Delhi District Court
Mumtaz Jahan vs M/S Registrar Hamdard on 14 December, 2023
IN THE COURT OF SH. AJAY GOEL: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE
AVENUE DISTRICT COURTS, NEW DELHI.
F.24(692)/Lab./SD/2019/8251
Dated 17.08.2020
OLD POIT NO.: 1492/2020
NEW POIT NO.: 13/2023
Workman
Smt. Mumtaz Jahan w/o Sh. Mohd. Mudassir Khan
R/o RZ-2082/26, Sky Apartment,
IIIrd Floor, Tughlakabad Extension,
New Delhi 110019.
Through Secretary,
Hospital Employees Union (Registration No. 788),
Agarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-110 054.
Vs.
The Management of
1. The Registrar/Vice Chancellor, J
amia Hamdard, Hamdard
Nagar, New Delhi-110062.
2. The Management of Majeedia Hospital,
Jamia Hamdard, Hamdard Nagar,
New Delhi - 110062.
Through its Registrar/Vice Chancellor.
Date of Institution : 14.06.2021
Date of presentation : 12.05.2023
before this court
Date of Arguments : 13.12.2023
Date of Award : 14.12.2023
POIT NO. 13/2023 Page 1 of 35
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
parties named above for adjudication to this Tribunal with following
terms of the reference:-
"Whether the demand of workman Smt. Mumtaz
Jahan W/o Mohd. Mudassir khan for regularization
of services on the post of Staff Nurse in proper pay
scale and allowances with retrospective effect from
her initial date of joining i.e. June, 1997 (instead of
from 17.10.2003) into the employment along with
payment of entire difference of salary on the
principle of "Equal Pay for Equal Work" with all
consequential benefits thereof, is justified, and if so,
what directions are necessary in this respect and
what relief the workman concerned entitled to?"
2. Statement of Claim has been filed on behalf of the applicant
wherein it is stated that the workman aforesaid joined into the
employment of the management in the month of June, 1997 as a
Staff Nurse on ad-hoc basis and was paid a consolidated salary of
around Rs. 3,700/- per month, while her counter parts doing the
identical work and work of same value but who are being treated as
regular employees were getting their salary in proper pay scale and
allowances. That the workman concerned was taken in job against
the vacant post and was selected by a Selection Committee and till
then she is continuously discharging her services with the
management aforesaid since June, 1997 and there is no break at all.
She has unblemished and uninterrupted record of service to her
credit. Though, the workman concerned was supposed to be
regularized since initial date of her joining but the management has
POIT NO. 13/2023 Page 2 of 35
regularized her in the year, 2008 with retrospective effect ie. w.e.f.
17.10.2003 only. That the workman concerned is discharging the
same duties after her regularization which she was discharging prior
to her regularization. As such, the workman concerned was
discharging the same duties prior to her regularization which are
being discharged by her after her regularization. As such, the
management should have regularized her services since initial date
of her joining as the nature of job is purely permanent in nature.
Furthermore, the workman concerned is also entitled to "Equal Pay
for Equal Work" for the period June, 1997 to October, 2003 during
which period, she was treated as a contractual / ad-hoc employee
and was not paid salary equal to her other regular counter parts. That
the workman concerned would also be entitled to pension in case
she is regularized from initial date of her joining. That the working
hours, responsibilities, education, recruitment procedure & nature of
work discharged by workman, concerned are same as being
discharged by her regular counterparts and thus, she is also entitled
to same wages as are being paid to her regular counterparts on the
principle of "Equal Pay for Equal Work". As such the action of the
management regarding non regularization of services of the
workman aforesaid since her initial date of joining on the post of
Staff Nurse in proper pay scale and allowances (instead of from
October 2003) and nonpayment of difference of salary on the
principle of Equal Pay For Equal Work with all arrears thereof for
the period of June 1997 to October 2003, and non payment of same
is illegally, bad, unjust and amount to unfair labour practice. That a
demand notice was also served upon the management by registered
A.D. post vide communication dated 08.03.2019 but the
management has not received the notice. Further, a demand notice
POIT NO. 13/2023 Page 3 of 35
dated 26.03.2019 was also served upon the management, which was
duly received in their office, but no reply has been received and it is
presumed that the demand has been rejected. Thereafter, conciliation
proceedings were also initiated but same resulted into failure due to
adamant and non co-operative attitude of the management. The
workman prayed that an Award be made in his favour and the
management be directed to regularize the services of the workman
aforesaid on the post of Staff Nurse with retrospective effect from
her initial date of joining i.e. June, 1997 (instead of from
17.10.2003) and to pay her entire difference of salary on the
principle of "Equal Pay for Equal Work" from her initial joining till
regularization (June, 1997 to 17.10.2003) and all consequential
benefits thereof.
3. Written Statement was filed on behalf of the management
wherein it has taken objections that vide University order dated
27.06.1997 the workman was appointed on ad-hoc basis as Staff
nurse in the Majeedia Hospital on consolidated salary against the
against the vacant post of ward sister for a period of 89 days or till
the post of ward sister is filled through Selection Committee on
regular basis whichever is earlier, w.e.f. 13.05.97, subject to
termination at any time without notice or assigning reasons as this
appointment was on ad-hoc basis and did not not confer any right on
the appointee to claim regular appointment to the grade and the
service rendered on ad-hoc basis and would not count for the
purpose of seniority in that wake and for eligibility for promotion to
next higher grade.
