Delhi District Court
Workmen vs . on 20 December, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 426/10/03
Workmen
Workmen as represented by Vyopar Tatha Udyog Karamchari Sangh, 118,
Kishan Ganj Market, Old Rohtak Road, Kishanganj, Delhi 110007.
Vs.
Management
M/s Indraprastha Gas Limited, Jeevan Bharti Building, Tower II, 10th Floor,
Connaught Circus, New Delhi 110001.
Date of institution 25.07.2003
Date of reserving award 07.12.2011
Date of award 20.12.2011
Ref.: F.24 (728)/2003/Lab.7523-27 dated 30.06.2003
AWARD
1.Workmen have raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-
''(i) Whether the workmen are entitled to increment @ 10% p.a. If so, what directions are necessary in this respect?
(ii) Whether the workmen are entitled to HRA, if so, at what rate and what directions are necessary in this I.D. No.426/10/03 Page 1 of 13 respect?
(iii) Whether the workmen are entitled to all route pass or conveyance allowance in lieu thereof, if so, at what rate and what directions are necessary in this respect?
(iv) Whether the workmen are entitled to children education allowance, if so, at what rate and what directions are necessary in this respect?
(v) Whether the workmen are entitled to uniform, socks, shoes, umbrella, overcoat, if so, what directions are necessary in this respect?
(vi) Whether the workmen are entitled to washing allowance, if so, what directions are necessary in this respect?
(vii) Whether the workmen are entitled to LTD, if so, at what rate and what directions are necessary in this respect?
2. Statement of claim has been filed by the workmen, wherein it is stated that the management is running into profit with the co-operation of Delhi Government as well as Central Government and the management do not care for development and happiness of the families of the workmen. It is submitted that management is not paying complete wages to the workmen as fixed. It is, therefore, prayed that 10% increase in the wages of workmen be granted.
3. It is submitted that management has been providing facility of HRA to some to some of its employees but not to the workmen herein. It is, therefore, prayed that House Rent Allowance @ Rs.500/- pm be granted to workmen.
4. It is submitted that no transport facility is provided to the workmen. It is submitted that duties of the workmen are changed frequently because the pump stations of management run 24 hours. It is submitted that at other pump stations, transport facilities is being provided I.D. No.426/10/03 Page 2 of 13 to the workers but the same has not been provided to the workmen herein. It is, therefore, prayed that the Transport Allowance @ Rs.450/- pm. be granted to each workmen.
5. It is further submitted that because of not providing of education allowance to the workmen, children of workmen are very backward in education. It is, therefore, prayed that education allowance @ Rs.100/- for students upto 5th standard, Rs.200/- upto students of 10th class and Rs.500/- for college level students be granted to workmen.
6. It is submitted that workmen have to wear their own clothes during duty at pump station, which become dirty during duty. Therefore, it is prayed that two summer uniforms, two winter uniforms in a year with Sweater, two pairs of socks, Umbrella, two pairs of shoes, overcoat be provided to them. Washing alloance @ Rs.50/- and LTC equivalant to one month salary has also been prayed for.
7. It is submitted that after passing of resolution on 15.8.02, a demand notice dated 26.8.02 was sent to management by Regd. Post, which was not replied. Thereafter conciliation proceedings also failed and hence, this dispute.
8. In written statement filed by the managements, it is stated that the appropriate government for the present case is not the Govt of NCT of Delhi but it is Central Government; therefore; the reference is without jurisdiction. It is submitted that the claim has not been signed by the claimants but by the alleged office bearers of alleged Union namely, Vyapar Tatha Udyog Karamchari Sangh, which has no locus standi to represent this case. It is submitted that the claim has to be signed by concerned persons and the power to sign the claim cannot be delegated. It I.D. No.426/10/03 Page 3 of 13 is submitted that the claimants are never in the employment of management and that they are in the employment of various contractors. It is submitted that there is contract between the management and various contractors and that management i.e. M/s Indraprastha Gas Ltd is the principal employer having the Registration Certificate under CLRA Act and the respective contractors have licenses. It is submitted that PF and ESI are deducted and deposited by the contractors. It is submitted that there is no master servant relationship between the claimants and the management and thus, the workmen are not entitled for the facilities as claimed by them. It is further submitted that on enquiry, it has been revealed that the workmen are being paid at par with minimum wages.
