Delhi District Court
Sh. Naresh Kumar 9 Ors vs North Delhi Municipal Corporation on 27 January, 2025
OLD CASE
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref. No.: F.24/(40)/ND/63/2011/Lab./934
Dated 08.03.2013
POIT No. 814/2016
OLD ID No. 101/13
Workmen:
Sh. Naresh Kumar & 9 Others
Dispatch Riders
through Municipal Employees Union
Agarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-110054.
Vs.
The Management of:
The management of Municipal Corporation of Delhi
through its Commissioner
Town Hall, Chandni Chowk, Delhi-110006.
Now after trifurcation of erstwhile Municipal Corporation of Delhi
M/s North Delhi Municipal Corporation
through its Commission (North)
Dr. S. P. Mukherjee Civic Centre,
J. L. Nehru Marg, New Delhi-110002.
Date of Institution : 26.04.2013
Date of Arguments : 23.01.2025
Date of Award : 27.01.2025
AWARD
1. The Labour Department of the Govt. of National Capital
Territory of Delhi has referred an industrial dispute between
POIT No.814/2016 Page 1 of 24
above parties for adjudication with the following terms of
reference:-
"1. Whether demand of workmen Shri Naresh Kumar
s/o Shri Prahlad Dutt, Shri Kasari Lal S/o Sh. Baij
Nath, Shri Jagat Singh S/o Sh. Baru Singh, Shri
Narender Kumar S/o Sh. Kanta Prashad, Shri Sukhbir
Singh S/o Sh. Duli Chand, Shri Rajender Singh S/o
Shri Puttu Singh, Sh. Amar Prakash S/o Sh. Ram Pher,
Sh. Rakesh Kumar S/o Sh. Manohar Lal, Shri Umrao
Singh S/o Shri Ghisa Ram and Shri Satyabir Singh S/o
Sh. Rishal Singh (Annexure-A) for regularization of
their services on the post of Dispatch Rider from their
respective date of joining/ assignment of duties as
Dispatch Rider and to difference of salary/ grade pay
on the principle of "Equal Pay for Equal Work" along
with all arrears and consequential benefits, is justified,
and if so, what directions are necessary in this respect?"
2. The details of workman are given in Annexure-A annexed
with terms of reference which are as following:
ANNEXURE-A
Sl. Name Date of Date of assignment of Present place of
No. Appointment duties of Dispatch posting
Rider
1. Sh.Naresh Kumar 16.07.2001 11.04.2007 Office of the
S/o Shri Prahlad Dutt Municipal Secretary,
Town Hall, Chandni
Chowk, Delhi
2. Sh. Kesari Lal 12.03.1976 11.04.2007 - do-
S/o Sh. Baji Nath
3. Sh. Jagat Singh 01.04.1982 11.04.2007 - do-
S/o Sh. Baru Singh
4. Sh. Narender Kumar 12.06.2000 11.04.2007 - do-
S/o Sh. Kanta Prashad
5. Sh. Sukhbir Singh 01.04.1999 29.02.2008 - do-
S/o Sh. Duli Chand
6. Sh. Rajender Singh 01.04.2004 11.04.2007 - do-
POIT No.814/2016 Page 2 of 24
S/o Sh. Puttu Singh
7. Sh. Amar Prakash 01.04.2000 25.09.2007 - do-
S/o Sh. Ram Pher
8. Sh. Rakesh Kumar 01.04.2004 11.04.2007 - do-
S/o Sh. Manohar Lal
9. Sh. Umrao Singh 01.04.2004 16.06.2008 - do-
S/o Sh. Ghisa Ram
10. Sh. Satyabir Singh 01.04.2003 24.02.2009 - do-
S/o Sh. Rishal Singh
3. The workmen filed the Statement of Claim wherein they
pleaded that they were taken into job as Peon/ Beldar from the
respective dates as mentioned in Annexure A and they were
regular employees of the management and are getting their salary
in the scale of Rs.5200-20200 + Rs.1800/- as grade pay. It is
claimed that the workmen are presently posted in the office of
Municipal Secretary and they are discharging their services to
the entire satisfaction of their superiors and have unblemished
and uninterrupted record of service to their credit.
