Delhi District Court
Whether The Demand Of The Workmen As Per ... vs The Burmah Shell on 27 September, 2007
-: 1 :-
IN THE COURT OF SH. I.S. MEHTA:
PRESIDING OFFICER : INDUSTRIAL TRIBUNAL NO. I :
ROOM NO. 02: THIRD FLOOR: KARKARDOOMA COURTS: SHAHDARA:
DELHI.
ID No. 123/04/06.
BETWEEN
The management of
M/s. Secretary (Health), Govt. of NCT of Delhi
9th Floor, B- Wing, Delhi Sectt.
I.P. Estate, New Delhi.
AND
Its workman
Smt. Geeta Bhagwa & Others
C/o Delhi Labour Union
Aggarwal Bhawan, GT Karnal Road
Tis Hazari Road, Delhi- 54.
Date of Institution :- 30.11.2004.
Date of Reserve for Award :- 19.09.2007.
Date of Pronouncement of Award: 27.09.2007.
AWARD
Secretary (Labour), Govt. of the National Capital Territory of Delhi has
referred the present dispute, arising between the above named parties for adjudicatio
vide notification No.F.24(1721)/2004-Lab./6682-86 Dated 26.10.2004, with th
following term of the reference :-
"Whether the demand of the workmen as per
Annexure 'A' for being placed in the pay scale of Rs.
8000-13500 is justified and if so, from which date and
what directions are necessary in this respect ?"
ANNEXURE 'A'
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S. No. Name Father's Name
1. Smt. Geeta Bhagwa W/o Sh. Ashok Kumar Bhagwa
2. Smt. Sashi Bala W/o Sh. Satinder Kumar
3. Smt. Urmila Sharma W/o Sh. Ashok Kumar
4. Sh. Kanta Ram S/o Sh. Mata Prasad
1. In the statement of claim, it is stated that the workman named in
Annexure 'A' have been in the employment of the Health Department as Public
Relation Officers since June, 1992. The particulars of the concerned workmen a
given as under :-
S. Name Desig- Place of Posting Date of Date of
No nation Appoint- promo-
ment tion
1 Geeta Bhagwa P.R.O. Lok Nayak Hospital,15.01.1979 June, 1992
Delhi.
W/o Shri Ashok Kumar
Bhagwa
2 Shashi Bala P.R.O. GTB Hospital, 21.09.1978 As
Shahdara, Delhi.
W/o Sh. Satinder Kumar Above
3 Urmila Sharma P.R.O. Sanjay Gandhi21.09.1978 As
Memorial Hospital,
W/o Sh. Ashok Kumar Above
Mangol Puri, Delhi
Sharma
4 Kanta Ram P.R.O. Rao Tula Ram08.07.1977 As
Memorial Hospital,
S/o Sh. Mata Prasad Above
Delhi
2. The aforesaid workmen were engaged as a Social Worker, but in the
th
month of June, 1992, they were promoted as PROs. During
Pay the 4
Commission, all the aforesaid workmen were getting their salary in the pay scale
Rs. 2000-3500. At that time, Senior Physiotherapist as well as Senior Dietician
th
were also getting their salary in the pay scale of Rs. 2000-3500. But, when the Pay Commission came into existence, the salary of Senior Physiotherapist and Senior Dietitian have been revised from Rs.2000-3500 to the scale of Rs. 8000- -: 3 :- 13500, but the salary of the workmen concerned have been revised from Rs. 2000 3500 to the scale of Rs. 6500-10500. The work load, responsibilities, duties an technical skills of the PROs are not less than the Senior Physiotherapist and Seni Dietitian in any manner. The action of the management is totally arbitrary an discriminatory in addition to being contrary to the principles of 'equal pay for equa work'. The demand was served upon the management, but no reply received. Th conciliation proceedings were initiated, but resulted into failure, due to adaman and non-cooperative attitude of the management. It is prayed that an Award b passed in favour of the workmen holding therein that all the workmen concerned are entitled to be placed in the pay scale of Rs. 8000-13500 with retrospective effect i.e. 01.01.1996.
3. In the written statement filed by the management, it is stated that the pa scales of Senior Physiotherapist and Senior Dietitian have been fixed in the presen scales as per the recommendation th Pay of 5Commission, which were specific to these posts. Keeping in view the qualification required for post and nature of dutie attached to the post, ththe Pay5 Commission in general has recommended the scales of Rs. 6500-10500 for the posts which were earlier in the pay scale of Rs. 2000- 3500. The department/ management does not have any authority over th functioning of th 5 Pay Commission. The representation, reminders to the management are meaningless as the report of Pay Commission was at higher Government level. The workmen concerned do not come within the definition of workman. Other allegations and contents have completely denied and prayed f dismissal of the claim.
4. Rejoinder filed wherein all the contentions raised in the written statement -: 4 :- were controverted and those of the statement of claim were reiterated.
