Delhi District Court
Jumma Singh Other vs Ms Delhi Jal Board on 16 January, 2024
IN THE COURT OF SH. AJAY GOEL: PRESIDING OFFICER
INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT
COURTS, NEW DELHI.
Ref. No.: F.24(44)/14/LAB/CD/248
Dated : 22.05.2014
POIT NEW NO.: 47157/2015
OLD POIT NO. : 284/2014
Workman
Sh. Jumma Singh S/o Late Gyan Singh &
Sh. Bhagti Shankar S/o Sh. Satya Pal
C/o Municipal Employee's Union,
Aggarwal Bhawan, G.T.Road,
Tis Hazari, Delhi-110054.
Vs.
The Management of
M/s Delhi Jal Board
Through its Executive Officer,
Varunalaya Building, Phase-II,
Jhandewalan, New Delhi.
Date of Institution : 05.07.2014
Date of presentation : 23.03.2023
before this court
Date of Arguments : 16.01.2024
Date of Award : 16.01.2024
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:-
"Whether the workmen Sh. Jumma Singh s/o Late Sh. Gyan Singh and
POIT No. 47157/16 Page 1 of 24
Bhagti Shankar s/o Sh. Satya Pal are entitled to be regularized on the
post of Sewer Cleaning Machine Driver from the initial date of their
joining; if so, to what relief are they entitled and what directions are
necessary in this respect?"
2. Statement of Claim has been filed on behalf of following two
workmen, whose particulars are as under:
Sr. Name & Father's Date of Appt. Post Date of regularisation
No. Name as Beldar
1 Sh. Jumma Singh S/o December 1999 SCM Driver 01.04.2007
Late Sh. Gyan Singh as Muster Roll
2 Sh. Bhagti Shankar November 1998 SCM Driver 01.04.2004
S/o Sh. Satya Pal as Muster Roll
3. The workmen joined the employment of erstwhile Delhi Water Wupply
and Sewerage Disposal Undertaking now known as Delhi Jal
Board/management on the post of SCM Driver on muster roll basis w.e.f.
dates as mentioned in the above table. Initially they were treated as daily
wager/muster-roll employee and were paid wages as fixed and revised from
time to time under the Minimum Wages Act while their counter-parts who
were doing the identical and the work of same value were being treated as
regular employees and they were being paid their salary in proper pay scale
and allowances and were also enjoying benefits like EL, CL, Gazetted,
Festival and restricted holidays etc., which are denied to the workmen
concerned.
4. That thereafter, the management regularised the services of the
workmen on the post of Beldar w.e.f. 01.04.2007 and 01.04.2004 though their
services were to be regularised on the post of SCM Driver.
5. That the post of Beldar is much lower than the post of SCM Driver.
Furthermore, the post of S.C.M. Driver carries much higher pay scale than the
POIT No. 47157/16 Page 2 of 24
post of Beldar. In fact the management should have regularized their services
on the post of SCM Driver but they illegally and malafidely regularized their
services only on the post of Beldar.
6. That non-regularization of services of the workmen aforesaid on the
post of SCM Driver, which is regular and permanent nature of job, since their
initial date of joining in proper pay scale and allowances and denial of
difference of salary in the post of Beldar and that of SCM Driver is totally
illegal, bad, unjust and malafide and shows that the management has exploited
the services rendered by the workmen, which amounts to unfair labour
practice.
7. That the job of S.C.M. Driver which the workmen were discharging
since their initial date of joining is of regular and permanent nature of job and
thus, the workmen have acquired the status of permanent S.C.M. Driver since
their initial date of joining after completing 90 days of continuous service on
that post as provided in the Model standing order framed under the Industrial
Employment Standing Order Act, 1946. Even otherwise under the provision of
Industrial Dispute Act, they have acquired the status of a permanent S.C.M.
Driver after completing 240 days of continuous employment.
8. That in fact the management has no right to revert an employee from a
higher post to lower post without providing any opportunity of being heard.
demand notice was served upon the management by Regd. A/D post vide
communication dated 07.12.2012 which was duly received in their office, but
no reply has been received and it was presumed that the demand has been
rejected. Thereafter, on failure of the conciliation proceedings, the present
dispute has been referred for adjudication before this Tribunal.
9. It is prayed that an award be passed in favour of the workmen thereby
directing the management to regularise the workmen on the post of S.C.M.