4. That, vide University order dated 09.09.1997 the Vice-
Chancellor was pleased to accord extension in the term of workman
Mumtaz Jahan as Staff Nurse in the Majeedia Hospital on
POIT NO. 13/2023 Page 4 of 35
consolidated salary against the against the vacant post of ward sister
for a period of 89 days or till the post of ward sister is filled through
Selection Committee on regular basis whichever is earlier, w.e.f.
11.08.97 with one day break for 10.08.1997, subject to termination
at any time without notice or assigning reasons with same terms and
conditions; The tenure under the aforesaid appointment came to an
end on 08.12.1997 so she was again accorded ad-hoc appointment
with a 02 months break/gap.
5. That, vide University orders dated 09.02.98 and 30.04.1998
the appointment of the workman Mumtaz Jahan was accorded as
Staff Nurse in the Majeedia Hospital on consolidated salary against
the vacant post of Staff Nurse for a period of 89 days or till the posts
are filled through Selection Committee on regular basis, whichever
is earlier, with effect from the dates as noted against their names,
subject to termination at any time thout notice or assigning reasons
with same terms and conditons;
6. That, for the first time vide order dated 06.07.1998 the
workman Mumtaz Jahan was appointed Staff Nurse against the
vacant post of Ward sister on contract basis for a period of 06
months w.e.f. 01.07.1998 and it was specifically mentioned at clause
5 of her letter that on expiry of the period of contract, the
contractual engagement will stand automatically terminated unless it
is extended further. Clause 6 further mentioned that this contractual
engagement will not confer any right on the appointee to claim
regular appointment to the post and will not count for purpose of
seniority, promotion and retirement benefit etc. and it was further
mentioned that in case the above terms and conditions of 2
engagement are acceptable, the appointee may report for duty and
submit the joining report and the letter was issued in supersession of
POIT NO. 13/2023 Page 5 of 35
the University order dated 30.04.98.
7. That, with reference to extension of her contract vide letter
ted 09.05.2002 the workman Mumtaz Jahan was warned that she has
been irregular in reporting for duty. On one occasion she failed to
report for her shift without prior intimation which forced the other
nurse to stay on for two shifts. Therefore, her extension was
recommended for three months and was warned that if in future she
fails to perform her duties well and be regular in reporting shifts
then her further extension may not be recommended. Therefore the
claim of the workman that she has unblemished job career is wrong
as per her petition only.
8. That, vide University order dated 18.05.2002 sanction was
accorded to the contractual appointment of Ms. Mumtaz Jahan as
staff nurse for a period of three months w.e.f. 01.06.2002. It was
categorically mentioned in the terms and conditions that on expiry
of contract, her appointment will stand automatically terminated
unless it is extended further and that the contractual appointment
will not confer any right on her to claim regular appointment to the
post and will not count for the purpose of seniority, promotion and
retirement benefit etc. even she was advised to improve her
performance and warning was given that further extension will not
be given, if she is not found punctual in her duties.
9. That, vide order dated 13.08.2002 the appointment was
accorded to the workman Mumtaz Jahan as Staff Nurse for a period
of 6 months w.e.f. 01.09.2002 and terms and conditions
categorically ipulated that on expiry of the contract her appointment
will stand automatically terminated unless it is extended further and
that the contractual appointment will not confer any right on her to
claim regular appointment to the post and will not count for the
POIT NO. 13/2023 Page 6 of 35
purpose of seniority, promotion and retirement benefit etc.
10. That, vide order dated 24.02.2003 the workman Mumtaz
Jahan was appointed on contractual basis as Staff Nurse for a period
of 6 months w.e.f. 01.03.2003 automatically terminable and without
any right for regularization and will not count for the purpose of
seniority, promotion and retirement benefit etc.
11. That, vide notification dated 03.10.2003 the workman was
intimated that her interview was scheduled for contractual
appointment of two years extendable up to 5 years. Thereafter vide
University order dated 16.10.2003 the workman was appointed on
contractual basis on the post of staff nurse for a period of two years
from the date of joining duty and extendable to a period of 5 years.
It was categorically mentioned that she will be governed under the
scheme of Contributory Provident Fund and she was given option
that in case the terms and conditions are acceptable to her, she ma
report for duty and submit the joining report. The workm consented
to the terms and conditions and joined the duty. That after
completion of two years of service as Staff Nurse workman Mumtaz
Jahan was given extension of 3 years on her contractual
appointment vide order dated 03.12.2005 on the same terms and
conditions.
12. That, vide order dated 27.03.2008 the contractual
appointment of workman Mumtaz Jahan was considered for regular
appointment. Vide the aforesaid letter it was duly intimated to the
appointee that the terms and conditions of her appointment shall
remain same as stipulated in the appointment letter no.
Estab/LD/1549 dated 16.10.2003. It is pertinent to mention here that
the workman did not object to any of the terms and conditions as
stipulated in her appointment letter and accepted them in toto
POIT NO. 13/2023 Page 7 of 35
without any protest. Therefore, at this juncture when she has already
retired and has also obtained clearance she cannot resile from what
she accepted and she is estopped from resiling at this stage which is
impermissible and without any justified cause. There is nothing on
record which shows that after regularisation in 2008, she was
rendering her services under protest or that the terms and conditions
were forcefully imposed upon her without her consent.