4. It is claimed that for the last 3-4 years, all the workmen are
discharging the duties of Dispatch Riders. It is further claimed
that the pay scale of Peon/ Beldar and Dispatch Rider are same
but there is difference in the Grade Pay. Basically, the workmen
are getting their salary in the scale of Rs.5200-20200 + Rs.1800/-
as grade pay while the Dispatch Rider should get his salary in
pay scale of Rs.5200-20200 + Rs.2400/- as grade pay.
5. It is further claimed that on 09.12.2010, a resolution was
passed by the Standing Committee of MCD to the effect that the
12 persons working as Peon and Beldar ( including the workmen
concerned herein) be considered and appointed on the 12 created
POIT No.814/2016 Page 3 of 24
posts of Dispatch Rider. It is further claimed that despite all
above, the workmen concerned are getting their salary/ grade
pay of Peon/Beldar only and not that of Dispatch Rider.
6. It is further claimed that the action of the management
regarding non-payment of grade pay/scale of Dispatch Rider to
the workman concerned and non-regularization thereof on the
post of Dispatch Rider is totally illegal, bad, unjust and malafide
because the nature of duties of peon/beldar and dispatch rider are
altogether different and they are discharging duties of Dispatch
Rider for last more than 3-4 years from the dates as mentioned in
the table above and despite that they are not being paid the grade
pay of Dispatch Rider. It is also stated that Dispatch Rider are
entitled to higher grade pay than that of Peon/Beldar and other
colleagues who are working as Dispatch Rider are getting higher
salary than the workmen concerned.
7. It is further claimed that a demand notice has been served
upon the management by Regd. A/D post vide communication
dated 21.02.2011 which has been duly received in their office but
no reply has been received. Thereafter, conciliation proceedings
were initiated but same resulted into failure due to adamant and
non co-operative attitude of the management.
8. The claimants have prayed that an award may kindly be
passed in favour of workmen holding therein that the aforesaid
workmen are entitled to be regularized on the post of Dispatch
Rider with retrospective effect from their respective date of
joining/ assignment of duties as Dispatch Rider and to pay them
POIT No.814/2016 Page 4 of 24
the entire difference of salary/ grade pay on the principle of
"Equal Pay for Equal Work" alongwith all arrears and
consequential benefits. The cost of litigation as provided in
Section 11(7) of the Industrial Disputes Act, 1947 may also be
awarded to the workmen.
9. The Management in its written statement has contended that
no demand notice has been served upon them and as such the
present dispute is not an industrial dispute and, therefore, liable
to be rejected. It is further stated that the claimants were simply
peon/beldar. It is further stated that the management has its own
recruitment rules for the post of Dispatch Rider and the workmen
have to qualify trade test for the same which was not done by the
present workmen. Moreover, the workmen do not fulfill the
conditions as per the recruitment rules of Dispatch Rider. It is
further stated that there is no policy with the management for the
regularization of the peon/beldar into dispatch rider. As per the
resolution no.552 dated 15.10.2010 only conversion of the post
of Loud Speaker Operator, Asstt. Loud Speaker Operator,
Electric Mistri, Car Attendant and Daftri into the posts of
Dispatch Rider is recommended. It is further stated that the
present dispute is not an industrial dispute as it is not espoused
by the union, therefore, the reference is bad in law and as such
the claim of the claimant is liable to be rejected. It is further
stated that the workmen were deputed for the distribution of
outdoor dak and in lieu of this, they are being paid special
allowance @ Rs.2125/-pm and they are also getting conveyance
POIT No.814/2016 Page 5 of 24
allowance and as such, they are not entitled for double benefit. It
is prayed that the claim may kindly be dismissed.
10. After completion of proceedings, following issues were
framed by the Ld. Predecessor on 15.04.2014:-
(i) Whether any notice of demand was served upon
management, if not , its effect?OPW
(ii) Whether the present dispute is an Industrial Dispute
as defined in Section 2(k) of Industrial Disputes Act?
OPW
(iii) Whether the present claim of the workmen has been
properly espoused by the Union?OPW
(iv) As per terms of reference.