9. Rejoinder has been filed by the workmen, to the written statement of management, wherein they have denied all the averments made in the WS and have reiterated the contentions made in the statement of claim.
10. On the basis of pleadings of the parties, following issue was framed by my Ld Predecessor vide order dated 06.07.2004:-
1. Whether the reference has not been sent to this Tribunal by the appropriate government and if so, to what effect? OPM
2. Whether the Union, which has raised the present dispute, has no locus standi to represent the workmen in this case and if so, to what effect? OPM
3. Whether the present dispute is not covered either u/s 2(A) or Section 2(k) of the I.D. Act? OPM
4. Whether there is no relationship of employer I.D. No.426/10/03 Page 4 of 13 and employee between the management and the workmen in the present case as pleaded in preliminary objection number 6 by the managements? if so, to what effect?
5. As per terms of reference.
11. Workmen have examined Sh. Ram Lakhan Yadav, General Secretary of Vyopar Tatha Udyog Karamchari Sangh (Regd.) as WW 1. In his affidavit, he has reiterated the contents of statement of claim and has proved 18 documents on record including also authority letter executed by the workman and copy of demand notice sent through Union. In his cross-examination, he has stated that workers wrote a letter to the Union to raise the dispute on their behalf. He did not remember when the meeting regarding raising of present dispute took place. It is denied that no such meeting took place. It is admitted that 216 employees never gathered together for espousing the cause. It is denied that no resolution was passed.
12. Workman Sh. Banwari Lal has been examined as WW 2. In his examination-in-chief, he has reiterated the contentions made in the statement of claim. In his cross-examination, he has denied that he is on the roll of contractor Ruby Enterprises. He has denied that he is provided ESI and PF Facilities by M/s Ruby Enterprises. It is admitted that at the time of his appointment, he was not issued appointment letter by M/s IGL. It is denied that there was no employer employee relationship between himself and M/s IGL. It is denied that he is working under direct supervision and control of M/s Ruby Enterprises.
13. Workman Sh. Ravinder Kumar Lal has been examined as WW 3.
I.D. No.426/10/03 Page 5 of 13In his examination-in-chief, he has reiterated the contentions made in the statement of claim. In his cross-examination, he has denied that he is provided ESI and PF Facilities by M/s Sahaj Enterprises. It is admitted that he was not issued appointment letter by M/s IGL. He was not aware if there is contract between M/s IGL and M/s Sehaj Enterprrises. It is denied that he is working under direct supervision and control of M/s Sehaj Enterprises.
14. Workman Sh. Ajay Kumar has been examined as WW 4. In his examination-in-chief, he has reiterated the contentions made in the statement of claim. In his cross-examination, he has deposed that he has given authorisation to the Union namely Vapar Tatha Karmachari Sangh. It is denied that neither any meeting took place nor he participated in the same. He could not say whether he was on the rolls of M/s ANBS Security Services, Contractor. It is denied that Mr. Azmeet Singh is the contractor for providing services by its own man power and under whose supervision he is still performing his duties.
15. Management has examined Sh. Ashim Batra, its General Manager (Marketing) as MW 1. He has deposed in his affidavit that management approached the Director General/ Resettlement, Ministry of Defence, for sponsoring suitable names of retired defence personnel for providing services to different CNG stations and the management was provided with names of suitable candidates and the management selected some of them. MW 1 has proved on record copies of operating agreements with different contractors, renewal and bank guarantees etc. as Ex. MW1/1 to Ex. MW 1/15.
