Delhi District Court
Rs.7954/-. It Is Prayed That The Workmen ... vs D.P. Sambasiva Rao on 6 March, 2012
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 152/10/02
The Workmen
Workmen through All India General Mazdoor Trade Union,
170, Balmukund Khand, Giri Nagar
Kalkaji, New Delhi-19
Versus
The Management
1. M/s Ranbaxy Laboratories Ltd.,
25, Ghanshyam House, Nehru Place,
New Delhi -19
2. Sh. Gulshan Babbar (Contractor),
C-114, Surya Nagar, Ghaziabad, UP.
Date of institution: 22.05.2002
Date of reserving judgment: 22.02.2012.
Date of Pronouncement 06.03.2012.
AWARD
1. Workmen have raised the present industrial dispute through Union
and on failure of conciliation proceedings, GNCT of Delhi referred the
dispute to this Tribunal for adjudication in following terms of reference:-
I.D. No. 152/10 Page 1 of 25
''Whether the demand of the workmen shown at
Annexure -'A' for regularisation of their services
under M/S Ranbaxy Labs. Ltd. is justified and if so,
to what relief are they entitled and what directions
are necessary in this respect?"
2. Case of the workmen as briefly stated in statement of claim is that
workmen were working with the management of M/s Ranbaxy Ltd. on the
post of peons and Safai Karamcharis for last many years at the salary of
Rs.2670/- each per month. It is stated that the work being done by the
workmen is of regular nature, which is called permanent work. It is stated
that the workmen were appointed by chief Manager of M/s Ranbaxy
Laboratories Ltd and since their appointment, workmen were
continuously providing their service. It is further stated that facility of P.F.
and ESI is being provided to them and in record of both the departments,
workmen have been shown as employees of M/s Ranbaxy Laboratories Ltd.
It is alleged that the managements in order to exploit the workmen, have not
provided uniforms, bonus, City allowance, traveling allowance, and even they
pay the less wages than minimum wages as declared by the Govt of NCT,
Delhi. It is further stated that the managements are not giving weekly off and
annual leave at par with the regular employees.
3. It is further stated that the management of M/s Ranbaxy, depriving
the workmen of facilities, has engaged a contractor M/s Gulshan Babbar with
a fake agreement. It is stated that the said contractor does not come in the
organisation to work. It is stated that the attendance of workmen is marked by
principal management. It is stated that principal management is harming the
workmen financially and mentally by violating the provisions of Section 7,
10 and 25(5) of Contract Labour (Regulation and Abolition) Act, 1970. It is
further stated that regular employees of management are being paid wages @
I.D. No. 152/10 Page 2 of 25
Rs.7954/-. It is prayed that the workmen be regularised at the principle of
"equal work-equal pay" from the date of their appointments.
4. In the written statement filed by the management of M/s Ranbaxy
Laboratories Ltd, it is stated that there is no employer-employee relationship
between the parties. It is stated that none of the claimants were ever
employed by the management. It is stated that claimants were employed by
various contractors and had been deputed by their respective contractors to
accomplish some jobs at the premises of management. It is further stated that
the claim is liable to be rejected for non-joinder and mis-joinder of necessary
parties. It is further stated that the claimants were working with three
contractors, whereas they have chosen to make only one M/s Gulshan Babbar
as a party to the dispute.
5. It is further stated in the written statement that Union namely all India
General Mazdoor Trade Union has no locus standi to raise the dispute qua the
claimants. There is no legal and valid authorization in favour of the said
union to represent the claimants and hence, the claim is liable for outright
rejection. It is further stated that Secretary (Labour), Govt of NCT of Delhi
has no legal and valid power to make the reference. It is stated in the written
statement that there is no legal and valid espousal in the present case.
