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Delhi District Court

Workmen vs . on 1 June, 2012

             IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
                    KARKARDOOMA COURTS, DELHI

I.D. No 162/10

Workmen
Sh. Raja Ram s/o Sh. Karan Singh, c/o Municipal Employees Union,
Aggarwal Bhawan, GT Road, Tis Hazari, Delhi 110054.

                             Vs.

Management
M/s Delhi Jal Board, Varunalaya Phase II, Karol Bagh, New Delhi 110005.


Date of institution                      04.01.2010
Date of reserving award                  22.05.2012
Date of award                            01.06.2012

Ref : F.24 (10)/09/Lab./CD/203 dated 26.11.2009

AWARD


1.

Workman has raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-

''Whether the demand for regularization of Sh. Raja Ram s/o Sh. Karan Singh on the post of Fitter 2nd class in proper pay scale from the date of his initial appointment is justified; and if so, to what relief is he entitled?

2. Statement of claim has been filed by the workman, wherein it is stated that he joined the management w.e.f. 18.11.1989 at Gokul Puri and I.D. No. 162/10 Page 1 of 7 initially he was taken as Fitter IInd Class. It is submitted that workman was being treated as daily rated/ casual/ muster roll worker and was being paid under Minimum Wages Act. However, his counter parts doing the idential work and the work of same value were being treated as regular employees and were being paid in proper pay scale and allowances, besides other facilities like Uniform, EL, CL, Gazetted/Festival/Restricted Holidays etc, which facilities were completely denied to the workman.

3. It is submitted for workman that his services were terminated w.e.f. 7.11.1992 without assigning any reason, against which an industrial dispute was raised, wherein an award was passed in favour of workman granting him reinstatement with continuity of service, but without back wages. It is submitted that initially, the management did not implement the award and consequently a complaint u/s 2 (ra) was also filed and the workman was assigned duties in the month of July, 2006. It is submitted that workman is entitled to be treated as regular and permanent employee from the initial date of his joining, but the management has not taken any step to regularise the service of workman in proper pay scale and allowances with retrospective effect from 08.11.1989. It is submitted that workman has acquired the status of a permanent employee from the initial date of his joining into the employment i.e. 8.11.1989 after completing 90 days of continuous service as provided in the Model Standing Orders framed under Industrial Employment (Standing Orders) Act, 1946.

4. It is prayed that award be passed in favour of workman granting regularization on the post of Fitter 2nd class in proper pay scale and allowances from initial date of his appointment i.e. 8.11.1989 alongwith all consequential benefits thereof.

5. In the written statement filed by the management, it is stated that the workman was enrolled as an apprentice under Apprentice Act in Fitter Trade for training for a specific period of one year and an agreement was also executed in this regard, but due to some typographical error the specific period was not mentioned and as such he continued as an Apprentice for a period of three years. It is submitted that his apprenticeship was discontinued after expiry of sanctioned period and he was relieved w.e.f. 7.11.1992. It is submitted that workman was neither entrusted with the work of any regular nature nor he was bound to work. It is submitted that he did not undergo any trade test nor he was put to selection procedure which was required at the time of appointment on regular and sanctioned post as per notified Recruitment Rules. It is submitted that taking advantage of the typographical error in the agreement, workman raised an industrial dispute which was decided in his favour. It is submitted that the award passed in the said dispute was implemented vide order dated 28.2.2006 and after completing all the formalities, he was reinstated as Fitter 2nd class in the pay scale of Rs.3050-4590 vide office order no.218 dated 11.7.06 and since then he is working on regular basis with all benefits of a regular employee. It is further submitted that workman has also received a sum of Rs.1,71, 202 as wages for the period 12.4.02 to 11.7.06. It is submitted that the workman was gainfully employed and as such he did not report for duty even after passing of the award by Ld. Labour Court. It is denied that workman is entitled to be treated as a regular employee from his initial date of joining i.e. 8.11.1989. It is submitted that as per award of Hon'ble Labour Court if the workman is treated as muster roll worker from the date of enforcing of the Award i.e. 6.11.02, he will have to be regulaised in service w.e.f.

6.11.06 i.e. after date of the completion of four years service and the management has regularised his service w.e.f .11.7.06. It is submitted that if he is regularised with his initial date of enrollment of apprentice, it will be a discrimination ot other muster roll employees who are senior to him. It is submitted that there are 72 sanctioned post of Fitter 2nd class and according to RR, only 18 posts are earmarked to direct recruitment quota. It is submitted that all posts of direct recruitment quota were filled in and there was no post of Fitter 2nd class meant for direct recruitment quota upto 2008. All other contentions made in the statement of claim have been denied.

