Delhi District Court
The vs The on 1 February, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 152/04
The Workman
Sh. Inderlok Mall S/o Sh. Rajapati Mall,
C/o All India CPWD (MRD) Karamchari Sangthan,
4823, Balbir Nagar Extension, Gali No. 13, Shahadara,
Delhi-110032
Vs.
The Managements
1. The Director General of Works,
CPWD, Nirman Bhavan,
New Delhi.
2. The Executive Engineer, PWD-29,
ITO Bridge Western Side,
New Delhi
Date of institution 08.12.2004
Date of reserving judgment 22.01.2011
Date of award 01.02.2011
Ref : F.24 (1582)/04/Lab./7141-7145 dated 08.11.2004
AWARD
1. Workman has raised the present industrial dispute through
Union and on failure of conciliation proceedings, GNCT of Delhi referred
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the dispute to this Tribunal for adjudication in following terms of
reference:-
1. ''Whether Shri Inderlok Mall S/o Shri Rajapati
Mall is entitled to the wages as is admissible to
Non Technical Supervisor in place of Mate for
muster roll period from 28.2.82 to 12.8.96 and if
so, what directions are necessary in this respect ?"
2. "Whether non counting of services of said
workman rendered by him during muster roll
employment by one management for grant of
benefits under ACP scheme is illegal and
unjustified and if so what directions are necessary
in this respect ?"
3. Whether the said workman is entitled to be
regularized on the post of Road Inspector instead
of mate in proper pay scale and if so, what
directions are necessary in this respect ?"
2. Statement of claim has been filed by the workman, wherein it is
stated that he was appointed as NTS w.e.f. 28.2.1982 on muster roll under
PWD Division-23 for running maintenance, Supervisory works of the
roads under the above division at different sites. It is stated that the
services of the workman were regularized as Mate w.e.f. 13.08.1996 in the
pay scale of Rs 950-1500, revised subsequently in the corresponding pay
scale of Rs 3050-4590 on implementation of pay commissions report. It
is alleged that the workman was actually doing the work of Road Inspector
though his designation was non-Technical Supervisor/Mate and had been
I.D. No.152/04 Page 2 of 17
given arrears of wages of equal pay for equal work as per the pay scale of
Mate whereas the workman was entitled to get equal pay for equal in pay
scale of Road Inspector. It is further stated that according to letter dated
4.7.1998, Muster-roll workers who have rendered 240 days in each two
consecutive years in a higher category may be regularized in Higher
Category even if they have worked in the lower category for some time
subject to the condition that the service rendered in the lower category
would not be consider for the purpose of seniority or for any other purpose
and further subject to the condition that an option should be taken from the
concerned muster roll worker at the time of his absorption in the
lower/higher category of work charged establishment and such of those
opt for absorption of the lower category may allowed to do so. It is stated
that workman is entitled to be designated as Road Inspector from the date
of respective employment after completion of 240 days in calendar year of
service and counting of their services for the purpose of grant of ACP
scheme benefits accordingly. It is further stated that workman is entitled to
receive differences of wages under equal pay for equal work. It is alleged
that workman had been demanding all these legal benefits after
completion of 240 days service from the management orally as well as in
writing to regularize his services but the management did not pay any heed
I.D. No.152/04 Page 3 of 17
to the request of workman. It is stated that the conciliation proceedings
were initiated by filing a statement of claim before the Asst. Labour
Commissioner but the same proved failure on the management. It is
prayed in statement of claim that Hon'ble Court may be pleased to
regularize the services of the workman as Road Inspector with all
consequential benefits, full back wages along with arrears of pay and
allowances w.e.f. initial date of appointment in the department.
3. In the WS filed by the management, it is stated that claim of
workman is misconceived and has not been filed for real cause of justice,
but been filed with malafide intentions to harass the answering
management and respondents have no authority to regularize the
workman and there is no question to pay all consequential benefits, full back wages along with arrears of pay and allowances. It is submitted that worker has been engaged as Non-Technical Supervisor on Muster Roll and subsequently, regularized as Mate in view of the policy of the Ministry of Urban Development, at the time of regularization of Muster Roll workers into the work charged establishment after obtaining the option from the individual and thus, there is no question to give the pay scale of Road Inspector. It is stated that workman had been engaged as Non-Technical Supervisor on Muster Roll without the fulfillment of I.D. No.152/04 Page 4 of 17 certain Terms and Conditions and the provisions of the recruitment Rules. Moreover, there is no post of NTS and no such fixed qualification criteria. Workman does not possess any Technical Qualification. Therefore, he has been regularized as mate in view of the policy of the Government after obtaining the option of the individual. It is further stated that that as per the Annexure -II enclosed to the claim of applicant only 8 Nos. of post of Road Inspector have been sanctioned by the DG (W) CPWD New Delhi and all these post have been sanctioned for PWD Zone-I, whereas Zone
-II has no sanctioned post of Road Inspector. It is submitted that the workman cannot be designated as Road Inspector as he has been regularized as Mate from the retrospective date and to fill up the post of Road Inspector under 50% quota, the superintending Engineer Coord. Circle (Civil), CPWD New Delhi had invited the options of the Mates who had completed 10 years service in CPWD vide his office Memo No. 3(3) S.E./coord(c)/E-6/98/504 dated 23.04.98. As workman has been regularized from the Retrospective date ie 13.08.96, he was not eligible for the post of the Road Inspector. Management has denied all other allegation made in statement of claim and prayed that the statement of claim be dismissed.