Driver with retrospective effect i.e. from their initial date of joining and to pay
entire difference of salary on the principal of Equal pay for equal work
POIT No. 47157/16 Page 3 of 24
alongwith arrears thereof.
10. Written statement has been filed by the management, wherein
objections have been taken that the reference is highly belated and suffers
from delay and latches and same is not maintainable. The workmen Sh.
Jumma Singh and Shri Bhakti Shankar have claimed regularization on the post
of Sewer Cleaning Machine (SCM) Driver from the initial date of their
joining. Shri Jumma Singh joined the services of the management on daily
wage muster roll in December 1999 and Shri Bhakti Shankar in November
1998 and they were regularized as Beldars w.e.f. 1.4.2007 and they did not
raise the dispute since last more than 14 years and they have been regularized
as Beldars on 1.4.2007 and even thereafter they did not agitate the matter and
accepted the regularization on the post of Beldar of their own. It is further
contended that present dispute is not an industrial dispute as the same is not
espoused by a Union and as such the dispute has not culminated in an
industrial dispute. That no demand notice was served upon the management
by the concerned workmen and thus, it is not an industrial dispute and the
reference is bad in law and same is liable to be rejected.
11. It is further contended that the concerned workmen are not holding
any technical qualifications and eligibility for appointment/regularisation on
the post of SCM Driver. Moreover there was no requirement of SCM Driver,
therefore, workmen were engaged as Beldar with their consent on daily wager
muster roll as above. It is further contended that the workmen cannot equate
themselves with employees who have been appointed as SCM Driver against
regular sanctioned post after undergoing the proper selection procedure
prescribed by Recruitment Rules. Rest of the contentions of the statement of
claim more or less are denied.
12. Rejoinder was filed on behalf of the workmen reiterating the
contentions of the statement of claim.
13. On the basis of pleadings of the parties, following issues were framed
POIT No. 47157/16 Page 4 of 24
by Ld. Predecessor vide order dated 10.03.2015:-
1. As per terms of reference.
2. Relief.
14. Perusal of file reveals that vide order dated 19.03.2019 additional issues
were framed by my ld. Predecessor on the application of ld. AR for the
management which are as follows:
1. Whether the claim of the workmen has been properly espoused by
the Union? OPW.
2. Whether the claim of the workmen is highly belated and thus not
maintainable in law as alleged vide the preliminary objection no. 1 in
the written statement of the management? OPM
15. To prove their case, workmen have examined themselves as WW1 and
WW2. They tendered their evidence by way of affidavits, which are
Ex.WW1/A and Ex. WW2/A, wherein they have affirmed the contents of their
statement of claims and relied upon documents Ex.WW1/1 to Ex. WW1/14
and Ex. WW2/1 to Ex. WW2/6. Ld. AR for the management has duly cross
examined both WW1 and WW2.
16. To prove its case, management examined one Sh. Yash Pal Gera,
Assistant Commissioner (G)-I of the management as MW1. He tendered his
evidence by way of affidavit Ex.MW1/A in which he affirmed the contents of
the written statement and relied upon documents Ex.MW1/1 to Ex.MW1/2.
MW-1 was duly cross-examined by ld. AR for the workmen. Thereafter,
management evidence was closed.
17. Final arguments have been heard at length as advanced by both the
parties. My issue wise findings are:
18. Issue No. 1. Whether the claim of the workmen has been
properly espoused by the Union? OPW:
19. Ld. AR for the Management has contended that the present dispute has
POIT No. 47157/16 Page 5 of 24
not been properly espoused by the union, therefore, the same is not
maintainable in its present form.
20. In order to prove the proper espousal, the Ld. A.R. for the workman has
placed reliance upon Ex. WW1/12 i.e. resolution dated 17.11.2012 passed by
the Municipal Employees' Union for raising an industrial dispute in favour of
the workmen.
21. He also placed reliance upon the judgement 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 workman 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 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 POIT No. 47157/16 Page 6 of 24 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."
22. 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."
23. 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 POIT No. 47157/16 Page 7 of 24 of the workman is properly espoused by the union. The relevant portion of the jugedment 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."
