Delhi District Court
Mahender Singh vs Edmc on 4 September, 2024
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
F. No. 24(73)/E/Lab./17/3277
Dated: 31.07.2018
DLCT130010752019
POIT NO.: 386/2019
Workman:
Sh. Mahender Singh S/o Sh. Jyoti Ram
R/o H. No. D-890/2, Street No. 13, Near Durga Mandir,
Ashok Nagar, Shahdara, Delhi-110093.
Working as Nalla Beldar, posted in Engg, Deptt., EE M-II,
J.E. Store, Ward No. 267, Nehru Vihar Shahdara North Zone,
East Delhi Municipal Corporation,
Represented through General Secretary
Municipal Employees Union,
Agarwal Bhawan, G. T. Road,
Tis Hazari, Delhi - 110054.
Vs.
The Management of:
East Delhi Municipal Corporation
Through its Commissioner (East),
Udyog Sadan, 2nd Floor, Plot No. 419,
Patparganj, Industrial Area, Delhi.
Date of Institution : 14.02.2019
Date of Arguments Heard : 20.08.2024
Date of Judgment Reserved : 20.08.2024
Date of Award : 04.09.2024
AWAR D
1. The Labour Department, Govt. of the National Capital Territory
of Delhi has referred this dispute arising between the parties named
POIT-386-19 Page No. 1/31
above for adjudication to this Tribunal with following terms of the
reference:-
"Whether the demand of workmen Sh. Ravi Kumar & 23
Ors. (As per annexure-A) for regularization of their
services on their respective posts with retrospective effect
from their respective initial dates of joining into the
employment and to pay them entire difference of salary on
the principle of "Equal Pay for Equal Work" from their
initial joining till regularization and all consequential
benefits thereof, is legal and justified; and if so, what relief
are they entitled and what directions are necessary in this
respect?"
2. At the very outset, it is pertinent to mention here that Ld.
Predecessor Tribunal vide its order dated 14.02.2019 observed that
reference has been filed in respect of 24 workmen, but since the facts of
each workman are different, hence, AR for workmen was directed to
file separate statement of claim for all the workmen and case bearing
ID No. 308/18 titled as Ravi Kumar Vs. M/s. EDMC was ordered to be
treated as main case and Ahlmad was directed to take appropriate steps
to separate the file of 24 workmen and to get the cases registered
separately.
3. The details of all the workmen have been mentioned in Annexure-
A annexed with reference and same is reproduced herein below:
Sl. Name and Father's Designation Date of Date of Present posting
No. Name appointment regularization
1. Sh. Ravi Kumar Nalla Beldar October 2000 01.04.2006 Engineering Deptt.,
S/o Sh. Brahampal Singh J.E. Store, Ward No.
268, Mustafabad,
POIT-386-19 Page No. 2/31
Shahdara North
Zone, E.E. M-II
2. Sh. Dheeraj Kumar Nalla Beldar 08.05.2000 01.04.2006 Engineering Deptt.,
S/o Sh. Vijay Pal Singh J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, E.E. M-II
3. Sh. Sudhir Nala Beldar June 2000 01.04.2006 Engineering Deptt.,
S/o Sh. Gule Ram J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
4. Sh. Ravinder Kumar Nala Beldar 11.07.2001 01.04.2006 Engineering Deptt.,
S/o Sh. Vijay Pal Singh J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
5. Sh. Krishan Pal Nala Beldar 15.06.2000 01.04.2006 Engineering Deptt.,
S/o Kali Ram J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
6. Sh. Ashok Kumar Nala Beldar 21.06.2000 01.04.2006 Engineering Deptt.,
S/o Sh. Mahipal Singh J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
7. Sh. Rajpal Nala Beldar June 1998 01.04.2005 Engineering Deptt.,
S/o Sh. Jumman J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
8. Sh. Ram Singh Meena, Nala Beldar March 2002 01.04.2006 Engineering Deptt.,
S/o Sh. Jaina Ram J.E. Store, Ward No.
Meena 268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
9. Sh. Rishipal Singh Beldar 05.11.1998 01.04.2005 Engineering Deptt.,
S/o Sh. Mahabir Singh J.E. Store, Ward No.
268, Mustafabad,
POIT-386-19 Page No. 3/31
Shahdara North
Zone, EDMC, E.E.
M-II
10. Sh. Satender S/o Sh. Beldar October 2000 01.04.2006 Engineering Deptt.,
Rampal Singh J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
11. Sh. Raj Kumar Beldar 05.11.1998 01.04.2005 Engineering Deptt.,
S/o Sh. Simroo Singh J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
12. Sh. Ram Chander Beldar 11.02.1989 01.04.1997 Engineering Deptt.,
S/o Sh. Ami Chand J.E. Store, Ward No.