16. In his cross-examination, MW 1 has denied that claimants are I.D. No.426/10/03 Page 6 of 13 workmen of management and not of contractors. It is denied that contractors named in his affidavit are sham and camouflage. It is denied that contractors have been appointed without any sanction from authority.
17. Management has examined various contractors from as its witnesses as MW 4 to MW 6, MW 8, MW 9, MW 11 to 13 who have proved their operating agreements with management for providing service to management at its CNG stations. No cross-examination of these witnesses has been conducted on behalf of workmen.
18. Management has also examined officials from various EPF and ESI Department branches of Delhi, who have produced the record of pertaining to PF and ESI in the name of contractors. These witnesses have been examined as MW 14 to MW 32. Only few of them have been cross- examined on behalf of workmen. From their cross-examination, no material fact has come out.
19. No arguments were advanced earlier by either of the parties. However, on an application moved by the management of M/s Indraprastha Gas Limited, arguments on its behalf were heard on 19.12.2011. I have carefully gone through record of the case. My findings on the issues are as under :-
20. Findings on issue No 1 Issue no.1 is 1. Whether the reference has not been sent to this Tribunal by the appropriate government and if so, to what effect? OPM
21. In Section 2(a) (i) of Industrial Disputes Act, so many government departments have been mentioned to be under the authority of Central Government in relation to any industrial dispute, in which present management i.e. M/s Indraprastha Gas Limited is not covered.
I.D. No.426/10/03 Page 7 of 1322. Section 10 of Industrial Disputes Act is reproduced as under:
(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-
(a) ..............
(b) ..............
(c) ..............
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it related to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that ............................... Provided further that ................... Provided also that ........................
23. In view of above legal propositions, it is clear that Central Government is not appropriate government in the present matter, which can refer the present dispute to this Tribunal. Hence, it can be only state government i.e. Govt. of NCT of Delhi, which can refer the present dispute to this Tribunal. Thus, it is held that reference has been sent to this Tribunal by appropriate government i.e. Govt. of NCT of Delhi.
24. Findings on issue no.2 Issue no.2 is Whether the Union which has raised the present dispute has no locus standi to represent the workmen in this case? If so, to what effect? OPM
25. It is the case of management that Union has no locus standi to file the present claim as the claim has not been signed by the claimants individually and that power to sign cannot be delegated to other person.
26. It is worth noting that in the reference order, name of the Union as mentioned is Vyopar Tatha Udyog Karamchari Sangh and the claim has been filed by the said Union. Therefore, it cannot be stated that the said Union has no locus standi to file the claim. Moreover, WW 1 has proved on record authority letter given by the workmen in favour of Union to I.D. No.426/10/03 Page 8 of 13 raise the present dispute as Ex. WW1/12 and copy of demand notice sent through Union as Ex. WW1/14. In view of documents Ex. WW1/12and 1/14, it is held that the cause of the workmen has been properly espoused.
27. Further, in M/s Payen and Talbros Ltd., vs Hans Raj and others DLT 1968 Vol. IV Page 130 it was held by Hon'ble Delhi High Court that:-
that the language of section 2(k) of the Industrial Disputes Act in itself is wide enough to cover a dispute between an employer and a single employee but having regard to the scheme of the Act and the purpose for which it was enacted and the use of the word "workmen" in this definition clause, industrial dispute has been construed by the courts to mean a collective dispute, i.e. a dispute where workmen as a body or a considerable section of them make a common cause with the individual workman and raise a demand. It would not appear that the condition of an espousal or of a body or a considerable section of workmen making a common cause with the particular dispute arises only when individual dispute per se is of the nature of an inividual dispute concerning a particular workman as opposed to collective dispute involving all the workmen. Where the dispute which was referred to the Tribunal related to gratuity scheme sought to be introduced for the benefits of all the workmen employed in a particular company, it was per se an industrial dispute. No espousal or support was needed for such a dispute.