13. That, it is respectfully submitted that the workman Mumtaz
Jahan worked from 13.05.1997 to 13.05.2003 as daily wage / Ad-
hoc as Staff Nurse and as per the existing policy, the group 'C'
employees become eligible for contractual appointment of five years
on completion of total six years as daily wager/adhoc and name of
Mumtaz Jahan was included in the list as mentioned at Sr. No. 7.
14. That, it is undisputed that the workman has filed the instant
petition seeking regularization from initial date of her appointment
i.e. June, 1997 (para 3 of statement of claim) which according to
her, if allowed, would entitle her to GPF i.e. pensionary scheme. It
is respectfully submitted that since the workman has without protest
accepted her CPF claims therefore, later after completing her entire
service and obtaining all clearances she cannot resile and claim
benefits under the GPF scheme. Despite the fact that the petitioners
in this batch of petitions had overtly expressed their desire to
continue in the CPF Scheme, they got automatically covered by the
Pension Scheme, once, the cut-off date of 30.09.1987, was crossed.
15. Therefore, the objection qua delay and Latches cannot
sustained. That, at the time of appointment of the workman Mumtaz
Jahan as per the policy of Jamia Hamdard prevalent at that time, for
regularization of services of employees working as daily wage /
contract basis in the Group 'C' category for contractual appointment
POIT NO. 13/2023 Page 8 of 35
of five years, completion of total six years as daily wager /ad-hoc
was must, and the appointment could be made on the
recommendation of Selection Committee.
16. That, in 2011 the workman has given her nomination form
which categorically mentioned CPF at the top of the form and she
submitted her nomination form without any protest.
17. That, upon recommendation of Screening Committee and
approval of the Vice-Chancellor, the workman was given financial
upgradation under Modified Assured Career Progression (MACP)
scheme on completion of 10 years of her regular service vide
University order dated 27.01.2014.
18. That, the workman submitted her no dues certificate which
was accepted vide Office Order dated 21.06.2019. That, from time
to time the workman was, in accordance with the rules, accorded
revised pay and financial upgradations and all were accepted by her
without any protest or demur. Therefore, at this stage her claim is
barred by limitation and is hit by principle of delay and latches and
principle of estopple. No cause of action survices as and her petition
is therefore liable to be rejected.
19. That, the contents are admitted to the extent that a notice
dated 26.03.2019 was received remaining contents are denied. The
contents that conciliation proceedings have failed is a matter of
record and warrant no reply. Thus, the the instant case is without
merits and deserves dismissal out-rightly the prayer being barred by
limitation and hit by principle of delay and latches and principle of
estopple hence, liable to be rejected. Rest of the contentions of the
statement of claim were also denied.
20. After completion of proceedings, the following issues were
framed by the Ld. Predecessor on 17.10.2022.
POIT NO. 13/2023 Page 9 of 35
(i) As per terms of reference. OPW
(ii) Relief.
21. To prove his case, the workman, Mumtaz Jahan W/o Mohd.
Mudassir Khan examined herself as WW-1 and filed an Affidavit
Ex. WW1/A in lieu of examination-in-chief. She placed reliance
upon Ex. WW1/1 to Ex. WW1/20. Thereafter, WW-1 was duly
cross-examined by ld. AR for the mangement.
22. The management on the other hand examined one Sh.
Rukmesh Kumar S/o Sh. Devki Nandan, Assistant Registrar
(Establishment), Jamai Hamdarj University, Hamdard Nagar, New
Delhias MW-1, who also filed an Affidavit Ex. MW1/A in lieu of
examination-in-chief. He relied upon documents Ex. MW1/1 to Ex.
MW1/2. MW-1 was cross-examined by the AR for the Workman.
Consequently, the management evidence was closed.
23. Final arguments have been heard at length as advanced by
counsels for both the parties. Written submissions filed on behalf of
the management were also considered.
24. My issue wise findings are:
Issue No. 1: As per terms of reference
25. Before moving on to the merits of this case, this tribunal has
to see if the present case has proper espousal. The AR for the
Workmen in order to prove the proper espousal has placed reliance
upon Ex. WW1/6 i.e. resolution dated 11.03.2019 passed by the
Hospital 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 decided on 17.03.2023,
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.,
POIT NO. 13/2023 Page 10 of 35
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
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
POIT NO. 13/2023 Page 11 of 35
has espoused the cause of the Petitioners/Workmen."
26. 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, 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."
27. 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
POIT NO. 13/2023 Page 12 of 35
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 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."
28. The workman in order to prove the proper espousal has
placed on record, Ex. WW1/1, i.e., the copy legal demand notice
dated 08.03.2019 and 26.03.2019 sent on the letterhead of the
Hospital Employees Union. Likewise, the Statement of Claim Ex.
WW1/5 is filed by the Hospital Employees Union before the
conciliation officer of the Govt. of NCT of Delhi. The union has
also filed its resolution dated 11.03.2019 i.e. Ex. WW1/6, wherein
the union decided to raise an industrial dispute in favour of the
workman. The workmen witness, WW-1 has deposed her Affidavit,
Ex. WW1/A that she is a member of Hospital Employees Union
(Regd. No. 788 dated 08.06.1961), having her membership number
as 57615 and paying yearly subscription to the union. She has also
stated that she approached the Union for redressal of her dispute
regarding regularization of her services on the post of Staff Nurse
with retrospective effect from her initial date of joining i.e. June,
1997 (instead of from 17.10.2003) and to pay her entire difference
of salary on the principle of "Equal Pay for Equal Work" from her
initial joining till regularization (June, 1997 to 17.10.2003) and all
POIT NO. 13/2023 Page 13 of 35
consequential benefits thereof. Consequently on 11.03.2019 a
resolution was passed to raise the aforesaid grievances by way of
raising a dispute. She also stated that the said resolution dt.