268, Mustafabad,
Shahdara North
Zone, EDMC, E.E.
M-II
13. Sh. Rajinder Nala Beldar February 01.04.1998 Engineering Deptt.,
S/o Sh. Tika Ram 1980 J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
14. Sh. Mahender Singh Nala Beldar 18.07.1998 01.04.2005 Engineering Deptt.,
S/o Sh. Jyoti Ram J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, E.E. M-II
15. Sh. Dinesh Nala Beldar 30.03.1997 01.04.2004 Engineering Deptt.,
S/o Late Sh. Gopi Chand J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
16. Sh. Narender Kumar Nala Beldar 01.07.2001 01.04.2006 Engineering Deptt.,
S/o Sh. Sitaram J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
17. Sh. Ramesh Chand Nala Beldar 05.07.2002 01.04.2006 Engineering Deptt.,
S/o Sh. Har Pal J.E. Store, Ward No.
POIT-386-19 Page No. 4/31
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
18. Sh. Sanjay Nala Beldar 11.05.2000 01.04.2006 Engineering Deptt.,
S/o Sh. Babu Lal J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
19. Sh. Rajender Nala Beldar June 2000 01.04.2006 Engineering Deptt.,
S/o Sh. Sumer Singh J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
20. Sh. Jitender Nala Beldar 05.07.1995 01.04.2006 Engineering Deptt.,
S/o Sh. Kartar Singh J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
21. Sh. Raj Bai Collie 11.10.1984 01.04.1990 Engineering Deptt.,
W/o Sh. Govind Ram J.E. Store, Ward No.
267, Nehru Vihar,
Shahdara North
Zone, EDMC, E.E.
M-II
22. Sh. Sudesh Kumar Beldar 16.08.1996 01.04.2004 Engineering Deptt.,
S/o Sh. Kripal Singh J.E. Store, Ward No.
239, Jhilmil,
Shahdara North
Zone, EDMC, E.E.
M-II
23. Sh. Bhupender Kumar Beldar 20.05.1998 01.04.2005 Engineering Deptt.,
S/o Sh. Rajeshwar J.E. Store, Ward No.
Prasad 239, Jhilmil,
Shahdara North
Zone, EDMC, E.E.
M-II
24. Sh. Sanjay Sharma Beldar 19.02.1996 01.04.2003 Engineering Deptt.,
S/o Sh. Tej Pal Sharma J.E. Store, Ward No.
235, Azad Nagar,
Shahdara North
Zone, EDMC, E.E.
M-II
POIT-386-19 Page No. 5/31
4. Statement of Claim was filed separately on behalf of the workman,
stating that he joined into the employment of the management as Nalla
Beldar w.e.f. 18.07.1998. He was taken on job as daily rated/muster roll
worker and paid wages in accordance with minimum wages act,
whereas on the other hand his regular counterparts performing the
identical work and of the same value were treated as regular employees
and paid their salary in regular pay scale. It is further submitted that the
workman has been continuously discharging his services with the
management since his initial date of joining with an unblemished
record of service to his credit. It is the grievance of the workman that
the management should have regularized his services from his initial
date of joining instead of on 01.04.2005. It is contended that non-
regularization of his services from his initial date of joining and non-
grant of arrears of difference of salary on the principle of equal pay for
equal work is illegal on the following grounds:
5. The job against which the workman was working is regular and
permanent in nature, and he has been performing his duties to the
satisfaction of the management. It is contended that employing persons
on regular nature of job and treating them as monthly paid/muster roll
workers and paying them lesser remuneration than those doing the
identical work of same value amounts to unfair labour practice as
provided in section 2(ra) r/w section 25T punishable under section 25U
of the I.D. Act. Such an action of the management amounts to sheer
exploitation of labour and is in violation of Article 14, 16 & 39(d) of
the Constitution of India. It is argued that the denial of equal pay for
equal work is against the Equal Remuneration Act, 1976.
POIT-386-19 Page No. 6/31
6. The workman has stated to be served a demand notice to the
management vide communication dated 23.10.2017 which was also
received in their office but no reply was given to the same, subsequent
to which it was presumed that his demand was rejected, and thereafter
conciliation proceedings were initiated which resulted in failure, hence,
this reference. It is prayed by the workman that an award be passed in
his favour to regularize his services on the post of Nalla Beldar in
proper pay scale and allowances w.e.f. his initial date of joining i.e.
18.07.1998 along with granting him difference of salary on the
principle of equal pay for equal work and a litigation cost u/s 11(7) of
the I.D. Act was also sought by the workman.
