Delhi District Court
Sh. Chandra Bhan Singh 30 Ors vs Mcd North Ors on 12 January, 2024
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
F. No. 24(123)/CD/13/2012/Lab./781
Dated: 19.12.2013
POIT NO.: 13/2016
Workmen:
Workmen mentioned in Annexure A Chandra Bhan Singh & Ors.
as represented by
Delhi Municipal Karamchari Ekta Union,
780, Ballimaran, Delhi-06.
Vs.
The Management of:
1. M/s. North Delhi Municipal Corporation
Through its Commissioner,
Civic Centre, New Delhi-110002.
2. M/s. South Delhi Municipal Corporation
Through its Commissioner,
Civic Centre, New Delhi-110002.
3. M/s. East Delhi Municipal Corporation
Through its Commissioner,
F.I.E., Udyog Sadan, Patparganj Industrial Area, Delhi-92.
Date of Institution : 02.01.2014
Date of Assignment to this court : 07.03.2023
Date of Arguments : 09.01.2024
Date of Award : 12.01.2024
AWAR D
1. The Labour Department, Govt. of the National Capital Territory of
Delhi has referred this dispute arising between the parties named above
for adjudication to this Tribunal with following terms of the reference:-
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"1. Whether the action of the management of MCD in
not paying the workmen of the Statistical cadre
(Statistical Assistants, Computer and Statistical clerk of
MCD) of the MCD the financial and consequential
benefits of the pay-scale of Rs. 5000-8000 of the post of
Statistical Assistant on actual basis w.e.f. 01.01.1996 is
illegal and /or unjustified, if so, to what relief are the
workmen entitled and what directions are necessary in
this respect?
2. Whether the demand of the workmen for further
revising the pay-scale of the post of Statistical Assistant
to Rs. 5500-175-9000 w.e.f. 01.01.1996 on notional basis
with actual benefits w.e.f. 01.12.2006 as has been done
by the Govt. of NCT of Delhi vide order No.
F.9(12)/2003/CC/Pig/8455 dated 19.08.2008. and
accordingly granting the benefits thereof to the
Statistical clerks and computer under the ACP and
MACPS scheme is legal/justified and if yes to what
relief the workmen are entitled and what directions are
necessary in this respect?"
2. Statement of claim has been filed on behalf of the workmen,
wherein it is stated that by present industrial dispute, the workmen are
firstly raising demand or revising the pay scale of the post of Statistical
Assistant to Rs. 5000-8000 w.e.f. 01.01.1996 on actual basis with all
the consequential financial benefits w.e.f. 01.01.96 at par with their
counterparts working in Central Government and Govt. of NCT of
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Delhi who have been granted the said pay scale w.e.f. 01.01.1996 on
actual basis and has been paid all the financial benefits w.e.f.
01.01.1996. Further the workmen are secondly demanding that the pay-
scale of the post of Statistical Assistant be further revised to Rs. 5500-
175-9000 w.e.f. 01.01.1996 on notional basis with actual benefits w.e.f.
01.12.2006 at par with their counterparts working in Central
Government and the State Government and the corresponding benefits
may be paid to the workmen.
3. List of all the workmen has been placed on record as Annexure A
which is reproduced herein below:
1. Sh. Chandra Bhan Singh, S/o Late Ram Dawan Singh, Statistical
Clerk, Retired on 31.01.2004 from M & CW Town Hall, R/o H. No.
25B, 1st Floor, Surajnagar, Azadpur, Delhi-110033.
2. Sh. Ravinder Kumar, S/o Late Sh. Amar Nath, Statistical Assistant,
CAMO, Karol Bagh Zone, R/o H. No. R-753, New Rajiner Nagar, New
Delhi-110060.
3. Sh. Rati Bhan, S/o Late Sh. Gopi Ram, Statistical Assistant, Retired
on 31.12.2009, from RBTB Hospital, Kingsway Camp, R/o H. No. I-
320, Jahangir Puri, Delhi-110033.
4. Sh. M. C. Anand, S/o Late Sh. G. C. Anand, Computer, Retired on
31.12.2006, from MCW Section, Town Hall, R/o H. No. S-3/52, G. F.,
Gali No. 2, Mahavir Nagar, Tilak Nagar, New Delhi-110018.
5. Sh. Jag Pravesh, S/o Sh. Raja Ram, Computer, Hindu Rao Hospital,
R/o 466-A, Kashmiri Bagh, Kishangarh, Delhi-110007.
6. Smt. Ram Dulari Garg, W/o Sh. H. C. Garg, Statistical Clerk, Retired
on 31.08.2004, from Maternity Home, Vishnu Garden, R/o 26-D,
Navyug Adarsh Aptt. F-Block, Vikas Puri, New Delhi-110018.
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7. Sh. Ranbir Singh, S/o Late Sh. Hawa Singh, Statistical Clerk, Bureau
of Health Intelligence, EDMC, R/o A-927/6, Jain Bagh Colony, Gohana
Road, Sonipt, Haryana.
8. Sh. Chandan Singh, S/o Late Keshri Singh, Statistical Assistant,
(Promoted Senior Investigator), EDMC HQ, R/o A/256, Sector-12,
Vijay Nagar, Ghaziabad, U.P.
9. Smt. Neelam Handa, W/o Sh. Anup Kumar Handa, Statistical Clerk,
CAMO/KBZ, R/o 27/34, Old Rajinder Nagar, New Delhi.
