Delhi District Court
Vijay Kumar vs Delhi Jal Board on 8 January, 2024
IN THE COURT OF SH. AJAY GOEL: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE
AVENUE DISTRICT COURTS, NEW DELHI.
Ref. No.: F.24(06)/11/LAB/CD/Corrg./89
Dated : 01.02.2012
POIT NEW NO.: 480/2016
OLD POIT NO. : 25/2012
Workman
Sh. Vijay Kumar
S/o Sh. Suraj Bhan,
C/o Municipal Employee's Union,
Aggarwal Bhawan, G.T.Road,
Tis Hazari, Delhi-110054.
Vs.
The Management of
M/s Delhi Jal Board
Through its Executive Officer,
Varunalaya Building, Phase-II,
Jhandewalan, New Delhi.
Date of Institution : 01.09.2011
Date of presentation : 29.03.2023
before this court
Date of Arguments : 08.01.2024
Date of Award : 08.01.2024
AWAR D
1. The Labour Department, Workmen have raised the present
industrial dispute through Union and on failure of conciliation
proceedings, GNCT of Delhi referred the dispute vide terms of
reference dated 17.08.2011 to this Tribunal for adjudication in
POIT No. 480/16 Page 1 of 28
following terms:-
"Whether the services of Sh. Vijay Kumar S/o Sh.
Suraj Bhan have been terminated illegally and/or
unjustifiably by the management, and if so, to what
relief is he entitled?"
Thereafter, a corrigendum in respect to the above terms of
reference was received vide corrigendum dated 01.02.2012 whereby
modifying the aforesaid terms of reference to the following:
"Whether the demand for regularization of Sh.
Vijay Kumar S/o Sh. Suraj Bhan on the post of
S.C.M. Driver in the proper pay scale with all the
arrear and consequential benefits on the principal
of equal pay for equal work form his initial date of
joining, is justified and if so, to what relief is he
entitled and what directions are necessary in this
respect?"
2. Statement of Claim has been filed by the claimant/workman,
wherein it is claimed that:
(a) Workman joined the employment of management in the
month of July, 1999 as SCM Driver. Initially he was treated
as daily wager/muster-roll employee and was paid wages as
fixed and revised from time to time under the Minimum
Wages Act while his counter-parts who were doing the
identical and the work of same value were being treated as
regular employees and they were being paid their salary in
proper pay scale and allowances. The workman discharged
his services to the entire satisfaction of his superiors and has
unblemished and uninterrupted record of service to his credit.
(b) That all-of-a-sudden in September 2002, the workman was
asked to discharge his duties as Beldar instead of SCM Driver
and he was given assurance that very soon his services will be
regularized as SCM Driver. Believing upon the assurances
POIT No. 480/16 Page 2 of 28
given by the management, workman started discharging his
duties of Beldar since September 2002 but he was not
regularized as SCM Driver. Subsequently w.e.f. 01.04.2007
his services were regularized on the post of Beldar only
though he was supposed to be regularized on the post of
S.C.M. Driver. Consequently he approached the management
officials again and again and also sent various representations
in this regard but of no use.
(c) That the post of Beldar is much lower than the post of SCM
Driver. Furthermore, the post of S.C.M. Driver carries much
higher pay scale than the post of Beldar. In fact the
management should have regularized his services on the post
of SCM Driver but they illegally and malafidely regularized
his services only on the post of Beldar.
(d) That non-regularization of services of the workman aforesaid
on the post of SCM Driver, which is regular and permanent
nature of job, since his initial date of joining in proper pay
scale and allowances and denial of difference of salary in the
post of Beldar and that of SCM Driver is totally illegal, bad,
unjust and malafide and shows that the management has
exploited the services rendered by the workman, which
amounts to unfair labour practice.
(e) That the job of S.C.M. Driver which the workman was
discharging since his initial date of joining is of regular and
permanent nature of job and thus, the workman has acquired
the status of permanent S.C.M. Driver since his initial date of
joining after completing 90 days of continuous service on that
post as provided in the Model standing order framed under
the Industrial Employment Standing Order Act, 1946. Even
POIT No. 480/16 Page 3 of 28
otherwise under the provision of Industrial Dispute Act, he
has acquired the status of a permanent S.C.M. Driver after
completing 240 days of continuous employment.
