Delhi District Court
Sh. Rajender Kumar Gupta vs M/S Delhi Flood Control Department on 18 July, 2009
1
IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.43/08
Sh. Rajender Kumar Gupta Workman
Represented by
Delhi Flood Control Mazdoor Union
H. N. 4, Gali No 1, Karkardooma Village
Delhi 110092.
Versus
M/s Delhi Flood Control Department Management
through its Chief Engineer ( I & F)
4th floor, ISBT, Kashmere Gate, Delhi.
Date of institution 12.03.08
Arguments heard on 17.07.09
Date of Award 18.07.09
AWARD
1.Workman has raised the present industrial dispute through his Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal for adjudication in the following terms of reference:-
''Whether the demand of Sh. Rajender Kumar Gupta S/o Sh. Ramesh Chand Gupta for regular appointment in the Department of Irrigation and Flood, Govt. of NCT of Delhi as Assistant 2 Generator Operator in the pay scale of Rs 260-400 ( as revised from time to time) w.e.f. 11.10.84 and grant of benefits of ACP scheme is justified; and if yes, to what relief is he entitled ?''
2. Facts emerging from statement of claim are that workman was appointed as Assistant Generator Operator on adhoc basis w.e.f. 11.7.84 when Management had no recruitment rules. It is alleged that recruitment rules of CPWD were made applicable to the Management. It is alleged that as per recruitment rules of CPWD, posts of Assistant Generator Operator and Assistant Operators were the same except difference was of nomenclatures and after merger of both the posts consequent upon arbitration award, pay scale of the post of operator was fixed as Rs 260-400. Workman allegedly fulfills all the recruitment criteria for the post of operator. Workman is alleged to have made representation to the Management for his regularization. He had allegedly undergone trade test conducted by Management and was declared qualified. His Union had also allegedly made representation but no action has been taken by the Management for his regularization. It is alleged that his police verification and medical examination has been got conducted by the Management but no order for regularization of his services has been made. It is alleged that if services of the workman had been regularized, he would have been entitled to ACP benefits. Workman is alleged to be member of Delhi Flood Control Mazdoor Union and has 3 authorized it to raise the present dispute on behalf of the workman. It is alleged that workman is entitled to be regularized as Assistant Generator Operator w.e.f. 11.7.84 in the pay scale of Rs 260-400( as revised from time to time) along with all consequential benefits including ACP benefits.
3. In the WS filed on behalf of the Management, it has not been disputed that workman has been working with it since 11.7.84 on ad-hoc basis as Assistant Generator Operator. It has also not been disputed that recruitment rules of CPWD and its Manual are applicable on the Management. However, it is alleged that nature of job in both the establishments is altogether different. It has also not been disputed that trade test of the workman was conducted. But it is stated that conduct of trade test is not sufficient for considering workman for regularization. It is alleged that since there is no sanctioned post of Assistant Generator Operator available with the Management to accommodate him, he has not been regularized.
4. In the rejoinder, workman has reiterated and reaffirmed all the facts as contained in statement of claim and has denied all the facts as set out in the WS.
5. On the basis of pleadings of the parties, following issues were framed :-
(1) As per terms of reference.4
6. In order to prove their case, workman has filed his affidavit and has been examined and cross examined as WW--1. On behalf of Management affidavit of N.S.Shami, executive Engineer has been filed who has been examined and cross examined as MW--1.
7. I have heard AR for the parties and have carefully gone through record of the case. My issuewise findings are as under :-
8. Findings on issue No 1 Issue No 1 is as per terms of reference. Terms of reference are whether the demand of Sh. Rajender Kumar Gupta S/o Sh. Ramesh Chand Gupta for regular appointment in the Department of Irrigation and Flood, Govt. of NCT of Delhi as Assistant Generator Operator in the pay scale of Rs 260-400 ( as revised from time to time) w.e.f. 11.10.84 and grant of benefits of ACP scheme is justified; and if yes, to what relief is he entitled.