11. The claimant Sh. Naresh Kumar examined himself as WW1
who tendered his evidence by way of affidavit Ex. WW1/A and
relied upon documents Ex. WW1/1 to Ex. WW1/17. Claimant
Sh. Kesari Lal examined himself as WW2 who tendered his
evidence by way of affidavit Ex. WW2/A and relied upon
documents already marked in the testimony of WW1. Claimant
Sh. Jagat Singh examined himself as WW3 who tendered his
evidence by way of affidavit Ex. WW3/A and also relied upon
judgment which is marked in para 11 of his affidavit as
Ex.WW3/1. Claimant Sh. Rajender Singh examined himself as
WW4 who tendered his evidence by way of affidavit Ex.
WW4/A and relied upon documents already marked in the
testimony of WW1. Claimant Sh. Sukhbir Singh examined
POIT No.814/2016 Page 6 of 24
himself as WW5 who tendered his evidence by way of affidavit
Ex. WW5/A and relied upon documents already marked in the
testimony of WW1. He further relied upon documents
Ex.WW5/1 & Ex.WW5/2. Claimant Sh. Amar Prakash examined
himself as WW6 who tendered his evidence by way of affidavit
Ex. WW6/A and relied upon document Ex.WW6/1 and also
relied upon documents already marked in the testimony of WW1.
Claimant Sh. Rakesh Kumar examined himself as WW7 who
tendered his evidence by way of affidavit Ex. WW7/A and relied
upon documents already marked in the testimony of WW1.
Claimant Sh. Umrao Singh examined himself as WW8 who
tendered his evidence by way of affidavit Ex. WW8/A and also
relied upon document Ex.WW8/1 and also relied upon
documents already marked in the testimony of WW1. Claimant
Sh. Satyabir examined himself as WW9 who tendered his
evidence by way of affidavit Ex. WW9/A and relied upon
documents, photocopies of which are Ex.WW9/1 to Ex.WW9/7
and also relied upon documents already exhibited in the
testimony of WW1. Sh. Surender Bhardwaj examined himself as
WW10 who tendered his evidence by way of affidavit Ex.
WW10/A and relied upon documents Ex.WW10/1, however, in
the affidavit the same is mentioned as Ex.WW11/A.
12. All these witnesses were duly cross-examined by Ld. AR
for the management and thereafter, workman evidence was
closed and matter was fixed for Management Evidence.
POIT No.814/2016 Page 7 of 24
13. On the other hand, Management examined Ms. Mridu
Sharma, Administrative Officer (Municipal Secretary), HQ,
NDMC as MW1, who tendered her evidence by way of affidavit
Ex. MW1/A and relied upon documents Ex. MW1/1(colly.) to
Ex. MW1/2(colly.). This witness was duly cross examined by the
workman and thereafter, management evidence was closed and
matter was fixed for final arguments.
14. Ld. AR for claimant as well as Ld. AR for management
have advanced final arguments at length. I have perused the
entire records of the case including pleadings of the parties,
evidence led and documents proved during evidence. My issue
wise findings are as follow:-
15. Issue No. 1: Whether any notice of demand was served upon
management, if not, its effect? OPW:
16. The management has contended that no demand notice was
served upon them prior to raising the present industrial dispute,
rendering the same non-maintainable. However, the workman
has relied upon Ex. WW1/1 i.e. the Legal Demand Notice dated
21.02.2011 and has filed the corresponding acknowledgment
cards marked as Ex. WW1/5 to Ex. WW1/7, which substantiate
the delivery of the demand notice. These acknowledgment cards,
in some instances, bear the signature of the concerned person
receiving the notice on behalf of the management and, in others
cards, there is official seal of the management. Additionally, the
workman has produced postal receipts marked as Ex. WW1/2 to
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Ex. WW1/4, which further corroborates the due delivery of the
demand notice upon the management.
17. Despite raising the objection regarding the alleged non-
receipt of the demand notice, the management itself did not
bother to verify its records, including the Dak and Dispatch
diary, to ascertain whether the notice was received. The MW-1,
in his cross-examination dated 24.11.2022, conceded as follows:
I have not checked up whether the legal demand notice was duly
received in the office of Director Personal (CED), 22nd Floor, Dr.
S.P. Mukherjee Civic Centre, J.L. Nehru Marg, New Delhi-02 and
the municipal secretary, room no. 26, Town Hall, Chandni Chowk,
Delhi-6, while filing my Affidavit Ex. MW1/A.