24. The workmen in order to prove the proper espousal have placed on record, Ex. WW1/1, i.e., a copy of the legal demand notice dated 07.12.2012 which was sent on the letterhead of the Municipal Employees' Union. The Statement of Claim i.e. Ex. WW1/11 is also filed by the same union before the conciliation officer of the Govt. of NCT of Delhi. The union has also filed its resolution dated 17.11.2012 i.e. Ex. WW1/12, wherein the union decided to raise an industrial dispute in favour of the workmen. The workman in their cross-examination have also affirmed that they are member of the union since July 2012 and also duly paid their yearly subscription fee.
25. On the other hand, even though the management has taken this contention, however, it did not specify the grounds/reasons as to why the present dispute has not been properly espoused by the union. Moreover, no POIT No. 47157/16 Page 8 of 24 such objection has been taken by the management when the proceedings were conducted before the conciliation officer. Therefore, at this belated stage the management is not allowed to take this contention more so in the absence of basis/reason for stating that the present dispute is not espoused properly by the union. In view of the above this tribunal is of the opinion that the contention of the management is a mere technical one, and does not stand in light of the evidence placed by the workmen on record. Therefore, this tribunal holds that the dispute is properly espoused by the Union of the workmen. Hence, this issue i.e. Issue no. 1 is decided in favour of the workmen and against the management.
26. Issue No. 2. Whether the claim of the workmen is highly belated and thus not maintainable in law as alleged vide the preliminary objection no. 1 in the written statement of the management? OPM
27. The onus to prove this issue was on the management. The management has taken this contention in its written statement that the claim of the claimant is not maintainable on account of delay and latches as Shri Jumma Singh joined the services of the management on daily wage muster roll in December 1999 and Shri Bhakti Shankar in November 1998 and they were regularized as Beldars w.e.f. 1.4.2007 and they did not raise the dispute since last more than 14 years and they have been regularized as Beldars on 1.4.2007 and even thereafter they did not agitate the matter and accepted the regularization on the post of Beldar of their own.
28. On the other hand, the AR for the workmen argued that the services of the workmen were regularized by the management w.e.f. 2007 and 2004 respectively in the year 2009 on the post of Beldar as opposed to Driver, and the management till date continues to extract the work of the Driver while paying them the salary of Beldar alone. Such an action of the management is a continuing wrong on their part therefore the same is not hit by the delay and POIT No. 47157/16 Page 9 of 24 latches as claimed by the management. Moreover, the workman had sent a legal demand notice to the management in this regard in the year 2012, and subsequently raised an industrial dispute by way of filing a statement of claim before the conciliation officer. Even otherwise, it is also argued the limitation act, as such does not apply to the proceedings under Industrial Disputes Act.
29. Further attention is drawn towards the case of the Hon'ble Supreme Court in the case of Kuldeep Singh vs. G.M., Instrument Design Development and Facilities Centre and Anr., AIR 2011 SC 455, the court has observed the following in Para 21 of the judgment:
"21. In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time" refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, POIT No. 47157/16 Page 10 of 24 there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for the delay and he was all along hoping that one day his grievance would be considered by the Management or by the State Government."
30. Further, the Hon'ble Supreme Court in the case of Ajaib Singh vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Anr., AIR 1999 SC 1351, observed the following in Para 11 of the judgment:
"11. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal."
31. In view of the judgments above, even though the limitation act does not POIT No. 47157/16 Page 11 of 24 apply to the proceedings under Industrial Disputes Act, yet the dispute has to be raised within a reasonable time and there should not be any inordinate delay. The decision pertaining to the regularization of the services of the workmen were taken in the year 2009, whereas, the legal demand notice was sent to the management in the year 2012 (Ex. WW1/1). Subsequently, the workman initiated an industrial dispute by way of filing the statement of claim (Ex. WW-1/11) and the management filed its written statement before the conciliation officer (Ex. WW1/13). Raising an industrial dispute after the period of about three years can not be termed as an inordinate delay considering the socio-economic position of the workmen. It is notable that no plea pertaining to delay was taken by the management when the conciliation proceedings were ongoing before the conciliation officer. Further, although the management has taken the contention regarding the alleged delay/latches by the workman. However, they have not shown any prejudice suffered due to this purported delay. Even otherwise, it is important to highlight that non- granting of regularization on the post of Driver, if the workman is entitled to, is a continuing wrong on the part of management.
32. In view of the discussion above, this tribunal holds that the present dispute is very well maintainable and the same can not be termed as delay in raising the present dispute. Hence, this issue is decided in favour of the workmen and against the management.