4. Workman has also filed rejoinder to WS of the management, I.D. No.152/04 Page 5 of 17 wherein he has denied all the averments made in the WS and has reiterated the stand taken in his claim.
5. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor on 09.5.2005 :-
(1) Whether the cause of the workman has been
duly espoused ? (OPW)
(2) Whether the workman is entitled for the wages
admissible to none-technical supervisor in place of Mate for the muster roll period w.e.f. 28.2.1982 to 12.8.1996 (OPW).
(3) Whether the non-counting of the service of the workman during the muster roll employment for grant of benefits under the ACP Scheme is illegal and unjustified ? (OPW).
(4) Whether the workman is entitled to be regularized on the post of Road Inspector instead of Mate ? (OPW) (5) In terms of reference.
6. WW 1 Sh. Indralok Mall, the workman in this case, in his affidavit has deposed that he was appointed as NTS w.e.f. 28.2.1982 on muster roll under PWD Division-23 for running maintenance, Supervisory works of the roads under the above division at different sites. It is deposed that the services of the workman were regularized as Mate w.e.f. 13.08.1996 in the pay scale of Rs 950-1500 revised subsequently, in the corresponding pay scale of Rs 3050-4590 on implementation of pay commissions report. It is further deposed that the workman was actually I.D. No.152/04 Page 6 of 17 doing the work of Road Inspector though his designation was non- Technical Supervisor/Mate and had been given arrears of wages of equal pay for equal work as per the pay scale of Mate, whereas the workman was entitled to get equal pay for equal in pay scale of Road Inspector. It is further deposed that according to letter dated 4.7.1998, Muster-roll workers who have rendered 240 days in each two consecutive years in a higher category may be regularized in Higher Category even if they have worked in the lower category for some time subject to the condition that the service rendered in the lower category would not be consider for the purpose of seniority or for any other purpose and further subject to the condition that an option should be taken from the concerned muster roll worker at the time of his absorption in the lower/higher category of work charged establishment and such of those who opt for absorption of the lower category may be allowed to do so. It is deposed that workman is entitled to be designated as Road Inspector from the date of respective employment after completion of 240 days in calendar year of service and counting of their services for the purpose of grant of ACP scheme benefits accordingly. It is further deposed that workman is entitled to receive differences of wages under equal pay for equal work. It is deposed that workman had been demanding all these legal benefits after completion of I.D. No.152/04 Page 7 of 17 240 days service from the management orally as well as in writing to regularize his services, but the management did not pay any heed to the request of workman. It is further deposed that the conciliation proceedings were initiated by filing a statement of claim before the Asst. Labour Commissioner but the same proved failure on the management. It deposed that the management did not convey any justification on the non- regularization of the services of the concerned workman as Road Inspector. The non-regularization was unjustified, Mala-fide, vindictive and against the principles of natural justice as no opportunity was given to the workman before non-regularization of the services.
7. In his cross-examination, WW 1 has stated that he is Graduate and has already done Graduation before joining as muster roll employee. He has admitted that he was not employed through employment exchange. He also admitted that neither advertisement was published nor interview was taken place for his appointment. He stated that he was appointed by committee constituted of Executive Engineers and Asstt. Engineers. He has denied in his cross-examination that he was appointed as Mate on muster roll basis. He has denied the suggestion that he had not done work of Road Inspector. He has denied the suggestion that Ex. WW 1/6 is fabricated documents.
