Delhi District Court
4.8 vs K.P. Madhavan Kutty And Others 2000 (2) ... on 5 April, 2018
1
IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
ID No. 63/16
Kanayya s/oSh Jage Ram and 9 others (As per Annexure A of reference)
represented by MCD, General Mazdoor Union
Room No 95, Barracks No 1/10, Jam Nagar House
New Delhi11.
Versus
Delhi Municipal Corporation
through its Commissioner, Town Hall
Chandni Chowk Delhi
Date of Institution: 20/12/2010
Date of Award: 05/04 /2018
A W A R D
1) This reference was sent by the Government of NCT of Delhi vide
Order dated 13/12/2010 vide reference No. F.24 (484)/North
Distt/613/2006/Lab/2226165 , with the following terms :
"1. Whether the demand of Shri Kanayya son of
Sh Jage Ram, and 9 others (As per Anexure A)
for redesignating them as Mali from their
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respective date of regularization is justified and
if so, what relief they are entitled and what
directions, are necessary in this respect".
2) Whether the demand of said workmen for
payment of Rs.500/ per month as adhoc
additional payment at par with other mali
working in the management is justified and if
so, from which date and what directions are
necessary in this respect."
2) It is the contention of the workmen that management had
appointed present workmen w.e.f 1.4.81, 1.4.81, 1.4.80, 1.4.81, 1.4.81,
1.4.80, 1.4.81, 1.4.82, 1.4.82 and 5.8.94 respectively without any post
and from their date of employment they had been performing the duties
of Regular Mali and the workman no. 10 though appointed as Bhisti but
he had been also performing the duties of regular Mali from his initial
date of employment. The workmen had filed writ petitions before the
Hon'ble High Court of Delhi but the same were withdrawn to raise the
industrial dispute under Industrial Dispute Act. The workmen made
several representations to the Management to change their post from
Bhisthi to Mali and to give them all the benefits of regular mali. In writ
petition filed by workmen against MCD, bearing no. 8247/2002, Hon'ble
High Court passed order dated 25/11/2003 of granting Rs.500/ per
month to all regular Malis as adhoc additional payment w.e.f.
01/12/03. Similarly, the Commissioner of MCD vide order dated
10/6/05 and 20/06/05 implemented the order dated 25/11/03 of Hon'ble
High Court of Delhi by granting Rs.500/ per month to the regular Mali
w.e.f. 1.12.03. However, this benefit was denied to the present
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workmen on the ground that they are not regular Mali. The
management vide order no. DOH/ADC/AO(Hort)/DAIV/2009/1805 had
converted/merged the post of Bhisti, Beldar Kuli and Bullockman into
the post of mali on permanent basis in Horticulture depart of MCD with
immediate effect which proves that the workman had been performing
their duties as mali from the date of their initial employment and during
the pendency of the dispute before the conciliation officer their post had
been merged permanently so they are entitled to all the benefits of mali
from the date of their initial employment and also entitled of Rs.500/
per month as adhoc additional payment. Hence the workmen had
prayed that post of workmen be redesignated as mali from the date of
their regularization and for grant of Rs,.500/ per month as adhoc
additional payment at par with other mali working with the management
of MCD.
3) Reply to the statement of claim was filed by
respondent/Management. In the reply /Written Statement filed by
respondent, they have taken the preliminary objection that present dispute is not properly espoused by the union therefore reference is bad in law; no demand of notice has been served upon the management. It has been also submitted by respondent that there is no provision under the DMC Act or fundamental rules and supplementary regulations by which the claimants can be redesignated from the post of Bhisti to Mali. However, it is submitted by virtue of resolution no 173, dt 21/07/09 the post of Bhisti, Beldar, coolie and bulakman had been merged into the post of mali. The claim of the claimants for grant of Rs.500/ as adhoc additional payment as per the direction of Hon'ble High Court from the 3Out of 17 4 date of regularization is without any basis. It is submitted that Hon'ble High Court had passed an interim order thereby directing the management to pay Rs.500/ per month to all regular Malis, w.e.f. 1/12/2003 till the pendency of said petition. The claimant at that time were working as Bhisties and have only been merged into the post of mali with effect from 4/09/09 hence their claim for the grant of additional amount of Rs500/ prior to 4/09/2009 is illegal and baseless. The statement of claim is not maintainable on the ground of latches/belated stage.