33. Issue No. 3. As per terms of reference.
34. Now, this Tribunal has to see if the demand of the workmen for seeking regularization on the post of S.C.M. Driver in the proper payscale with all consequential benefits and benefits w.e.f. their initial date of joining is justified.
35. The AR for the workmen has contended that the workmen namely, Sh. Jumma Singh and Sh. Bhakti Shankar were engaged by the management w.e.f.
POIT No. 47157/16 Page 12 of 24December 1999 and November 1998 respectively as SCM Driver on daily wage/muster roll basis. The workmen since their initial date have worked as SCM Driver as such. The management abruptly without assigning any reasons whatsoever, assigned the workman the work of Beldar and subsequently regularized him on the said post of Beldar alone. Such an action of the management amounts to imposition of penalty as the post of Beldar is lower in salary and status. And the penalty cannot be imposed without complying with the principles of natural justice by granting the workmen the opportunity of being heard. Therefore, the action of the management by demoting the workmen to the post of Beldar and subsequently regularizing him on the said post w.e.f. 10.04.2004 and 01.04.2007 is unjustified.
36. The management has not disputed the factum of their initial joining on as SCM Driver, however, it has contested that the workmen were initially appointed as S.C.M. Driver in the exigencies of work without undergoing the selection procedure. There were no regular and sanctioned posts of Beldar available with the management. They also did not fulfill the technical qualifications for SCM Driver, hence, they cannot equate themselves with the regular and permanent SCM Driver, and later on the workmen also consented to be duly engaged as a Beldar w.e.f. January 2004 itself. Thereafter, the management vide office order dated 19.02.2009 after obtaining their due consent regularized the workmen w.e.f. 01.04.2004 and 01.04.2007. Hence, the workmen has duly consented for their regularization on the post of Beldar, now after giving his due consent the workman cannot retract and ask for regularization on the post of SCM Driver instead.
37. Based on the pleadings of the parties, the management has not disputed that the workmen were performing the work of SCM Driver prior w.e.f their initial dates of joining to till December 2003. Ex. WW1/3 i.e. the muster roll records of Sh. Jumma for the period 1999 to 2007 depicts that the workman initially worked as SCM Driver from December 1999 to December 2003, and POIT No. 47157/16 Page 13 of 24 from January 2004 onwards he is shown to be working as Beldar. Likewise, Ex. WW1/8 and Ex. WW1/9 are the office orders dated 17.07.2000 and 29.08.2002 are the extension orders wherein the designation of Sh. Jumma Singh is stated to be a SCM Driver at Sr. No. 8 and 10 respectively. Similarly, Ex. WW-2/1 i.e. the muster roll records of Sh. Bhagti for the period 1998 to 2008 depicts that the workman initially worked as SCM Driver from November 1998 to December 2003, and from January 2004 onwards he is shown to be working as Beldar. Ex. WW2/2 is the order dated 28.02.2009 as per the services of Sh. Bhagti Shankar were regularized w.e.f. 01.04.2007. Further the services particulars of the workmen are conceded by both the parties and are not disputed.
38. Now, the grievance of the workmen stems from the decision of the management to reassign them from their position as SCM Driver to a Beldar w.e.f. January 2004 and eventually regularizing their services in the lower- ranking and less remunerative position of Beldar, w.e.f. 01.04.2007 and 01.04.2004 as opposed to SCM Drivers. The workmen asserts that the action of the management constitutes hostile discrimination and unfair labor practices. The AR for the workmen argued that, despite the workman performing the duties of SCM Drivers, the management overlooked them for regularization on the said post and instead chose to regularize them in the lower post of Beldar, a position with lower status and salary compared to that of a SCM Driver. The management countered this by asserting that the reassignment was due to the lack of technical qualifications of the workmen for the post of SCM Driver. They argued that according to their recruitment rules, the workman did not meet the technical qualifications, which include a certificate in mechanical (diesel) or mechanic (tractor) from an ITI (Industrial Training Institute) or other recognized institution for the post of SCM Driver.
39. To support his qualifications for the SCM Driver post, the workmen has placed on record Ex. WW1/4 and Ex. WW2/4 showing that they have POIT No. 47157/16 Page 14 of 24 Diploma of Fitter, like many regular and permanent SCM Drivers working with the management. Attention is drawn towards Ex. WW1/10 which is the list of regular and permanent SCM Drivers working with the management, some of them having "ITI in Fitter" or "NIL" as qualifications are also working with the management. The management did not contest these documents, leading this tribunal to find no reason to doubt their authenticity. Additionally, the management neither placed the recruitment rules for the post of SCM Driver nor proved through oral or documentary evidence that the workman does not meet the technical requirements for regularization as SCM Driver. Moreso, when employees with similar qualification like the workmen are presently working as regular and permanent SCM Drivers with the management.