6. On the basis of pleadings of the parties, following issue was framed vide order dated 04.10.2010:-

1. As per terms of reference.

7. Workman has examined himself as WW 1. In his examination-in-

chief, filed by way of affidavit, he has reiterated the contents of statement of claim. In his cross-examination, he has admitted that he joined the management in Nov. 1989 on Apprentice Training for one year. It is further admitted by him that he was enrolled under Apprentice Act. He has denied that period of training was extended twice. He has deposed that he appeared for interview for joining management. It is deposed that he did not pass any trade test for joining management. He has stated voluntarily that he was not asked by management to pass any such test. It is admitted that he received payment of Rs.1,71, 202/- for the period from 12.4.02 to 11.7.06 towards back wages.

8. Workman has also examined Sh. Surender Bhardwaj, General Secretary of Municipal Employees Union as WW 2. He has relied upon I.D. No. 162/10 Page 4 of 7 resolution Ex. WW1/4, passed in favour of workman to raise the present dispute. In his cross-examination, he has deposed that he does not remember the date and month of establishment of his Union.

9. Management has examined Sh. Prakash Chander, Asst.

Commissioner (Bulk) as MW 1. In his affidavit, he has reiterated the contents of the written statement filed by management. In his cross- examination, he has deposed that Fitter II class who joined on 8.11.89 were regularised by the management after completion of four years of their employment as per policy of management. It is admitted that in the award passed by Ld. Labour Court, continuity of service has not been denied specifically.

10. I have heard arguments from Sh. Surender Bhardwaj, Ld. AR for workman and Sh. Pradeep Gupta, Ld.Counsel/AR for management. I have perused the entire record. My findings on the issues are as under:-

11. Findings on issue no.1 Issue no.1 is : As per terms of reference. Terms of reference are ''Whether the demand for regularization of Sh. Raja Ram s/o Sh. Karan Singh on the post of Fitter 2nd class in proper pay scale from the date of his initial appointment is justified; and if so, to what relief is he entitled?"

12. It has been pleaded for management in the written statement that the award passed by Ld. Labour Court was implemented vide order dated 28.2.2006 and workman was reinstated as Fitter 2nd class in the pay scale of Rs.3050-4590 vide office order no.218 dated 11.7.06 and since then he is working on regular basis with all benefits of a regular employee. This fact has not been denied by the workman. Thus, it is clear that workman has been enjoying the benefits of regular appointment as Fitter 2nd class in I.D. No. 162/10 Page 5 of 7 proper pay scale and allowances w.e.f. 11.7.06. Workman has also received payment of Rs.1,71,202/- towards back wages as admitted by him in his cross-examination. However, workman is seeking regularization from the date of his initial appointment i.e. 18.11.1989.

13. It is the case of workman that he joined the management w.e.f. 18.11.1989 as Fitter IInd Class and he was being treated as daily rated/ casual/ muster roll worker. However, on 07.05.2012, two documents were filed on behalf of workman, which are office orders, issued by management, dated 12.10.1989 and 8.11.89 engaging some persons including workman as Apprentice afresh for a period of 3 years w.e.f. 1.10.89. The said documents have been admitted for management. Copy of order dated 8.11.89 as mentioned above was filed for management also on 7.5.12 and the same has been duly admitted for workman.

14. In view of above documents, I am of the considered opinion that it is a deemed admission on the part of workman to the effect that he was engaged as apprentice and not as daily rated Fitter 2nd class as alleged by him.

15. Moreover, in his cross-examination, workman (WW 1) has admitted that he joined the management in Nov. 1989 on Apprentice Training for one year. It is further admitted by him that he was enrolled under Apprentice Act. From this admission on the part of workman, it is further clear that he was engaged as apprentice only and not as daily rated Fitter 2nd class as alleged by him.

16. On 7.5.12, management filed another document, which is contract of apprenticeship. Said document has been admitted duly on behalf of workman. Clause 5 of the said contract is reproduced as below:-

It shall not be obligatory on the part of the employer to I.D. No. 162/10 Page 6 of 7 offer any employment to the apprentice on completion of the period of his apprenticeship training in his establishment, nor shall it be obligatory on the part of apprentice to accept an employment.

17. In view of above clause of contract of apprenticeship, management is not bound to offer employment to the workman on completion of his apprenticeship. Thus, the workman cannot claim employment from management during the period of his apprenticeship or on completion thereof. As stated above, workman has already been regularised w.e.f. 11.7.06 with arrears of back wages, but he claims regularisation from initial date of his joining i.e. 18.11.89. In my considered opinion, workman has no ground or justification to claim regularization from his initial date of joining i.e. 18.11.1989 in view of contract of apprenticeship and other documents filed on 7.5.12, as referred above.

18. In view of above discussion, it is held that demand for regularization of workman on the post of Fitter 2nd class in proper pay scale from the date of his initial appointment is not justified and thus, he is not entitled for the relief claimed. Award is passed accordingly and reference is answered in these terms.

19. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.

    Announced in open court
    on 01.06.2012                                   (MAHAVIR SINGHAL)
                                             Presiding Officer, Industrial Tribunal
                                                  Karkardooma Courts, Delhi.




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