7. The management filed its Written Statement and submitted that
the present dispute is not an industrial dispute as it is not properly
espoused by the union, therefore, the reference is also bad in law. It is
also averred that no demand notice has been served upon the
management and as such the present dispute is not an industrial dispute.
The management has stated to have its own regularization policy i.e.
Phased Manner Regularization Policy, as per which the management
regularizes its daily wager/part-time worker and muster roll employee
subject to the availability of posts and funds. As per the management,
its policy has also been upheld in various cases by the Hon'ble Delhi
High Court, therefore, based on the said policy the workman cannot
claim regularization from his initial date of joining. As far as the
question of equal pay for equal work is concerned the management has
relied upon the judgment of State of Haryana vs. Jasmer Singh, (1996)
11 SCC 77 as per which the daily wagers/part-time workers cannot be
equated with the regular employees of the management as the former
POIT-386-19 Page No. 7/31
does not possess the qualification prescribed for the regular workers.
Further reliance is also placed upon MCD vs. POIT-II, 2000 AD
(Delhi) 442. For regularization the judgment of Uma Rani vs. Registrar
Cooperative Societies (2004) 7 SCC 112 and Secretary, State of
Karnataka vs. Uma Devi, (2006) 4 SCC 1 is relied upon by the
management.
8. On merits, the management has submitted that reference is
mechanical and without application of mind. It was further stated that
management corporation has its own policy of regularization i.e.
phased manner and availability of funds and post, so workman cannot
claim for the regularization from the initial date of engagement. It is
further submitted that conciliation proceedings failed as the demand of
workman in conciliation proceeding were illegal and unjustified. Based
on these averments, the management has prayed that the case of the
workmen be dismissed as being devoid of merits.
9. After completion of pleading of both the parties, following issues
were framed vide order dated 19.08.2020:
1. Whether the dispute has not been properly espoused by
the Union?OPM
2. Whether no demand notice has been served by the union
upon the management and reference is bad for the same? OPM
3. Terms of reference?
10. To prove its case, the workman examined himself as WW-1 and
filed his Affidavit (Ex. WW1/A) in his examination-in-chief. He relied
upon Ex. WW-1/1 to Ex. WW1/8 - Legal Demand Notice dated
23.10.2017, its Postal Receipt, Statement of Claim filed before the
Conciliation Officer, espousal dated 17.10.2017 passed by the union,
POIT-386-19 Page No. 8/31
copy of resolution No. 709 dated 20.11.1978, copy of resolution No.
1002 dated 05.01.1967, copy of muster roll dated 31.08.1998, copy of
office order dated 14.08.2008. The workman witness duly tendered his
documents and was also cross-examined by the AR for the
management. Pursuant to which the workman's evidence was closed.
11. Per contra, the management examined Sh. Shail Tyagi posted as
Assistant Engineer, MCD as MW-1. He also filed his Affidavit Ex.
MW1/A and relied upon documents as detailed in his affidavit. After
completion of the tendering process, the management witness (MW-1)
was cross-examined by the AR for the Workman and thereafter, the
management evidence was closed.
12. Final arguments have been heard at length as advanced by both
the parties. This Tribunal has gone through the documents, pleadings as
well as arguments of both the parties and the same are dealt with by
this Tribunal in following paras. My issue wise findings are as follows:
13. Issue No. 1. Whether the dispute has not been properly espoused
by the Union?OPM
14. The onus to prove this issue was on the management.
15. Here this Tribunal has to see if the case of the workman has been
properly espoused by the union or not?
16. The management has taken objections in its written statement that
the present dispute is not an industrial dispute as the same is not
properly espoused by the union. In order to prove the proper espousal,
the Ld. A.R. for the workman has placed reliance upon Ex. WW1/4 i.e.
resolution dated 17.10.2017 passed by the Municipal Employees Union
for raising an industrial dispute in favour of the workmen. He also
placed reliance upon the judgment of the Hon'ble Delhi High Court in
POIT-386-19 Page No. 9/31
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., 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 have
been properly espoused by the union.
17. 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
the management to argue that the cause of the workman was not
supported by the union.
18. Also 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
POIT-386-19 Page No. 10/31
on the issue of espousal by categorizing it as hyper-technical and held
that the cause of the workman is properly espoused by the union.
19. Even otherwise, in the present case, the statement of claim (Ex.
WW1/3) filed before the conciliation officer by the Municipal
Employees Union is placed on record. The resolution dated 17.10.2017
i.e. Ex. WW1/4, wherein the union decided to raise an industrial
dispute in favour of the workmen have also been placed on record.