I.D. No.152/04 Page 8 of 17
8. MW 1 Sh. S.C. Raghal, Executive Engineer PWD Division -29 (DS) of the management, in his affidavit, has deposed that workman was appointed as Non-Technical Supervisor w.e.f. 28.02.82 on Muster Roll in P.W.D. Division-23 for supervising the laborers for running maintenance work under the above division at difference sites and presently working in P.W.D Division -29 as Mate. He has deposed that services of workman was regularized as mate on 13.08.96 in the pay scale of Rs 950-1500 in view of the policy of the Ministry of Urban Development at the time of regularization of Muster Roll workers into the work charged establishment after obtaining the option of the individual worker and subsequently in the corresponding pay scale of Rs 3050-4590 on implementation of 5th Pay Commission's Report. He has deposed that workman has regularized and was engaged on Muster Roll as Non-Technical Supervisor (NTS) on Daily wages and was assigned the job of labour supervisor for running maintenance works at different sites in Public Works Department (PWD). He has further deposed that the worker has been engaged as Non- Technical Supervisor on Muster Roll and subsequently regularized as Mate in view of the policy of the Ministry of Urban Development, at the time of of regularization of Muster Roll workers to the work charged establishment after obtaining the option from the individual and thus, there I.D. No.152/04 Page 9 of 17 is no question of giving pay scale of Road Inspector. He has further deposed that there is no question of higher Category in the case of Inderlok Mall as he had been engaged as Non-Technical Supervisor on Muster Roll without fulfillment of certain terms and conditions and the provisions of the recruitment Rules. He has deposed that as per the Annexure II enclosed to the claims of the applicant only 08 Nos of post of Road Inspector have been sanctioned by the DG(W) CPWD New Delhi and all that post had been sanctioned for PWD Zone-I whereas their Zone- II had no sanctioned post of Road Inspector. He has further deposed that workman could not designated as Road Inspector as he has been regularized as mate from the retrospective date. He has deposed that to fill up the post of Road Inspectors under 50% quota, the Superintending Engineer Coord Circle (Civil), CPWD new Delhi (The Competent Authority) had invited the options of the Mates who had completed 10 years service in CPWD vide his Officer Memo. No. 3(3) S.E./Coord(C)/E- 6/98/504 dated 23.04.98 and as he was regularized from the Retrospective date ie 13.08.96 , he was not eligible for the post of Road Inspector.
9. MW 1 in his cross-examination has admitted that workman Sh.
Inderlok Mall was appointed as NTS on muster roll with effect from 28.02.82 in the PWD Division 23. He has admitted that services of I.D. No.152/04 Page 10 of 17 workman were regularized as on 13.08.96. He has denied the suggestion that workman was doing the work as Road Inspector. He has denied the suggestion that workman was appointed as a Road Inspector initially. He has denied the suggestion that any post of Road Inspector was vacant with the department.
10. I have heard arguments from Sh. Satish Kumar, General Secretary of Union/Ld. AR for workman and Sh. S. Shah, Ld. AR for the management, and have perused the entire record. My findings on the issues are as under:-
11. Findings on Issue no.1 Issue No. 1 is " Whether the cause of the workman has been duly espoused ?" (OPW). Copy of resolution espousing cause of the workman has been proved as Ex WW 1/1. No evidence has been led on this issued on behalf of the management. Ld. AR for the workman has argued that workman has led evidence on espousal and resolution espousing the cause has been duly proved on record. In view of the fact that resolution espousing cause of the workman has been duly proved on record, I hold that cause of the workman has been duly espoused. This issue is accordingly decided in favour of workman and against the management.
I.D. No.152/04 Page 11 of 17
12. Findings on Issue no.2 Issue No. 2 is "Whether the workman is entitled for the wages admissible to non-technical supervisor in place of Mate for the muster roll period w.e.f. 28.2.1982 to 12.8.1996 ? "(OPW). Workman has stated in his statement of claim that he had been given arrears of wages as per the pay scale of Mate, whereas he was entitled to get pay in pay scale of Road Inspector. During the course of arguments this issue has not been pressed for the workman. Therefore, this issue disposed of as not pressed.
13. Findings on Issue no. 3 Issue No. 3 is "Whether the non-counting of the service of the workman during the muster roll employment for grant of benefits under the ACP Scheme is illegal and unjustified ?" (OPW). Workman has not made prayer for grant of benefits under ACP Scheme in his statement of claim and this issue has also not been pressed during the arguments. Therefore, this issue is also disposed of as not pressed. This issue is decided accordingly.
