfair labour practice by employing the workmen as contract workers against the vacant post of ANMs for a period of 6 months and kept continuing them for years at end with the object of depriving him the status and privileges of a regular and permanent employee. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest (supra) wherein the Hon'ble Supreme Court of India had held that employing workers on temporary worker for long periods and denying them the status and salary of a regular employee amounts to unfair labor practice as giving them the status and privileges of permanent employee would require the management to pay the workman higher than the one fixed under the Minimum Wages Act. In these circumstances, this tribunal holds that the workmen, Ms. Seema Devi and Ms. Sheetal are entitled for regularization in service on the post of ANM.
42. The management has indulged in an unfair labour practice and the same is prohibited and punishable under Section 25T and 25U of the I.D. Act. The said sections are reproduced belows as:
"25T. Prohibition of unfair labour practice.--No employer or workman or a trade union, whether registered under the POIT NEW NO.: 52/2023 Page 27 of 33 Trader Unions Act, 1926 (18 of 1926), or not, shall commit any unfair labour practice.
25U. Penalty for committing unfair labour practices.--Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.]"
43. Such unfair labour practices are criminal acts and punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. It is highlighted that this Tribunal can not become a party to such unfair labour practices and perpetuate further injustices, especially when the workman is not at fault. Despite working for about 10 long years with the management, the services of the workmen have not been regularized till date. The workmen have been performing the same work as being performed by permanent ANMs, their working hours and roles and responsibility are also the same. The management has also failed to show any dissimilarity in contractual ANMs and regular ANMs. They were also appointed after undergoing a selection procedure conducted by the management, hence, their appointments do not amount to any back door entry. This tribunal finds no reasons as to why the services of the workman should not be regularized w.e.f. their initial dates of joining.
44. This tribunal has power to grant relief from the retrospective date in view of the peculiar facts and POIT NEW NO.: 52/2023 Page 28 of 33 circumstances of this case. Reliance is placed upon the judgment of Hon'ble Supreme Court in Sarva Shramik Sangh v. Indian Hume Pipe Co. Ltd., (1993) 2 SCC 386 wherein it is held that that Industrial Tribunals/Labour Courts have power to award relief w.e.f. a date anterior to the date of raising the dispute. The relevant portion of the judgment is reproduced below as:
"7. We find it difficult to agree with Shri Pai. In principle we find no basis for the said contention. The Industrial Disputes Act does not provide for any such limitation. The definition of the expression "industrial dispute" in clause (k) of Section 2 of the Act does not contain any such limitation. We are unable to see on what basis can such restriction be inferred or implied. It must be remembered that the Industrial Tribunal/Labour Court is supposed to be a substitute forum to the civil court. Broadly speaking, the relief which the civil court could grant in an industrial dispute can be granted by the Industrial Tribunal/Labour Court. Indeed the Industrial Tribunal/Labour Court is not bound by technical rules of procedure which bind the civil court. (See J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. L.A. Tribunal of India [AIR 1964 SC 737 : (1963) 2 LLJ 436, 444 : (1964) 3 SCR 724] .) In such circumstances we see no justification for holding that the Industrial Tribunal -- or for that matter a Labour Court -- has no jurisdiction to grant relief from a date anterior to the date on which the dispute is raised. Take a case where the Labour Union raises a dispute on a particular date but says that the said relief should be granted from an anterior date. We see no reason why the Industrial Tribunal should be held to have no power to grant relief with effect from such anterior date if it is found to be warranted by the facts and circumstances of the case. Here it is necessary to emphasize the distinction between the existence of power and its exercise. It is one thing to say that the Tribunal has no power to grant such relief and it is an altogether different POIT NEW NO.: 52/2023 Page 29 of 33 thing to say that in a given case it ought not to grant such relief. We are only emphasizing the aspect of power. Whether in a given case relief should be granted with effect from a date anterior to the date of raising the dispute is a matter for the Tribunal to decide in the facts and circumstances of that case.