11.03.2019 has already been placed on record and the same was
passed and signed by Sh. Surender Bhardwaj, Secretary of the
Union in her presence and also identified the signature of Sh.
Surender Bhardwaj. It is notable that the management did not cross-
examine her on these aspects, therefore, this tribunal has no reasons
to disbelieve the testimony of the workman concerned. Therefore,
this tribunal is of the opinion that the workman has placed sufficient
material on record to show that the present dispute is properly
espoused by the Union of the workman.
29. The management has taken this contention that the workman
filed the present claim at a very belated stage after her retirement for
regularization from her initial date of joining. This action on her part
is an afterthought, hence, the same is impermissible under the law,
therefore, her case to be dismissed outrightly on this ground alone.
30. On this contention, it is not disputed that the workman was
not given the benefits of regularization w.e.f. their initial date of
joining and if the workman is eligible for the same then it becomes a
continuing wrong on the part of the management. Merely because
the workmen has filed the present case after her retirement in the
year 2019, that does not that does not inherently signify a waiver of
their legitimate right to claim the same by way of raising an
Industrial Dispute. Moreover, it is highlighted that the workman
retired in the month of May, 2019, whereas, the legal demand notice
dated 08.03.2019 was sent on 13.03.2019 i.e. in the month of March
2019 prior to her retirement/superannuation.
31. Further, the Hon'ble Supreme Court in the case of Kuldeep
POIT NO. 13/2023 Page 14 of 35
Singh vs. G.M., Instrument Design Development and Facilities
Centre and Anr., AIR 2011 SC 455, the court after dealing with the
case of Nedungadi Bank Ltd vs K.P. Madhavankutty And Ors.,
Appeal (civil) 638 of 2000 decided on 28.01.2000 has observed the
following in Para 21 of the judgment:
"21. In view of the above, law can be summarized that
there is no prescribed time limit for the appropriate
Government to exercise its powers under Section 10 of
the Act. It is more so in view of the language used,
namely, if any industrial dispute exists or is
apprehended, the appropriate government "at any time"
refer the dispute to a Board or Court for enquiry. The
reference sought for by the workman cannot be said to
be delayed or suffering from a lapse when law does not
prescribe any period of limitation for raising a dispute
under Section 10 of the Act. The real test for making a
reference is whether at the time of the reference dispute
exists or not and when it is made it is presumed that the
State Government is satisfied with the ingredients of the
provision, hence the Labour Court cannot go behind the
reference. It is not open to the Government to go into the
merit of the dispute concerned and once it is found that
an industrial dispute exists then it is incumbent on the
part of the Government to make reference. It cannot
itself decide the merit of the dispute and it is for the
appropriate Court or Forum to decide the same. The
satisfaction of the appropriate authority in the matter of
making reference under Section 10(1) of the Act is a
subjective satisfaction. Normally, the Government
cannot decline to make reference for laches committed
by the workman. If adequate reasons are shown, the
Government is bound to refer the dispute to the
appropriate Court or Forum for adjudication. Even
though, there is no limitation prescribed for reference of
dispute to the Labour Court/Industrial Tribunal, even
so, it is only reasonable that the disputes should be
POIT NO. 13/2023 Page 15 of 35
referred as soon as possible after they have arisen and
after conciliation proceedings have failed, particularly,
when disputes relate to discharge of workman. If
sufficient materials are not put forth for the enormous
delay, it would certainly be fatal. However, in view of the
explanation offered by the workman, in the case on
hand, as stated and discussed by us in the earlier
paragraphs, we do not think that the delay in the case on
hand has been so culpable as to disentitle him any relief.
We are also satisfied that in view of the details furnished
and the explanation offered, the workman cannot be
blamed for the delay and he was all along hoping that
one day his grievance would be considered by the
Management or by the State Government."
32. Further, the Hon'ble Supreme Court in the case of Ajaib
Singh vs. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited and Anr., AIR 1999 SC 1351, observed
the following in Para 11 of the judgment:
"11. It follows, therefore, that the provisions of Article
137 of the Schedule to Limitation Act, 1963 are not
applicable to the proceedings under the act and that the
relief under it cannot be denied to the workman merely
on the ground of delay. The plea of delay if raised by the
employer is required to be proved as a matter of fact by
showing the real prejudice and not as a merely
hypothetical defence. No reference to the labour court
can be generally questioned on the ground of delay
alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing
with the case can appropriately mould the relief by
declining to grant back wages to the workman till the
date he raised the demand regarding his illegal
retrenchment/ termination or dismissal."
33. In view of the judgments above, even though the limitation
POIT NO. 13/2023 Page 16 of 35
act does not apply to the proceedings under Industrial Disputes Act,
yet the dispute has to be raised within a reasonable time and there
should not be any inordinate delay. In the present case, there is no
such delay as the action of the management by not regularizing the
services of the workman is a continuing wrong on their part.
