Delhi District Court
Workmen vs . on 8 August, 2014
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No 34/05
Workmen
Sh. Ganesh Das s/o Sh. Mana Bendra Das r/o 717/2 Mata Chowk,
Mahipalpur, New Delhi 110037 and Sh. Vinod Kumar Bahukhandi s/o
Late Sh. J.P. Bahukhandi, F 131, B-1, Pratap Vihar, Ghaziabad, UP.
Vs.
Managements
1. M/s Taj Sats Air Caterers Ltd., Indira Gandhi International
Airport Complex, Gurgaon Road, N. Delhi
2. M/s Mohd. Jaffer Yusuf, L-53, Ground Floor, Mahipalpur
Extension, New Delhi.
3. M/s Aroon Aviation Servies Pvt. Ltd. (Added in array of
parties vide order dated 04.11.2011).
Date of institution 23.02.2005
Date of reserving award 30.07.2014
Date of award 08.08.2014
Ref : F. 24(3533)/04/Lab./4013-17 dated 14.02.2004
AWARD
1. Workmen have raised the present industrial dispute through
union and on failure of conciliation proceedings, GNCT of Delhi referred
the dispute to this Tribunal for adjudication in following terms of
I.D. No. 34/05 Page 1 of 15
reference:-
"Whether Sh. Ganesh Dass s/o Sh. Mana Bendra Das
and Vinod Kumar Bahukhandi s/o Late Sh. J.P.
Bahukhandi are entitled to be regularized in service
and if so, from when and what relief are they entitled
and what directions are necessary in this respect?
2. Statement of claim has been filed for workmen, wherein it is
stated that workmen have been working with management no.1 as utility
workers since 23.03.1998; that the management no.1, in order to evade
compliance of various beneficial legislation and to deprive the workmen
of benefits thereunder, showed the workmen to be employees of so called
contractor M/s. Mohammed Zafar Yusuf; that the workmen are under
direct supervision, control and direction of officers of management no.1;
that the management no.1 keeps the workmen on temporary/casual basis
etc. for several years to deny them equal pay for equal work in violation of
its own certified standing orders; that regular workers of management no.1
are getting minimum wages of Rs.7800/- pm, whereas the present
workmen are getting salary of Rs.2592/- pm.; that permanent workers of
management no.1 are getting facilities of LTA, Privilege Leave,
Productivity linked bonus, Variable DA, bonus, gifts, sick leave, casual
leave etc. whereas the present workmen are not getting any such facilities;
that nature of work, which the present workmen are performing is of
permanent and perennial nature and they are entitled to get equal pay and
other benefits at par with regular/permanent workmen as they are doing
the same job for the same number of hours; that management has
employed the workmen through various contractors and that two sham
I.D. No. 34/05 Page 2 of 15
contractors, who are resident of Mumbai, come only for one or two days
in a month to give salary to the workmen in totally camouflage manner;
that workmen sent demand notice dated 16.7.04 for regularization of their
services and payment of equal pay with equal wages as that of regular
employees; that management is employing more than 105 workmen to
perform the duties of utility workers for past more than six years; that out
of about 1100 workers, only 170 workers are permanent with management
no.1 and rest of them are contract workers; that conciliation proceedings
before conciliation officer failed due to adamant behaviour of
management no.1. It is prayed that management no.1 be directed to
regularise the workmen from the date of their joining, with equal pay
at par with its regular utility workers alongwith arrears of wages.