45. The same view was further upheld by the Hon'ble Delhi High Court in Delhi Administration v. Yogender Singh, 1996 SCC OnLine Del 849 observing that the Industrial Tribunal is well versed with the power to grant relief from a date anterior to the date on which the dispute is raised. The relevant portion of the judgment is reproduced below:
"43. Besides the factual position distinguishing the case in hand from the cases cited above, it needs also to be kept in view that the Industrial Tribunal is not bound by the rigid rules of law. The process which an Industrial Tribunal employs in coming to a decision is not a judicial process. It may confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing document. It may even create new rights and obligations which it may consider essential for keeping industrial peace. (See Bharat Bank, Ltd. 1950 LlJ
921. It is for this reason that it is said that the Award of the Tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by these limitations. [See Western Indian Automobile Association v. Industrial Tribunal 1949 Llj 245. It may also be remembered that if found to be warranted by the facts and circumstances of the case, the Industrial Tribunal may even grant relief from a date anterior to the date on which the dispute is raised (See: Sarva Shramik Sangh v. Indian Hume Pipe Co. Ltd POIT NEW NO.: 52/2023 Page 30 of 33 MANU/SC/0487/1993: (1993) ILLJ 965SC. This, then, is the power of the Industrial Tribunal."
46. The management has not led any cogent evidence as to why the workmen concerned should not be granted relief of regularization w.e.f. their initial date of joining. Merely stating that no worker has been regularized from his/her initial date of joining does not become a ground for barring the present set of workmen. The Hon'ble Delhi High Court in Govt. of NCT of Delhi through Directorate of Family Welfare vs. Nisha & Ors., W.P. (C) 15950/202 decided on 12.12.2023 has also upheld the validity of the award passed by this tribunal in respect of regularization of ANMs from their initial date of joining pursuant to the findings of unfair labour practice. It is also conceded by the management witness that the management does not have any regularization policy for similarly situated workers. In these circumstances, this tribunal holds that the workmen, namely Ms. Seema Devi D/o Sh. Om Prakash and Ms. Sheetal D/o Sh. Vasudev Hooda are entitled for regularization in service on the post of ANM w.e.f. their initial dates of joining in the regular pay scale of Rs. 5200-20200 (as revised from time to time), along with all consequential benefits, either monetary or otherwise.
47. Further, it is also admitted by the management witness that the nature of work and working hours of the concerned workman and their counterparts, who are treated as regular and permanent ANMs, who are paid their salary in the regular pay scale, perform the same nature of duties, responsibilities POIT NEW NO.: 52/2023 Page 31 of 33 and working hours are the same. The Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors. vs. State of U.P., (1986)1 SCC 637 and State of Punjab and Ors. vs. Jagjit Singh and Ors., AIR 2016 SC 5176 that so long as workmen are performing the same duties as their regular counterparts, they are entitled to the same salary and service conditions as that of regular employees. Hence, in view of the same, this tribunal holds that the workmen are also entitled to the difference of salary on the principle of "equal pay for equal work" from their initial date of joining onwards. Hence, the terms of reference are answered in favour of the workmen and against the management.
48. Relief: In view of my findings on the above issues, this Tribunal holds that the workmen, namely Ms. Seema Devi D/o Sh. Om Prakash and Ms. Sheetal D/o Sh. Vasudev Hooda are entitled for regularization in service on the post of ANM w.e.f. their initial dates of joining in the regular pay scale of Rs. 5200-20200 (as revised from time to time), along with all consequential benefits, either monetary or otherwise. The workmen are also entitled to the difference of salary on the principle of 'equal pay for equal work' from their initial date of joining onwards. 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. 19.03.2020 to till its realization. The award is passed accordingly.
POIT NEW NO.: 52/2023 Page 32 of 3349. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Digitally
signed by
AJAY AJAY GOEL
Date:
Announced in open Tribunal GOEL 2024.02.24
on this 24.02.2024 (Ajay Goel) 10:41:56
+0530
POIT-I/RADC, New Delhi.
POIT NEW NO.: 52/2023 Page 33 of 33