Further, although the management has taken the contention
regarding the alleged delay/latches by the workman. However, they
have not shown any prejudice suffered due to this purported delay.
Therefore, this tribunal holds that the present dispute is very well
maintainable and the same can not be termed as delay in raising the
present dispute.
34. Moving on to the merits of the case, the workman has sought
relief of regularization of her services on the post of Staff Nurse
with retrospective effect i.e. from her initial date of joining (June
1997 instead of 17.10.2003) and for the payment of difference of
arrears of salary on the principle of equal pay for equal work till the
date of regularization with all consequential benefits. In support of
her claim the workman has stated that she has been working
continuously and uninterruptedly w.e.f. her initial date of joining
onwards and had been performing the same work as being
performed by her regular and permanent counterparts for the post of
Staff Nurse. It is argued on the behalf of the workman that the
management has indulged in an unfair labour practice as
enumerated in Section 2 (ra) read with item 10 of Fifth Schedule of
the Industrial Disputes Act and further submitted that the workman
had been performing the duties of Staff Nurse since her initial date
of joining yet she was paid a lump sum amount as opposed to the
salary in proper payscale with attendant benefits.
35. The management has contended that the workman was
POIT NO. 13/2023 Page 17 of 35
appointed on an ad-hoc basis as Staff Nurse for the period of 89
days alone. Thereafter, the management granted her extensions
based on the requirement basis. The workman knew that her
appointment was on contractual basis, wherein two of the Clauses of
the Contract Agreement/Terms of Contract stipulates that after the
expiry of the contract agreement, her services automatically stands
terminated and that she cannot claim regularization with the
management and that her services will not be counted for the
purposes of seniority, promotion and retirement benefits. On the
aspect of regularization, it is argued by the AR for the management
that this tribunal does not have power to grant regularization as it
would amount to backdoor entry into service according to the case
of Secretary, State of Karnataka and others vs. Umadevi and
others, appeal (civil) 3595-3612 of 1999, decided on 10.04.2006.
36. So far as the argument regarding the power of the tribunal to
grant regularisation is concerned, this tribunal is of the opinion that
it has the power to regularize the services of the workman in the
light of the judgment of Hon'ble Supreme Court titled as Chief
Conservator of Forest and Anr.,(1996) 2 SCC293, the judgment
of Hon'ble Delhi High Court titled as Project Dir. Dep. Of Rural
Development v. Its Workmen, 2019 SCC OnLine Del 7796. The
relevant portion of the aforesaid judgement is reproduced below:
"28. The decisions relied upon by the learned counsel
for the respondents in Ajaypal Singh (supra), ONGC
(supra) and Umrala Gram Panchayat (supra), also
leave no manner of doubt that the Supreme Court has
specifically observed that the prohibition laid down for
regularization in Uma Devi (supra) does not apply to
industrial adjudication and that the Industrial Tribunal
has the power to direct regularization of services in
POIT NO. 13/2023 Page 18 of 35
cases where pursuant to unfair labour practices,
employees have been made to render services for long
periods of time on causal basis for work that should
ordinarily be done by regular employees."
........
"61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It 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 of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
37. 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 POIT NO. 13/2023 Page 19 of 35 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 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 ).
38. Further, the Hon'ble Supreme Court in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 has observed the following with regarding to the practice of using Uma Devi (supra) as a tool to further exploit the services of the worker and not regularizing the services of the workmen concerned.
"7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad- hoc basis or daily-wage basis in different State POIT NO. 13/2023 Page 20 of 35 departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on POIT NO. 13/2023 Page 21 of 35 payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."
39. Hence, the reliance of the management on the judgments of Uma Devi (supra) to argue that this tribunal does not have the power to regularize the services of the workman concerned is misplaced in law. Notably, the Hon'ble Supreme Court in Chief Conservator of Forest (supra) and Hon'ble Delhi High Court in Project Dir. Dep. Of Rural Development (supra) and the Constitution Bench of the Hon'ble Supreme Court in Bidi Leaves (supra) clearly establish that Industrial Tribunals possess wide- ranging powers, which include power to create new rights and liabilities, alter terms of employment, and impose new obligations on employers in the interest of social justice and industrial peace. Furthermore, the Hon'ble Supreme Court in Sheo Narain Nagar (supra) highlights the misuse of the Umadevi (supra) to further perpetuate exploitative employment practices, rather than adhering to its true spirit, which emphasizes on regular employment. This Tribunal, therefore, is not only empowered but also obligated to rectify such injustices by regularizing the services of workmen who have been subject to unfair labor practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
40. The AR for the management has relied upon the case of S. Mariappan v. State of Tamil Nadu, WP (MD) No. 23062 to 23081 of 20/15 decided on 25.06.2019 (Madras High Court), University of Delhi and Ors. v. Delhi University Contract Employees Union and Ors., AIR 2021 SC 3305 to submit that based on these judgments the workman is not entitled for regularisation from her POIT NO. 13/2023 Page 22 of 35 initial date of appointment. At this point, it is highlighted that the said judgements are distinguishable and thus, are not applicable in the present set of facts and circumstances. Both these judgments wherein the temporary/contract workers approached for regularisation of their services, were not tested upon the scrutiny of Industrial Disputes Act qua unfair labour practice as highlighted in the judgment of Project Director (supra), which was also upheld by the Hon'ble Supreme Court in SLP Civil no. 34164/2019. The relevant portion of the judgment titled as Project Director (supra) is as follows:
"28.......The plea of the Corporation that the reason for not regularising the workmen concerned under the Certified Standing Orders of the Corporation is allegedly due to the fact that the appointment of the workmen concerned was made without following due procedure under the Recruitment Rules and that their appointments were illegal. This plea cannot be accepted by us in view of the legal principle laid down by this Court in the above decision, wherein it is clearly laid down that the Corporation cannot deny the rights of the workmen by taking the plea that their initial appointment was contrary to Articles 14 and 16 of the Constitution."