10. Smt. Nirmal Rani Jain, W/o Sh. Naresh Chand Jain, Statistical
Clerk, CAMO Sh. (N) Zone, R/o Block-R, Flat No. 26 E, Dilshad
Garden, Delhi.
11. Smt. Kamlesh Casshyap, W/o Sh. R. R. Casshyap, Statistical Clerk,
Retired on 31.10.2004 from M & CW Town Hall, R/o Flat No. 959,
Pocket GH-5 & 7, Paschim Vihar, New Delhi-110087.
12. Sh. Trilok Chand Goel, S/o Sh. Ram Kishan Goel, Statistical Clerk,
retired on 30.04.2008 from Maternity Home, Patparganj, R/o E-6,
Indira Gandhi Marg, East Vinod Nagar, Delhi-92.
13. Smt. Surjeet Kaur Bindra, W/o S. Tejinder Singh, Statistical Clerk,
Retired on 31.07.2007 from FWC Fateh Nagar, R/o WZ-25, Gali No.
14, Shiv Nagar, New Delhi-110058.
14. Sh. Ved Vrat Gautam, S/o Late Sh. M. C. Gautam, Statistical Clerk,
BHI/Narela Zone, R/o R-265, Gali No. 17, Sawtenter Nagar, Narela,
Delhi.
15. Sh. Ran Pal Khatri, S/o Sh. Rishi Singh, Statistical Clerk, Retired
on 31.12.2008 from F.W.C. Nangloi, R/o H. No. 412, V. P. O.
Katewara, Delhi-110039.
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16. Smt. Prabha Gandhi, W/o Sh. Dharam Pal Gandhi, Statistical Clerk,
Retired on 31.05.2009 from FWC Tagore Garden, R/o H. No. 14/4,
Third Floor, Subhash Nagar, New Delhi.
17. Sh. Kanwar Bhan Sharma, S/o Sh. Ram Mehar Sharma, Statistical
Clerk, FWC Alipur, R/o H. No. 48, Village Budhpura, P. O. Alipur,
Delhi-36.
18. Smt. Sumitra Devi, W/o Sh. Rajinder Singh, Statistical Clerk, M &
CW Centre, Nangloi, R/o H. No. 59, Sector-I, Rohtak, Haryana.
19. Sh. Rajender Kumar Gupta, S/o Sh. Sri Kishan Gupta, Statistical
Clerk, BHI, R/o 2/85, Roop Nagar, 1st Floor, (Back Side) Delhi-07.
20. Sh. Somesh Kumar, S/o Late N. S. Choudhary, Statistical Clerk,
Central Record Room, Civil Lines Zone, R/o 131-D, Saket, Merrut,
U.P.
21. Sh. Naresh Kumar, S/o Late Sh. M. K. Malhotra, Statistical Clerk,
Director Hospital and Administration Office, Civic Centre, R/o J-116,
R.B.I. Colony, Paschim Vihar, New Delhi-110063.
22. Sh. Birjesh Kumar Gupta, S/o Late Sh. P. N. Gupta, Statistical
Clerk, Retired on 31.12.2008, Swami Dayanand Hospital, R/o H. No.
1/323, E-Block, Mansarover Park, Shahadara, Delhi-110032.
23. Sh. Suresh Kumar Verma, S/o Sh. Hari Kishan Verma, Statistical
Clerk, Birth and Death West Zone, R/o 162, MCD Flats, Nimari
Colony, Delhi-110052.
24. Sh. Dilbagh Singh Dahiya, S/o Late Sh. Sube Singh, Statistical
Clerk, Retired on 30.06.2007 from Bureau of Health and Intelligence
Town Hall, R/o A-3/207, Paschim Vihar, New Delhi-110063.
25. Sh. Rajesh Verma, W/o Sh. B. G. Verma, Statistical Clerk, M &
CW, EDMC, R/o E-291 B, G.T.B. Enclave, LIG Flats, Delhi-110093.
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26. Smt. Geeta Bhardwaj, W/o Sh. J. C. Bhardwaj, Statistical Clerk,
BHI, Civic Center, R/o H. No. 344, Sector-31, Gurgaon, Haryana.
27. Sh. R. P. Yadav, S/o Sh. Laxmi Chand, Statistical Clerk, BHI, Civic
Centre, R/o D-101, MCD Colony Azadpur, Delhi-33.
28. Sh. Rajinder Kumar Gautam, S/o Sh. Mohan Lal Sharma, Statistical
Clerk, BHI Najafgarh Zone, R/o N-30, Vijay Vihar, Uttam Nagar, New
Delhi.
29. Sh. Prabodh Kumar Gandhi, S/o Late Sh. Tara Chand Gandhi, Ex-
Computer retired Town Hall, R/o H. No. 32, Jatan Voihar Extn., Delhi-
110051.
30. Sh. Basant Kumar Aggarwal, S/o Sh. Kailash Chander Aggarwal,
Retired Computer, BHI (HQ), R/o 858/G-2, Shalimar Garden-I,
Sahibabad, Ghaziabad-U.P.
31. Sh. Ashok Kumar Goel, S/o Late Sh. R. C. Goel, Retired Computer,
BHI (HQ), Health Department, R/o H. No. D-138, Vijay Nagar Colony,
Sector-9, Ghaziabad, U.P.