4) Rejoinder was filed by the workmen to the reply filed by the Respondent. The submissions of the Respondent were denied by the workmen/applicants in their rejoinder and reiterated the facts as mentioned in the statement of claim.
5) Out of the pleadings of the parties following issues were framed by my Ld Predecessor:
(1) Whether the statement of claim of the workman is not maintainable on the ground of latches/belated stage?OPM (2) Whether the present dispute is an Industrial Dispute as defined in section 2 (k) of Industrial Dispute Act ? OPW (3) Whether the present claim of the workmen has been properly espoused by the union.
(4) Whether any notice of demand was served upon the management, if so, its effect?OPW (5) In terms of reference.
6) In workmen evidence, from the side of the workmen, two 4Out of 17 5 witnesses were examined. WW1 Sh Kanayya has filed the affidavit Ex.WW1/A and proved documents Ex.WW1/1A to Ex.WW1/1I and other documents Ex.WW1/2, Ex.WW1/3, Ex.WW1/4A to Ex.WW1/4AF, Ex.WW1/5 to 7. He was thoroughly crossexamined by Ld A.R of Management. WW2 Sh B.K. Prasad has filed affidavit ExWW2/A and proved the documents from Ex.WW2/1 to Ex.WW2/4. On behalf of management, MW1 Sh Kanhiya Lal has filed his affidavit & has proved documents Ex.MW1/1 to Ex.MW1/184.
7) I have heard final arguments from Ld AR for the workman. Ld AR for the management has not advanced arguments despite opportunity given.
8) I have considered the arguments submitted by Ld AR for the workman. I have also gone through the evidence led by the parties and have carefully perused the court record. After considering the facts, arguments of Ld A.R for workmen and the material on record, my issue wise findings are as follows:
ISSUE NO. 1 "Whether the statement of claim of the workman is not maintainable on the ground of latches/belated stage?OPM
9) Onus to prove this issue was on the management. Though the management has taken this preliminary objection in the written statement filed by management but no evidence has been led by the management or workmen on this issue. However, this issue being legal issue has to be considered and disposed off by the Tribunal.
10) In the present case, as per reference, workmen are seeking the relief of being redesignated as mali from their respective date of regularization. Firstly, it is important to note that in the present case 5Out of 17 6 only one workman namely Kannaya had appeared as witness and no other workmen had appeared as witness nor any member had appeared on their behalf to depose and prove about the facts alleged by them. Therefore, the claim of workmen no. 2 to 10 cannot be considered by the evidence led by the workman no. 1 Kannaya.
11) It is admitted case of workman, Kannaya that he was regularized on the post on 01/04/1981 but the present reference has been made to the court on 13/12/2010 ie after a gap of almost 30 years. No explanation has been tendered on behalf of the workman as to why dispute has not been raised by the workmen before 2010 about being re designated as Mali. It is the case of the workman Kannaya that he was appointed by the MCD without giving any post to him and also he was regularized on 01/04/1981 without any post. However, I am of the opinion that perusal of the documents relied upon by the workman clearly shows that these are not the correct facts. It is clear from the document Ex.WW1/4B, which is a letter written by workman Kannaya to the Asstt Director (Horticulture) department on 08/08/2005 that his post was Bhisthi. In this letter, it has been specifically mentioned by the workman Kanayya that he was working on the post of Bhisti but claimed to have been working as Mali. Therefore, I am of the opinion that the claim of the workman that he was regularized by the MCD on 01/04/81 without post is not a correct claim of the workman.
12) Even, in evidence, WW1 Sh Kannaya had admitted that he was regularized at the post of Bhisti and he was getting Rs.100/ allowance per month, which was given by the management to Bhisti. Even if it is presumed that workman was actually doing the work of Mali since the 6Out of 17 7 year 1981 but was not being designated as Mali, then it was imperative on the part of the workman to have raised the dispute within the normal stipulated period. Raising the dispute after 30 years can not be considered to be appropriate & it can certainly be said to have been suffering from delay and latches.