6. It is denied that claimants have been working with the management
for many years. It is further stated that claimants were never employed by the
management and on making enquiries, it has been revealed that the claimants
have been employed by different contractors and they have been working at
the premises of the management as employees of various contractors to
whom the management has assigned the job. It is stated that the management
was not responsible to provide the claimants with any statutory benefits but
since the contractors were not having their PF and ESI code numbers, the
I.D. No. 152/10 Page 3 of 25
management had allowed the contractors to deposit the contributions of their
employees and deposit in the code numbers of the management with a view
to help them. It is stated that the claimants are not entitled to the statutory
benefits from the management as they are the employees of the contractors
and cannot be equated with the regular employees of the management. It is
denied that claimants are paid less than minimum wages as prescribed by
GNCT of Delhi. It is stated that the management has been informed by the
contractors that they are paying more than minimum wages to their
employees including the claimants. It is further stated that the claimants are
governed by the rules prevalent intheir respective contractors and cannot be
compared with the regular employees of the management in respect of the
working days etc. It is submitted that the contract between M/s Gulshan
Babbar and the management was a valid contract. It is stated that some of the
claimants were working under direct supervision and control of M/s Gulshan
Babbar upto 30.6.01 and as the contract with M/s Gulshan Babbar was
discontinued by him, the claimants engaged by him are now working under
direct supervision and control of another contractor, namely M/s Neha
Enterprises. It is stated that presently, the claimants herein above are working
under direct supervision and control of different contractors namely M/s
Amar Singh, M/s D S Rawat and M/s Neha Enterprises. However, they have
mentioned the name of only one contractor i.e. M/s Gulshan Babbar for the
reason best known to them. It is further stated that the management is duly
registered as a principal employer for engaging the contractors and the
contractors are also having licenses as per law. It is denied that attendance of
claimants are marked by the management. It is stated that their wages are
paid by their respective contractors. It is stated that by depositing the amount
of ESI and PF in the code numbers of the management, the claimants do not
I.D. No. 152/10 Page 4 of 25
become employees of management. It is denied that any resolution was
passed in any meeting of the union and claimants have not even given the
details of the alleged resolution.
7. In the written statement filed by management no.2 M/s Gulshan
Babbar, it is stated that there is no employer employee relationship between
the management no.2 and the claimants and the contract between
managements no.1 and 2 is no more in existence, as it expired on 30.6.01. It
is stated that there is no legal and valid espousal in the present case. It is
denied that the claimants are working with the management as Peon and Safai
Karamcharies for many years. It is submitted that claimants namely S/Sh.
Munna Lal, Surender Pal, Rakesh Kr, Pawan, Kirpal, Chottu Ram, Girja
Shanker, Ved Prakash, Mahipal Chaprana, Netra Singh and Ramesh Ram
were working under the direct supervision and control with management no.2
and rest of the claimants are working with different contractors. It is stated
that management no.2 approached the claimants, who were working under
him for collecting their full and final dues and also sent various letters vide
Regd. Post in this regard. However, the claimants did not approach the
management for the same. It is submitted that claimants working under direct
supervision and control were given weekly off and yearly holidays as per
rules applicable to management no.2. However, they cannot be compared
with the employees of management no.1 in respect of working days. It is
submitted that the claimants were working five and half days in a week at a
time. It is submitted that management no.2 used to mark attendance of the
claimants and they were paid their salaries and all the legal benefits, which
they were entitled under the law. It is further submitted that management no.2
was issuing instruction to the claimants under their control, from time to
time. It is submitted that as per information of management no.2,
I.D. No. 152/10 Page 5 of 25
management no.1 is duly registered as principal employer for engaging
contractor and the contractors are also having licenses as per law. It is denied
that claimants were employed by management no.1. It is submitted that since
the management no.2 has less number of employees than the minimum
required for getting ESI and PF Code, the contributions of ESI and PF of the
claimants were deposited under the code no. of management no.1. It is
submitted that management no.2 has never violated any provision of law
much less the rule 25(5) of Contract Labour (Regulation and Abolition)
Central Rules, 1971. Rejection of the claim has been prayed for.
8. Separate rejoinders have been filed by claimants to the written
statements of management no.1 and 2, wherein workmen have denied all the
averments made in the written statements and have reiterated the contents of
statement of claim.