4. It is averred that MCD has not been trifurcated into three
corporations and all the three corporations as well as former MCD are
herein collectively referred as MCD. It was stated that posts of
Statistical Clerk, Computer and Statistical Assistant forms a one single
cadre and a promotional channel in MCD and workmen have a
common interest as revision of pay scale of the post of Statistical
Assistant will affect their benefits under the ACP scheme and MACPs
scheme etc. It was stated that management always follows the same
rules, regulations and amendments as are framed by the Central Govt.
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and GNCT of Delhi and management adopted various pay commissions
declared by the Central Government from time to time.
5. It is further stated that pay-scale of the post of Statistical Assistant
was earlier Rs. 4500-7000/- in the Government of India, Delhi as well
as MCD. It is further stated that on the recommendations of 5 th Central
Pay Commissions, the Government of India as well as GNCT of Delhi
revised the pay scales of Statistical Posts and and also paid their arrears
of salary. It is stated that management of MCD, having accepted the
recommendation of the 5th pay commission also on the same analogy is
bound to adopt the aforesaid decision of Government of India and to
revise the pay scale of the post of Statistical Assistant in MCD to Rs.
5000-8000/- w.e.f. 01.01.1996 on actual basis with all financial benefit
and arrears of salaries, however MCD did not take any steps in this
regard and employees of the cadre therefore demanded the revision of
pay-scale for the post of Statistical Assistant at part with their
counterparts employed in Government of India and Delhi Government.
6. It is further stated that management in the house of MCD placed a
proposal to revise the pay-scale of post of Statistical Assistant to Rs.
5000-8000/- analogous to revision effected by the Central and State
Government, however, management of MCD illegally and arbitrary
stated in proposal letter that the pay scale must be granted notionally
w.e.f. 01.01.1996 and financial benefits must be given with immediate
effect. It is stated that said action of management is illegal, unjustified
and discriminatory, hence, workmen challenged the illegal action of
management as aforesaid before Hon'ble Central Administrative
Tribunal in OA No. 3771/2010 and Hon'ble CAT vide order dated
14.09.2011 quashed and set aside the order dated 13.08.2009 to the
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extent it provided that revision should be made notionally w.e.f.
01.01.1996 and restricting the financial benefits and directed the
management to take decision afresh in the matter within two months of
order and left the question of pay scale of 5500-175-9000 open to be
raised in separate proceedings and management despite the orders of
Hon'ble Court has not taken any step in the matter. It is stated that
union on the complaint of workmen passed a resolution to raise an
industrial dispute in this regard and also served demand notice but
received no response thereof. Thereafter, union raised an industrial
dispute by filing the statement of claim dated 23.11.2012 to initiate
conciliation proceedings and management instead of participating in
the conciliation proceedings and conceding the benefits of workmen
issued an arbitrary and discriminatory order dated 08.01.2013 thereby
deciding not to give any relief to the workmen concerned. It is stated
that concerned authority without applying its mind perversely gave the
reason that the benefits cannot be given as the MCD is facing financial
crunch. It is stated that impugned order dated 08.01.2013 is actually
non-speaking and unreasoned. Hence appropriate government referred
the present industrial dispute for adjudication to this court.
7. Reply was filed by East DMC raising preliminary objections to
the effect that claimants are not workmen as defined under the
Industrial Dispute Act 1957 and this Tribunal is not appropriate forum
for adjudication of present issue raised by claimants. It was further
averred that grounds urged are not tenable and claim is unfounded and
is not based on any tangible grounds.
8. On merits, it was stated that lowest cadre Statistical clerk is
recruited which is promoted to the post of Computer and computer is
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promoted to the post of Statistical Assistant as per existing RRs for the
post. It was stated that office order dated 08.01.2013 was passed in
compliance of direction issued by Hon'ble CAT dated 14.09.2011
passed in OA No. 3771/2010. It was also stated that EDMC has
regularly been facing financial crunch. It was further averred that any
order passed in compliance of the orders passed by Hon'ble CAT cannot
be challenged before Labour Tribunal. Rest of the contents of claim
were denied and it was prayed that claim of workmen be dismissed
being devoid of merits.
9. Separate written statement was filed by South DMC wherein
preliminary objections were raised to the effect that claimants are not
workmen as defined under the ID Act and claimants cannot be allowed
to invoke the legal jurisdiction of this Tribunal and grounds urged are
not tenable. It was stated that claim of claimants is unfounded and not
based on any tangible grounds and no demand notice was served by
applicant.
10. On merits, it was stated that orders dated 13.08.2009 was issued
by the department after the approval of House of Municipal
Corporation of Delhi for revision of pay scale of Statistical Assistants
from Rs. 4500-7000 to 5000-8000 on notional basis w.e.f. 01.01.1996
and actual financial benefits from 13.08.2009. It was also stated that as
per order dated 14.09.2011 of CAT, the matter has already been
examined and speaking order dated 08.01.2013 was issued in this
regard. It was stated that consequent upon the representation of the
Statistical Assistant working in erstwhile MCD, the pay scale of Rs.
4500-7000 was revised to Rs. 5000-8000 in the analogy of Government
of NCT of Delhi and the benefits of same was extended to all
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concerned on notional basis w.e.f. 01.01.1996 and actual financial
benefits w.e.f. 13.08.2009. It is stated that matter was again examined
as per order dated 14.09.2011 of CAT and speaking order dated
08.01.2013 was issued in this regard. It was stated that claimant are not
entitled for the claim as per Annexure A-9 being based on
distinguishable facts. Other contents of claim were denied and it was
prayed that claim of claimants be dismissed being devoid of merits.