13) My view also gets support from the judgment Nedungadi Bank Ltd vs K.P. Madhavan kutty and others 2000 (2) SCC 455 wherein , Hon'ble Supreme Court had held that:
"Law does not prescribe any timelimit for the appropriate Government to exercise its power under section 10 of the Act, it is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject matter of reference under section 10 of the Act.
14) Thus, I am of opinion that raising a dispute regarding re designating of Post, after 30 years of regularization can not be called to have been raised in normal time limit & thus it had actually been raised at a belated stage.
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15) In view of my above discussion, issue no. 1 is decided against the workmen and in favour of the management.
ISSUE NO 2 and 3.:
Issue No. 2: "Whether the present dispute is an Industrial Dispute as defined in section 2 (k) of Industrial Dispute Act ? OPW Issue No. 3 Whether the present claim of the workmen has been properly espoused by the union. OPW"
16) Since issue no. 2 and 3 relate to common subject of the interpretation of the term "industrial dispute", therefore I would discuss and decide issue no 2 and 3 simultaneously.
17) Section 2 (k) of the Industrial Dispute Act defines the term industrial dispute, which is reproduced as under:
"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 condition of labour, of any person"
18) In the section 2 (k) of Industrial Dispute Act the word used by the legislature is the word workmen and not workman. Therefore, it is clear from the definition that the Legislature were concerned about the dispute between "workmen and management" and not in dealing with the individual dispute of workman. In order to meet with the individual dispute of workman section 2 A of Industrial Dispute Act was 8Out of 17 9 introduced by the Legislature in the year 1965, which provides that any workman who had been dismissed or retrenched or otherwise terminated from the services by employer, he can raise the dispute as an industrial dispute notwithstanding that no other workmen nor any "union of workmen" is party to the dispute. Thus, for a dispute of individual workman to become industrial dispute, it is necessary that either the dispute must be related to dismissal or retrenchment of workman or dispute must have been supported or furthered by the group of workmen or by union of workmen. From this point arises the issue of espousal of industrial dispute by the union.
19) It has been held in various cases as early as in the year 1955 that unless the dispute of individual workman is supported by the union of the workmen or sponsored by the union of workmen the dispute will not be an industrial dispute u/s 2 (k) of the Industrial Dispute Act.
20) In case Workmen of M/s Dharampal Prem Chand (Saugandhi) vs M/s Dharampal Prem Chand (Saugandhi) (1965) 3 SCR 394, Hon'ble Supreme Court of India dealt with the issue of espousal of individual dispute of workman. In this case, Hon'ble Supreme Court had held that:
"The decisions of this court have consistently taken the view that in order that a dispute between a single employee and his employer should be validly referred under section 10 of the Act, it is necessary that it should have been 9Out of 17 10 taken up by the Union to which the employee belongs or by a number of employees. On this view, a dispute between an employer and a single employee cannot, by itself, be treated as an industrial dispute, unless it is sponsored or espoused by the Union of the workmen or by a number of workmen."
21) Later on, in case of Management of Messers Hotel Samrat vs Government of NCT and ors WP © No 6682 of 2002 and WP(C) 6247 of 2004 decided on January 4, 2007, Hon'ble High Court of Delhi has dealt with the issue of espousal of industrial dispute. In this case, Hon'ble Mr Justice S.N. Dhingra has elaborated the requirement of espousal of individual dispute of workman by the union. In the case of Messers Hotel Samrat vs Government of NCT and ors, Hon'ble High Court has also discussed the earlier cases as well as the case of Workmen of M/s Dharam Pal Prem Chand (Saugandhi) vs M/s Dharam Pal Prem Chand (Saugandhi) (mentioned above).