Even the legal demand notice Ex. WW1/1 was sent on the letter head of
the union. The workman witness in his affidavit also deposed that he is
a member of Municipal Employees Union and stated his membership
number. He further stated that he approached union for redressal of his
dispute and consequently on 17.10.2017, a resolution was passed to
raise the said grievances by way of raising a dispute. Therefore, in view
of the above discussed documents and evidence, this Tribunal does not
have any reasons to cast doubt on the espousal passed by the Municipal
Employees Union for raising an industrial dispute in favour of the
workmen. In view of the above discussion, it is clear that workman has
placed sufficient material on record, hence, this Tribunal is of the
opinion that the cause of the workman has been properly espoused by
the Municipal Employees Union. Accordingly, Issue no. 1 is decided in
favour of the workman and against the management.
20. Issue No. 2: Whether no demand notice has been served by the
union upon the management and reference is bad for the same? OPM
21. The management has contended that no demand notice has been
served upon them prior to raising the present industrial dispute, hence
the same is not maintainable.
POIT-386-19 Page No. 11/31
22. On the other hand, the workman has placed reliance upon Ex.
WW1/1 i.e. copy of legal demand notice dated 23.10.2017 and its
postal receipt Ex. WW1/2 to establish that he had duly served the
demand notice to the management but no reply was received from them
and consequently it was presumed that his demand was rejected.
23. Even though the management has taken this objection that no
legal demand notice was served upon them, it would not have any
impact on the present dispute because the same is not mandatory before
raising the present dispute. Reliance is placed upon Workmen of
M.C.D. vs. M.C.D., W.P.(C) No. 13023/2005 decided on 06.08.2007,
wherein the Hon'ble Court has held that making a written demand is
not a sine qua non for raising an industrial dispute. Once the
appropriate Government has passed an administrative order referring an
industrial dispute for adjudication to the industrial adjudicator, it has to
be assumed that an administrative decision was arrived at by the
Government after examining the material placed on the record that
there exists an industrial dispute.
24. Accordingly, Issue no. 2 is also decided in favour of the workman
and against the management.
25. Issue No. 3: Terms of reference.
26. Now dealing with the regularization aspect of the case, the AR
for the Management has drawn attention of this Tribunal 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 and Uma
Rani vs. Registrar Co-operative Society as reported in (2004) 7 SCC
112, wherein it was held regularization is not and cannot be a mode of
POIT-386-19 Page No. 12/31
recruitment by any State within the meaning of Article 12 of the
Constitution of India or any body or authority governed by a statutory
Act or the Rules framed thereunder. Regularization furthermore cannot
give permanence to an employee whose services are ad-hoc in nature. It
was also held that the fact that some persons had been working for a
long time would not mean that they had acquired a right for
regularization. Further, it was also argued that the management has its
own policy of regularization i. e. phase manner regularization policy
and the management regularizes its daily wage muster roll-employees
as per availability of the posts and funds and the said policy was upheld
by the Hon'ble Delhi High Court in MCD vs. Gauri Shankar & Ors.,
WPC No. 601/1997 dated 31.08.1999 and MCD vs. Brij Mohan, WPC
No. 17932/2004 dated 27.10.2005.
27. The workman representative has argued that the management has
committed 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 employing the workman for performing the
permanent and perennial nature of work of Beldar/Nala Beldar and
treating them as mere temporary workman and to continue them for
several years with the object of depriving the status of permanent
workman amounts of unfair labour practice as regularizing their
services would mandate the management to pay the salary in regular
pay scale to the workman. He placed reliance upon the judgment of
Hon'ble Supreme Court titled as Chief Conservator of Forest and Anr.,
(1996) 2 SCC 293 and the judgment of Hon'ble Delhi High Court titled
as Project Dir. Dep. Of Rural Development v. Its Workmen, 2019 SCC
OnLine Del 7796.
POIT-386-19 Page No. 13/31
28. This tribunal has considered all the material on record as well as
legal submissions of the parties and have perused the judgments cited
by the both parties. As far as the powers of Labour Courts and
Industrial Tribunals are 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.
The relevant portion of the judgment is reproduced below:
29. "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 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
POIT-386-19 Page No. 14/31
industrial peace and progress (Vide: Rohtas Industries, Ltd.
v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna
v. Patna Electric Supply Workers' Union)."
30. Likewise, the Industrial Tribunal in the case of Chief Conservator
of Forest and Anr. (supra), and Project Dir. Dep. Of Rural
Development v. Its Workmen, (supra), have also dealt with the powers
of Industrial Tribunals and granted regularization to the workers
working for certain schemes for several years. The relevant portion of
the aforesaid judgment 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 regularisation
in Uma Devi (supra) does not apply to industrial
adjudication and that the Industrial Tribunal has the power
to direct regularisation of services in 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.."