(f) That even otherwise the workman is Matric alongwith ITI
(Motor Mechanic) and hence he is well qualified for the Job
of S.C.M. Driver as he was initially taken in job as S.C.M.
Driver just because of his qualification.
(g) That in fact the management has no right to revert an
employee from a higher post to lower post without providing
any opportunity of being heard.
(h) A demand notice was served upon the management by Regd.
A/D post vide communication dated 27.11.2011 which was
duly received in their office, but no reply has been received
and it was presumed that the demand has been rejected.
Thereafter, on failure of the conciliation proceedings, the
present dispute has been referred for adjudication before this
Tribunal.
It is prayed that an award be passed in favour of the workman
thereby directing the management to regularise the workman on the
post of S.C.M. Driver with retrospective effect i.e. from his initial
date of joining and to pay entire difference of salary on the principal
of Equal pay for equal work alongwith arrears thereof.
3. Written statement has been filed by the management,
wherein objections have been taken that:
(a) There exist no industrial dispute between the workman and
the management.
(b) That the workman has not come to the court with clean hands
and has suppressed material facts.
(c) That the statement of claim filed by the workman is without
POIT No. 480/16 Page 4 of 28
any adequate cause of action.
(d) That the claim of the workman is not maintainable as it is
against the policy for regularization of Group-C technical
muster roll workman.
(e) That the workman was intially engaged as APD (Assistant
Pump Driver) on Muster Roll as daily rated employee on the
wages as fixed and revised from time to time in the exigency
of the work and the workman worked for 02 months i.e. July
and August 1999 only for 37 days. Thereafter, the workman
was again engaged on muster roll in the exigency January
2000 and worked upto August 2000 and re-engaged on muster
roll from November, 2000 and worked upto August 2002 as
Sewer Cleaning Machine Driver in the exigency of work.
That there was break of two months i.e. September and
October 2000 in service during the said period.
(f) Tha the workman was engaged on muster roll as Beldar in
September, 2002 in the exigency of work at that time and
worked up to November, 2007 and as per the RRs/ Policy of
the department the workman does not fulfill the technical
qualification for the post of S.C.M. Driver, therefore he was
regularized as Beldar on temporary basis w.e.f. 01.04.2007
vide AD (P&M)'s O.O. No.13 dated 03.03.2008 with consent
of the workman.
Rest of the contentions of the statement of claim more or less
are denied.
4. Rejoinder to the written statement of the management has
not been filed by the workman.
POIT No. 480/16 Page 5 of 28
5. On the basis of pleadings of the parties, following
issues were framed by Ld. Predecessor vide order dated
09.07.2012:-
"1. Whether present dispute is an
Industrial Dispute as defined in section
2(k) of Industrial Disputes Act? OPW
2. Whether claimant has not come with
clean hands, if so, its effect ? OPM
3. Whether claimant has cause of action
in the present case? OPW
4. As per terms of reference."
6. To prove his case, workman examined himself as WW1. He
tendered his evidence by way of affidavit, which is Ex.WW1/A,
wherein he has affirmed the contents of his statement of claim and
relied upon documents Ex.WW1/1 to Ex. WW1/15. Ld. AR for the
management has duly cross examined WW1.
7. Thereafter, workman in order to prove espousal has examined
Sh. Surender Bhardwaj, General Secretary of the Union as WW2.
He tendered his evidence by way of affidavit, Ex.WW2/A and relied
upon documents Ex. WW1/12. WW-2 was also cross examined by
ld. AR for the management and workman evidence was closed.
8. To prove its case, management examined one Sh. Shekhar
Kumar, Assistant Commissioner (G)-I of the management as MW1.
He tendered his evidence by way of affidavit Ex.MW1/A in which
he affirmed the contents of the written statement and relied upon
documents Ex.MW1/1 to Ex.MW1/3.
MW-1 was duly cross-examined by ld. AR for the workman.
Thereafter, management evidence was closed.
POIT No. 480/16 Page 6 of 28
9. Final arguments have been heard at length as advanced by
both the parties.