22) In J.H. Jadhav vs Forbes Gokak Ltd, 2005 AIR (SC) 998, Hon'ble Supreme Court had observed that:
"The definition of Industrial Dispute" in Section 2 (k) of the Act shows that an Industrial Dispute means any dispute or difference between an employer and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the 10Out of 17 11 terms of the employment or with the condition of labour, of any person. The definition has been the subject matter of several decisions of this Court and the law is well settled. The locus classicus is the decision in the Workmen of M/s Dharam Pal Prem Chand (Saugandhi), 1965 (3) SCR 394 wherein it was held that for the purpose of Section 2 (k) it must be shown that (1) the dispute is connected with employment or nonemployment of a workman: (2) the dispute between a single workman and his employer was sponsored or espoused by the union of workmen or by a number of workmen; the phrase "the union" merely indicates the Union to which the employee belongs even though it may be union of a minority of the workmen (3) the establishment had no union on its own and some of the employees had joined the Union of another establishment belonging to the same industry. In such a case it would be open to that Union to take up the cause of the workmen if it is sufficiently representative of those workmen, despite the fact that such Union was not exclusively of the workmen working in the establishment concerned.
23) Further, in 1961 II LLJ 436 Bombay Union of Journalists vs Hindu Bombay, Hon'ble Supreme Court had observed that: An individual dispute can take the character of an 11Out of 17 12 industrial dispute only if it was proved that it was, before it was referred, supported by union of employees. In each case, for ascertaining whether an individual dispute has assumed character of an industrial dispute, the test is whether on the date of reference, the dispute was taken up and supported by the union of the workmen of the employer against whom the dispute is raised by the individual workman or by an appreciable number of employees.
24) While referring the above mentioned cases, Hon'ble High Court of Delhi in case of M/s Samrat Hotel (mentioned above) had observed:
"The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workman as a body or a considerable section of them, make common cause with the individual workman and espoused his demand. The question arises how the espousal can be inferred. Espousal means that the dispute of an individual workman is adapted by union as its own dispute or a large number of workmen give support to the cause of an individual workman. In the instant case, the only evidence available on record about espousal of the cause is the statement of the Secretary of the Union made before the Tribunal. In his statement, he stated that he requested the 12Out of 17 13 management to treat workman Hira Singh at par with the other employees and grant him regular pay scale and he met the management for this purpose and on his pursuance, the management started deducting provident fund from the salary of workman Hira Singh. There is no evidence apart from this evidence about the espousal of the cause.
Does mere lending of name of the union by the
union Secretary while raising the conciliation
proceedings or for issuing notice amount to 'espousal' of cause? Union is representative body of the workmen. The cause of any workmen can be espoused collectively by the Executive body of the union by taking a decision in this respect. This decision may not be taken in a formal manner but can be taken in an informal manner but it has to be a collective decision of the executive body of the union. An individual member of the executive body cannot take the character of the entire union and cannot bind the union.
25) After observing that individual dispute of workman cannot be called as industrial dispute unless it is espoused by the executive body of the union, Hon'ble High Court held in case of Management of Messers Hotel Samrat (mentioned above) that the dispute was not properly espoused by the union and therefore held not to be an 13Out of 17 14 industrial dispute.
26) Coming to the facts in hand, reference has been made in respect of 10 workmen , none of these workmen had signed the statement of claim. Except the workman Kannaya, none of the workmen had appeared or deposed as witness. Even no executive member of the union had appeared as witness, who stated that he has supported the cause of other workmen who had not appeared or that he has been authorised by these workmen to appear and depose on their behalf.
27) Statement of WW2 Sh B.K. Prasad, who is stated to be the President of MCD General Mazdoor Union is only on the point of espousal. It is the claim of WW2 Sh B.K. Prasad that MCD General Mazdoor Union had espoused the cause of these workmen in the meeting called on 30/06/06. At this stage, it is essential to note that in the case of Management of Messers Hotel Samrat (mentioned above), Hon'ble High Court of Delhi has very specifically mentioned that cause of individual should be supported by number of workmen and the fact whether the number of workmen had supported the cause of individual workman or not will depend upon case to case. In the present case, MCD General Mazdoor Union has alleged to be union of worker of Horticulture wing of MCD. No document has been placed or proved on record to prove the number of workers who are the members of this union. No document has been placed on record to prove as to how many workmen have supported the cause of individual workman in whose favour reference had been made. There is one more document which has been placed on record by WW2 Sh B.K. Prasad ie List of Office bearers of MCD General Mazdoor Union in the year 200708, 14Out of 17 15 which is Ex.WW2/4,. This letter has been issued on 27/09/2007.