I have not checked up the Dak Register whether it bears the entry of
receipt legal demand notice Ex. WW1/1 in the offices of Director
Personal (CED), 22nd Floor, Dr. S.P. Mukherjee Civic Centre, J.L.
Nehru Marg, New Delhi-02 and municipal secretary, room no. 26,
Town Hall, Chandni Chowk, Delhi-6.
I have not sent any letter to the above mentioned two offices as to
whether Ex. WW1/1 was received therein or not?
18. The testimony of the management witness reveals that no
effort was made by him to ascertain whether the demand notice
was served upon the management. Despite failing to verify the
records, a mechanical and categorical plea of non-service of the
demand notice was taken. On the contrary, the workman has
established through documentary evidence that the demand
notice was indeed served upon the management. Even assuming
the management's objection of non-service of demand notice,
POIT No.814/2016 Page 9 of 24
such an argument holds no merit, as serving a legal demand
notice is not mandatory for raising an industrial dispute. Reliance
is placed upon the judgment in Workmen of M.C.D. vs. M.C.D.,
W.P.(C) No. 13023/2005, decided on 06.08.2007 , wherein the
Hon'ble High Court held that making a written demand is not a
sine qua non for raising an industrial dispute. Accordingly, this
issue is decided in favour of the workmen and against the
management.
19. Issue No. 2: Whether the present dispute is an Industrial
Disputes as defined in Section 2(k) of Industrial Disputes Act?
OPW and Issue No. 3: Whether the present claim of the
workmen has been properly espoused by the Union? OPW:
20. The issues no. 2 and 3 being inter-related are taken up
together for adjudication. The onus to prove both issues No. 2
and 3 was on the workman.
21. The management has contended that the present dispute
does not fall under the category of "industrial dispute" as the
same has not been properly espoused by the union.
22. The workmen for proving espousal has placed reliance on
Ex. WW-10/1 i.e. resolution dated 04.02.2011 passed by the
Municipal Employees Union for raising an industrial dispute in
favour of the workmen concerned. He has also placed reliance
upon the judgment 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
POIT No.814/2016 Page 10 of 24
after relying upon the case of Hon'ble Supreme Court in J. H.
Jadhav Vs. M/s Forbes Gokak Ltd., Civil Appeal No. 1089 of
2005, decided on 11.02.2005 has observed that there is no strict
format required for a union espousing the cause of the workman,
and this can vary and may also include resolutions or other forms
of evidence depending on the case to case. Even in the absence
of formal resolution, the court relied upon various documents
such as statement of claim filed before the conciliation officer,
legal demand notice, authorization letters etc. among other
documents and held that the cause of the workman has been
properly espoused by the union.
23. Likewise, the issue of espousal, if any, has to be taken at the
first instance i.e. when the case is pending before the conciliation
officer, and it should not be an afterthought plea. Reliance in this
regard is placed upon the Division Bench judgment of Hon'ble
Kerala High Court in Mangalam Publications (India) Pvt. Ltd. v.
Saju George, W.A. No. 964 of 2020, decided on 01.12.2020,
wherein the management failed to take the plea of espousal at the
initial stage, and subsequently, when the dispute was taken up for
consideration by the Tribunal after being referred by the union,
the court held that it is not permissible for management to argue
that the cause of workman was not supported by the union. In the
instant case, the reply of management filed before the
conciliation officer has been placed on record Ex. WW-1/16.
This Tribunal has perused the same, and there has not been any
plea of not having proper espousal taken by management.
POIT No.814/2016 Page 11 of 24
24. Even otherwise, in the present case, the statement of claim
Ex. WW-1/15 filed before the Conciliation Officer by the
Municipal Employees' Union has been placed on record.
Additionally, the resolution dated 04.02.2011 Ex. WW-10/1
passed by the Municipal Employees' Union, wherein the union
resolved to raise an industrial dispute on behalf of the workmen,
has also been produced. Notably, the legal demand notice (Ex.
WW1/1) was sent on the union's letterhead. The workmen, in
their Affidavits, deposed regarding their membership in the
union and the resolution passed on 04.02.2011 supporting their
cause. Furthermore, the General Secretary of the Municipal
Employees' Union was examined as a witness, corroborating the
espousal of the dispute in favour of the workmen.