10. My issue wise findings are:
Issue No. 1:
"Whether present dispute is an Industrial Dispute as
defined in section 2(k) of Industrial Disputes Act?
OPW
11. For deciding this issue, the AR for the workmen has drawn
attention to the definition of "industrial dispute" mentioned in
Section 2(k) of the I.D. Act, 1947. The relevant portion is
reproduced below:
"2(k) industrial disputes - 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 non- employment or the terms of
employment or with the conditions of labour, of any
person"
12. The bare perusal of the definition clarifies the present dispute
between the employer i.e. management and the employee i.e.
workman regarding the seeking regularisation on the post of S.C.M.
Driver with retrospective effect i.e. from his initial date of joining
into employment as well as seeking arrears on the principle of equal
pay for equal work squarely falls within the definition of industrial
disputes as the same is connected with the terms of employment or
with the conditions of labour. On the other hand, the management
has taken a bare plea without stating the basis as to why the present
dispute would not fall under the definition of industrial dispute.
Hence, in the absence of any basis or reason provided by the
management, this tribunal holds that the present dispute falls within
the definition of industrial dispute under section 2(k) of the I.D. Act.
POIT No. 480/16 Page 7 of 28
Therefore, this issue is decided in favour of the workman and
against the management.
13. In the present case, eventhough, no plea pertaining to
espousal has been taken by the management, however, Ld. AR for
the workman Sh. Rajiv Agarwal placed reliance upon Ex. WW-1/21
i.e. resolution dated 04.01.2011 passed by the Municipal Employees
Union for raising an Industrial Dispute in favour of the workman.
He also placed reliance upon the judgement of the Hon'ble Delhi
High Court in Omji Srivastava and Ors. vs. P.W.D./C.P.W.D.,
2023/DHC/002013, 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 (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 POIT No. 480/16 Page 8 of 28 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."
14. 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, POIT No. 480/16 Page 9 of 28 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 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."
15. 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 jugedment 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 POIT No. 480/16 Page 10 of 28 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."
16. The workman in order to prove the proper espousal has placed on record, Ex. WW1/1, i.e. the copy of the legal demand notice dated 27.01.2011 sent on the letterhead of the Municipal Employees' Union. Likewise, Ex. WW1/22 i.e. the Statement of Claim is also filed by the Municipal Employees' Union before the conciliation officer of the Govt. of NCT of Delhi. The union has also filed its resolution dated 04.01.2011 i.e. Ex. WW1/21, wherein the union decided to raise an industrial dispute in favour of the workman. The management witness (MW-1), Sh. Shekhar Kumar in his cross-examination dated 09.09.2021 also confirmed the authenticity of the documents filed by the workman on the court records, hence, the same are not in dispute. The said witness failed to make any comment on Ex. WW1/21 i.e. the resolution of the union. On the other hand, WW-2 Sh. Surender Bhardwaj, who happened to be the General Secretary of the Municipal Employees Union in his cross-examination has categorically submitted that the last election of their Union was held in May 2014 and that union had sent list of elected executive members to the Registrars of the Trade Union and also to the management or that the agenda of the executive meeting dated 04.01.11 was sent 15 days prior to the meeting or that all 15 executive members were present in the POIT No. 480/16 Page 11 of 28 executive meeting held on 04.01.2011 or that they are maintaining Minutes Register of each and every meeting of Executive Committee of their Union or that he is associated with the Union as its executive member since last 20 years.
17. In view of the evidence led by the workmen he has placed sufficient material on record to show that the present dispute is properly espoused by the Union of the workmen and therefore, falls in the definition of Industrial Dispute.
Issue No. 2, 3 & 4:
2. Whether claimant has not come with clean hands, if so, its effect ? OPM
3. Whether claimant has cause of action in the present case? OPW
4. As per terms of reference.
18. The issue no. 2, issue no. 3 and issue no. 4 are taken up together as they are arising out of issue no. 4.
19. This tribunal has to decide if the demand of the workman for seeking regularization on the post of S.C.M. Driver in the proper payscale with all consequential benefits and benefits of equal pay for equal work w.e.f. his initial date of joining is justified.