15. In view of above, it is accordingly observed that the Supreme Court has therefore, carefully created a special class of cases, wherein, the claim of unfair labour practice of continuing daily wagers/ad hoc employment/casual workers for long periods and regularization has withstood scrutiny by an Industrial Adjudicator under the Industrial Disputes Act, 1947.
.......29. Thus, in the light of the observations of the Supreme Court in Ajaypal Singh (supra), ONGC (supra) and Umrala Gram Panchayat (supra) as also of this Court in Ram Singh (supra), I find that the petitioner‟s reliance on the decision of the Supreme POIT NO. 13/2023 Page 23 of 35 Court in Uma Devi (supra) and of this Court in Anil Lamba (supra) is wholly misconceived. In my opinion, once the Tribunal was of the view that the petitioner was indulging in unfair labour practice, it was well within its domain to pass an order directing the petitioner to regularize the respondents‟ services."
41. On merits, the workman averred that she has joined into the employment of the management w.e.f. June 1997 against the sanctioned vacant post of Ward Sister. The management on the other hand contradicted the same stating that her appointment was never on any sanctioned post. The workman in support of her claim has placed on record Ex. WW1/7 the order dated 27.06.1997 for her initial appointment stating that "sanction is accorded to the adhoc appointment of Ms. Mumtaz Jahan as Staff Nurse in the Majeedia Hospital on consolidated salary (minimum basic pay + D.A. in the pay scale of Rs. 1400-2600) against the vacant post of Ward Sister for a period of 89 days or till the post of Ward Sister is filled through Selection Committee on regular basis whichever is earlier, w.e.f. 13.05.1997 subject to termination at any time without notice or assigning reasons." Likewise, Ex. WW1/8, Ex. WW1/10, Ex. WW1/11 are the extension orders issued by the management. Thereafter, from 01.07.1998 the management started giving her extension for the period of six months/three months on contract basis on a consolidated payment of Rs. 5000/- per month against the vacant post of Ward Sister and Ex. WW1/12, Ex. WW1/14, Ex. WW1/15, Ex. WW1/16 are placed on record in this regard. Ex. WW1/17 and Ex. WW1/19 are extensions orders issued by the management, wherein she was granted extensions for the period of two years and ultimately her services were regularized by the management w.e.f. 17.10.2003 (as per Ex. WW1/20). The said POIT NO. 13/2023 Page 24 of 35 documents clearly depict that the workman had been working continuously and uninterruptedly since her initial date of joining with the management against the sanctioned vacant post of Ward Sister. The management witness (MW1), Sh. Rukmesh Kumar S/o Sh. Devki Nandan in his cross-examination dated 27.10.2023 admitted that Ex. WW1/7 to Ex. WW1/20 are issued by the management. He confirmed that the workman joined into the employment of the management in its Hospital w.e.f. June 1997 as a Staff Nurse. He stated that "she was appointed because there was a vacancy of ward sister as the person working against the said post had gone on leave. I do not know the name of the said ward sister. I cannot even tell as to when the said ward sister had gone on leave and when she rejoined the management. I am not sure if the post of ward sister is higher in terms of salary and status than the staff nurse. I have no record to show that only gone on leave and not left the job of the management. It is incorrect to suggest that deliberately and internationally I am not placing the full facts in this regard before the court."
42. It is highlighted that the version of the aforesaid witness goes contrary to the records of the management. The management witness stated that the workman was appointed to fill in for another Ward Sister who had gone on leave. However, this version is directly contradicted by the appointment letter (Ex. WW1/7) and subsequent extension letters. These documents explicitly state that the workman was appointed "against the vacant post of Ward Sister for a period of 89 days or till the post of Ward Sister is filled through Selection Committee on regular basis whichever is earlier". This wording clearly indicates that the appointment was to fill a vacancy, not a temporary leave. The management witness POIT NO. 13/2023 Page 25 of 35 failure to name the Ward Sister who had supposedly gone on leave, coupled with the absence of any documentary evidence supporting this claim, further undermines the credibility of his testimony. Based on the inconsistencies of the documents of the management and the testimony of the management witness, this tribunal does not find the version of the witness believable.
43. The Management Witness (MW-1) admitted that the job of Staff Nurse is of permanent and perennial in nature. It has come in his cross-examination that "the present management is running this hospital since 1989. It is also correct that the job of staff nurse is continuing since 1989 to till date. I cannot tell as to how many sanctioned posts of staff nurse were there with the management. Vol. Without seeing the record. I do not have any record in this regard, therefore, I cannot say as to how many posts of staff nurse was there with the management......I cannot tell as to how many posts of staff nurse were lying vacant in the year 1997 to 2003....I can not say if the concerned workman was paid far less salary than the salary carried by the post of Staff Nurse."