3. In the written statement filed for management no.1, it is stated
that the reference order stipulates that "an industrial dispute in respect of
the matters specified in the Schedule exists between the management of
M/s Taj air Caterers Ltd, Gurgaon Road, IGIA New Delhi 110037 (ii) M/s
Mohammed Jaffar Yusuf, L 53, Ground Floor, Mahipalpur Extn,N. Delhi
110037 and its workmen"; that the reference order by itself discloses that
the purported dispute referred is between M/s. Mohammed Jaffar Yusuf
and its workmen and there is no relationship of employer and employee
between management no.1 and workmen and thus, no dispute regarding
regularisation of workmen with management no.1 can be raised; that
admittedly workmen are employees of management no.2, who entered
into an agreement with management no.1 to provide certain services and
the workmen were engaged by the said contractor; that the appropriate
government has not abolished the said contract and thus, the same
I.D. No. 34/05 Page 3 of 15
continues to be valid and in existence; that reference order does not pose
any question whether the claimants can legally claim to be employees of
management no.1. All other contentions made in the statement of claim
have been denied and dismissal of the same has been prayed for.
4. Management no.2 in its written statement has, more or less,
reiterated and corroborated the version of management no.1 in its written
statement. It is stated that workmen are being paid wages more than
minimum wages alongwith all the statutory benefits under the law. It is
stated that there is no legal right vested in workmen to claim regularisation
with management no.1. It is stated that all the workmen are governed by
the terms and conditions of their employment offered by management no.2
and accepted by them.
5. Separate replications have been filed for workmen to the written
statements of both the managements, wherein workmen have reiterated the
contents of their statement of claim and have denied the averments made
in the written statements of both the managements.
6. On the basis of said pleadings, following issues were framed by
Ld. Predecessor vide order sheet dated 13.07.2005 :-
1. Whether the cause of workmen has been duly
espoused? OPW
2. Whether the workmen Sh. Ganesh Das and
Sh. Vinod Kumar Bahukhandi are entitled for
regularization.
3. In terms of reference.
7. After framing of issues, both the workmen namely S/Sh. Ganesh
Das and Vinod Kumar Bahukhandi, examined themselves as WW 1 and
WW2 respectively. In their affidavits, filed by way of examination-in-
chief, workmen have more or less reiterated the contents of statement of
I.D. No. 34/05 Page 4 of 15
claim.
8. In cross-examination, WW 1 has deposed that he was issued
appointment letter by management no.1 but he cannot produce the same. It
is denied that management no.1 never issued him appointment letter. It is
denied that he was appointed by management no.2. It is deposed that now
a days, he is being paid salary by M/s Aroon Aviation Pt. Ltd. He has
deposed that he has seen the original salary Register Ex. WW1/DC
bearing his signature at point X. It is deposed that stamp of Mohd. Zafar
was not there and only stamp of Taj Air Caterers was there when he
signed the same. It is denied that stamp of Mohd. Zafar Yusuf & Co. was
affixed at the time when he signed. It is admitted that M/s Mohd. Zafar
Yusuf and Co. has been taken over by M/s Aroon Aviation Services Pvt.
Ltd during the pendency of this case. It is denied that now he is an
employee of M/s Aroon Aviation Services Pvt. Ltd.. It is denied that there
is no relationship between him and management no.1.
9. WW 2, in his cross-examination, has deposed that management
no.1 has not issued him appointment letter. It is denied that earlier he used
to work under Mohd. Zafar Yusuf and Co. and now, it has been taken over
by M/s Aroon Aviation Services Pvt. Ltd. It is denied that he is not
working under the direct supervision and control of management no.1. It
is deposed that he is an casual employee of management no.1. It is denied
that he is receiving legal benefits applicable to him. It is admitted that he
had received Diwali Gifts from management no.2.
10. MW 1 Sh. Ankur Kathuria, Personnel Officer of management
no.1, in his affidavit, has more or less reiterated the contents of written
statement of management no.1. In his cross-examination, he has deposed
I.D. No. 34/05 Page 5 of 15
that airport entry passes are made for entry in aircraft and that the food is
packed by the employees of Taj Sats. It is denied that claimants did not
join Aroon Aviation or their consent was not obtained for joining Aroon
Aviation. It is denied that claimants in case of injury are removed to
Indian spinal and Injuries by Taj Sats for treatment. He has voluntarily
stated that it takes its own employees to the hospital for treatment and not
the claimants. It is denied that management no.1 did not issue appointment
letter on demand. He has voluntarily stated that since they are not their
workers, appointment letters were not issued. It is admitted that
management requires regular workers because the work being done by
them is of regular nature. It is denied that claimants were never
employees of Mohd Zafar or Aroon Aviation. It is denied that salary and
bonus are paid by management no.1 to claimants. It is denied that
conveyance, uniform and washing facility are being provided by
management no.1 to claimants.