20. The workman has contented that he was engaged by the management w.e.f. June 1999 as SCM Driver on daily wage/muster roll basis. The workman since his initial date has worked as SCM Driver as such. The management abruptly without assigning any reasons whatsoever, assigned the workman the work of Beldar with the false assurance that he would eventually be regularized by the management on the post of SCM Driver in future. It is the case of the workman that the management instead of regularizing the workman on the post of SCM Driver regularized him as Beldar.
POIT No. 480/16 Page 12 of 28Such an action of the management amounts to imposition of penalty as the post of Beldar is lower in salary and status. And the penalty cannot be imposed without complying with the principles of natural justice by granting the workman the opportunity of being heard. Therefore, the action of the management by demoting the workman to the post of Beldar and subsequently regularizing him on the said post w.e.f. 01.04.2007 is unjustified.
21. The management has contended the same stating that the workman was initially engaged as Asst. Pump Driver on muster roll basis for two months i.e. July 1999 to August 1999. He was re- engaged as SCM Driver in January 2000 to August 2000, and from November 2000 to August 2002. There was a break in service for the period of two months in between i.e. September 2000 to October 2000, thereafter the workman was engaged in services as Beldar w.e.f. September 2002 and was eventually regularized by the management in accordance with their phased manner policy of regularization. The management has argued that the workman was initially appointed as Asst. Pump Driver/S.C.M. Driver in the exigencies of work without undergoing the selection procedure. He also does not fulfill the technical qualifications for SCM Driver, therefore, he was assigned the work of Beldar instead by the management in September 2002. The workman has duly consented for his regularization on the post of Beldar, now after giving his due consent the workman cannot retract and ask for regularization on the post of SCM Driver instead.
22. Based on the pleadings of the parties, the management has not disputed that the workman was performing the work of SCM Driver prior to September 2002. The management has however disputed that the workman was initially appointed as Asst. Pump Driver as POIT No. 480/16 Page 13 of 28 opposed to SCM Driver and has worked as such in June-July 1999, and from January 2000 onwards the workman has worked as SCM Drivers till September 2002 with few breaks in between. Ex. WW1/10 i.e. the muster roll records of the workman for the period 1999 to 2007 depicts that the workman was initially worked as APD in the year June-July 1999, and thereafter from January 2000 to August 2002 he he designated to be working as SCM Driver and from September 2002 onwards he is shown to be working as Beldar. Exhibit WW1/4 is the ID card issued by the management as per which the designation of the workmen is stated to be SCM Driver. The workman witness (WW-1) in his cross-examination dated 12.09.2014 deposed that he joined the management of Delhi Jal Board in July 1999 as SCM Driver. He conceded that the copy of the muster roll record (Ex. WW1/10) placed on record for the year 1999 mentions his post of Asst. Pump Driver and his number of working days are shown as 37. On this aspect the workman volunteered and clarified that his post has been wrongly mentioned as Asst. Pump Driver instead of S.C.M. Driver and that he has verbally conveyed the concerned officials about this mistake. Now, even though the post of the workman upon which he was initially engaged remained disputed whether APD/SCM Driver, however, the same would not make much of a difference as admittedly the workman has majorly performed the work of SCM Driver during June 1999 to September 2002. Further, even the management vide letter dated 01.09.2002 demoting the workers to the post of Beldar for the want of certain technical qualifications placed the workman under the category of SCM Driver alone at Sr. No. 26. Therefore it is established that the workmen was performing the work of SCM Driver prior to September 2002.
POIT No. 480/16 Page 14 of 2823. Now, the grievance of the workman stems from the decision of the management to reassign him from his position as SCM Driver to a Beldar w.e.f. September 2002 and eventually regularizing his services in the lower-ranking and less remunerative position of Beldar, w.e.f. 01.04.2007 as opposed to SCM Driver. The workman asserts that the action of the management constitutes hostile discrimination and unfair labor practices. The AR for the workman argued that, despite the workman performing the duties of SCM Drivers, the management overlooked him for regularization on the said post and instead chose to regularize him in the lower post of Beldar, a position with lower status and salary compared to that of a SCM Driver. The management countered this by asserting that the reassignment was due to the lack of technical qualifications of the workman for the post of SCM Driver. They argued that according to their recruitment rules, the workman did not meet the technical qualifications, which include a certificate in mechanical (diesel) or mechanic (tractor) from an ITI (Industrial Training Institute) or other recognized institution for the post of SCM Driver.