40. Even otherwise, the management cannot argue both ways. It is an admitted fact by both parties that the workmen had worked as an SCM Driver from their inital dates of joining to till December 2003, indicating that he performed the work of an SCM Driver with the technical qualification of a diploma in Fitter. This was not a short-term arrangement, rather, the workmen performed the work of an SCM Driver for about three to four long years. In this case, there is no significant difference in the required technical qualifications. This is not a scenario where the workman lacks any ITI training in the field; rather, he possesses a diploma in Fitter, similar to the one required for the post of SCM Driver. The requirement of technical qualification cannot be indiscriminately imposed upon the workmen when the emplyees having "NIL" or "ITI in Fitter" are working on the regular and permanent posts of SCM Driver.
41. As far as redesignation from SCM Driver to Beldar is concerned, it is important to highlight that this alteration was not merely nominal but had significant repercussions on his job status, salary, and other associated benefits. During cross-examination, the management witness conceded that POIT No. 47157/16 Page 15 of 24 the post of SCM Driver holds a higher status and salary compared to that of Beldar. This redesignation effectively resulted in a demotion for the workman. Essentially, the decision of the management to modify the designation of the workman from SCM Driver to Beldar constituted a penalty for lacking the technical qualifications for a position they had occupied for abour three- four long years. Such a demotion, based on a sudden emphasis on technical qualifications, disregards the principles of natural justice. This action of the management reflects an arbitrary exercise of power, where decisions about the jobs of employees are made based on whims rather than established procedures. It is particularly striking that the management initially appointed the workman without verifying his technical qualifications, but later cited these same qualifications as a reason to deny him the benefits of regularization enjoyed by others.
42. Prior to demoting the workman from the post of SCM Driver to Beldar, it was incumbent upon the management to provide him with an opportunity to be heard. The management witness conceded in his cross-examination that no enquiry whatsoever was held prior to demoting the workman from the post of SCM Driver to Beldar. The workman was neither given this opportunity nor was any rationale provided to demonstrate that the demotion was a proportionate response to the alleged lack of qualifications. The rights and job security of lower-paid employees cannot be subject to the arbitrary and unjust decisions of their employers. The principles of natural justice demand that an employee, particularly in the context of punitive actions like demotion, be given a fair hearing to present their defense.
43. At this point, the management argued that the workman was merely a muster roll employee, and he is not entitled for any inquiry proceedings prior to his re-designation from SCM Driver to Beldar. This tribunal does not find any force in the argument of the management that daily wager/muster roll workers are not entitled for any inquiry proceedings. On this point, the POIT No. 47157/16 Page 16 of 24 Hon'ble Delhi High Court in South Delhi Municipal Corporation vs. Ramesh Singh., W.P.(C)No.11226/2020 decided on 05.01.2021 has observed that principles of natural justice are equally applicable to daily wagers irrespective of their permanent status. The relevant portion of the judgement is reproduced below as:
"8. Mr. Birbal says that respondent/workman during the course of the inquiry by the vigilance department had made a statement that he had indulged in the aforementioned activity as complained of by Smt. Saroj. 8.1 Mr. Birbal, however, does accept that in the reply to the show cause notice, the stand taken by the respondent/workman was that the said statement was made under coercion.
9. Mr. Birbal also accepts the fact that the respondent/workman was given no opportunity to either cross-examine the complainant i.e. Smt. Saroj or to lead in his defence any evidence before the enquiry officer.
9.1 Mr. Birbal, however, says that since the respondent/workman was a daily- wager this procedure was not adopted.
10. Be that as it may, in my view, if nothing less, the principles of natural justice would definitely apply even to a daily-wager.
11. The respondent/workman, in the very least, should have been confronted by the complainant i.e. Smt. Saroj so that he could have cross-examined her.
