Delhi District Court
Id No. 731/16 vs M/S Municipal Corporation Of Delhi on 24 January, 2020
1
IN THE COURT OF RAJIV MEHRA, PRESIDING OFFICER,
INUDSTRIAL TRIBUNAL-02, ROUSE AVENUE COURTS
COMPLEX, NEW DELHI
ID No. 731/16
Sh Kalwa
s/o Sh Ram Saroop
as represented by MCD General Mazdoor Union
c/o Room No. 95, Barrack No. 1/10,
Jam Nagar House
New Delhi-01 .................Workman
Vs
M/s Municipal Corporation of Delhi
through its Commissioner, Town Hall
Chandni Chowk, Delhi-06.
Now after trifurcation it is known as North Delhi Municipal
Corporation
4th Floor, Civic Center,
J L N Marg, New Delhi-02. ............Management
Date of Institution: 15/07/2013
Date of Award: 24/01/2020
AWARD
1. This reference was sent by the Government of NCT of
Delhi vide Order dated 27.06.2013, with the following terms :-
""Whether Shri Kalwa s/o Sh Ram Saroop is
entitled to be designated as Mali instead of
Beldar w.e.f. 08/06/1994 and entitled to
Rs.500/- per month w.e.f. 01/12/2003 as other
Mali of the management have been allowed
the said payments with all consequential
benefits and if so, to what relief is he entitled
and what directions are necessary in this
respect ?"
2
2. In the present matter, Statement of claim was filed by
the workman. In the statement of claim, it has been stated by the
workman that workman joined the employment of MCD w.e.f
01/04/1988 as a Beldar. His services were transferred w.e.f.
08/06/1994 and from that date he has been working as Mali in
Rohini zone. It has been submitted by the workman that in
Horticulture wing, there is no post of Beldar so he has to be
designated as mali.
3. It is the claim of the workman that he has been
performing his duties as Mali w.e.f. 08/06/1994 and he is entitled
to Rs.500/- per month w.e.f. December 2003 as per the order
dated 25/11/2003 in CM No 13974/2002 and CW No 8247/2002 of
Hon'ble High Court of Delhi during the pendency of the writ petition
against the award dated 21/11/01 because they have been
performing their duty as regular Mali. The designation of the
workman has to be changed as Mali in place of Beldar and
accordingly he is entitled to the pay-scale and benefits of Mali from
the date when he has been performing his duties under the
management as Mali. The management is duty bound to
re-designate present workman as Mali w.e.f. from his respective
date of regularization i.e. 08/06/1994 and also grant Rs.500/- per
month as adhoc additional payment at par with other malis
working in the management w.e.f. 01/12/2003 with all
consequential benefits. But the management has not granted the
same to him. Therefore the present statement of claim has been
filed by the workman.
3
4. Written statement has been filed on behalf of the
management. In the preliminary objections, management has
had taken the preliminary objections that present dispute is
not an industrial dispute as same has not been not properly
espoused; that no demand notice has been served; that MCD
General Mazdoor Union has no locus standi to raise the present
dispute. The claimant has never performed the duties of Mali
and no office order assigning the duties of Mali to the claim was
ever issued by the management in favour of the claimant. The
claimant was appointed on the post of Beldar in MCD and since
then the claimant has been working as Beldar and not as Mali. ;
that statement of claim is not maintainable on the ground of
latches/belated stages since the workman is claiming the post of
Mali w.e.f. 08/06/1994 whereas the present claim has been filed
in the year 2013. On merits it has been submitted that the
management has merged the post of Beldar in the post of Mali
vide office order dated 04/09/2009 in furtherance to the resolution
no. 173 dated 31/07/2009 of the management. It has been further
denied by the management that claimant is entitled to Rs.500/-
per month.
4
5. Out of the pleadings of the parties, following issues
were framed on 12/05/2014 by Ld predecessor:
1) Whether the present dispute is an industrial dispute as
defined u/s 2 (k) of the ID Act?OPW
2) Whether the present claim of the workman has been
properly espoused by the union?OPW
3) Whether any notice of demand was served on the
management, if not its effect?OPW
4) Whether MCD General Mazdoor Union has locus standi to
raise the present dispute?OPW
5) Whether the statement of claim is not maintainable on the
ground of latches/belated stage?OPM
6) As per terms of reference.
6. In evidence, workman Shri Kalwa has himself
appeared as WW-1 and has tendered his affidavit in evidence as
Ex.WW1/A and has relied upon the documents i.e. Ex.WW1/1 and
Ex.WW1/4. Workman has also examined WW-2 Sh B.K. Prasad,
who has tendered his affidavit in evidence, which is Ex.WW2/A
and has relied upon the document Ex.WW2/1 to Ex.WW2/3.
7. In order to rebut the case of the workman, the
management has examined MW-1 Sh Brijveer Singh. He has
tendered his examination in chief by way of affidavit Ex.MW1/A.
He has relied upon the documents from Ex.MW1/1 to Ex.MW1/3.
5
8. This Tribunal has heard arguments from Ld. Authorized
Representatives of the parties and gone through the file. After
considering the same, issue wise findings are as under:
Issue No.1
Onus to prove this issue was on the workman. In the
statement of claim it has been claimed by the workman that he
was discharging his duties as Mali in respondent/management.
This fact has been disputed by the management in the written statement. As per section 2 (k) of the Industrial Dispute, it has been mentioned that "Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen which is connected with the employment or nonÂemployment or the terms of employment or with the condition of labour, of any person"
Thus from the definition of Industrial Dispute given in section 2 (k) of the Industrial Dispute Act, it is clear that any dispute between the employer and employer or between the employer and workmen or workmen & workmen, which is connected with the employment or non employment or terms and conditions of the employment would be treated as an industrial dispute.6
It is a dispute between the workman and the employer and is covered by definition of Industrial Dispute under Section 2 ( k). This dispute has been espoused by MCD General Mazdoor Union. Accordingly Issue No.1 is decided in favour of the workman.