44. The aforesaid witness when confronted with the questions pertaining to the sanctioned as well as vacant posts of Staff Nurse gave evasive responses such as "I cannot tell" and "I do not have any record in this regard", the same suggests a reluctance or unwillingness to disclose information. This is significant given that the witness, being a management representative, should reasonably have access to, or the ability to access, such employment records. In the context, when a party withholds information that is within their knowledge and means to produce, it is permissible for a tribunal or court to draw an adverse inference against that party. Therefore, in POIT NO. 13/2023 Page 26 of 35 this case, the tribunal will draw and adverse inference against the management for its failure to provide clear answers regarding the number of sanctioned and vacant posts of staff nurses is indicative of the fact that there were indeed ample posts lying vacant.
45. Even though the management has narrated in its written statement as well as in his cross-examination that once there was a break of 2 months while granting her extension. Based on which it is contested that she can not be said to be working continuously and uninterruptedly. It is important to highlight that such a break is merely an artificial break and does not amount to break in her continuity in service, more so when the workmen is engaged with the management w.e.f. 1997. Therefore, this tribunal does not find force in the contention of the management that the workman had not worked continuously and uninterruptedly with the management since her initial date of joining.
46. The workmen witness (WW-1) deposed in her cross- examination that she joined the employment of the management in the year 1997 as Staff Nurse. She was initially appointed for the period of three months and thereafter, the management kept renewing the said arrangement after every three months, and thereafter for the period of one year continuously. She stated that there was no service break given to her during her service period. She further stated that in the year 2003, she was appointed as Staff Nurse on contract basis for a period of two years extendable to 5 years and pursuant to the order dated 16.10.2003, issued by the management she gave her joining letter and duly reported for her duties. She stated that thereafter the management regularized her services w.e.f. 2003 vide order dated 27.03.2008 on the post of Staff POIT NO. 13/2023 Page 27 of 35 Nurse.
47. Further, Ex. WW1/18 placed on record shows that the workman was even interviewed for the post of Staff Nurse by the interview board which was conducted in the Registrar Office at the management. This is suggestive of the fact that the workman prior to her appointment even on contract basis was duly interviewed and selected by the Interview Board of the management. Therefore, her appointment cannot be treated as a backdoor entry for the purpose of regularization of her services. Further, it is nowhere disputed by the management that the workman was not performing the work of Staff Nurse as being performed by her regular counterparts working on the said post or that there is any difference in the nature of work, roles and responsibilities both after and prior to her regularization.
48. In view of the evidence placed on record and testimonies of both the parties, it is established that the workman had been performing the work of Staff Nurse from her initial date of joining i.e. June 1997 continuously and uninterruptedly till the date of her superannuation in May 2019. The work of Staff Nurse is admittedly to be a permanent and perennial nature of work. Despite this, the services of the workman from her initial date of joining to till the date of her regularization were treated as temporary/contractual and she was paid lump-sum salary as opposed to the regular and permanent Staff Nurses who are paid salary in proper payscale with all attendant benefits. It is established that the workman had been working against the sanctioned vacant post of Ward Sister and had been performing the work of Staff Nurse. The management witness failed to place evidence on record pertaining to the sanctioned and vacant posts of Staff Nurse and therefore this tribunal has drawn the POIT NO. 13/2023 Page 28 of 35 adverse inference against it and the said data has been intentionally and deliberately withheld despite having available means to produce the same. The management has not disputed that the workman does not possess the requisite qualifications for the post of Staff Nurse. This tribunal has failed to understand that despite working against the vacant post of Ward Sister and performing the work of Staff Nurse from the year June 1997 onwards, the management has swallowed the six years of the service of the workman, and regularized her only w.e.f 17.10.2003 as opposed to her initial date of joining. No policy, no parameters, logic, reasoning or whatsoever is given by the management to justify as to why the workman was only regularized on an abrupt date i.e. w.e.f. 17.10.2003 as opposed to her initial date of joining.
49. The management has also taken this contention that the workman had duly accepted the terms and conditions of her employment that she will not be claiming regularization and that her contract will be automatically terminated after the expiry of contract, therefore after giving her consent she can not claim that her services were not rightly regularized by the management w.e.f. her initial date of joining. This tribunal does not find agreement with the argument of the management. It is notable that the workman concerned is a lowly paid employee, and considering her socio- economic background she cannot be said to be in equal bargaining power to decide the terms of her employment, let alone regularization. The Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors vs State of UP., (1986)1 SCC 637 held that employees, especially those in low-wage categories, often have no choice but to accept employment under exploitative terms offered by the employer due to the prevailing conditions of POIT NO. 13/2023 Page 29 of 35 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 equal work. 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.
49. 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. Moreso, the terms of employment as stated by the management that the workman cannot claim regularization is nothing but against the public policy. The management cannot bar a workman from seeking her rightful entitlement through appropriate forum or court of law. Therefore, merely because the workman had given her consent to the terms and conditions of the contract, it does not bar her from raising the present dispute, as the said contractual conditions as long as it goes against the public policy does not have any value in the eyes of law.
50. In view of the admitted position and the material on record, this tribunal holds that the management has clearly committed unfair labour practice by extracting the work of Staff Nurse from the workman and paying her lesser wages associated with the said post POIT NO. 13/2023 Page 30 of 35 for the period i.e. June 1997 to 17.10.2003. Such an action of the management indicates unfair labour practices as mentioned in Fifth Schedule at entry no. 10 read with 2 (ra) of the I.D. Act and the same is being done solely with the object of depriving the workman the status and privileges of a regular and permanent Staff Nurse. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest (supra) wherein the Hon'ble Supreme Court of India had held that employing workers temporary 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.