11. MW 2 Sh. Deepak Kumar, Social Security Assistant from
Employees Provident Fund Organisation has proved on record copies of
record i.e. forms FA, pertaining to workmen, as Ex. MW2/1 to Ex.
MW2/9. In cross-examination, he has deposed that Ex. MW2/1 was filled
by Mohd Zafar Yusuf & Co. He has deposed that their office verifies
about the workers of the company from the eligibility register submitted
by Mohd. Zafar Yusuf and Co.
12. MW 3 Sh. Sanjeev Kumar, LDC from another ESIC office at
Palam Dwarka, New Delhi has also proved on record attested copy of
forms 6A, Contribution forms and declaration forms, pertaining to the
workmen and Mohd. Zafar Yusuf and Co., as Ex. MW3/1 to Ex. MW3/14.
Attested copies of contribution forms pertaining to M/s Aroon Aviation
I.D. No. 34/05 Page 6 of 15
Services Pvt. Ltd. have been proved as Ex. MW3/15 to Ex. MW3/18. In
cross-examination, he has deposed that no verification with regard to the
name of the workers or the amount being deposited towards the ESI is
conducted in their branch but that is conducted by another branch, about
which he cannot say. It is deposed that it is not mandatory to write the
name of hospital or dispensary in form 6A.
13. MW 4 Sh. Ravinder Singh, Supervisor of Mohd. Zafar Yusuf and
Co. the contractor, in his affidavit, has more or less reiterated the contents
of written statement of management no.2. None appeared for workmen to
cross-examine the witness.
14. MW 5 Sh. Suresh Rana, Managing Director of M/s Aroon
Aviation Services Ltd., the contractor, in his affidavit, he has more or less
reiterated the contents of written statement of management no.2. He has
also deposed that by virtue of a tripartite agreement entered into between
management no.1, management no.2 and M/s Aroon Aviation Services
Pvt. Ltd., the business of management no.2 was taken over by M/s Aroon
Aviation Services Pvt. Ltd. None appeared for workmen to cross-examine
the witness.
15. I have heard arguments from Sh. K.C. Dubey, Ld. Counsel/AR
for workmen, Sh. Alok Bhasin, Ld. Counsel/AR for management no.1. No
arguments have been advanced for managements no.2 and 3. I have gone
through the written submissions filed for the workmen and management
no.1.
16. Management no.1 has relied upon following authorities:
1. The Newspapers Ltd. vs. The State Industrial
Tribunal, UP AIR 1957 SC 532
2. Management of Hotel Samrat vs. GNCT &
Ors. 2007 (113) FLR 395
I.D. No. 34/05 Page 7 of 15
3. Nellal Cotton Mills, Tiruneivell vs. Labour
Court, Madurai and another 1 LLJ 1965 95
4. International Airport Authority of India vs.
International Air Cargo Workers' Union and Another
2009 IV LLJ 31
5. BHEL Workers' Association Hardwar &
Others vs. Union of India and others 1985 SC 428
6. Hindustan Paper Corporation Ltd. vs.
Kagajkal Thikadar Sramik Union and Others 2008 I LLJ
917
7. Hindustan Steel Works Construction Ltd vs.
The Commissioner of Labour & Ors. I LLJ 1997 SC 656
8. Tajinder Singh and others vs. Chairman,
Airport Authority of India 2006 INDLAW DEL 980
9. Guru Teg Bahadur Hospital vs. Sushil Kumar
and Ors MANU/DE/1248/2010
10. Bharat Heavy Electricals Ltd. vs. Anil and ors.
2007 I LLJ SC 619
11. Workmen of Nilgiris Co-operative Marketing
Society Ltd. vs. State of Tamil Nadu 2004 II LLJ
12. Swapan Das Gupta and others vs. The First
Labour Court of West Bengal and others 1976 LAB I.C.