9. WW--1 Rajender Kumar Gupta ( workman) in his affidavit has deposed that he was appointed as Assistant Generator Operator on adhoc basis w.e.f. 11.7.84 when Management had no recruitment rules. Copy of his appointment letter has been proved as Ex WW1/1. It is deposed that he fulfilled the requirements of recruitment rules for the post of Assistant Generator operator/ Operator ( E & M) copy of which has been proved as Ex WW1/2. It is deposed that as per letter dated 31.3.01 Ex WW1/3 issued by the Management it was confirmed that CPWD Manual/ Recruitment 5 rules are benchmark for regularization/ appointment/ promotion/ holding trade test etc in the Management. It is deposed that as per order dated 7.5.95 Ex WW1/4 issued by DG ( W), CPWD, Assistant category got merged with main category w.e.f. 1.1.73, therefore, he is also entitled to receive benefits of same pay scale w.e.f. 11.7.84 i.e. In the pay scale of Rs 260-400 ( revised from time to time). He is deposed to have appeared in the trade test and was declared qualified. Copy of result has been proved as Ex WW1/6. He is deposed to have made representation to the Management for his regularization, copy of the same has been proved as Ex WW1/5,. Copy of representation made to Management by his Union has been proved as Ex WW1/7. Management is deposed to have got his police verification and medical check up conducted. Copy of minutes of meeting held on 14.3.07 wherein Superintending Engineer was authorized to take decision in the matterof regularization of work charged employees, has been proved as Ex WW1/8. It is deposed that as per office order dated 12.11.08 Ex WW1/9, services of 10 persons who had passed trade test along with workman have been regularized. It is deposed that workman is entitled to be regularized as Assistant Generator Operator w.e.f. 11.7.84 in the pay scale of Rs 260-400( as revised from time to time) along with all consequential benefits including ACP benefits. This witness has not been cross examined on behalf of Management. 6
10. MW--1 Sh. N.S. Shami is Executive Engineer of the Management. He has deposed that there is no sanctioned post/ vacancy of Assistant Generator Operator in management and due to non availability of post, the workman has not been regularized. It is deposed that provisions of CPWD Manual are applicable to employees of the Management but nature of duties in CPWD and Management are deposed to be different. In his cross examination, he has admitted that increments are being given to workman as admissible under the rules. He has also admitted that as per rules, all the amenities and facilities are being given to the workman. He has also admitted that on 18.8.2000 workman had given trade test which he qualified.
11. It has been argued by the workman that he was appointed on adhoc basis on 11.7.84 as Assistant Generator Operator and since then he has been continuously working. It is argued that requisite qualifications for the said post are that candidate should be matriculate, hold ITI Certificate as electrician and has 2 years experience. It is argued that workman fulfills all the requisite qualification for the said post and has filed all the documents/ certificates but has not been regularized in proper pay scale from initial date of his appointment. It is also argued that workman has done apprentice from UP Electric Board.
12. On the other hand, AR for the management has argued 7 that there is no regular post of Assistant Generator Operator in the department of Flood Control to accommodate the workman, therefore, he cannot be regularized and will be considered along with other candidates as and when any vacancy occurs.