POIT-386-19 Page No. 15/3131. The recent judgment of Hon'ble Supreme Court in ONGC v.
Krishan Gopal, (2021) 18 SCC 707 after discussion its various judgments on the aspect of power of Labour Court and Industrial Tribunal to grant regularization has laid down the following propositions:
"28. The following propositions would emerge upon analysing the above decisions:
28.1. Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularization, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution.
28.2. The statutory power of the Labour Court or Industrial Court to grant relief to workmen 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.
28.3. 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.
28.4. 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 on a 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.
28.5. In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of Vth Schedule to the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for POIT-386-19 Page No. 16/31 years, with the object of depriving them of the benefits payable to permanent workmen."
32. In the instant case, workman was appointed first as a daily wager and then subsequently their services are regularized in regular pay scale by management as admitted by the management witness in his cross- examination. This is suggestive of the fact that the management indeed has a permanent and sanctioned post of Beldar/Nala Beldar. Hence, in the presence of sanctioned posts of Beldar/Nala Beldar, the limitations of ONGC (Supra) will not be applicable to the present case. On the contrary it affirms the power of the Industrial Tribunal to grant regularization pursuant to the findings of unfair labour practice. Furthermore, the argument with respect to Uma Devi (supra) was also dealt with in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 by the Hon'ble Supreme Court, which has observed that the managements have resorted to using Uma Devi (supra) as a tool to further exploit the services of the worker and not regularizing them. The relevant portion of the judgment is as follows:
"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 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 POIT-386-19 Page No. 17/31 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 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)."POIT-386-19 Page No. 18/31
33. Hence, the reliance of the management on the judgments of Uma Devi (supra) to argue that this tribunal does not have the power to regularise the services of the workman concerned is misplaced in law. Notably, the Hon'ble Supreme Court in Chief Conservator of Forest (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 emphasises 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 labour practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
34. Now moving to the factual matrix of this case, the service particulars of the workman i.e. date of joining, designation and date of regularization are not disputed and the same were also admitted by the management witness during his cross-examination. The question before this Tribunal is whether the workman is entitled for regularization of his services from his initial date of joining or his services have been rightly regularized in accordance with their phased manner policy of regularization.
POIT-386-19 Page No. 19/3135. The workman has placed on record the regularization order dated 14.08.2008 (Ex. WW1/8) by which the services of the workman were regularized w.e.f. 01.04.2005. Further, in his cross-examination dated 06.10.2021, the workman witness (WW-1) deposed that he joined the services as a Nala Beldar and he was regularized to the post of Beldar in 2005. He further deposed that during his service, he was receiving the pay scale similar to other employees working against the post after being regularized.
36. Attention is also drawn towards the cross-examination of management witness dated 13.09.2023, wherein he has made certain admission on the disputed facts. He admitted that "It is correct that services details of the workmen given in Annexure A to the terms of reference dated 31.07.2018 are correct. It is correct that nature of work and working hours of the concerned workman during their muster roll period i.e. from initial date of joining to till the date of regularization is same and identical to those who were treated as regular and permanent beldar/nala beldar and paid their salary in the regular pay scale. It is correct that all the beldar/nala beldar are first appointed as a muster roll/daily wager workman and then subsequently their services are regularized in the regular pay scale by the management. It is also correct that no direct regular beldar/nala beldar is appointed in the regular pay scale. It is correct that this is the normal method of appointment in MCD. It is correct that workman who is working on muster roll is paid only as per minimum wages whereas the regular workman is paid his salary in the regular pay scale which is much higher than the salary paid under minimum wages. It is correct that workman are employed on muster roll like the concerned workman POIT-386-19 Page No. 20/31 with the object of saving money by the management by paying less salary to the muster roll employees in comparison to regular. We have no reason of not regularizing the services of the workman from their initial date of joining and paying salary in the regular pay scale other than it is the policy of the management. There is no complaint about the work and conduct of the workman." Therefore, there does not remain any dispute with respect to the service particulars and nature of work of the workmen. He also conceded that the workman has been working with the management continuously and uninterruptedly till date. It is also proved that there were no changes in the work and working conditions i.e. working hours, nature of work of the workers both prior and after their regularization. Hence, being a daily wager they discharged the same duties with same working hours and roles and responsibilities and after their regularization they worked in the similar manner. It is not the case of management that they did not have sanctioned vacant post of Beldar/nala beldar at the time of initial appointment of workman. Meaning thereby, there remains no controversy to the fact that the posts of Beldar/nala beldar were available at the time of his initial engagement by the management, which is why the workman was appointed against the sanctioned post of Beldar/nala beldar and worked as such till date. It is also established that despite performing the same work as being performed by the regular and permanent Beldar/nala beldar both pre and post regularization, the workman was given minimum wages. The said wages are lesser in comparison to what was being paid to the regular Beldar working with the management. There is no dispute about the fact that the workman had been discharging the duties of Beldar from POIT-386-19 Page No. 21/31 his initial date of joining and till date. The management has permanent sanctioned posts of Beldar/nala beldar in its establishment which suggests that the work of beldar is permanent and perennial in nature. Even though the workman was stated to be engaged on a muster-roll/daily wage basis, however, management failed to show as to why it had to resort to hiring workers as such despite it being a permanent and perennial nature of work.