202
13. General Manager (OSD), Bengal Nagpur
Cotton Mills, Rajnandgaon vs. Bharat Lal and Another
2011 1 LLJ
14. Prem Nath Yadav and Chandra Bose and ors
2011 1 LLJ 316
15. Management of M/s Prakash Spares vs. Govt
of NCT of Delhi & Ors. MANU/DE/4146/2010
16. Management of Kumar Bros co. and Ors. vs.
Shri Jai Prakash Mistry MANU/DE/2088/2009
17. Automobile Association of Upper India vs.
PO Labour Court II and Anr 2006 III LLJ
18. Management of M/s Puri Urban Co-O Bank
vs. Madhusudan Sahu and Another 1992 (65) FLR 805
19. Employers in relation to the Management of
Reserve Bank of India vs. Their Workmen 1996 lab I.C.
1048
20. Haldia Refinery Canteen Employees Union
and Another vs. Indian Oil Corporation Ltd. and Ors
2005 II LLJ 684
21. Mahindra & Mahindra vs. Presiding Officer
and Anr 2013-I-LLJ-186 (P&H)
22. Cement Corporation of India Ltd. vs.
Presiding Officer, Labour Court cum Industrial
I.D. No. 34/05 Page 8 of 15
Tribunal, Hissar and Ors. 2010 II LLJ 548
23. Airports Authority of India Mumbai vs. Indian
Airport Kamgar Union and Others 2011 I LLJ 211
24. Bhartiya Kamgar Sena vs. Udhe India Ltd.
and Anr 2008 LLR 344
25. M/s Indian Iron & Steel Company Ltd. vs.
State of West Bengal & Ors. 2011 LLR 771
26. State of Haryana vs. Jasmer Singh and ors.
AIR 1997 Supreme Court 1788
27. State of Haryana and Another vs. Tilak Raj
and Ors. 2003 III LLJ 487
28. Steel Authority of India Ltd. and Anr vs.
Dibyendu Bhattacharya (2011) 2 SCC (L&S) 192
29. Air India Ltd. vs. Presiding Officer, Central
Government Industrial Tribunal & Anr. 2011 III CLR
146
17. Workmen have relied upon following authorities:-
1. Delhi Cloth General Mills Company Ltd. 1967
1 LLJ 423 SC
2. AIR 1979 SC 1356 Pottery Mazdoor
Panchayat
3. (1981) II ILR (Delhi) 124, Indian Bank vs.
R.K. Baweja
4. M/s Indian tourism Development Corporation,
New Delhi 1982 LAB I.C. 1309
5. English Electric Company of India Ltd.
Industrial Tribunal Madras and Anr 1987 1 LLJ 141
6. Workmen of Seshasayee Paper and Board Ltd
vs. State of Tamilnadu & Ors. 1991 1 LLJ 274
18. I have perused the entire case record. My findings on the issues
are as under:-
19. Findings on issue no.1
Issue no.1 is : Whether the cause of workmen has been duly
espoused? OPW
20. No evidence has been led for workmen to prove espousal by
union. However, in M/s Payen and Talbros Ltd., vs Hans Raj and
others DLT 1968 Vol. IV Page 130 it was held by Hon'ble Delhi High
Court that:-
I.D. No. 34/05 Page 9 of 15
the language of section 2(k) of the Industrial Disputes Act in
itself is wide enough to cover a dispute between an employer
and a single employee but having regard to the scheme of the
Act and the purpose for which it was enacted and the use of the
word "workmen" in this definition clause, industrial dispute
has been construed by the courts to mean a collective dispute,
i.e. a dispute where workmen as a body or a considerable
section of them make a common cause with the individual
workman and raise a demand. It would not appear that the
condition of an espousal or of a body or a considerable section
of workmen making a common cause with the particular
dispute arises only when individual dispute per se is of the
nature of an individual dispute concerning a particular
workman as opposed to collective dispute involving all the
workmen. Where the dispute which was referred to the
Tribunal related to gratuity scheme sought to be
introduced for the benefits of all the workmen employed in
a particular company, it was per se an industrial dispute.