25. In light of the aforementioned documentary evidence and
corroborative testimony, this Tribunal finds no reason to doubt
the bona-fide espousal of the workmen' cause by the Municipal
Employees' Union. Accordingly, it is held that present dispute
qualifies as an "industrial dispute" as defined under Section 2(k)
of the Industrial Disputes Act. Therefore, Issue Nos. 2 and 3 are
decided in favor of workmen and against the management.
26. Issue No. 4: As per terms of reference:
27. The Ld. AR for the workman has argued that the workmen
concerned, even though initially appointed on the post of
Beldar/Peon, have been discharging the duties of Dispatch Rider
w.e.f. 2007-2009 onwards in the Office of Municipal Secretary,
POIT No.814/2016 Page 12 of 24
Town Hall, Chandni Chowk, Delhi. It is also argued that the
management itself passed a resolution dated 09.12.2010 to the
effect that workmen to be appointed on the posts of Dispatch
Rider on permanent basis. Despite this, the management has
committed unfair labour practice enumerated in Item No. 10 of
Fifth Schedule read with Section 2(ra) of the I.D. Act by
employing the workmen concerned in the "diverted capacity"
under the garb of exigencies of work but extracting the
permanent and perennial nature of work of Dispatch Rider from
them and treating the same as temporary arrangement but
continue this arrangement as such for several years with the
object of depriving the workmen of the benefits arising out of
permanent employment. (Reliance is placed upon MCD v.
Pradeep Rana, 2024 SCC OnLine Del 5600; Chief Conservator
of Forests v. Jagannath Maruti Kondhare, (1996) 2 SCC 293 and
Project Dir. v. Workmen, 2019 SCC OnLine Del 7796). It is also
argued that paying the workman the lower salary despite
extracting the work associated with the post of Dispatch Rider
amounts to "begar" under Article 23 of the Constitution of India.
Reliance is placed on the judgment of Delhi Development
Authority vs. Virender Kumar Tyagi, 1997 (43) DRJ (DB).
28. The Ld. AR for the management has argued that the
workmen are not entitled to regularization of their services as
they neither fulfil the recruitment rules nor have qualified the
requisite trade test for the post of Dispatch Rider. It is contended
that the management has its own Recruitment Rules, and there is
POIT No.814/2016 Page 13 of 24
no policy for regularization from the posts of Peon/Beldar to
Dispatch Rider. The management has further denied assigning
the workmen the duties of Dispatch Rider as alleged, claiming
that some workmen were merely working in a "diverted
capacity" from other departments due to exigency of work.
These workmen were deputed for outdoor dak distribution and
are already being paid special allowances of Rs. 2125/- per
month. Additionally, the management denies passing any
resolution dated 09.12.2010 regarding appointing the workmen
to permanent posts of Dispatch Rider. Lastly, reliance is placed
on the judgments of Secretary, State of Karnataka vs. Uma Devi
(2006) 4 SCC 1 and A. Umarani v. Coop. Societies (2004) 7
SCC 112, to contend that Industrial Tribunals/Labour Courts
lack the authority to direct regularization of workmen.
29. This Tribunal has carefully examined the pleadings,
evidence both documentary and oral as well as the material
placed on record.
30. The workmen have filed several office orders and
documents issued by the management that demonstrate they have
been performing the duties of Dispatch Riders. Office Order
dated 18.05.2007 Ex. WW-1/8 issued by the Municipal
Secretariat explicitly notes that motorbikes were allocated to
certain officials, including the workmen Kesri Lal, Jagat Singh,
Naresh Kumar, Narender Kumar, Rakesh Kumar, and Rajender
Singh, "for distribution of Agendas/Dak w.e.f. 11.04.2007." with
specific motorbike numbers assigned to them.
POIT No.814/2016 Page 14 of 24
31. Similarly, the workman Sukhbir Singh has produced Office
Order dated 29.09.2009 Ex. WW-1/9, wherein he was allowed to
work in a "diverted capacity" w.e.f. 27.02.2008 and was handed
over the complete charge of Motorbike No. DL-ISM-4881 with
its accessories. Likewise, workman Amar Prakash has submitted
Office Order dated 25.09.2007 Ex. WW-6/1, issued by the
management, stating that Motorbike No. DL-9-S-3906 was
allocated to him specifically for "dak distribution". Further, Ex.