37. From the aforementioned testimony of the management witness, it is evident that the concerned workman joined the employment of management as Nalla Beldar w.e.f. 18.07.1998 and had worked continuously and uninterruptedly since then. It cannot be disputed that workmen were performing the work of permanent and perennial in nature as the management has a permanent and sanctioned post for the said post. The management witness has also admitted the work, duties, and number of working hours of the workman are identical to those of the regular and permanent employees of management, and there is no change in the nature of work of the workman both prior and post regularization. It is not the case of the management that there were no vacant posts of Beldar/nala beldar available, nor have they supported this claim with any documentary evidence. On the contrary, the workman was appointed against the vacant post of Beldar from the beginning. It is also not the contention of the management that the workman did not fulfill the requisite qualifications for the post of Beldar at the time of his initial appointment. Now, this Tribunal fails to understand why, despite having the requisite qualifications and vacancies available for the post of Beldar, the workman was not employed on a regular and permanent basis from the very beginning.
POIT-386-19 Page No. 22/3138. The management has relied upon Ex. MW1/1 i.e. Resolution No. 273 and submitted that the services of the workman were regularized in accordance with the said policy, and granting him regularization w.e.f. his initial date of joining will eventually disturb the seniority of other workers and industrial peace in the establishment of the management. Reliance in this regard is placed upon Gauri Shankar (supra).
39. This Tribunal has perused the said Resolution No. 273 of the management. The said policy seems to address the irregularities in the employment practices of the management, where several daily wagers were engaged by the management and were made to work on daily wages. It records that:
"1. The Municipal Corporation vide Resolution No. 709 dated 20.11.1978 laid down a policy to regularise persons engaged on daily wages/muster roll on maintenance work/work of regular nature in phased manner. Under this resolution, it was decided to regularise all such persons engaged upto 31.12.1970 in the year 1978-79 and those engaged subsequently were to be regularised in a block of two years in each financial year. The date of effect of regularisation of all such persons engaged upto 31.12.1970 in the year 1978-79 and those engaged subsequently were to be regularised in a block of two years in each financial year. The date of effect of regularisation was to be the first date of the financial year. Since all such persons engaged upto 1978 was regularised during 1982-83, the matter was referred again to the Corporation for a decision about regularisation policy in respect of such persons engaged after 1978. The Corporation vide resolution no. 936 dated 16.02.1984 decided to continue the existing policy subject to actual need to be verified by the O&MO and regularisation of these persons is being done in pursuance of this resolution.POIT-386-19 Page No. 23/31
2. The pace of regularisation of persons engaged after 31.12.1978 has been erratic/slow as the O&M study of the requirement of permanent work force in various department had revealed that some of the department were already overstaffed and in some departments there was no permanent nature of work which called for regularisation persons engaged on daily-wage/muster roll basis.
XXX
7. It is therefore proposed that regularisation of persons engaged on daily wages/muster roll be done:-
(i) on the basis of actual requirement worked out by each department keeping in view the maintenance/regular nature of work & O & M study be dispensed with &
(ii) with effect from the first day of the financial year in which regularisation is done.
Thereafter, the aforesaid resolution was approved as "resolved that as recommended by the Standing Committee vide its resolution no. 702 dated 19.05.1988 regularisation of all workers engaged on daily wage/muster roll upto 31.12.1984 be also approved and the commissioner be asked to bring up proposals for additional budget/grant required if any."