28. The above judgment implies that espousal is not necessary in case of bulk workmen. Therefore, even if it is presumed that that there is no proper espousal in this case, the same would not affect the case of the workmen adversely. Issues no.2 is decided accordingly.
29. Findings on issue no.3 Issue no.3 is Whether the present dispute is not covered either u/s 2A or Section 2(k) of the I.D. Act? OPM
30. Section 2A of the Industrial Disputes Act is reproduced as under:
Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- ..........................I.D. No.426/10/03 Page 9 of 13
31. Section 2(k) of the Act is also reproduced as below:-
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 non-employment or the terms of employment or with the conditions of labour, of any persons.
32. From the above legal proposition, it is clear that Section 2A of the Industrial Disputes Act deals with individual workman and Section 2(k) deals with workmen. Present is not a case of individual workman but of so many workmen. Thus, it is held that present dispute is covered under section 2(k) of Industrial Disputes Act. Issue no.3 is decided accordingly.
33. Findings on issue no.4 Issue no.4 is Whether there is no relationship of employer and employee between the management and the workmen in the present case as pleaded in preliminary objection number 6 by the managements? if so, to what effect?
34. Sh. Ashim Batra, MW 1 has proved on record copies of operating agreements with different contractors, renewal bank guarantees, etc as Ex. MW1/1 to Ex MW1/15.
35. Management has also examined various contractors from MW 14 to MW 32, who have proved their operating agreements with management for providing service to management at its CNG stations.
36. As per the operating agreements proved by the management witnesses, Contractors shall provide services to management, which is in the business of dispensing CNG to automobiles and supplying Piped Natural Gas to domestic and commercial customers. A per term 6(g) of the said agreements, the Operators can appoint their personnels including I.D. No.426/10/03 Page 10 of 13 Driver Sales Man (DSM), Technicians, Security Guards etc. on a fixed term co-terminus with the agreement period.
37. From the above agreement, it is clear that the personnel for providing service to management shall be provided by Operators/ Contractors.
38. Management has also examined officials from various EPF and ESI Department branches of Delhi, who have produced the record of pertaining to PF and ESI in the name of contractors.
39. From the above discussion and documents, it is clear that there were agreements between management various contractors that personnel shall be provided by contractors for the services to be rendered at CNG stations of management. Thus, it is revealed that power to appoint workers including Driver Sales Man and Technicians, the designation of workmen herein, was with contractors. Hence, it is held that there is no relationship of employee and employer between workmen and the management of M/s Indraprastha Gas Limited. Issue no.4 is decided accordingly.
40. Findings on issue no.5 Issue no.5 is As per terms of reference. Terms of reference are:-
(i) Whether the workmen are entitled to increment @ 10% p.a. If so, what directions are necessary in this respect?
(ii) Whether the workmen are entitled to HRA, if so, at what rate and what directions are necessary in this respect?
(iii) Whether the workmen are entitled to all I.D. No.426/10/03 Page 11 of 13 route pass or conveyance allowance in lieu thereof, if so, at what rate and what directions are necessary in this respect?
(iv) Whether the workmen are entitled to children education allowance, if so, at what rate and what directions are necessary in this respect?
(v) Whether the workmen are entitled to uniform, socks, shoes, umbrella, overcoat, if so, what directions are necessary in this respect?
(vi) Whether the workmen are entitled to washing allowance, if so, what directions are necessary in this respect?
(vii) Whether the workmen are entitled to LTC, if so, at what rate and what directions are necessary in this respect?
41. As held vide issue no.4, there is no relationship of employee and employer between workmen and management, implying thereby the workmen are not employees of management. Since, workmen are not employee of management, granting of facilities as mentioned in terms of reference does not arise. Hence, it is held that workmen are not entitled for the relief claimed. Award is passed accordingly and reference is answered in these terms.
42. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court
on 20.12.2011 (MAHAVIR SINGHAL)
I.D. No.426/10/03 Page 12 of 13
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No.426/10/03 Page 13 of 13