Whereas, as per the document Ex.WW2/3, which is supposed to be the espousal declaration in favour of these workmen, support was given on 30/06/2006. There is no document to prove that on 30/06/2006, Sh B.K. Prasad was the office bearer of the union or was authorized to take up the cause of workmen.
28) In the crossexamination WW1 Sh Kannaya had specifically stated that he does not remember whether he has given any written representation to the union. If the workman has not given any representation to the union, question of union sponsoring the cause of individual workman does not arise. In case of Management of Messers Hotel Samrat, it has been specifically mentioned by Hon'ble High Court of Delhi that single office bearer of union cannot take up the decision of espousing the cause of individual workman & same has to be decided by the union by way of resolution. No such resolution has been placed or proved on record by the union and therefore, I am of the opinion that dispute has not been properly espoused by the union and hence it is not an industrial dispute u/s 2 (k) of Industrial Dispute Act. Hence issue no. 2 and 3 are decided against the workmen.
Issue no. 4: Whether any notice of demand was served upon the management, if so, its effect?OPW
29) Onus to prove this issue was on the workmen whether any demand notice has been served on the management. In the entire evidence led by the workmen, it has not been mentioned as to whether any demand notice was sent to management. WW2 Sh B.K. Prasad is silent about the fact that any demand notice was sent by him or by the 15Out of 17 16 union to the management making the demand from the management on behalf of the workmen. As per the document, placed on record by the workmen, no demand letter sent to the management by the union on behalf of the workmen has been placed or proved on record. Therefore, this issue is also decided against the workmen to the effect that no demand notice was served upon the management ISSUE NO. 5: In terms of reference.
30) Issue no. 1 to 3 have been decided against the workmen to the effect that the claim of the workmen is not maintainable on the ground of latches as the workmen was admittedly regularized on 01/04/1981 but has filed the case for redesignating his post as Mali in the year 2010 ie after almost a gap of 30 years, thus the dispute is clearly suffering from the latches and delay. It is also the opinion of this Tribunal that dispute raised by the workmen is not an industrial dispute as it has not been espoused by the union. Since the dispute referred to Tribunal is not an industrial dispute, this Tribunal has no jurisdiction to decide further in this aspect and hence reference is answered in negative.
31) During the course of arguments, Sh B.K. Prasad, Ld AR for the workmen has relied upon the award passed by Sh S.C. Rajan, the then Ld. POIT in ID No 145/13 (821/16) dated 13/05/206. It was the contention of Ld AR for the workmen that similar matter was pending before Sh S.C. Rajan, the then Ld POIT, for redesignated the post of Mali as in the reference made in the present case and in that case, award was passed by Sh S.C. Rajan, the then Ld POIT in favour of the workmen. I have carefully perused and gone through the award passed 16Out of 17 17 by Sh S.C. Rajan, the then Ld POIT. After perusing the same, I am of the opinion that firstly award is not binding on the present Tribunal as being of concurrent jurisdiction. Further, on the merits, it may be said that in the case before Sh S.C. Rajan, the then Ld POIT, workmen witness was not crossexamined by the management, hence the testimony of WW1 was considered to be unchallenged and unrebutted, therefore, award was passed in favour of the workmen. Whereas in the case in hand, both the witnesses of workmen have been thoroughly crossexamined by Ld AR for the management and even management has led its evidence, which thoroughly controverts the testimony of workman. Hence the facts of the case, in which award was passed by the then Ld POIT can be differentiated from the facts of the present case.
32) In view of my findings on the above issues, the reference is answered in negative.
33) Copy of the award be sent to GNCT of Delhi for publication, as per rules. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 5th April , 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally
signed by
SHAIL SHAIL JAIN
Date:
JAIN 2018.04.05
14:56:38
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