40. The initial policy was instituted as a remedial measure to regularize daily wage employees en masse as a one-time measure due to long- standing irregularities in their engagement practices. After the policy expired (i.e. the regularization of the last batch w.e.f. 1982), the management, vide Resolution No. 936 dated 16.02.1984, extended the regularization policy to those who had been engaged for two consecutive years as stipulated therein. Thereafter, the policy was again extended to the daily wagers/muster roll workers engaged up to POIT-386-19 Page No. 24/31 31.12.1984. This means the management, despite the initial remedial measure to correct the anomalies in the hiring process and regularize all daily wagers engaged up to 1978, continued to engage workers on a daily wage basis after 1978, fully aware that it would eventually undermine the purpose of the one-time phased regularization policy. Then, the management continued to grant extensions to the policy until 1984 while still engaging workers on a daily-wage/muster roll basis. Moreover, the workmen concerned was engaged in 1995, although the policy had only been in place until 1984, and no justification whatsoever has been provided in the form of documentary evidence explaining the need to hire the workman on the daily-wage basis for performing the regular nature of work.
41. This Tribunal emphasizes that no rule/policy of the management can outweigh the Industrial Disputes Act. Whatever the policy may be, it should align with labour laws. The management cannot, under the guise of "policy", perform actions that are strictly prohibited under the Industrial Disputes Act. The Industrial Disputes Act at Item No. 10 of Fifth Schedule outlines Unfair Labour Practice as "to employ workmen as badlies, casual temporaries, and to continue them as such for years with the object of depriving them of the status and privileges of permanent workmen." Such practice is not only prohibited under Section 25T but also punishable under Section 25U of the Industrial Disputes Act.
42. Now, although the phased manner regularization policy was extended by the management vide Resolution No. 936 and Resolution No. 273, this does not give the management the license to continue to employ workers on a temporary/casual/daily wage basis for work of a POIT-386-19 Page No. 25/31 permanent and perennial nature. The management must remember that the original policy, i.e., Resolution No. 709, was intended to correct historical irregularities, and such extensions cannot become a means to continue hiring workers on a temporary basis, which the earlier policy aimed to correct. Merely having a phased manner policy for the regularization of employees does not automatically rectify the unfair labor practice of appointing workers on a temporary basis for permanent and perennial work. Industrial Tribunals must examine the reasons/justification recorded by the management for appointing such workers on a temporary basis and assess these reasons in accordance with the Industrial Dispute Act. Engaging workers for permanent and perennial work and treating them as casual/muster roll/contract/daily wager/temporary workers without recorded reasons will act against the management and suggest an element of unfair labor practice, as it exploits the services of the workers without providing them their due wages, and no justifiable reasons have been recorded by the management.
43. The management, neither in its written statement nor during the course of the proceedings, has provided any reasons as to why it resorted to appointing the workman on a daily-wage basis, especially when the work of a Nala Beldar is permanent and perennial in nature, and he was appointed against a sanctioned vacant post from the very beginning. It is noteworthy that if the worker, the post of Nala Beldar, and the nature of the work remain the same, then the question arises as to why the worker was not treated as regular and permanent from his initial date of appointment. The management has also failed to provide any basis for how the cut-off date of 01.04.2005 was determined with POIT-386-19 Page No. 26/31 respect to the concerned workman. In the absence of a clear basis, such an action of the management reeks of arbitrariness, as the substantial period of service of the workman were eaten away without any justification whatsoever.
44. The management has also argued that the workman has duly accepted his regularization w.e.f. 01.04.2005 out of his free will with all the terms and conditions without any protest, therefore, at this stage he cannot retract from his acceptance and claim regularization on the post of Nalla Beldar w.e.f. his initial date of joining. This Tribunal does not find any consensus with this argument of the management. Merely because the workmen has "consented" to his regularization on the post of Nalla Beldar w.e.f. 01.04.2005, that does not give the license to the management to indulge in unfair labour practices. Given that the workman is a lowly paid employee and considering his socio-economic background, it is unreasonable to assume that he possesses equal bargaining power in determining the terms of his employment, including decisions related to his regularization. Reliance is placed upon the judgment of Hon'ble Supreme Court in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 156.
45. Likewise, 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 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 POIT-386-19 Page No. 27/31 enshrined in Article 14 of the Constitution, which implies equal pay for work of equal value. Similarly, 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. Therefore, in the present case merely because the workman had given his acceptance his regularization w.e.f. 01.04.2005 does not bar him from raising the present dispute.
46. 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 enumerated in Item No. 10 of the Fifth Schedule read with Section 2(ra) of the Industrial Disputes Act by employing the workman against the sanctioned vacant post of Nalla Beldar but treating him merely as a daily wager for performing the permanent nature of work of a Nalla Beldar and continued him for years with the intent of depriving him of the status and privileges of a regular and permanent employee. The management subsequently wrongly regularized the workmen concerned w.e.f. 01.04.2005 under the guise of a phased manner regularization policy intended for Class-IV employees, despite him performing the same work as his regular and permanent counterparts. This view is supported by the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra), wherein the Hon'ble Supreme Court of India held that employing workers as temporary workers for long periods and denying them the status and salary of a regular employee amounts to an unfair labour POIT-386-19 Page No. 28/31 practice. This is because giving them the status and privileges of a permanent employee would require the management to pay the workman a salary higher than the one fixed under the Minimum Wages Act.