9. On the basis of pleadings of the parties, following issue were framed
by Ld. Predecessor on 21.04.2003:-
1. Whether the claim is liable to be dismissed for want of employee and
employer relationship? OPM 1 & 2
2. Whether the claim is liable to be rejected for non-joinder and mis-joinder
of necessary parties? OPM 1 & 2
3. Whether the claim is liable to be rejected for the want of loucs-standi
without legal and valid authorisation in favour of the Union? OPM
4. Whether the claim is not maintainable for want of legal and valid espousal?
OPM
5. As per terms of reference.
10. Workmen have examined themselves as WW 1 to WW 8 and WW
10. WW 9 is Superintendent from the office of E.P.F.O. In their affidavits
I.D. No. 152/10 Page 6 of 25
filed by way of examination-in-chief, WW 1 to WW 8 have reiterated the
contents of statement of claim. In addition, WW 10 has proved on record
certain gate passes issued by management no.1 to work on holidays and
Sundays. Same have been proved as Ex. WW10/1 (collectively).
11. WW 4 Sh. Ved Prakash, in his cross-examination, has deposed that
his brother Sh. Dev Gan was already working in Ranbaxy and he got him
appointed in Ranbaxy Laboratories Ltd. He has further deposed that he
was interviewed before appointment by Commander Sh. Prakash but he
was not given any letter of appointment. He has denied that he did not ask
for appointment letter from Ranbaxy as he was appointed by Contractor. He
has denied in his cross-examination that regular employees of Ranbaxy used
to mark their presence separately and the claimants used to mark their
presence in a separate register. He has further deposed that he submitted his
bio-data, when he was appointed with Ranaxy but he did not keep any copy
thereof. He has admitted that there used to be two attendance registers and
both the registered used to be there together. He has deposed that they used to
mark their attendance in one register and that the only difference was that on
the other register 'Ranbaxy' was written, while on the register, in which they
used to mark their attendance, word 'Ranbaxy' was not written. WW 4 has
further admitted in his cross-examination that 23 employees, parties to the
present reference used to put their signatures for attendance in the register, in
which the word 'Ranbaxy' was not written. It is further admitted that even
today, on the register, which they sign to mark their presence, the word
'Ranbaxy' is not written. It is denied that register which the 23 workmen
sign is stamped with the stamp of 'Neha Enterprises'. It is further admitted
that workmen are paid salary in cash and now a days, salary of Ranbaxy
employees are transferred in their bank accounts. This practice has started for
I.D. No. 152/10 Page 7 of 25
the last 2-3 years after the present case has started. It is denied that they are
still workmen of Neha Enterprises and that their claim against Ranbaxy is
false. It is further deposed by WW 4 that they never protested to Ranbaxy as
to why two attendance registered were being kept and why 23 workmen were
being made to mark their presence in a separate register. It is denied that they
are paid wages by the contractor on the basis of minimum statutory wages
prescribed from time to time. It is admitted that workmen are paid being paid
wages, which happened to the statutory minimum wages from time to time. It
is deposed that PF facility is being give to them but ESI Facility being
provided is not constant.
12. WW 4 has further deposed, in his cross-examination, that he was
member of the Union prior to commencement of this dispute. He did not
remember the date since when he started paying monthly subscription. He has
stated voluntarily that subscription slips are kept int he file of ID No.62/04
pending adjudication before IT No.II. It is further deposed that all the
workmen in this dispute became members of Union on the same date. It is
further deposed that meeting of the Union took place at Giri Nagar, Kalkaji,
New Delhi but he does not remember the date of meeting. He does not know
exact number of the workmen present in the meeting but all the workmen
were present. He has deposed that there were 42-45 members present in the
meeting.
13. WW 4 has further deposed, in his cross-examination, that he had
applied to management no.1 against a vacancy and that he came to know
about the vacancy from his brother, who was working in Ranbaxy. He has
deposed that his brother was not working in Ranbaxy but was working in
Devika Tower, where office of Ranbaxy was situated. He could not say who
else applied when he applied for the post. He did not know whether
I.D. No. 152/10 Page 8 of 25
vacancy was there or not. It must be known by the company. It is denied that
his salary was paid by the contractor. He has admitted his signatures on page
145 of Ex. WW8/M1 at point X. He has further deposed that besides Ex.
WW9/1, he has the monthly subscription receipts regarding espousal. He did
not know, if his subscription receipt is in ID No.62/04.