No espousal or support was needed for such a dispute.
21. In Newspapers Limited, Allahabad Vs. State Industrial
Tribunal, Uttar Pradesh and others, 1960 II LLJ, SC 37, it has been
held as under:-
It is not necessary that a registered body should sponsor
a workman's case to make it an industrial dispute. Once,
it is shown that a body of workmen, either acting
through their union or otherwise, have sponsored a
workman's case it becomes an industrial dispute.
22.. The above judgments imply that espousal is not necessary in case
of more than one workman. Therefore, even if it is proved that there is no
proper espousal in the present case, the same would not affect the case of
the workmen adversely. Issues no.1 is decided accordingly.
23. Findings on issue no.2 and 3
Issue no.2 is Whether the workmen Sh. Ganesh Das and Sh.
Vinod Kumar Bahukhandi are entitled for regularization. Issue no.3 is :
In terms of reference. Both these issues are taken up together as they
involve same point to be decided.
I.D. No. 34/05 Page 10 of 15
24. Terms of reference are "Whether Sh. Ganesh Dass s/o Sh. Mana
Bendra Das and Vinod Kumar Bahukhandi s/o Late Sh. J.P. Bahukhandi
are entitled to be regularized in service and if so from when and what
relief are they entitled and what directions are necessary in this respect?"
25. In Hindustan Shipyard Limited and others vs. D.P. Sambasiva
Rao and others, (1996) 7 SCC 499, Hon'ble Apex court enunciated that
the process of regularisation involves regular appointment which can be
done only in accordance with the prescribed procedure. The directions of
the High Court for regularisation of medical officers engaged de hors the
regular procedure was set aside.
26. In the present case, workmen have not proved on record any
appointment letter issued to them by management no.1. No
application for the purpose of seeking employment with management
No.1 against any advertisement for vacancy, has been brought on
record by workmen. Hence, workmen have not been able to prove
that they went through the prescribed procedure for appointment on
regular basis.
27. In Jaidev vs. Indira Gandhi National Open University & Another,
102, (2003) DLT 234 (DB), Hon'ble High Court arrived at the conclusion
that no direction can be given to bye-pass the regular selection process
even in the face of the existence of regular vacancies.
28. Thus, in view of above propositions of law, no direction can be
issued to bye-pass the regular selection process.
29. Though, workmen have been working for management, they have
to go through the regular selection process i.e. application for
appointment, selection of successful candidates and issuance of
I.D. No. 34/05 Page 11 of 15
appointment letter etc. for claiming regularisation. Workmen have neither
gone through these steps for regular appointment nor they have got any
appointment letter to show that they were appointed by the management
No.1 on regular basis. Thus, they cannot be allowed to claim
regularisation with management No.1, irrespective of the fact whether
they are employees of management No.1 or contractor.
30. In Arundhati Ajit Pargaonkar (Dr.) vs. State of Maharashtra &
Others, 1994 II CLR 1113, it was observed that the appellant was not
entitled to claim that she should have been deemed to have been
regularised as she had been working without break for nine years.
31. In view of above judgment, despite the fact that workmen have
been working with management No.1 continuously since their
appointments, the workmen will not be entitled for regularisation.
32. In State of Orissa Vs. Balram Sahu (2003) 1 SCC 250, it was
held that:-
the respondent workers cannot be held to hold any
post to claim even any comparison with the regular and permanent staff, for any or all purposes including a claim for equal pay and allowances.