47. Moreover, this Tribunal, in the case of Pradeep Rana & Ors. vs. NDMC (I.D. No. 212/2016), decided on 11.08.2023, after arriving at the finding that the management had indulged in unfair labour practice by employing workers on a temporary basis for several years of continuous and uninterrupted service despite them having the requisite qualifications, directed the regularization of their services from their respective initial dates of joining, with all consequential benefits. The management challenged the said award before the Hon'ble High Court in W. P.(C) No. 3339/2024, titled Municipal Corporation of Delhi vs. Pradeep Rana & Ors., wherein the Hon'ble Single Judge upheld the award passed by this Tribunal. Thereafter, the management again challenged the decision of the Hon'ble Single Judge before the Hon'ble Division Bench vide L.P.A. No. 720/2024 titled as Municipal Corporation of Delhi vs. Pradeep Rana & Ors.. The Hon'ble Court rejected the contention of the management that regularizing them would lead to seniority disputes, financial burden, and was against the principles laid down in the Umadevi (supra). The Hon'ble Division Bench has categorically held that the Umadevi Doctrine would operate only in writ forums and not in industrial adjudications. In industrial adjudications, where the employer has kept the permanent posts unfilled and indulged in the unfair labour practice of keeping workmen on a temporary basis over prolonged periods of time, the statutory power of the industrial adjudicator to grant relief to the workmen, POIT-386-19 Page No. 29/31 including the status of permanency, continues. The workmen therein approached the Industrial Tribunal, claiming it was an unfair labour practice to keep them in temporary jobs for several years. The industrial adjudicator, based on evidence, arrived at the finding of unfair labour practice by the management, holding that the work was permanent and perennial in nature. The workers, who fulfilled the requisite qualifications and performed the same work as their regular counterparts but were paid lesser wages, were treated as temporary workers while the management failed to fill the sanctioned posts. The court also rejected the management's argument that the workers voluntarily accepted contractual terms, noting that individuals in dire need of employment and livelihood have limited choices and would accept whatever lawful opportunity comes their way in the absence of any choice. Hence, the Division Bench of the Hon'ble Delhi High Court in Pradeep Rana (supra) has settled the position of law that the industrial tribunal has power to grant the relief of regularization pursuant to the findings of unfair labour practice.
48. In these circumstances, this Tribunal holds that the workman Sh.
Mahender Singh S/o Sh. Jyoti Ram is entitled to regularization in service on the post of Nalla Beldar w.e.f. 18.07.1998 in the regular pay scale with all consequential benefits, either monetary or otherwise. This Tribunal is also mindful of the caution given by the Hon'ble Delhi High Court in MCD vs. Gauri Shankar & Ors. (supra), and acknowledges the potential disruption to the seniority of other workers. Therefore, this Tribunal, keeping it in mind, holds that the seniority of the workman will not be disturbed due to his regularization from the initial date of joining and the same be counted w.e.f. 01.04.2005. As far POIT-386-19 Page No. 30/31 as the question of equal pay for equal work is concerned, since the workman is performing the same work as being performed by his regular counterparts and there was no change in his work, working hours, roles, and responsibilities both pre and post-regularization, this Tribunal holds that he is entitled to the difference in wages on the principle of equal pay for equal work for the period 18.07.1998 to 01.04.2005. Hence, the terms of reference/Issue no. 3 is also answered in favour of the workman and against the management.
49. Relief: In view of my above findings, it is held that the workman Sh. Mahender Singh S/o Sh. Jyoti Ram is entitled to regularization in service on the post of Nalla Beldar w.e.f. 18.07.1998 in the regular pay scale with all consequential benefits, either monetary or otherwise. His seniority will be counted from 01.04.2005 onwards. He is further entitled to the difference in wages on the principle of equal pay for equal work for the period 18.07.1998 to 31.03.2005. The management is directed to implement the award within 60 days of its publication failing which the management will be liable to pay an interest at the rate of 8% p.a. from the date of terms of reference i.e. 31.07.2018 to till its realization. The award is passed accordingly.
50. Copy of the award be sent to the appropriate Government for Digitally publication. File be consigned to the Record Room. signed by Mohinder Mohinder Virat Virat Date:
2024.09.04 16:41:02 Announced in open Tribunal +0530 on this 04.09.2024 (Mohinder Virat) POIT-I/RADC, New Delhi.POIT-386-19 Page No. 31/31