14. WW 8 Sh. Munna Lal in his cross-examination has admitted that he
did not apply in Ranbaxy against any vacancy. It is further admitted that he
was not given any appointment letter. It is further admitted that his attendance
was not being marked in the same register, where other employees of
Ranbaxy used to mark their presence. His attendance was being marked on a
separate paper. It is further admitted that Safai Karamcharies were also not
signing any attendance register. It is further deposed that they were
requesting M/s Ranbaxy to issue appointment letter but they did not pay
any heed and that he did not complain to any authority against the same.
It is further admitted by WW 8 in his cross-examination that they were not
being paid salaries by making entry in the register being maintained for
regular employees. He has further stated that regular employees were being
paid salaries through the Banks.
15. WW 8 has denied, in his cross-examination, that document Ex.
WW8/M1 is maintained by M/s Neha Enterprises. He has deposed that he
never signed on the register mark X (page 13 to 36 of 1st volume), shown to
him. He has deposed that he never submitted any application for privilege
leave as shown in the document mark Y bearing pages No.43 to 73. It is
admitted that employees of Ranbaxy Ltd. who are working on its roll, used to
submit application for leave. It is deposed that document mark Z is the leave
register maintained by Ranbaxy Laboratory for its employees and that the
same is different from his leave record. It is admitted that salary register
I.D. No. 152/10 Page 9 of 25
bearing page no.129-136 is different from his salary register and the same is
mark A. WW 8 has admitted his signatures at point A and B on EX.
WW8/M2 but has denied that same used to be maintained by M/s Neha
Enterprises. However, it is admitted that same bears his name and stamp of
M/s Neha Enterprises and that the same does not bear name of Ranbaxy
Laboratories Ltd. He has stated voluntarily that when he signed this
document, name of Neha Hospitability Services Pvt. Ltd. was not mentioned.
He has further deposed that he made Gulshan Babbar as a party in the present
dispute as he told him not to come on job. WW8 has admitted his signatures
on Ex. WW8/M3. It is denied that this document is maintained by M/s Dilbar
Singh Rawat. A question was put to WW 8 during cross-examination as to
"what is the basis of his regularisation", to which he replied that this is
not his case.
16. WW 9 Sh. Pramod Kumar Rajput, Secretary of workmen Union
in his examination-in-chief has deposed that workmen held a joint
meeting on 11.4.2001 in the Union Office and told about their grievance.
It is deposed that workmen also signed espousal letter Ex. WW9/1. In his
cross-examination, WW 9 has denied that workmen have not authorised him
or the Union to represent their cause. It is denied that as the contractors made
the payment to the workman, they have impleaded them as a party in the
Hon'ble High Court. It is further denied that M/s Ranbaxy Ltd. neither
appointed the workmen concerned nor they are working under their direct
supervision. He has further deposed that in statement of claim it is mentioned
about the less salary paid to the workmen, because they are getting salary of
unskilled workman, though they are entitled for salary of skilled workmen. It
is admitted that there is no mention in the espousal that the workers are paid
I.D. No. 152/10 Page 10 of 25
the salary of unskilled workmen or they are entitled semi skilled or skilled
workmen. It is admitted that the workers are paid salary as per minimum
wages.
17. WW-9 Sh. R.K. Vasu, Superintendent, Officer of EPFO, in his
examination-in-chief, has deposed that he has received the notice alongwith
application for production of record. He has deposed that record of A/c No.
682 pertains to M/s Ranbaxy Laboratories Ltd. However, in the record of A/c
No.682, the name of the workers as shown in the list do not appear. A/c
No.1546 belongs to Ranbaxy Laboratories Ltd and in the account of
Ranbaxy, no account pertaining to the workers mentioned in the list is
available. This witness has not been cross-examined on behalf of
management, despite opportunity given.
18. Workman Sh. Girija Shanker Pandey, WW 10, in his cross-
examination, has admitted that he has not been issued any appointment
letter by the management no.1. He has deposed that he has written letter in
this regard to the management in the years 1993, 1994 to 1997 but he has not
made any complaint to any authority in this regard. He could not produce the
above said letters written to management. He has admitted his signatures on
Ex. WW10/M1 at point A but he has stated that when he signed the same, the
stamp of Mr. Gulshan Babbar, contractor was not there. It is admitted that
name of Ranbaxy Laboratory is no where mentioned and that at the time of
signing, the said document was blank at the top.