14. Findings on Issue no. 4 Issue No 4. is "Whether the workman is entitled to be regularized on the post of Road Inspector instead of Mate ?" (OPW). The case of workman is that he was actually doing the work of Road Inspector, though his designation was non-Technical Supervisor/Mate and according to letter I.D. No.152/04 Page 12 of 17 dated 04.07.88 Ex. WW 1/ 4 issued by DGW,CPWD those Muster Roll workers who had rendered 240 days service each in two consecutive years in a high category might be regularized in the Higher category, even if they have worked in the lower category for some time subject to the the condition that the service rendered in the lower category would not be considered for the purpose of seniority or for any other purpose and further subject to condition that an option should be taken from the concerned muster roll worker at the time of his absorption in the lower/higher category of work charge establishment. To prove his case, workman have exhibited three experience certificates Ex. WW 1/1 to WW 1/3 issued by Assistant Engineers of PWD Division-XXIV, PWD-29, Rahirput Village and PWD
-29, Delhi under whom workman was working. As per these certificates, workman was working as non-Technical Supervisor/Mate and had been engaged on different work relating to construction and maintenance of road No 63. It is also mentioned in these certificates that he had the basic knowledge of plane-tabling, levelling, study of Civil Engg., Drawing, recording of measurements, field test to be conducted at site during execution of work during the period of under charge w.e.f. 28.02.82 to 15.09.85 & 24.09.91 to 26.9.94, 17.06.99 to 18.6.02 and 13.08.1996 onwards respectively. On the other hand, management has contented that these I.D. No.152/04 Page 13 of 17 certificates are issued by the authority who are not competent to issue such certificate. Though, the the above certificates may not have been issued by the competent authority but the facts cannot be disbelieved as the certificates have been issued by the authorities under charge of whom workman was working. It is also case of workman that the Director General (Works), CPWD got sanctioned 08 posts of Road Inspectors from the Ministry of Urban Development/Finance for regularization of services of such workmen. The copy of the said order is Ex. WW 1/11. The contention of the management is that to fill up the posts of Road Inspector under 50% quota, the Superintending Engineer Coord. Circle (Civil) CPWD new Delhi had invited the options of the Mates who had completed 10 years service in CPWD vide his Office Memo No 3 (3) S.E./Coord (c)/E- 6/98/504 dated 23.04.98 and as workman had been regularized from the Retrospective date i.e. 13.08.96, he was not eligible for the post of the Road Inspector. Workman has exhibited copy of order dated 1.02.90 issued by the Superintending Engineer (Western Zone Coordination Circle, CPWD) as Ex. WW 1/7, in which it was clarified that muster roll worker, who has worked both in lower and higher post or in either of the two posts, the muster roll staff, who worked for 240 days in a year for two consecutive I.D. No.152/04 Page 14 of 17 years in higher category, can be regularized in higher category. Workman has also exhibited the letter dated 30.05.90 as Ex. WW 1/8, vide which option was asked for post of Road Inspector and the letter Ex. WW 1/8 vide which option for Road Inspector was sent in respect of workman. In my considered view, the fact that workman has been regularized as Mate from retrospective date cannot be a ground for denial of right of regularization as Road Inspector. The contention of the management that all the post of Road Inspector had been sanctioned for PWD Zone-I and that Zone - II had no sanctioned post of Road Inspector is contrary to record. As per letter Ex. WW 1/11, four posts each of Road Inspectors were created in SE-II PWD and SE-V PWD. The letter has been admitted by the management. In view of above, it is held that workman was entitled for regularization on the post of Road inspector instead of mate in the proper pay scale. Accordingly, this issue is decided in favour of workman and against the management.
15. Findings on Issue no. 5 Issue No 5 is "In terms of reference". Terms of reference are 1. ''Whether Shri Inderlok Mall S/o Shri Rajapati Mall is entitled to the wages as is admissible to Non-Technical Supervisor in place of Mate for I.D. No.152/04 Page 15 of 17 muster roll period from 28.2.82 to 12.8.96 and if so, what directions are necessary in this respect ?" 2. "Whether non counting of services of said workman rendered by him during muster roll employment by one management for grant of benefits under ACP scheme is illegal and unjustified and if so what directions are necessary in this respect ?" 3. Whether the said workman is entitled to be regularized on the post of Road Inspector instead of mate in proper pay scale and if so, what directions are necessary in this respect ?"
16. As far as item nos 1 & 2 of reference are concerned, they have been disposed of as not pressed/prayed by the workman as decided vide issues No 2 and 3. As far as item no. 3 of reference is concerned, it has been decided in issue No. 4, that workman is entitled to be regularized on the post of Road Inspector instead of mate in the proper pay scale.
17. Relief.
In view of my finding on issue No. 4, it is held that workman is entitled to be regularized on the post of Road Inspector in the proper pay scale. Management is directed to issue necessary orders to regularize the workman on the post of Road Inspector in the proper pay scale and to pay to workman Sh. Inderlok Mall arrears in this regard. The date of regularization will be decided by the management keeping in view date of I.D. No.152/04 Page 16 of 17 creation of vacancy & keeping in view the date on which his juniors have been regularized on the post of Road Inspector and also other relevant factors . Terms of reference are answered accordingly.
18. Award is passed in the above terms. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room. Announced in open court on 01.02.2011 (MAHAVIR SINGHAL) Presiding Officer, Industrial Tribunal Karkardooma Courts, Delhi.
I.D. No.152/04 Page 17 of 17