11. Written statement was also filed separately by North DMC stating
that statement of claim filed by claimants is not maintainable and they
are not workmen as defined under I.D. Act. It was further stated that
claimants cannot be allowed to invoke the legal jurisdiction of this
Tribunal in view of the fact that all the claimants are regular employees
of the erstwhile corporation and their services being regulated under
said service rules. It was also stated that no demand notice has been
served by the applicant and applicant is estopped in law to re-litigate
and re-agitate the issues finally and conclusively determined by the
appropriate court of law. The other contents of claim were denied and
it was prayed that claim be dismissed being devoid of merits.
12. On the pleadings of parties, the following issues were framed in
the matter on 12.12.2014:
1. Whether claimants are workmen as defined U/s 2 (s) of the Industrial
Disputes Act?OPW
2. Whether this Tribunal has no jurisdiction to entertain the present
dispute?OPM
3. Whether any notice of demand was served upon managements, if
not, its effect?OPW
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4. Whether the present claim is barred by principles of resjudicata?
OPM
5. As per terms of reference?
13. To prove their case, the workmen examined Sh. Chander Bhan
Singh as WW-1 and Sh. Mavendra Nath Singh as WW-2 and after their
cross-examination, W.E. was closed.
14. In defence, management produced Mr. Sushil Chand Rustagi as
MW-1 and Dr. Rakesh Kumar was produced as MW-2 who filed their
affidavits and they were cross examined by the AR for the Workmen.
Thereafter, M.E. was closed on the statement of respective ARs for
managements.
15. Final arguments have been heard at length as advanced by
respective AR for the parties.
16. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents proved during
evidence. My issue wise findings are as under:-
17. Issue No. 1. Whether claimants are workmen as defined
U/s 2 (s) of the Industrial Disputes Act?OPW
18. The onus to prove this issue was on the workmen. Before
proceeding further, this Tribunal reproduces the Section 2 (s) of the I.D.
Act which defines the workman as follows:
"Workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward,
whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial
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dispute, includes any such person who has been dismissed, discharged
or retrenched in connection with, or as a consequence of, that dispute,
or whose dismissal, discharge or retrenchment has led to that dispute,
but does not include any such person-
1) Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army
Act, 1950 (46 of 1950 or the Navy Act, 1957 (62 of 1957); or
2) who is employed in the police service or as an officer or other
employee of a prison; or
3) who is employed mainly in a managerial or administrative Capacity;
or
4) who, being employed in a supervisory capacity, draws wages
exceeding one thousand six hundred rupees per mensem or exercises,
either by the nature of the duties attached to the office or by reason of
the powers vested in him, functions mainly of a managerial nature.
19. The management has contended that claimants are not workmen
as per above definition as workmen are permanent and regular
employees of the management and some of the have also stood retired
from their services. Being permanent employees, their services are
governed as per rules and regulations of DMC Act, therefore, the
appropriate forum for raising a dispute is Central Administrative
Tribunal.
20. The present case has been filed on behalf of the claimants
working as Statistical Assistant, Computer and Statistical clerk. The
recruitment rules pertaining to said posts have also been placed on
record as per which the Statistical Assistant, Computer and Statistical
clerk belongs to C category cadre. Further the management even
though has stated that regular employee cannot be covered U/s 2 (s) of
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I.D. Act, however, the bare perusal of the aforesaid definition nowhere
bars a regular employee to be covered under the definition of workman
as defined in I.D. Act. It is not contested by the management that these
workmen working on said posts have never worked on any managerial
or supervisory post. Even retired employee will also be covered under
the definition of workmen as he had worked previously with
management and the dispute raised pertains to the terms of employment
at the time of his working with management.
21. Therefore, the contention raised by management does not hold
any water and lacks merits. Hence, it is held that claimants are
workmen as defined U/s 2 (s) of the I.D. Act and this issue is decided in
favour of workmen and against the management.
22. Issue No. 2. Whether this Tribunal has no jurisdiction to
entertain the present dispute?OPM and Issue No. 4. Whether the
present claim is barred by principles of resjudicata?OPM:
23. Issue No. 2 and 4 are taken up together being inter-connected.
The onus to prove both these issues are on the management.
24. The management has contended that firstly the present claim is
barred by principle of resjudicata as claimants here have already filed
the claim before Hon'ble Central Administrative Tribunal, Delhi vide
PHOA No. 3771/2010 decided on 14.09.2011 wherein this issue has
already been decided. On this aspect, it is highlighted that the issue at
hand has not been adjudicated upon on merits instead the Hon'ble CAT
has directed the management to reconsider the matter of claimants in
view of the observation made during the course of hearings and passed
afresh reasoned order in this regard. It is also notable that the claimants
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were also given the liberty to challenge the speaking order to be passed
by the management, if they have any grievances against the same.
25. It is settled position of law that principles of resjudicata are not
applicable when the issue has not been decided upon merits, therefore,
this Tribunal is of the opinion that present dispute cannot be said to be
barred by the principles of resjudicata. Moreover, the previous decision
only directed the management to reconsider the issue and thereafter,
cause of action arose for the present dispute.