WW-1/10 is the noting of the management in respect to
workman Umrao Singh, wherein he was directed to take charge
of Motorbike No. DL-95-5-3907 for official purposes.
Additionally, Office Order dated 25.06.2008 records that Umrao
Singh was allowed to join duty in the Municipal Secretary Office
in a diverted capacity. Office Order dated 15.10.2007 further
shows that the management instructed various heads of
departments to ensure the safety and security of motorbikes
allocated for official purposes. This document contains the
names of several workmen, including Rajender Singh, Kesri Lal,
Amar Prakash, Narender Kumar, Naresh Kumar, Rakesh, and
Jagat Singh, who have been given charge of motorbikes.
Likewise, other orders such as Ex. WW-9/2 (dated 01.10.2010),
Ex. WW-1/14 (dated 02.12.2010), and related notings Ex. WW-
9/4 to Ex. WW-9/7 reveal that the workmen were performing the
duties of Dispatch Riders and even incurred expenses for the
repair/maintenance of the motorbikes provided by the
management, for which they sought reimbursements.
POIT No.814/2016 Page 15 of 24
32. Notably, the management has not disputed the authenticity
of these documents. On contrary, the management witness (MW-
1) in his cross-examination dated 24.11.2022 has admitted it to
be correct that "the concerned 10 workmen whose details are
given in Para-1 of the Statement of Claim filed before this
Tribunal were assigned the duty of Dispatch Rider from their
date of joining and date of assignment of duties of Dispatch
Rider." These records as well as the testimony of the
management witness overall establish that the workmen were
discharging the duties of Dispatch Riders. Consequently, the
denial of the management that such duties were never assigned to
the workmen is untenable, as abundant and credible documentary
evidence has been placed on record to show that they have been
discharging the duties of Dispatch Riders.
33. Attention of this Tribunal has also been drawn towards the
resolution dated 09.12.2010 Ex. WW-1/12, wherein it was
resolved that the Peon/Beldars working in the Municipal
Secretary Office as Dispatch Riders be appointed to the newly
created posts of Dispatch Riders. The relevant portion of the said
resolution is as follows:
"Item no. 96 :- Regarding filling up Despatch Rider posts of Mpl.
Secretary Office.
Resolution No. 90 Resolved that the following resolution moved
by Sh. Mool Chand Sharma and seconded by Sh. R.K. Bansiwal be
referred to the Commissioner for report : -
Whereas in Municipal Secretary Office five peons and seven beldars
are working as Dispatch Rider for the last 4/5 years for distributing
the Dak among the Municipal Councilors.
POIT No.814/2016 Page 16 of 24
Whereas the Corporation vide its Resolution No. 552 dated 15-10-
2010) approved the surrender of 9 different posts of Secretary Office
and Simultaneously 12 post of Dispatch Riders were created in
Municipal Secretary Office.
Whereas the twelve peons and beldars working in Municipal
Secretary Office as Dispatch Riders were assured to consider them for
the above 12 created posts due to the fact that they are working as
Dispatch Riders for 4/5 years.
This meeting of the Appointments Committee, therefore resolves that
the 12 Peons/Beldars presently working in Municipal Secretary Office
for distribution of Agenda etc. as Dispatch Riders be appointed to the
newly created posts of Dispatch Riders in the said office.
34. Even though the management in its Written Statement has
denied existence of any such resolution, however, the MW-1 in
his cross-examination dated 24.11.2022 admitted that Ex.
WW1/12 indeed has been issued by MCD.
35. Despite passing of the aforementioned resolution, the
management has failed to regularise the services of the workmen
concerned on the post of Dispatch Rider. The management
contends that the workmen were appointed in a "diverted
capacity" to meet the "exigencies of work." However, reliance is
placed on the management's own document, Ex. MW1/2,
regarding the creation of the posts of Dispatch Rider, which
states:
"Subject: Conversion of one post of Loud Speaker Operator, one post
of Asstt. Loud Speaker Operator, one post of Electric Mistri, one post
of Car Attendant and 5 posts of Daftari into the post of Despatch
Riders.
(i) Municipal Secretary letter No. 892/MS/2010 dated 10-9-2010.