24. To support his qualifications for the SCM Driver post, the workman have placed on record Ex. WW1/5 and Ex. WW1/6 - a National Trade Certificate and a Provisional Trade Certificate in Motor Mechanic granted by the Industrial Training Institute, Sonipat. The management did not contest these documents, leading this tribunal to find no reason to doubt their authenticity. Additionally, the management neither placed the recruitment rules for the post of SCM Driver nor proved through oral or documentary evidence that the workman does not meet the technical requirements for regularization as SCM Driver. There was no cross-examination of the workman regarding his educational/technical qualifications.
POIT No. 480/16 Page 15 of 28Even otherwise, the management cannot argue both ways. It is an admitted fact by both parties that the workman has worked as an SCM Driver prior to September 2002, indicating that he performed the work of an SCM Driver with the technical qualification of a motor mechanic. This was not a short-term arrangement, rather, the workman performed the work of an SCM Driver for two long years. In this case, there is no significant difference in the required technical qualifications. This is not a scenario where the workman lacks any ITI training in the field; rather, he possesses a diploma in motor mechanics, similar to the one required for the post of SCM Driver.
25. As far as redesignation from SCM Driver to Beldar is concerned, it is important to highlight that this alteration was not merely nominal but had significant repercussions on his job status, salary, and other associated benefits. During cross-examination, the management witness conceded that the post of SCM Driver holds a higher status and salary compared to that of Beldar. This re- designation effectively resulted in a demotion for the workman. Essentially, the decision of the management to modify the designation of the workman from SCM Driver to Beldar constituted a penalty for lacking the technical qualifications for a position he had occupied for two long years. Such a demotion, based on a sudden emphasis on technical qualifications, disregards the principles of natural justice. This action of the management reflects an arbitrary exercise of power, where decisions about the jobs of employees are made based on whims rather than established procedures. It is particularly striking that the management initially appointed the workman without verifying his technical qualifications, but later cited these same qualifications as a reason to POIT No. 480/16 Page 16 of 28 deny him the benefits of regularization enjoyed by others.
26. Prior to demoting the workman from the post of SCM Driver to Beldar, it was incumbent upon the management to provide him with an opportunity to be heard. The management witness conceded in his cross-examination that no enquiry whatsoever was held prior to demoting the workman from the post of SCM Driver to Beldar. The workman was neither given this opportunity nor was any rationale provided to demonstrate that the demotion was a proportionate response to the alleged lack of qualifications. The rights and job security of lower-paid employees cannot be subject to the arbitrary and unjust decisions of their employers. The principles of natural justice demand that an employee, particularly in the context of punitive actions like demotion, be given a fair hearing to present their defense.
27. At this point, the management argued that the workman was merely a muster roll employee, and he is not entitled for any inquiry proceedings prior to his re-designation from SCM Driver to Beldar. This tribunal does not find any force in the argument of the management that daily wager/muster roll workers are not entitled for any inquiry proceedings. On this point, the Hon'ble Delhi High Court in South Delhi Municipal Corporation vs. Ramesh Singh., W.P.(C)No.11226/2020 decided on 05.01.2021 has observed that principles of natural justice are equally applicable to daily wagers irrespective of their permanent status. The relevant portion of the judgement is reproduced below as:
"8. Mr. Birbal says that respondent/workman during the course of the inquiry by the vigilance department had made a statement that he had indulged in the aforementioned activity as complained of by Smt. Saroj.POIT No. 480/16 Page 17 of 28
8.1 Mr. Birbal, however, does accept that in the reply to the show cause notice, the stand taken by the respondent/workman was that the said statement was made under coercion.
9. Mr. Birbal also accepts the fact that the respondent/workman was given no opportunity to either cross-examine the complainant i.e. Smt. Saroj or to lead in his defence any evidence before the enquiry officer.