26. The management has also contended that if the claimants have
any grievances against the impugned speaking order dated 08.01.2013
then they should have approached the Hon'ble CAT instead of raising
an industrial dispute before this Tribunal. This Tribunal is not
convinced with the arguments proposed by management. It is not
disputed that workmen indeed have the forum of Hon'ble CAT
available to them, however, it can also not be denied that the workmen
can very well raise an industrial dispute for their grievances, if they are
covered under the definition of workman and dispute falls under the
definition of Industrial Dispute U/s 2 (s) and 2 (k) of the I.D. Act
respectively.
27. This Tribunal has already opined that workmen herein are duly
covered under the definition of section 2 (s) of the I.D. Act. Further the
workmen, in order to prove the present dispute as industrial dispute U/s
2 (K) of the I.D. Act, has also placed on record the resolution dated
01.06.2012 Ex. WW-1/5 which is issued on the letter head of Municipal
Karamchari Ekta Union (Regd.), having signatures of office bearers of
the union as well as the workmen concerned. The perusal of resolution
shows that it was unanimously decided to raise the dispute of present
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workmen for grant of pay scale of Rs. 5000-8000/- for the post of
Statistical Assistant w.e.f. 01.01.1996, on actual basis as well as further
revision of pay scale of the post of Statistical Assistant of Rs. 5500-
175-9000/- w.e.f. 01.01.1996 on notional basis with actual benefits
w.e.f. 01.12.2006. Therefore, the present dispute is very well espoused
by the union of the workmen as well as the same is connected with the
terms of the employment of the workmen herein. Hence, it is held that
this Tribunal has jurisdiction to entertain the present dispute and further
that present dispute is not barred by principles of resjudicata.
28. Accordingly, these issues are decided in favour of workmen and
against the management.
29. Issue No. 3. Whether any notice of demand was served
upon managements, if not, its effect?OPW
30. The onus to prove this issue was on the workmen. In order to
prove this issue the workmen has placed reliance upon Ex. WW-1/6
which is legal demand notice alongwith its postal receipt on the court
record. The management neither disputed its address mentioned on the
demand notice nor on postal receipt. Rather, in the statement of claim
filed before this Tribunal also, the same address of management has
been mentioned.
31. Therefore, this tribunal has no reasons to disbelieve the version of
workmen regarding due service of demand notice. Thus tribunal is of
the opinion that the workmen has been successful in proving that they
have duly served the demand notice upon the management prior to the
raising the present industrial dispute.
32. Even otherwise, the Hon'ble Delhi High Court in Workmen of
M.C.D. vs. M.C.D., W.P.(C) No. 13023/2005 decided on
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06.08.2007, has observed that serving of demand notice is not sine-
qua-non for raising an industrial dispute. The relevant portion of the
said judgment is as follows:
"5. Keeping in view the aforementioned judgment, which
clearly notes that there is no specific requirement in the I.D.
Act that a dispute has to be raised only by making a demand in
writing, any such interpretation given to Section 2(k) of the
I.D. Act which narrows the definition of the term, "industrial
dispute" is not permissible. Thus it cannot be held that merely
because a demand was not given in writing by the petitioners
to the respondent management, there does not exist any
industrial dispute between the parties. Making a written demand is not a sine qua non for raising an industrial dispute. Once the appropriate Government 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."
33. In view of the above, this tribunal holds that requirement of demand notice is not sine-qua-non for raising an industrial dispute under I.D. Act. Even otherwise, the workmen duly proved that the demand notice was served upon the management prior to the raising of the present industrial dispute. Therefore, this issue is decided in favour of the workmen and against the management.
34. Issue No. 5. As per terms of reference?
35. Before proceeding further, it is to be seen that matter has been properly espoused or not. Though the issue has not been raised. To prove the same, Sh. M. N. Singh has appeared as WW-2 and has relied POIT-13-16 Page No. 16/29 upon documents Ex. WW-1/5, WW-1/6 and WW-1/8 (Colly.). He is the General Secretary of the Union. The copy of the resolution has been placed on record which is Ex. WW-1/5 in which Sh. M. N. Singh was authorised to serve demand notice upon management. Ex. WW-1/6 is the demand notice served upon management and duly signed and proved by Sh. M.N. Singh. So espousal is duly proved and law is very much clear on this aspect.
36. He 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 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 held that the cause of the workmen is properly espoused by the union. The relevant portion of the judgment is reproduced below:
"20. Based on the said legal principle, this Court examined the evidence adduced by the Petitioners/Workmen. The Petitioners/Workmen proved on record Exhibit WW-2/1 (Statement of Claim dated 23.12.2002 filed by the Hindustan Engineering General Mazdoor Union on behalf of the Petitioner before the Conciliation officer), Exhibit WW2/2(AD card for the legal notice issued by the Union), Exhibit WW-2/3 (Authorisation letter dated 23.12.2002 issued by the Petitioners/Workmen to Hindustan Engineering General Mazdoor Union), Exhibit WW2/4 to Exhibit WW2/7 (Demand letters dated 23.12.2002 & 05.02.2002 issued by the Hindustan General Mazdoor Union to the Respondent No. 1 Management espousing the cause of the Petitioners/Workmen). These documents show that the Petitioners/Workmen authorized the Hindustan General Mazdoor Union to take up the cause. In pursuance of the said authorisation, the POIT-13-16 Page No. 17/29 said union issued demand letters and filed the claim petition before the Conciliation Officer. Based on the said claim Petition, the appropriate Government referred the said dispute to the learned Labour Court for adjudication. Just because there was no witness from the Union, it cannot be said that the cause of the Petitioners/Workmen has not been espoused by the Union."