44. The management has neither made any plea nor provided any documentary evidence to demonstrate their compliance with the principles of natural justice during the process of re-designating the workman from SCM Driver to Beldar. Notably, during crossexamination, the management witness (MW-1) conceded that "The management did not issue any show-cause notice to the workmen when they were appointed as Beldar from the post of Sewer Cleaning Machine Driver". This admission from the management witness substantiates the contention of the workman that in demoting him from the POIT No. 47157/16 Page 17 of 24 post of SCM Driver to Beldar, the management failed to adhere to the principles of natural justice.
45. So far as the argument of the management that the workman himself consented for his appointment to the post of Beldar from SCM Driver is concerned, it is important to note that the management cannot rely solely on this purported consent to justify its arbitrary actions. 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 demotion and regularization. Further, the workmen in their cross-examinations have also stated that they had to give their consent to the regularization on the post of Beldar as they had a big family to take care of. Also, the Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors vs State of UP., (1986)1SC C 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 enshrined in Article 14 of the Constitution, which implies equal pay for work of equal value. Likewise, 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.
46. The principles laid out in the cases of Dhirendra Chamoli (supra) and Defence Standardization Cell (supra) reinforce the notion that employees in such situations cannot be said to have willingly agreed to the terms of their POIT No. 47157/16 Page 18 of 24 regularization. Therefore, merely because the workmen had given their consent to the demotion as well as regularization on the post of Beldar, which a post lower both in salary and status, does not bar them from raising the present dispute.
47. The stance of the management appears to be contradictory. On one hand, they claim that the workman lacks the necessary technical qualifications for the post of SCM Driver, which led to his re-designation as a Beldar. Yet, on the other hand, despite his redesignation and eventual regularization as a Beldar effective from 01.04.2004 and 01.04.2007, the management continued to assign him the duties of an SCM Driver. The workmen in their Affidavits, Ex. WW1/A and Ex. WW2/A have deposed at Para No. 5 that they are still discharging the duties of SCM Driver with the management. On this aspect, the management did not cross-examine the workmen concerned. Therefore, this tribunal has no reasons to disbelieve the testimony of the workmen on this aspect.
48. Therefore, in view of the of the facts and circumstances and the material on record, this tribunal holds that the management has clearly committed unfair labour practice by employing the workmen concerned for the post of SCM Driver on muster roll basis for performing the work of permanent nature of job, and subsequently demoted him to the post of Beldar citing lack of technical qualification without complying the principles of natural justice. The workmen were subsequently regularized to the post of Beldar w.e.f. 01.04.2004 and 01.04.2007 yet the management kept extracting the work of SCM Driver at the salary of Beldar. Such an action of the management indicates unfair labour practices and the same is being done solely with the object of depriving the workmen the status and privileges of a regular and permanent SCM Driver. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest and Anr., (1996) 2 SCC293 wherein the Hon'ble Supreme Court of India had held that employing workers POIT No. 47157/16 Page 19 of 24 on muster roll/contract basis for long periods and denying them the status and salary of a regular employee amounts to unfair labor practice as giving them the status and privileges of permanent employee would require the management to pay the workman higher than the one fixed under the Minimum Wages Act.
49. This tribunal has the power to grant regularization pursuant to the unfair labour practice and it can create new rights and liabilities upon the employer and employees. Reliance is placed upon the judgement of 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 power to create new rights and liabilities upon the employer. The relevant portion of the judgment is reproduced below:
"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 fo keeping industrial peace". Since the decision of the Federal Court in POIT No. 47157/16 Page 20 of 24 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 industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna Electric Supply Workers' Union )."
50. In light of the facts and circumstances of this case, this tribunal holds that the workman is entitled to regularization on the post of SCM Driver.
51. The management has further contended that the workmen are not entitled to be regularized w.e.f. their initial dates of joining as they have been duly regularized in accordance with the phased manner policy of the regularization of the management.The management has placed on record its policy i.e. 'Policy for regularization of Daily Wage Workers', which prescribed the criteria for regularization of daily wagers/muster roll workers engaged by the management. The relevant portion of the policy is reproduced herein as:
"Salient features of the policy for regularizing Group- C technical Muster loll workman.
1) All the daily wages technical employees who have worked continuously for more than 4 years without any break (for this purpose absence of 30 days from duty in a year will not be treated as Break. However, absence beyond 30 days between 2 spells of daily wages engagement will be treated as break and the earlier service rendered as daily wager, will not be counted for the purpose of regularization would become eligible.
2) All these daily waged employees will be considered for regularization against the lowest rung of the cadre where direct recruitment is provided in the Recruitment Rules.