9.1 Mr. Birbal, however, says that since the respondent/workman was a daily-wager this procedure was not adopted.
10. Be that as it may, in my view, if nothing less, the principles of natural justice would definitely apply even to a daily-wager.
11. The respondent/workman, in the very least, should have been confronted by the complainant i.e. Smt. Saroj so that he could have cross-examined her.
28. The management has neither made any plea nor provided any documentary evidence to demonstrate their compliance with the principles of natural justice during the process of re-designating the workman from SCM Driver to Beldar. Notably, during cross- examination, the management witness (MW-1) acknowledged criticals point: "As per records of the management, no memo was given to the workmen asking him why he should not be demoted from the post of SCM Driver to the post of Beldar in September 2002 or thereafter."...."Q. Have you issued any memo or chargesheet or held any enquiry against the workman before demoting from the post of Sewer Cleaning Machine Driver to the post of Beldar? A. No memo or chargesheet was given nor any inquiry was held." This admission from the management witness substantiates the contention of the workman that in demoting him from the post of SCM Driver to Beldar, the management failed to adhere to the principles of natural justice.
29. So far as the argument of the management that the workman POIT No. 480/16 Page 18 of 28 himself consented for his appointment to the post of Beldar from SCM Driver is concerned, it is important to note that the management cannot rely solely on this purported consent to justify its arbitrary actions. 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 demotion and regularization. Furthermore, the workman has filed several representations, including Ex. WW 1/7, Ex. WW 1/8, and Ex. WW 1/9. These are representations dated 21.04.2003, 06.07.2006, and 24.01.2009, requesting his regularization on the post of SCM Driver. Notably, in Ex. WW 1/7, the workman mentions that one of his co-worker, Sh. Kishen, S/o Sh. Tiwari Lal, having seniority no. 767, date of birth as 05.05.1970 and had been working since July 1999 as a SCM Driver with similar technical qualifications, was eventually regularized by the management in the post of SCM Driver. The management has not disputed the submission of these representations by the workman or the receipt of the same. Additionally, the management did not cross- examine the workman on these representations during his cross- examination. Therefore, this tribunal does not have any reasons to disbelieve the same. Therefore, it is established that the workman has repeatedly raised objections and made representations to correct the errors made by the management in regularizing him in the post of Beldar instead of SCM Driver.
30. Also, the Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors vs State of UP., (1986)1SC C 637 held that employees, especially those in low-wage categories, often have no choice but to accept employment under exploitative terms offered POIT No. 480/16 Page 19 of 28 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. Likewise, 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 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.
31. The principles laid out in the cases of Dhirendra Chamoli (supra) and Defence Standardization Cell (supra) reinforce the notion that employees in such situations cannot be said to have willingly agreed to the terms of their regularization. Therefore, merely because the workmen had given their consent to the demotion as well as regularization on the post of Beldar, which a post lower both in salary and status, does not bar them from raising the present dispute.
32. The stance of the management appears to be contradictory. On one hand, they claim that the workman lacks the necessary technical qualifications for the post of SCM Driver, which led to his re-designation as a Beldar. Yet, on the other hand, despite his re- designation and eventual regularization as a Beldar effective from 01.04.2007, the management continued to assign him the duties of an SCM Driver. The workman witness (WW-1) testified that he worked as an SCM Driver until 2006 and thereafter as an Assistant Pump Driver. The management questioned the workman about his POIT No. 480/16 Page 20 of 28 muster roll register, which designated him as an SCM Driver from January 2000 to August 2002 and as a Beldar from September 2002 onwards. The workman acknowledged that there was a mistake in recording his post as Beldar since September 2002 and that he had informed the management about this error through letters dated 21 April 2003, 31 July 2006, and 23 January 2009. Despite being aware of this mistake, he conceded that he continued working with the management as Beldar on the muster roll. He admitted that his appointment letter dated 7 December 2007 only mentioned the post of Beldar and that in his application form for regularization, he had applied for the post of Beldar, although he claimed that the form was filled out under force. He also stated that he did not file any criminal complaint regarding this alleged forceful action by the department and acknowledged that he was appointed to the same post for which he had applied, albeit forcefully, according to him. While the management attempted to demonstrate that the designation of the workman in the records of management records was consistently as a Beldar, they did not once suggest or imply that they were not extracting the work of an SCM Driver from him while recording his designation as Beldar.