"21. As held by Hon'ble Supreme Court in J.M Jhadav vs. Forbes Gokak Ltd reported as MANU/SC/0103/2005 : 2005 (3) SCC 202, there is no particular form prescribed to effect the espousal. Generally, Union passes resolutions, however sometimes proof of support by the Union may also be available aliunde. It would depend upon the facts of each case. In the present case, even though no resolution was placed on record on behalf of the Union, from the documents placed on record by the Petitioners/Workmen, i.e. Exhibit WW2/1 to WW2/7, it is evident that the Hindustan General Mazdoor Union has espoused the cause of the Petitioners/Workmen."
37. The similar issue came up before the Division Bench of Hon'ble Kerala High Court in the matter of Mangalam Publications (India) Pvt. Ltd. v. Saju George, W.A. No. 964 of 2020, decided on 01.12.2020 and held:-
"7... There is no doubt about the fact that the workman was a member of the concerned WA No.964/2020 union. According to the workman, the cause of the workman was undertaken by the union even at the initial stage. Apparently, there was no objection from the side of the management during the relevant time. Thereafter, the matter was considered and ultimately the dispute had been referred for consideration by the Tribunal. Once a reference had been made at the instance of the union, it is not open for the management to contend at this stage of the proceedings that the cause of the workman had not been espoused by the union."POIT-13-16 Page No. 18/29
38. Moreover, 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 on the issue of espousal by categorizing it as hypertechnical and held that the cause of the workmen is properly espoused by the union. The relevant portion of the judgment is reproduced below:
"Learned counsel for the respondent fairly cannot dispute the position that the view taken by the Labour Court on the issue of espousal of the petitioners cause is hyper technical. There is no dispute about the fact that the union had held its meeting on 22.10.2005 and decided to espouse the petitioners cause, on which date, the espousal letter was also issued by the union. Merely because Sh. B.K. Prasad may not have been the president of the union on the said date and he became the president in the year 2007, would make no difference. Such a hyper technical view defeats the objective of the Industrial Disputes Act, 1947. The mere wrong description of the designation of Sh. B.K. Prasad in the espousal letter would not render the fact of espousal of the petitioners cause unreliable. Pertinently, the MCD General Mazdoor Union is a recognized union and the said union has not come forward to claim that they had not espoused the cause of the petitioners on 22.10.2005. Accordingly, the decision of the Labour Court on issue no.2 is reversed. It is held that the petitioners cause was duly espoused by the MCD General Mazdoor Union."
39. Hence, in these circumstances, it is clear that espousal in this matter has been duly proved by workmen.
40. The AR for the workmen has contended that the workmen herein are entitled for the revision of their pay scale for the post of Statistical Assistant to Rs. 5000-8000 w.e.f. 01.01.1996 on actual basis with all consequential financial benefits w.e.f. 01.01.1996 at par with their POIT-13-16 Page No. 19/29 counterpart working in central government as well as government of NCT of Delhi.
41. Further it is also contended that workmen are also entitled for revising the pay-scale of the post of Statistical Assistant to Rs. 5500- 175-9000 w.e.f. 01.01.1996 on notional basis with actual benefits w.e.f. 01.12.2006 as has been done by the Govt. of NCT of Delhi vide order No. F.9(12)/2003/CC/Pig/8455 dated 19.08.2008.
42. It is averred that workmen performed the same nature of duties as being performed by their counterparts working in Central Govt. as well as GNCT of Delhi. Despite the specific recommendation of 5th CPC for enhancing the pay scale of Statistical Assistant in abovesaid terms, the management has not implemented the same.
43. Initially, the management contested that no such directions of the 5th CPC in respect of Statistical Assistant has been passed and even otherwise, if there are any directions or recommendations as such then same are not applicable to the management.
44. The management /NDMC in its written statement filed before this Tribunal has placed on record the copy of resolution No. 94/2009 wherein it is stated that "the Government of NCT of Delhi vide No. F.9(12)/97-98/Fin.(G-1) 8429-8527 dated 03.09.2008 has revised the pay scale of Statistical Assistant /Inspector from Rs. 4500-7000/- w.e.f. 01.01.1996 annexure-A". Likewise, the workmen have placed on record Ex. WW-1/2 which is the order dated 19.08.2008 issued by GNCT of Delhi granting the pay scale of Rs. 5500-175-9000 to Statistical Assistant of Planning and Statistical Cadre in GNCT of Delhi POIT-13-16 Page No. 20/29 which states that "Government of Delhi has decided to grant pay scale of Rs. 5500-175-9000/- to Statistical Assistant of Planning and Statistical Cadre controlled and managed by Planning Department, GNCT of Delhi retrospectively w.e.f. 01.01.1996 on notional basis with actual benefits on account of such re-fixation of pay w.e.f. 01.12.2006.
45. The management has argued that even if there are enhancement on the pay scales of Statistical Assistant by virtue of the recommendation of 5th CPC which was ultimately adopted by the Delhi Govt., the same are not applicable upon management and the latter is not duty bound to implement the same.