POIT No.814/2016 Page 17 of 24
The number of wards in the Municipal Corporation of Delhi has
doubled from the previous 134 to 272 since 2007. Thus, the strength
of the Corporation including 9 MPs, 14 MLAs and 10 nominated
persons, has crossed 300. Many of the wards are situated in rural
areas/outskirts of the city. Distribution of agendas to all the above
areas has become a very challenging task for the Municipal
Secretariat now. Hence, as a temporary arrangement, 15 Beldars were
got diverted to work as Agenda Distributors in order to meet the
requirement soon after the General Elections in 2007 and accordingly
in order to speed up the distribution of agenda, 12 Motor Cycles were
also purchased to cope up with the work. It has become necessary to
create the post of Despatch Riders on a permanent basis in view of
frequent distribution of agendas of about 40 committees including
Corporation and Standing Committee etc..
36. The resolution explicitly acknowledges the increased
workload due to the doubling of MCD wards, the rising strength
of MPs and MLAs, and the necessity of creating Dispatch Rider
posts on a permanent basis to meet these requirements.
Consequently, it cannot be said that the work being performed by
the workmen was merely due to temporary "exigencies of work."
Moreover, since being assigned the duties of Dispatch Riders to
the workmen, more than 15 years have elapsed, during which the
workmen have continuously performed the same duties. Despite
this, the management has failed to regularise their services, and
they continue to be paid wages associated with the post of
Peon/Beldar, significantly lower than the pay applicable to
Dispatch Riders.
37. The management has also contended that the workmen do
not possess the requisite qualifications for the post of Dispatch
POIT No.814/2016 Page 18 of 24
Rider, as they did not pass the required trade test. It is further
argued that the workmen themselves, during cross-examination,
admitted to not having cleared any trade test for the said post.
However, this contention does not hold any water in light of the
fact that the management has been extracting the work of
Dispatch Riders from the workmen for over 15 years without
raising any objection regarding their qualifications or the
necessity of a trade test during this entire period. The
management cannot approbate and reprobate as on one hand, it
has assigned Dispatch Rider duties to the workmen without
requiring them to pass any trade test, and on the other, it now
seeks to deny them regularization on the ground that they have
not passed the said test. The principle of estoppel bars such
contradictory stands, as the workmen have been continuously
performing the same duties as Dispatch Riders without any
objection from the management. Even otherwise, it is not the
case of the management that the work and conduct of the
workmen have not been satisfactory.
38. As regards the payment of special allowances to the
workmen for performing the duties of Dispatch Riders, the same
does not absolve the management from its obligation to pay
wages associated with the said post. If a workman is performing
the duties of a particular post, they are entitled to receive wages
corresponding to that post. Any payment of wages below the
prescribed scale amounts to a violation of Article 23 of the
Indian Constitution, which prohibits "begar" or forced labour.
POIT No.814/2016 Page 19 of 24
The Hon'ble Delhi High Court, in Virendra Kumar Tyagi
(supra), has held:
"The word 'begar' in Article 23 has obvious reference to traffic in
human beings and forced labour. While the respondent may not be
performing forced labour, if he is made to work as a Legal Assistant without being paid as a Legal Assistant, it would attract the prohibition under Article 23. It is only when he is paid the wages of a Legal Assistant that this prohibition ceases to apply."
39. Similarly, in the present case, the payment of a special allowance in lieu of proper wages for the post of Dispatch Rider does not shield the management from the charge of engaging in unfair labour practices. The workmen, having continuously discharged the duties of Dispatch Riders, are entitled to the wages associated with the said post.
40. Thus, based on the facts and circumstances of the present case, it is evident that the concerned workmen were appointed through a proper channel pursuant to an interview conducted by officials of the management. Ex. WW-1/11, a noting of the management regarding "arranging Dispatch Riders and purchase of motorcycles for the Municipal Secretary," clearly records:
"As discussed yesterday, Commissioner may kindly advise Addl. Cm. (Engg.) & Addl. Cm. (Health and Establishment) to take immediate steps to make available 12 Dispatch Riders, who could be posted in the Office of Municipal Secretary before 23rd of March 2007. It was discussed that Beldars appointed in the MCD and who can ride the motorcycles can be appointed as Dispatch Riders after interviewing them by CED."POIT No.814/2016 Page 20 of 24
41. This clearly establishes that the workmen were duly interviewed and assessed by the management prior to being assigned the duties of Dispatch Riders. Moreover, the workmen have been performing these duties continuously and uninterruptedly for over 15 years, a fact that has not been contested by the management. The nature of the work performed is permanent and perennial. Furthermore, no material has been placed on record by the management to indicate any adverse remarks regarding the work or conduct of the workmen. It is undisputed that the management has sanctioned posts for Dispatch Riders, and it is not their case that such posts are unavailable or vacant. The workmen have been performing the duties of these sanctioned posts, which have remained unfilled. This Tribunal fails to understand why, despite extracting the work of Dispatch Riders from the workmen for over 15 years, the availability of sanctioned posts of Dispatch Riders, the satisfactory work and conduct of the workmen, and the management's own resolution to appoint existing Beldars/Peons (the concerned workmen) as Dispatch Riders on a permanent basis, the services of the workmen have not been regularised?