3) Only those employees will be considered for regularization who fulfill the POIT No. 47157/16 Page 21 of 24 requirement of the lowest rung of the post in the cadre.
4) None of the daily wages, who is facing vigilance case, or whose services have earlier been terminated or who have been awarded punishment on account of any vigilance enquiry, will be eligible for regularization.
5) Till such time as the regularization of all such employees is over, no direct recruitment will be made and where-ever it is found necessary to create some posts to accommodate the daily wages employees, the same will be created with the approval of the departmental committee.
6) Any new creation of the posts (for the purpose of regularization) will be adjusted against the future proposal of creation of the posts."
52. The management has argued that for the regularization of daily wage or muster roll workers, only those who have been engaged in a specific block (a period of two years) and have completed 720 days of attendance over four years, starting from the first day of the two-year block and ending on the last day of the fourth calendar year are eligible for regularization. However, it is important to note that this procedure, as per the policy placed on record by the management, is prescribed for Group 'D' posts. No such procedure/criteria is prescribed for the Group 'C' Post of SCM Driver. The policy does not specify the effective date of regularization for workers engaged in 1998 or thereafter. While the management describes it as a phased manner policy, it lacks clarity on the process and basis for arriving at a specific effective date of regularization. In the present case, the workman was regularized effective from 01.04.2007-01.04.2004 by the management, yet the management has failed to show how this date was determined based on the policy, especially when the policy itself is silent on this matter. It is essential to emphasize that management is a Delhi Jal Board, which is a state under Article 12 of Constitution of India and is expected to act as a model employer for various establishments, including both private and public sectors. A management POIT No. 47157/16 Page 22 of 24 policy cannot supersede the Industrial Disputes Act, 1947, which stipulates under Entry No. 10 of the Fifth Schedule that employing workmen as badlis, casuals, or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent workmen, is prohibited. The management cannot use "policy" as a pretext to perpetuate unfair labour practices explicitly forbidden under the Industrial Disputes Act, namely, keeping employees on temporary basis for extended periods and to deny them the status and benefits of permanent employee. The concept of a phased manner policy was introduced to absorb daily wage/muster-roll workers who have been engaged by various establishments for years, performing regular employee duties without the corresponding salary and service conditions. However, such policies are now being used to initially appoint workmen on a daily wage basis, regularizing their services only after substantial years of service. This process effectively nullifies a major part of their service rendered on a daily wage/muster-roll basis. This tribunal cannot become a party to perpetuating unfair labour practice, more so, when the same is punishable under Section 25T and 25U of I.D. Act and prescribes punishment of imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.
53. It is established that the workmen concerned had been working with the management w.e.f. 1998-1999 as SCM Driver, and has been working continuously and uninterruptedly to till date. It is not the case of the management that the work and conduct of the workman was not satisfactory and that no evidence in this regard has also been placed on court record. Further even though the management had contended that they did not have vacancy for the post of Driver available with the management, however, the management had failed to substantiate the same through any supporting documents. This tribunal cannot merely believe the words of the management without any evidentiary support. Moreso, when such a record was not placed POIT No. 47157/16 Page 23 of 24 on record by the management despite the directions of the court. It is also not disputed that the job of Driver is permanent and perennial in nature.
54. This tribunal has given thoughtful consideration to the issue at hand, and this tribunal has arrived at the conclusion that the demand of the workmen for seeking regularization on the post of S.C.M. Driver in the proper payscale with all consequential benefits w.e.f. their initial date of joining the post of SCM Driver is justified. Hence, the terms of reference are answered in favour of the workmen and against the management.
55. Relief: In view of my findings on above issues, this tribunal holds that the workmen Sh. Jumma Singh and Sh. Bhagti Shankar are entitled to be regularized on the post of SCM Driver w.e.f. December 1999 and November 1998 respectively in regular pay scale with all consequential benefits either monetary or otherwise. The management is directed to implement the award within 60 days of its publication failing which it will be liable to pay an interest at the rate of 8% per annum from the date of reference i.e. 22.05.2014 to till its realization. The award is passed accordingly.
56. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Digitally
signed by
AJAY AJAY GOEL
Date:
Announced in the open Tribunal GOEL 2024.01.16
15:52:41
+0530
on this 16.01.2024.
(AJAY GOEL)
POIT-I/RADC, New Delhi.
POIT No. 47157/16 Page 24 of 24