13. In his cross examination, MW-1 N. S. Shami, Executive Engineer has admitted that workman has been working on adhoc basis on the post of Assistant Generator Operator since 11.7.84 and that his services were being extended from time to time till date. He has even admitted that he has been given increments under the rules. He has even admitted that a trade test was held on 18.8.2000 , workman had appeared therein and was declared qualified. He has also admitted that case of the workman was sent to Chief Engineer for regularization vide letter 20.6.05 Ex WW1/7. However, he has denied that workmen who, were employed with claimant, have been regularized. It is, therefore, clear that status of the workman is of an employee appointed on adhoc basis. He is not a regularly appointed person on the basis of notification of vacancy and upon competitive examination. No suggestion has been put to MW-1 that any vacancy exists. On the other hand, the workman has placed on record Ex WW1/9 in which a group of 10 persons had been regularized. Ex WW1/9 was on the basis of order of Hon'ble Supreme Court dated 3.10.88. As per this notification 10 number of posts in the group ' C' were created by GNCT of Delhi to 8 regularize 10 workmen. The name of the present workman is at number 9 in seniority list of employees working on adhoc basis. The same has been proved as Ex WW1/6. It is true that a trade test had been conducted and present workman was declared successful in test. However, fact remains that according to MW-1 no sanctioned vacancy on the post of Assistant Generator Operator exists against which workman could be accommodated and will be considered as and when vacancy so arises. Nothing has been brought on record from which it could be inferred that any vacancy exists.
14. In Indian Drugs and Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408 and Secretary, State of Karnataka vs Umadevi and others AIR 2006 SC 1806, it was held that employment of daily wager/ contractual workers confers no right of permanent employees. Secondly, it was held that contractual employee working on less than wages than regular employees is also not illegal because when they are employed, they knew that they were being employed as daily wager purely on temporary basis. It was also held that permanent absorption of daily wager can not be claimed as a matter of right and set of persons can not be preferred over vast majority depriving them of their opportunity to compete for public employment. It was also observed that temporary employees 9 appointed in violation of constitutional scheme do not have an enforceable legal right to be permanently absorbed nor the court is competent to direct Government to make them permanent. It was further held that Govt. should frame one time policy for regularization of the workmen who had been working since long. Similar observations were also made in UP Power Corporation vs. Bijli Mazdoor Sangh and others 2007 (5) SCC 755
15. In view of authorities referred to above since the workman is working on adhoc basis and is not a regularly appointed employee of the Management, this court is not competent to direct his regularization. However, according to the authorities referred to above, Government is under an obligation to frame a policy for regularization of workmen working on work charged, daily wages basis. It is not known whether Management has framed any policy in this regard. According to MW-1, case of workman was sent to Chief Engineer for regularization vide Ex WW1/7. This may show that Management is seized of the matter and will take the decision one way or the other. However, that in itself does not create any right in favour of workman for regularization because it all depends upon the policy framed by Management for regularization of work charged/ adhoc employees. I, therefore, come to the conclusion that workman being an employee employed on adhoc basis, his demand for regular appointment to 10 the post of Assistant Generator Operator can not be said to be justified. Secondly, in view of authorities of Hon'ble Supreme Court since he has been appointed on adhoc basis, he is not entitled to same pay scale which was being paid to his counter parts in revised pay scale from date of his initial appointment.
16. As regards, grant of benefits of ACP scheme is concerned, Swamy's Handbook 2004 page 6'' Assured Career Progression Scheme point 3 provides that Casual employees ( including those with temporary status) ad hoc and contract employees are not eligible for benefits under the scheme. Office Memorandum issued by Ministry of Personnel, Public Grievances and Pensions ( Department of Personnel and Training), page 12, point raised at Sl No 30 was whether the benefit of past service will be extended to temporary status employees after their regularization ? In response to this query, it has been clarified that benefit of past service shall not be extended to temporary status employees after their regularization for the purpose of ACP. Since the workman is not appointed against any regular vacancy, he is not entitled for grant of benefits of ACP nor his demand for the same is justified. This issue is accordingly decided.
17. Relief:- In view of my findings on various issues referred to above, I hold that demand of the workman for regularization against the post of Assistant Generator Operator from the date of 11 his appointment i.e 11.10.84 in pay scale 260-400 ( as revised from time to time) is not justified. He is not entitled for ACP scheme being not regularly appointed employee of the Management. He is not entitled to any relief. Reference is answered in above terms. Award is accordingly passed. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in the open court
on 18.07.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II
Karkardooma Courts, Delhi.