51. So far as the reliance placed on the judgment of Hon'ble Supreme Court in ONGC v. Krishan Gopal & Ors., Civil Appeal 1878/2016 decided on 07.02.2020 by the management is concerned the Hon'ble Supreme Court in para 34 of the judgment has propounded the emergent position on the issue of granting regularisation as well as the powers of Industrial Tribunal/Labour Courts in this regard after analysing various judgments. Para 34 of the said judgment is as follows:- "34 The following propositions would emerge upon analyzing the above decisions:
(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen POIT NO. 13/2023 Page 31 of 35 including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;
(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;
(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.
52. The aforesaid judgment further affirms the powers of the Industrial Tribunal to grant regularisation when there is an aspect of unfair labour practice. The management has not placed any document on record to show that they do not have posts of Staff Nurse available since 1997 to 2003. Therefore, this judgment will POIT NO. 13/2023 Page 32 of 35 not be of any help to the management and on contrary it favours the case of the workman. In these circumstances, this tribunal holds that the workman namely, Smt. Mumtaz Jahan W/o Mohd. Mudassir Khan is entitled for regularization in service on the post of Staff Nurse w.e.f. June 1997 in the regular pay scale with all consequential benefits, either monetary or otherwise and for difference of salary on the principle of equal pay for equal work from June 1997 onwards. Hence, the terms of reference are answered in favour of the workman and against the management.
Issue no. 2 Relief.
53. In view of my findings on foregoing issues, this tribunal holds that the management has clearly committed unfair labour practice by extracting the work of Staff Nurse from the workman and paying her lesser wages associated with the said post for the period i.e. June 1997 to 17.10.2003. Such an action of the management indicates unfair labour practices and the same is being done solely with the object of depriving the workman the status and privileges of a regular and permanent Staff Nurse. Therefore, the workman namely, Smt. Mumtaz Jahan W/o Mohd. Mudassir Khan is entitled for regularization in service on the post of Staff Nurse w.e.f. June 1997 in the regular pay scale with all consequential benefits, either monetary or otherwise and for difference of salary on the principle of equal pay for equal work from June 1997 onwards. The management is directed to implement the award within 60 days of its publication failing which it will be liable for an interest @ 8 % per annum from the date of reference 17.08.2020 to till the final payment is made. The award is passed accordingly.
54. At this point, it is also noteworthy that the management has POIT NO. 13/2023 Page 33 of 35 specifically mentioned in its written arguments filed before this tribunal today in the pre-lunch session that it had sought adjournment while filing the fresh vakalatnama on 13.12.2023, so as to argue the case on behalf of the management. However, this tribunal proceeded to hear the arguments on the same day itself.
55. This tribunal takes serious note of this and does not appreciate such a conduct of the Counsels appearing on behalf of management. Once the case/brief has been accepted by an Advocate, then it becomes their onerous duty to be fully prepared for the matter and to appear before the court/tribunal so as to assist the court in the best possible manner. This Tribunal takes serious note for wasting its judicial time and resources yet Counsels are appearing in matters merely for seeking dates. Moreover, in the present case, Mohd. Waquas, Advocate for management has been appearing since the beginning of this case and he was very much present and had appeared in the present matter alongwith new counsels on 13.12.2023, which is the second date for final arguments. Thus, there is no change as such in the representation on behalf of the management and they had knowledge of the purpose for which the matter was fixed for 13.12.2023. Perusal of file reveals that for the first time, the matter was fixed for final arguments on 30.11.2023. On the said date, no one appeared on behalf of the management to argue the matter. Consequently the matter was again fixed for final arguments on 13.12.2023. Even on the said date, instead of arguing the matter, management resorted to filing an application for re- opening of management evidence for the purpose of marking the exhibits. However, this tribunal in the interest of justice allowed the said application and documents were accordingly exhibited and pass over was sought. Pursuant to which detailed arguments were heard POIT NO. 13/2023 Page 34 of 35 from Mr. Hardik Rupal, Advocate, who was present in-person before the court alongwith Mohd. Waquas, Advocate and also from Mr. Mohender Rupal, Advocate, who assisted the tribunal through VC on behalf of management and also from the AR for the workman. The Ld. Counsels for the management sought time for filing of written submissions/judgments and in the interest of justice this tribunal adjourned matter for 14.12.2023 on which date written submissions/judgments were filed on behalf of the management. Same were taken on record. Despite affording legitimate accommodation, such an averment was conspicuously mentioned in the written arguments which is not at all appreciable by the tribunal. Since it has always been the endeavour of the court to expeditiously dispose of the matters, this court does not allow or support the practice of seeking unnecessary adjournments. It expects the representatives of both the parties to be fully prepared for their case on the date fixed, so that no one should suffer due to delay in justice as "Justice Delayed is Justice Denied". In view of above, such a conduct or averments made on behalf of management are not at all appreciable.
56. The management is directed to implement the award within 60 days of its publication failing which it will be liable for an interest @ 8 % per annum from the date of reference 16.05.2016 to till the final payment is made. The award is passed accordingly.
57. 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 14.12.2023. (Ajay Goel) POIT-I/RADC, New Delhi.
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