33. Therefore, in view of the of the facts and circumstances and the material on record, this tribunal holds that the management has clearly committed unfair labour practice by employing the workman concerned for the post of SCM Driver on muster roll basis for performing the work of permanent nature of job, and subsequently demoted him to the post of Beldar citing lack of technical qualification without complying the principles of natural justice. The workman was subsequently regularised to the post of Beldar w.e.f. 01.04.2007 yet the management kept extracting the work of POIT No. 480/16 Page 21 of 28 SCM Driver at the salary of Beldar. Such an action of the management indicates unfair labour practices and the same is being done solely with the object of depriving the workmen the status and privileges of a regular and permanent SCM Driver. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest and Anr., (1996) 2 SCC293 wherein the Hon'ble Supreme Court of India had held that employing workers on muster roll/contract basis 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.
34. This tribunal has the power to grant regularization pursuant to the unfair labour practice and it can create new rights and liabilities upon the employer and employees. Reliance is placed upon the judgement of 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 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 POIT No. 480/16 Page 22 of 28 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 ).
35. In light of the facts and circumstances of this case, this tribunal holds that the workman is entitled to regularization on the post of SCM Driver.
36. The management has placed on record its policy i.e. 'Policy for regularization of Daily Wage Workers', which prescribed the criteria for regularisation of daily wagers/muster roll workers engaged by the management. The relevant portion of the policy is reproduced herein as:
"Salient features of the policy for regularizing Group- C technical Muster loll workman.
1) All the daily wages technical employees who have worked continuously for more than 4 years without any break (for this purpose absence of 30 days from duty in a year will not be treated as Break. However, absence beyond 30 days between 2 spells of daily wages engagement will be treated as break and the earlier service rendered as daily wager, will not be counted for the purpose of regularization would become eligible.POIT No. 480/16 Page 23 of 28
2) All these daily waged employees will be considered for regularization against the lowest rung of the cadre where direct recruitment is provided in the Recruitment Rules.
3) Only those employees will be considered for regularization who fulfill the requirement of the lowest rung of the post in the cadre.
4) None of the daily wages, who is facing vigilance case, or whose services have earlier been terminated or who have been awarded punishment on account of any vigilance enquiry, will be eligible for regularization.
5) Till such time as the regularization of all such employees is over, no direct recruitment will be made and where-ever it is found necessary to create some posts to accommodate the daily wages employees, the same will be created with the approval of the departmental committee.
6) Any new creation of the posts (for the purpose of regularization) will be adjusted against the future proposal of creation of the posts."
37. The management has argued that for the regularization of daily wage or muster roll workers, only those who have been engaged in a specific block (a period of two years) and have completed 720 days of attendance over four years, starting from the first day of the two-year block and ending on the last day of the fourth calendar year are eligible for regularization. However, it is important to note that this procedure, as per the policy placed on record by the management, is prescribed for Group 'D' posts. It is acknowledged by both parties that the post of SCM Driver is of a higher status and salary, falling under the Group C category. The Annexure 'A' of the regularization policy specifically stipulates the regularization of daily wage workers in Group 'C' posts. The policy for regularizing Group 'C' technical daily wage workers states that employees who have worked continuously for over four years, with an absence of 30 days per year, are eligible for regularization; and POIT No. 480/16 Page 24 of 28 any break beyond 30 days between two spells of engagement will render their previous service discounted for regularization.
