Delhi High Court
North Delhi Municipal Corporation & ... vs Harpal Singh & 460 & Ors. on 27 August, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, V. Kameswar Rao
$~14, 16 & 39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 573/2013
NORTH DELHI MUNICIPAL CORPORATION
& ORS. ..... Appellants
Represented by: Ms.Biji Rajesh, Adv.
and Mr.Gaurang Kanth,
Adv.
versus
HARPAL SINGH & 460 & ORS. ..... Respondents
Represented by: Mr.Varun Prasad, Adv.
+ LPA 516/2013
NORTH DELHI MUNICIPAL CORPORATION
& ORS .....Appellants
Represented by: Ms.Biji Rajesh, Adv.
and Mr.Gaurang Kanth,
Adv.
versus
THE WORKMEN (OMPAL & 1240 & ORS. .....Respondents
Represented by: Mr.Varun Prasad, Adv.
+ LPA 514/2013
NORTH DELHI MUNICIPAL CORPORATION
& ORS. ..... Appellants
Represented by: Ms.Biji Rajesh, Adv.
and Mr.Gaurang Kanth,
Adv.
versus
THE WORKMEN RISHIPAL SINGH & ORS. ....Respondents
Represented by: Mr.Varun Prasad, Adv.
LPA 573/2013, 516/2013 & 514/2013 1 of 6
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 27.08.2013 CM No.12144/2013 (delay) in LPA 573/2013 CM No.11043/2013 (delay) in LPA 516/2013 CM No.11038/2013 (delay) in LPA 514/2013 Allowed.
LPA 573/2013, LPA 516/2013 & LPA 514/2013
1. Learned counsel for the petitioners does not dispute that services of all respondents (workmen) has been regularized.
2. Therefore, two issues survive for consideration. Firstly:
Whether the workmen would be entitled to wages as was paid by CPWD to daily wagers employed under CPWD. Secondly: Whether the respondents would be entitled to 50% service reckoned as daily wages to be taken into account for purposes of pensionary benefits.
3. As regards point No.2 we note that on January 30, 1981 MCD had issued a policy circular which reads as under:-
"Sub: Counting of service paid from contingencies with regular service.
A copy of Memorandum No. 12-F(I)-
E.V/68 dated the 14th May 1968 issued by the Govt. of India on the above mentioned subject is circulated for your information and further necessary action.
Under the Article 368 of the C.S. Rs.
periods of the service paid from contingencies do not count as qualifying service for pension.
LPA 573/2013, 516/2013 & 514/2013 2 of 6 In some cases, employees paid from contingencies are employed in types of work requiring services of whole time workers and are paid on monthly rate of pay or daily rates computed and paid on monthly basis and on being found fit brought on to regular establishment. The question whether in such cases of service paid from contingencies should be allowed to count for pension and if so to what extent has been considered in the National Council and in pursuance of the recommendation of the Council, it has been decided that half the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject to the following conditions, viz.:-
(e) Service paid from contingencies should have been in a job involving whole time employment (and not part-time for a portion of that day).
(f) Service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned, e.g., malis, chowkidars, khalasis, etc.
(g) The service should have been one for which the payment is made either on monthly or daily rates commuted and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being performed by staffs in regular establishment.
(h) The service paid from contingencies should have been continuous and followed by LPA 573/2013, 516/2013 & 514/2013 3 of 6 absorption in regular employment without a break.
(i) Subject to the above conditions being fulfilled, weightage for past service paid from contingencies be limited to the period after 1st January, 1961 for which authentic records of service may be available."
4. Suffice would it be to state that paragraph 2 of the circular mandates that half the service paid from contingencies will be counted towards pension at the time of absorption in regular employment, subject to the conditions enumerated thereunder.
5. It is not in dispute that as daily wagers, respondents were paid from contingencies and the job was for full pay. It is also not in dispute that the job was of a kind as envisaged by clause/condition 'f'.
6. Therefore, the second issue resolves itself in favour of the respondents and against the petitioner in view of policy circular dated January 30, 1981.
7. Pertaining to the first issue, we find that the Standing Committee of the Corporation vide its decision No.2059/Stg. dated May 22, 1982 had resolved that pertaining to the Engineering Department of MCD scales applicable to workers in CPWD/Delhi Administration PWD shall be implemented. Based on the said decision of the Standing Committee, WP(C) No.6763/2010 MCD v. Workmen (Ompal & 1240 Ors.) was decided by a learned Single Judge of this Court on January 15, 2013 holding that in view of the LPA 573/2013, 516/2013 & 514/2013 4 of 6 Standing Committee Resolution dated May 22, 1982, MCD would be obliged to pay daily rated employees salaries/wages at par payable by CPWD.
8. Suffice would it be to state that as per Section 42 of the Indian Evidence Act, 1872 judgments are relevant if they relate to matters of a public nature relevant to an inquiry.
9. The impugned awards have directed wages to be paid as per policy of CPWD adopted by MCD requiring daily rated workmen to be paid wages at par with regular counter parts i.e. in the minimum of the pay scale (excluding any kinds of increments).
10. The only modification which would now be warranted would be the fact that there exists policy circular dated June 16, 1988 which was notified by MCD and it reads as under:-
"The wages of the workers will be calculated in the manner indicated in the circulars issued by CPWD and will be effective from 1.4.88 only in view of very tight financial position of the MCD and the ongoing process of regularization of daily wages employees according to phased programme besides other extra facilities already extended to them by different departments. Because of large number of daily wages employees working in MCD, the increase in wages may bring additional financial liability to the tune of about Rs.6.5 crores and we may have to cut down the civic services drastically if the payment is to be made from the date earlier than 1.4.1988. Proportionate increase will also have to be allowed to part time workers depending upon the actual duration of their duties. In order to get over the requirement of additional hands for enti-malaria operations, for short duration only, the department may engage 300 unskilled workers at the rate to be LPA 573/2013, 516/2013 & 514/2013 5 of 6 worked out on the basis on Rs.875/- per month. A preamble for approval of increased rates of wages be taken to standing committee positively within two weeks."
11. The policy circular requires differential in wages to be made after April 01, 1988.
12. Ordered accordingly.
13. Appeal(s) stands disposed of modifying the award and the impugned decisions to the extent that arrears would be paid not as per the award but with effect from April 01, 1988.
14. No costs.
CM No.12143/2013 (stay) in LPA 573/2013 CM No.11041/2013 (stay) in LPA 516/2013 CM No.11036/2013 (stay) in LPA 514/2013 Disposed of as infructuous.
PRADEEP NANDRAJOG, J.
V. KAMESWAR RAO, J.
AUGUST 27, 2013 mm LPA 573/2013, 516/2013 & 514/2013 6 of 6