42. In view of the admitted position and the material on record, this Tribunal holds that the management has clearly committed an unfair labour practice as stipulated in Item No. 10 of the Fifth Schedule read with Section 2(ra) of the Industrial Disputes Act, 1947, by employing the workmen on a "diverted capacity" for performing the permanent nature of work as Dispatch Riders and POIT No.814/2016 Page 21 of 24 continuing this practice for 15 long years with the intent of depriving them of the status and privileges of regular and permanent employees. This view is supported by the judgments in Chief Conservator of Forests v. Jagannath Maruti Kondhare, (1996) 2 SCC 293 and the judgment of Hon'ble Delhi High Court in Project Dir. Dep. Of Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796 wherein the courts have held that employing workers as temporary workers for long periods and denying them the status and salary of regular employees amounts to an unfair labour practice. Granting the workmen the status and privileges of permanent employees would require the management to provide them with a salary higher than the one fixed under the Minimum Wages Act, which the management has evidently sought to avoid by perpetuating this unfair practice.
43. The management has contended that this Tribunal has no power to grant regularization and reliance in this regard is placed on Uma Devi (supra). As far as the power of this Tribunal to grant such a relief is concerned, 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 wide powers to create new rights and liabilities upon the employer. Moreover, in view of the catena of judgments of Hon'ble Supreme Court as well as Hon'ble Delhi High Court which holds that the industrial adjudicator is in fact POIT No.814/2016 Page 22 of 24 entitled to grant regularization especially considering the findings that the management has engaged in unfair labour practices. Reliance is placed on Ram Singh v. Management of CPWD, 2015 SCC OnLine Del 12105, Project Dir. Dep. Of Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796, MCD v. Pradeep Rana, 2024 SCC OnLine Del 5600).
44. In view of the facts and circumstances of the present, this tribunal is of the considered opinion that the workmen concerned are entitled to regularization of their services on the post of Dispatch Rider w.e.f. their respective dates of assignment of duties as mentioned in table above in the regular pay scale, along with all consequential benefits, either monetary or otherwise. The workmen are also entitled for the payment of arrears of salary difference of salary on the principle of equal pay for equal work since their respective dates of assignment of duties of Dispatch Rider. Thus, the terms of reference is decided in favour of the workmen and against the management.
45. Relief: In view of my findings on the above issues, this Tribunal holds that the management has clearly committed unfair labour practice as enumerated in Fifth Schedule at Item No. 10 read with Section 2(ra) of the I.D. Act. Hence, this Tribunal holds that the workmen concerned are entitled to regularization of their services on the post of Dispatch Rider w.e.f. their respective dates of assignment of duties as mentioned in table above in the regular pay scale, along with all consequential benefits, either monetary or otherwise. The workmen are also POIT No.814/2016 Page 23 of 24 entitled for the payment of arrears of salary difference of salary on the principle of equal pay for equal work since their respective dates of assignment of duties of Dispatch Rider.
46. The Management is directed to implement the Award within a period of 60 days from the date of publication of the Award failing which the claimants shall be entitled for an interest at the rate of 8% per annum from the date of terms of reference i.e. 08.03.2013 till realization. The reference is answered in the above terms.
47. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record's after due Digitally compliance. signed by MOHINDER MOHINDER VIRAT VIRAT Date:
2025.01.27 15:24:45 Announced in the open Tribunal +0530 on this 27.01.2025. (MOHINDER VIRAT) POIT-I/RADC,/New Delhi.POIT No.814/2016 Page 24 of 24