38. The said policy fails to provide a rationale for disregarding service breaks that exceed one month, not considering situations where such breaks are not the fault of the workman but due to cessation of work or the failure of the management to assign work for various reasons. For example, if a workman completes 10 months of continuous service and then faces a two-month break imposed by the management, the policy would disregard the entire service year for the purpose of regularization. This approach contradicts the criteria for continuous service under Section 25B of the Industrial Disputes Act, which is the prevailing law. Furthermore, the policy does not specify the effective date of regularization for workers engaged in 1999 or thereafter. While the management describes it as a phased manner policy, it lacks clarity on the process and basis for arriving at a specific effective date of regularization. In the present case, the workman was regularized effective from 01.04.2007 by the management, yet the management has failed to show how this date was determined based on the policy, especially when the policy itself is silent on this matter. It is essential to emphasize that management is a Delhi Jal Board, which is a state under Article 12 of Constitution of India and is expected to act as a model employer for various establishments, including both private and public sectors. A management policy cannot supersede the Industrial Disputes Act, 1947, which stipulates under Entry No. 10 of the Fifth Schedule that employing workmen as badlis, casuals, or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent workmen, is prohibited. The management cannot use "policy" as a POIT No. 480/16 Page 25 of 28 pretext to perpetuate unfair labour practices explicitly forbidden under the Industrial Disputes Act, namely, keeping employees on temporary basis for extended periods and to deny them the status and benefits of permanent employee. The concept of a phased manner policy was introduced to absorb daily wage/muster-roll workers who have been engaged by various establishments for years, performing regular employee duties without the corresponding salary and service conditions. However, such policies are now being used to initially appoint workmen on a daily wage basis, regularizing their services only after substantial years of service. This process effectively nullifies a major part of their service rendered on a daily wage/muster-roll basis. This tribunal cannot become party to perpetuate unfair labour practice, more so, when the same is punishable under Section 25T and 25U of I.D. Act and prescribes punishment of imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.
39. This tribunal has given thoughtful consideration to the issue at hand, and this tribunal has arrived at the conclusion that the demand of the workman for seeking regularization on the post of S.C.M. Driver in the proper payscale with all consequential benefits and benefits of equal pay for equal work w.e.f. his initial date of joining on the post of MSC Driver is justified. It is admitted fact by both the parties that workman was initially working as APD (Assistant Pump Driver) in July and August 1999 and was again engaged for the same post in January 2000 and worked upto August 2000. But thereafter, started working as SCM Driver in November 2000 and the workmen has not raised any dispute for the service rendered by him prior to November 2000, therefore, this tribunal POIT No. 480/16 Page 26 of 28 holds that the workman is entitled to be regularized on the post of SCM Driver w.e.f. November 2000 in regular pay scale with all consequential benefits either monetary or otherwise. Hence, the terms of reference are answered in favour of the workman and against the management. In view of my findings on the issue no. 4, it cannot be said that the claimant has not come with clean hands before this court or that the claimant does not have cause of action in the present case. Therefore, issue no. 2, issue no. 3 and issue no. 4 are answered in favour of the workman and against the management.
Relief:
40. In view of my findings on the foregoing issues, this tribunal is of the opinion that the workman Sh. Vijay Kumar is entitled to be regularized on the post of S.C.M Driver w.e.f. November 2000 in regular pay scale with all consequential benefits. On the aspect of "equal pay for equal work", the workman had been working as SCM Driver prior to September 2002, and after that the management inflicted the major punishment upon the workman without complying with the principles of natural justice and without giving any opportunity of being heard. The Hon'ble Supreme Court in Dhirendra Chamoli and Ors. vs. State of U.P. (1986) 1 SCC 637 has observed that so long as the temporary employees are performing the same work as their regular counterparts, they are entitled to the same salary and service conditions for the said period. This tribunal does not find any reasons to deviate from the findings of the Hon'ble Supreme Court.
41. Therefore, this tribunal holds that the workman Sh. Vijay Kumar S/o Sh. Suraj Bhan is entitled to be regularized on the post of POIT No. 480/16 Page 27 of 28 SCM Driver w.e.f. November 2000 in regular pay scale with all consequential benefits either monetary or otherwise. The workman is also entitled for the arrears of wages on the principle of equal pay for equal work since his initial date of joining onwards. The management is directed to implement the award within 60 days of its publication failing which it will be liable to pay an interest at the rate of 8% per annum from the date of reference i.e. 17.08.2011 to till its realization. The award is passed accordingly.
42. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in the open Tribunal on this 08.01.2024.
(Ajay Goel) POIT-I/RADC, New Delhi.
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