46. On the one hand, the management is contending that the aforesaid recommendations are not applicable on them, however, the document filed by management themselves which is the resolution No. 94/2009 has noted that "all heads of department are accordingly requested to implement the revised scale of pay of Rs. 5000-8000 to all incumbents to the post of Statistical Assistant/Inspector in all department w.e.f. 01.01.1996. This revised pay scale recommended to Statistical Assistant /Inspector is to be implemented w.e.f. 01.01.1996 with the condition that in case of any overpayment which may be detected later on in view of final decision by the Government of India on the revised pay scale for Statistical Assistant /Inspector in GNCTD will be recovered from the pay of incumbents. Accordingly, the concerned department may take appropriate undertaking from the /of the post before implementing these orders in the respective department".
POIT-13-16 Page No. 21/2947. Further rule 4 of Delhi Municipal Corporation Service Regulation 1959 mandates the management to follow the service conditions of Central government employees in respect of their employees. The relevant portion of said rules are as follows:-
4(1) Unless otherwise, provided in the act or these regulations, the rules for the time being in force and applicable to Govt. Servants in the service of the Central Govt. shall, as far as may be, regulate the conditions of service of Municipal Officers and other municipal employees except in respect of matters relating to provident fund, subject to the modifications that any reference in the rules to a Govt. servant, the consolidated fund of India, the Civil Surgeon and the medical committee shall be construed as a reference respectively to a municipal officer or other municipal employee, the municipal fund, municipal health officer and any medical board constituted by the Commissioner".
48. Therefore, in view of the aforesaid rule, the management is duty bound to implement the same service condition for their employees as being given to the employees of the Central Govt.
49. In the present case, the enhancement in the pay scale for Statistical Assistant are not disputed and in fact further corroborated by the management witness i.e. MW-2 Dr. Rakesh Kumar who has duly conceded in his cross-examination that "It is correct that rules and regulations of Central Government regarding revision of pay scales etc. are applicable upon the management. It is correct that Central POIT-13-16 Page No. 22/29 Government and Delhi Government revised the pay scale of post of Statistical Assistant to Rs. 5000- 8000/- w.e.f. 01.01.1996. It is correct that MCD instead of granting pay scale on actual basis w.e.f. 01.01.1996 granted the same on notional basis w.e.f. 01.01.1996 and with actual benefits w.e.f. 13.08.2009. It is also correct that Delhi Government has also revised the pay scale of post of Statistical Assistant to Rs. 5500-175-9000/- w.e.f. 01.01.1996 on notional basis with actual benefits w.e.f. 01.12.2006, however, the MCD has granted the said pay scale on notional basis w.e.f. 01.01.1996 and with actual benefits w.e.f. 13.08.2009. The said difference in grant of actual benefits of the aforesaid pay scale on the part of management/MCD is due to financial constrained of the said management."
50. Therefore, in view of the admission of the aforesaid management witness which was ultimately adopted by NDMC, EDMC and SDMC, it is established that Central Government and Delhi Government revised the pay scale of post of Statistical Assistant to Rs. 5000- 8000/- w.e.f. 01.01.1996. It has also come on record that Delhi Government has also revised the pay scale of post of Statistical Assistant to Rs. 5500-175-9000/- w.e.f. 01.01.1996 on notional basis with actual benefits w.e.f. 01.12.2006, however, the MCD has granted the said pay scale on notional basis w.e.f. 01.01.1996 and with actual benefits w.e.f. 13.08.2009. It is also conceded that rules and regulations of Central Government regarding revision of pay scales etc. are applicable upon the management.
POIT-13-16 Page No. 23/2951. To this effect, the reliance is placed upon AIR 1960 SC page 100 and Section 58 of the Indian Evidence Act , which clearly states that "admission is the best piece of evidence ".
52. Based on pleadings and evidence led on behalf of both the parties, the entitlement of the workmen for the pay-scale of Rs. 5000-8000 of the post of Statistical Assistant on actual basis w.e.f. 01.01.1996 and further revision of the pay-scale of the post of Statistical Assistant to Rs. 5500-175-9000 w.e.f. 01.01.1996 on notional basis with actual benefits w.e.f. 01.12.2006 is duly made out. The dispute in regard to their entitlement further settled down by the decision of the management to grant them the benefits of aforesaid pay scales on notional basis as opposed to actual basis. The grievance of the workmen is that management instead of implementing the aforesaid enhancements chose to implement the same merely on notional basis citing financial constrained of the management.
53. On this issue, the Hon'ble CAT in its order dated 14.09.2011 had directed the management to reconsider the matter in light of the observation made during the course of hearing and passed fresh reasoned order in case the management is of the view that arrears on account of revision of pay scale should not be given to the applicants w.e.f. 01.01.1996. Further it was also clarified that if management pass an order declining the benefits of arrears from 01.01.1996, the applicants shall be at liberty to challenge the same by way of filing an O.A. Pursuant to this order, the management passed an order dated 08.01.2013 observing the following:
POIT-13-16 Page No. 24/29"The case for revision of pay scales of Statistical Assistant was examined by the department and proposal of department was approved by the Corporation vide its resolution No. 94 dated 15.06.2009 and the pay scale of Statistical Assistant was revised from 4500 - 7000 to 5000-8000 w.e.f.