19. WW 10 has also admitted his signatures on Ex. MW1/8 at point A at
pages 390 to 408 but has stated voluntarily that at the time of signing, the said
document was blank at the top. WW 10 has further deposed that he has no
documentary proof to show that he was engaged in the temporary
employment by M/s Ranbaxy Laboratory Ltd. He has further admitted that he
I.D. No. 152/10 Page 11 of 25
has never been issued any pay slip by the management of M/s Ranbaxy
Laboratory Ltd and has voluntarily stated that he has been paid salary on the
plain register, where he used to put his signatures. He has further admitted
that employees working on the rolls of M/s Ranbaxy Laboratories Ltd did not
use to receive wage on the wage register, where he used to receive his salary.
It is further admitted that there was no mention about the name of M/s
Ranbaxy Laboratories Ltd on the register, where he used to receive his
wages.
20. To the question whether he or any other workman has given any
authorization in favour of Mr. Pramod Kumar Rajput to raise present
dispute, WW 10 has replied in affirmative. WW 10 has produced
photocopy of the letter dated 29.6.2001 mark X to show the relationship of
employer and employee between management no.1 and Mr. Gulshan Babbar.
Regarding production of original of mark X, he has stated that same is with
management. He has denied that same is not with management and it is a
fabricated document.
21. Management has examined Major Alok Singh, its Manager as MW 1.
He has deposed in his affidavit that none of the claimants were employed
with the management no.1. He has further deposed that management has an
established procedure of obtaining application with the application form filled
in by the candidate in his own hand writing. Specimen proforma of the same
has been exhibited as Ex. MW1/1. He has also proved copies of attendance
register of the management as EX MW1/3. It is deposed that management
no.1 entered into a contract agreement with contractors for providing services
with M/s Gulshan Babbar, M/s Ravi Hastwala, M/s HarakSingh, M/s Amar
Singh, M/s Neha Hospitality Services Pvt Ltd., M/s Dilbar Singh Rawat, M/s
Anil Jain. Copies of the contract with these contractors have been proved as
I.D. No. 152/10 Page 12 of 25
Ex. MW1/5 collectively. It is deposed that contractors have been providing
services to management no.1. Copies of leave applications of employees of
management no.1 and its salary registers crediting salary to the employees of
management no.1 have been proved as EX MW1/6. It is deposed that
contractors used to maintain their own attendance sheet, which is distinct
from the attendance sheet of the management no.1. Copies of attendance
sheet in respect of contract labour including the claimants herein have been
proved collectively as Ex. MW1/7. It is deposed that contractors used to pay
wages to their labour after obtaining their signatures on the wage registers.
Copies of wage register of the employees of contractors have been proved as
Ex. MW1/8 collectively. Copies of ESI challans in respect of various
contractors have been proved as Ex. MW1/9 collectively. Copies of PF
deductions in respect of various contractors have been proved as Ex.
MW1/10 collectively. It is deposed that contractors used to raise bills on the
management no.1. Copies of said bills in respect of contractor M/s Dilbar
Singh Rawat are Ex. MW1/13.
22. In his cross-examination, MW 1, has deposed that he does not
supervise the work of workmen. He has deposed that the job is done as per
the directions of the contractor. It is deposed that company has its own trust
about the provident fund and the trust can deposit the PF not only of the
regular employees but also of those who are working in the company, to
meet the statutory obligations. It is denied that PF of 23 workers was
deducted by the management no.1. It is deposed that the company has not
given any bonus to any of the 23 employees.
23. MW 2 Sh. Vijay Kunar Taneja, Sr. Manager of management no.1, in
his affidavit, has reiterated the contents of written statement. In his cross-
examination, he has deposed that they have never terminated the services of
I.D. No. 152/10 Page 13 of 25
16 workmen. He could not say whether the contractors have filed any reply or
any license before the conciliation officer. He could not tell the exact date
when the registration certificate had been obtained. He has deposed that they
had never taken permission from the police for late duty. It is deposed that
presently the workmen are working at the premises of management no.1 at
Devika Towers. It is denied that workmen are employees of management
no.1, however, it is deposed that they worked with the management through
contractor.