33. Management has relied upon International Airport Authority of India Vs. International Air Cargo Workers' Union and Another 2009 IV LLJ 31 (SC), wherein it was held that in the absence of a notification under section 10 of CLRA Act, 1970 prohibiting the employment of contract labour in the operation of cargo handling work, the workmen employed as contract labour are not entitled to claim absorption.
34. In the present matter, it is not the case of workmen that any such notification u/s 10 of CLRA Act has been issued prohibiting the employment of contract labour in the management no.1. Hence, they I.D. No. 34/05 Page 12 of 15 cannot be allowed to seek regularisation with management no.1, in view of above proposition of law.
35. During the course of arguments, Ld. Counsel/AR for workmen took an objection that the engagement of contractors is sham camouflage. However, this is not the issue as referred by the appropriate government to this Tribunal and in my considered opinion, U/s 10(4) of Industrial Disputes Act, this Tribunal must confine its jurisdiction to the points referred to it and the matters incidental thereto. Reference in this regard is had to the judgment of Hon'ble Supreme Court in Delhi Cloth and General Mills Co. Ltd. vs. Workmen and others, 1969, AIR SC 243, wherein Hon'ble Supreme Court observed as follows:-
From the provisions of Section 10 (1) (a) and 10 (4) of the Act it appears that while it is open to the appropriate government to refer the dispute or any matter appearing to be connected therewith for adjudication. The Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the dispute referred to it but must confine its attention to the point specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary;
"happening or likely to happen as a result of or in connection, with something more important; being an incident; casual, hence, secondary or minor, but usually associated."
"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associate with the dispute. The dispute is the fundamental thing, while something incidental thereto is an adjunct to it. Something, incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct.
36. Issue of sham transaction or camouflage is neither referred to this Tribunal nor is incidental to the issue of regularisation as referred to this Tribunal. Hence, objection of workmen in this regard cannot be I.D. No. 34/05 Page 13 of 15 considered.
37. As far as claim of workmen regarding "equal pay for equal work"
at par with regular employees of mangement no.1 is concerned, proviso to Rule 25(V) of Contract Labour (Regulation and Abolition) Central Rules, 1971 is reproduced as below:-
Provided that in the case of any disagreement with regard to the type of work, the same shall be decided by the Deputy Chief Labour Commissioner (Central)
38. In State of Haryana and Others vs. Charanjit Singh and Others etc AIR 2006 SC 161, it has been held by Hon'ble Supreme Court as under:-
Undoubtedly, the doctrine of "equal pay for equal work"
is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work for equal value. The principle of "equal pay for equal work" has no mechanical application in every case. ............... A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of principle of "equal pay for equal work"
requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body.
(emphasis added)
39. In view of above proposition of law and Proviso to Rule 25(V) of Contract Labour (Regulation and Abolition) Central Rules, 1971, the issue whether present workmen perform equal work as tested on anvil of I.D. No. 34/05 Page 14 of 15 function and responsibility, can be decided by expert body i.e. Deputy Chief Labour Commissioner (Central). However no such report of Dy. Chief Labour Commissioner has been given in this regard in the present case, which is a lacunae in the claim of workmen regarding equal pay for equal work at par with regular employees of management no.1.
40. In view of above proposition of law and facts and circumstances of the case, claim of workmen regarding 'equal pay for equal work' at par with regular employees of management no.1 does not survive.
41. In view of above discussion and propositions of law, I am of the considered opinion that, workmen cannot be allowed to seek regularisation with management no.1 at par with its regular employees. Thus, it is held that the workmen are not entitled to be regularised as utility workers with management no.1 and hence, no directions are necessary in this respect. Issues no. 2 & 3 and terms of reference are disposed of accordingly award is passed in these terms.
42. Copy of this award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open court
on 08.08.2014 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
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