5. On the pleadings of the parties, the following issues were framed :-
1. Whether the demand of the workmen as per Annexure 'A' for being placed in the pay scale of Rs. 8000-13500 is justified and if so, from which date and what directions are necessary in this respect ?
2. Relief.
6. The workmen in support of their claim examined WW1- Smt. Geeta Bhagava, WW2- Smt. Shashi Bala, WW3- Kanta Ram and WW4- Smt. Urmila Sharma, who proved their respective affidavits and relied upon the documents Ex.WW1/1 to Ex.WW1/14. On the other hand, the management has examined M K.R. Kishore- Additional Secretary, Department of Health & Family Welfare, NCT of Delhi as MW1 who proved his affidavit Ex.MW1/A.
7. I have heard Learned ARs for the parties and have carefully gone through the record and my findings are as under :-
8. The workmen in their claim have stated that they are working with the Health Department as PRO since June, 1992 and getting the pay scale of Rs. 200 3500 and after the Vth Pay Commission, their pay scale have been revised to th pay scale of Rs. 6500-10500, whereas, the earlier pay scale of Senior Physiotherapist and Senior Dietician have been revised from Rs.2000-3500 to R 8000-13500. The work load, responsibilities, duties and technical skills of PRO are not less than Senior Physiotherapist and Senior Dietician in any manner. T aforesaid action on the part of the management is bad, unjust and malafide. -: 5 :-
9. In reply to the claim, the management has stated that the claim filed by the workmen is not maintainable as the workmen did not fall within the definition of workman U/Sec. 2 (s) of the ID Act and the claim of the workman is without cause of action and prays that the claim be rejected.
10. Learned ARW has submitted that the workman are in the employment of management since their respective dates of appointment. The workmen after takin promotion are working as PROs in the pay scale of Rs. 6500- 10500. After recommendations of theth Pay 5 Commission, the pay scale of Senior Physiotherapist and Senior Dietician were revised from Rs. 2000-3500 to 8000- 13500, but the salary of PRO were revised just Rs.6500-10500. The management has discriminated by not revising the pay scale of PROs on same line and pray that the workmen be given similar pay scale as that of Senior Physiotherapist an Senior Dietician.
11. On the other hand, Learned ARM has submitted that the claim be dismissed as no cause of action arisen against the management.
12. The Section 2 (s) of the ID Act, 1947 is reproduced as under :-
"'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-- -: 6 :-
(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 who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensum or exercises, either by the nature of the duties attached to the office or by reason of the powers vested to him, functions mainly of a managerial nature.
13. The Hon'ble Supreme Court in the SCC case (1970) ; 590;titled as BURMAHSHELLOIL STORGAE & DISTRIBUTION COMPANY OF INDIA LTD. VERSUS THE BURMAH SHELL MANAGEMENT STAFF ASSOCIATION & ORS. & VICE VERSA has held that person a technically qualified employed mainly in supervisory capacity in view of the technical knowledge or qualification possessed by him is not a workman, if he draws the salary more than Rs. 500/- per month.
14. During the cross- examination, the workmen stated that they are working as Public Relations Officer at LNJP hospital. Their nature of duties of PRO is dealing with public grievances, welfare activities and coordination with different departments. They work as per the instructions of Head of Institution. The aforesaid admissions are reproduced as under :-
"I am presently posted at GTB Hospital as PRO in the pay scale of Rs. 6500-10500. When, I was engaged as Social Worker in the year 1978, my pay scale was around Rs. 2035. I am getting the pay scale of Rs. 6500-10500 as consequent to my promotion as PRO. The nature of duties of PRO is dealing with public grievances, welfare activities dead body disposal, abandoned children and coordination with different departments. I work as per the instructions of Head of Institution.-: 7 :-
15. The workmen in their respective affidavits and claim and also in evidence have categorically stated that right now they are getting the pay scale of Rs. 6500 10500 after getting the promotion as PRO. The nature of their duties are to dea with the public grievances, welfare and coordination with the different departments and work as per the instructions of the head of institution. As per the admissions the workmen, they work as per the instructions of the head of institution, indicate that the work entrusted to the workmen are supervisory in nature. The wage of t workmen is more than Rs. 1600 p.m. and the nature of work is to discharge t function mainly of the managerial nature by reasons of duties attached to the office. Therefore, to my mind the workmen are not the workmen within the Section '2' of the ID Act, 1947, as such, II LLJ155; titled as in view of the judgment IVOR FERNANDEZ VS. MANAGEMENT OF STANES MOTORS (SOUTHERN INDIA) LTD. & ANR.
16. Keeping in view the facts and circumstances and discussions made above, I hold that the dispute does not cover U/Sec. 2(s) of the ID Act and the workmen are not entitled for any relief under the ID Act. This issue is decided against the workman. The reference is answered against the workman and in favo of the management. Award is passed, accordingly. ANNOUNCED IN THE OPEN COURT DATED : 27.09.2007.
[ I.S. MEHTA ] PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO. I:
KARKARDOOMA COURTS:DELHI.