01.01.1996 on notional basis and the financial benefits were given w.e.f. 13.08.2009. The Statistical Assistant were granted the financial benefits w.e.f. 13.08.2009 due to financial constraints. The MCD is still facing the financial crunch due to which the actual benefit of revision of pay scale cannot be given w.e.f. 01.01.1996 to Statistical Assistant. Hence, the Statistical Assistant are entitled to actual financial benefits w.e.f. 13.08.2009 i.e. the date from they were given financial benefits and not from 01.01.1996. "
54. The perusal of files shows that management has failed to prove on record that they were facing financial crunch and no document in this regard has been placed on record. Even if the version of management is believed that they were facing financial constraint still the management has failed to show that they have withheld such kind of benefits for some other cadre belonging to higher officials. The management cannot be allowed to indiscriminately pick and choose the cadre for withholding the benefits of employees which they are rightfully entitled to under the garb of financial constraints. The Hon'ble CAT has directed the management to give reasoned order for their decision but instead of giving reasoning, they have used a bye-pass by stating that POIT-13-16 Page No. 25/29 due to financial constraints they are not able to give the relief. The person is required to be paid for the work he has done. It cannot be expected from State that they are taking the services of person without paying them. The entitlement on paper is of no use unless it is actually paid. The reason given is not acceptable.
55. On the aspect of financial constraint, the Hon'ble Supreme Court in the matter of Chief Conservator of Forest Vs Jagannath Maruti Kondhare, has dealt with similar argument put forward by the counsel for management that regularization of workmen would put heavy financial strain on the management and this argument was ultimately discarded. The relevant portion of said judgment is reproduced herein below:
28. In so far as the financial strain on State exchequer is concerned, which submission is sought to be buttressed by Shri Dholakia by stating that in the Forests Department itself the casual employees are about 1.4 lacs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood Rs 300 crores a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat.
The argument relating to financial burden of State is one of despair or in terrorem. We have neither been impressed by the first not frightened by the second inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forests Department or any other Department of the Government.
29. We wish to say further that if Shri Bhandare's submission is taken to its logical end, the justification for paying even minimum wages could wither away, leaving any employer, not to speak of model employer like the State, to exploit unemployed persons. To be far to Shri Bhandare it may, POIT-13-16 Page No. 26/29 however, be stated that the learned Counsel did not extend his submission this far, but we find it difficult to limit the submission of Shri Bhandare to payment of, say fair wages, as distinguished from minimum wages. We have said so, because if a pay scale has been provided for permanent workmen that has been done by the State Government keeping in view its legal obligations and must be one which had been recommended by the State Pay Commission and accepted by the Government. We cannot deny this relief of permanency to the respondent-workmen only because in that case they would be required to be paid wages meant for permanent workers. This right flows automatically from the relief of regularisation to which no objection can reasonably be taken, as already pointed out. We would, however, observe that the relief make available to the respondents is not one which would be available ipso facto to all the casual employees either of the Forests Department or any other Department of the State. Claim of casual employees for permanency or for higher pay shall have to be decided on the merits of their own cases."
56. In view of this judgment and discussion above, the management cannot escape from its liability to pay the workmen the benefits of pay scale as enhanced from time to time by the Central as well as Delhi Govt. Therefore, this tribunal is of the opinion that action of the management of MCD in not paying the workmen of the Statistical cadre (Statistical Assistants, Computer and Statistical clerk of MCD) of the MCD the financial and consequential benefits of the pay-scale of Rs. 5000-8000 of the post of Statistical Assistant on actual basis w.e.f. 01.01.1996 is illegal and /or unjustified.
57. Further the demand of workmen for further revising the pay-scale of the post of Statistical Assistant to Rs. 5500-175-9000 w.e.f. 01.01.1996 on notional basis with actual benefits w.e.f. 01.12.2006 as POIT-13-16 Page No. 27/29 has been done by the Govt. of NCT of Delhi vide order No. F.9(12)/2003/CC/Pig/8455 dated 19.08.2008 and accordingly granting the benefits thereof to the Statistical clerks and computer under the ACP and MACPS scheme is legal/justified.
58. The AR for management has further argued that the workmen should have approached Hon'ble CAT and should not approach this Tribunal. This argument does not hold any water as it is a sweet will of the workmen as to which door they want to knock. This Tribunal has already held that this Tribunal has jurisdiction and this argument is accordingly discarded.
59. This issue is accordingly decided in favour of workmen and against the management.
60. Relief :- In view of my findings on the foregoing issue, this tribunal holds that workmen belonging to Statistical cadre (Statistical Assistants, Computer and Statistical clerk of MCD) are entitled to the financial and consequential benefits of the pay-scale of Rs. 5000-8000 of the post of Statistical Assistant on actual basis w.e.f. 01.01.1996.
61. Further the claimants are also entitled for revision of the pay-
scale of the post of Statistical Assistant to Rs. 5500-175-9000 w.e.f. 01.01.1996 on notional basis with actual benefits w.e.f. 01.12.2006 as has been done by the Govt. of NCT of Delhi vide order No. F.9(12)/2003/CC/Pig/8455 dated 19.08.2008 and accordingly granting the benefits thereof to the Statistical clerks and computer under the POIT-13-16 Page No. 28/29 ACP and MACPS scheme. With these observations, the reference stands allowed.
62. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in open Tribunal
on this 12.01.2024 (Ajay Goel)
POIT-I/RADC, New Delhi.
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