Issue No.2 The testimony of Sh. B.K. Prasad President, MCD General Mazdoor Union has proved the minutes of meeting in which resolution was passed. The finding on Issue No.2 is returned in favour of the workman.
Issue No.3 Neither the workman appearing as WW-1 nor Sh. B.K. Parsad appearing as WW-2 has proved of serving any demand notice upon the management in this case. Their testimony is silent about the same. However, since the present proceedings have been sent through Conciliation Officer, the question of non serving of the demand notice by the workman upon the management is of no consequence. Management was well aware about the demands of the workman in conciliation proceedings. Issue is decided in favour of the workman.
Issue No.4 WW-2 Sh. B.K. Prasad has proved through his testimony that MCD General Mazdoor Union has been recognized by the MCD. Issue is decided in favour of the workman.7
Issue No.5 The workman is claiming that he should be designated as Mali since 1994 and he should also be awarded the payment of Rs. 500/- w.e.f. 1.12.2003.
9. The present reference has been sent to this Tribunal vide office order No. F24/(95)/ND/6/8/2006/Lab./1086 dated 27.6.2013. From the perusal of the entire file, it may be noted that workman in the present matter was claiming himself only as a Beldar in different correspondence made to the Department which are Ex.WW1/1 to Ex.WW1/5, wherein, he has mentioned himself only as Beldar. The relief claimed now that he should be termed as Mali w.e.f. 8.6.1994 and he should also be allowed payment of Rs. 500/- as a consequence of office order Ex.WW1/2 w.e.f, 2003, is to be considered being highly belated. No reason has been put forward by him why there is an abnormal delay of about 19 years for his first relief that he should be designated as Mali and delay of about 10 years for his second relief for the grant of additional payment of Rs. 500/-. He was duty bound to explain this delay which he has failed to do. Reference to be rejected on the ground that the same is highly belated and suffers from unreasonable delay and latches on his part in putting forward the claim. Issue is decided against the workman.8
Terms of Reference As per the claim of the workman, he was appointed as a Beldar in Group D Category post w.e.f. 1.4.1988 and his services were transferred w.e.f. 8.6.1994 and from that date he was working as a Mali in Rohini Zone. At present he is working in Civil Line Zone, Horticulture Department MCD.
10. The claim of the workman in his affidavit Ex.WW1/A is that he was performing his duty as a regular Mali w.e.f. 8.4.1994 under Rohini Zone and now Civil Line Zone Horticulture wing of MCD and he is entitled for the adhoc payment of Rs. 500/- per month made to Mali from December 2003. It has been deposed by him that his designation has to be changed as Mali in place of Beldar and he is also entitled to the pay scale of Mali.
11. On the other hand the stand of the management is that claimant was appointed as Beldar by the Department vide order dated 12.4.91. The workman since then has worked as a Beldar with the Department till the post of Beldar was merged in the post of Mali vide order dated 4.9.2009 proved as Ex.WW1/2.. The workman has written various applications to the Department on various dates in which he himself has mentioned his post as Beldar which have been proved as Ex.MW1/3.9
12. According to MW-1 the workman neither practically nor on record has ever worked as Mali till the post of Beldar was merged in the post of Mali.
13. This Tribunal has gone through the pleadings and the entire record.
14. It may be noted from the cross examination of the workman examined as WW-1 that he was not given any letter of his appointment as a Mali/Gardener.
15. WW1/1 is the copy of the office order in this case issued on 20.6.2005 whereby the Commissioner allowed implementation of Hon'ble High Court order dated 25.11.2003 in Civil Writ Petition in the matter of MCD Vs. Workman for additional payment of Rs. 500/- per month to all the regular Malis w.e.f. 1.12.2003. Ex.WW1/2 is the copy of the office order dated 4.9.2009 whereby the post of Beldar alongwith the other post have been merged in the post of Mali w.e.f the said date.
16. The workman is placing reliance upon WW1/3 dated 11.11.2005 and WW1/4 dated 12.3.2008 which are the copy of the appreciation letters issued to him by the concerned Assistant Director that though the workman was appointed as a Beldar but his work even as a Mali in the concerned zone is satisfactory.10
17. Ex.WW1/M1 to Ex.WW1/M5 are the copies of the correspondence of the workman with the Department of different dates showing that he is mentioning himself as Beldar only.
18. The workman in this case is never appointed as a Mali prior to issuing of WW1/2 dated 4.9.2009 when the post of Beldar alognwith the other post have been merged with the post of Mali w.e.f. 4.9.2009, so his claim of Rs. 500/- as additional payment allowed by the Commissioner regarding Mali is untenable for the reason that he was not working as a Mali but was working as a Beldar. The reliance placed upon appreciation letters Ex.WW1/3 and Ex.WW1/4 is misplaced. These letters are of no help to him. It was the duty of the workman himself to show that he has worked as a Mali before 2009 but he has failed to prove any document in this regard on record. In absence of any document being produced by the workman on record his claim for his designation as Mali w.e.f. 8.6.1994 and also his claim for the payment of Rs. 500/- is without any substance and merit and is only to be rejected being unjustified.
19. In view of the above discussion, the workman is not entitled to any relief. Reference is answered in negative. Award is passed accordingly.11
20. Copy of this award be sent to GNCT of Delhi for publication. File be consigned to record room.
Dictated and announced in the open Court on 24.01.2020.
( RAJIV MEHRA ) Presiding Officer Industrial Tribunal-II, Rouse Avenue District Court New Delhi