24. M2W1 Sh. Amar Singh, contractor has deposed in his affidavit that
he, being a sole proprietor and contractor, entered into agreements with the
management no.1. He has relied upon copies of various agreements proved as
Ex. MW 1/5. he has deposed that he has maintained attendance registers in
respect of those engaged by him for execution of contracts. He has deposed
that he has maintained records of payment of wages in respect of those
persons engaged by him. It is deposed that he has deducted employees' share
and deposited both the employees' and employer's share under the provison
of Employees' Provident Fund and Miscellaneosu Provisions Act and
Employees' Pension Scheme with the appropriate authorities from time to
time.
25. In his cross-examination, M2W1 Sh. Amar Singh has deposed that he
has not issued any appointment letter to the workmen. It is admitted that
workmen, mentioned inAnnexure A to his affidavit, were working with
management no.1 prior to him. It is admitted that he has no license to engage
contract labour. It is deposed that he was initially working with management
no.1 and was getting salary of Rs.4000-4200/- from management no.1. He
had no document to show that he was contractor. He has deposed that
agreements executed between him and management no.1 dated 1.7.02, 3.6.03,
I.D. No. 152/10 Page 14 of 25
1.7.03 and 30.6.04 were not registered before any authority.
26. M2W2 Sh. Dilbar Singh Rawat, contractor, has deposed in his
affidavit that he entered into agreements with the management no.1 and relied
upon copies of various agreements. He has deposed that in order to execute
contracts, he had engaged about 11 persons and maintained their attendance
records. It is deposed that attendance record maintained by him reveal that
those engaged by him as contractor included some of the claimants, who were
working under his direct supervision and control. It is deposed that some
persons have resigned from their services and left their employment after full
and final settlement. It is deposed that he as a contractor, maintains wage
register in respect of persons engaged by him.
27. In his cross-examination, M2W2 has deposed that he has not issued
any appointment letter to the workmen. It is admitted that workmen
mentioned in Annexure A to his affidavit were working with management
no.1 prior to him. It is admitted that he has no license to engage contract
labour. It is deposed that initially, he was working with management no.1
and was getting salary of Rs.8000/- from management no.1. He had no
document to show that he was contractor. He has deposed that agreements
executed between him and management no.1 dated 1.7.02, 3.6.03, 1.7.03 and
30.6.04 were not registered before any authority.
28. MW 3 Sh. Mukesh Gupta, Sr. Executive of management no.1 has
deposed in his affidavit that workmen were never employees of management
no.1. It is deposed that workmen were employed with contractors and were
working under their direct supervision and control. It is deposed that the gate
passes, railway tickets and authority letters annexed by the workmen have no
relevance to the present case as the same do not establish employer-
employee relationship between the claimants and management no.1. In the
I.D. No. 152/10 Page 15 of 25
rest of his affidavit, he has reiterated the contents of written statement.
29. In his cross-examination MW 3, could not tell as to what is the
present minimum salary paid by the management to its employees employed
by Ranbaxy. It is denied that claimants were employees of management no.1.
It is denied that claimants were not employed with different contractors and
were not working under direct supervision and control of respective
contractors. It is admitted that PF deducted with respect of employees of
Ranbaxy is deposited with Ranbaxy Employees Provident Fund Trust. He has
stated voluntarily that PF of employees of contractors is also deposited to the
same trust. It is admitted that in the year 1993 no person namely Sh. Amar
Singh as contractor was with the management of Ranbaxy. It is correct that in
the year 1993 no person namely Gulshan Babbar as contractor was with the
management of Ranbaxy.
30. It is deposed by MW 3, in his cross-examination, that he has brought
salary record of M/s Ranbaxy employees for the years 2004 and 2005. He has
stated voluntarily that he was required to produce salary records of peons and
sweepers but as per this record, there was no peon and sweeper employed
with management no.1 during the year 2004-05. He could not produce any
document to show that record for the year 1994-95 has been destroyed. He
has deposed that to the best of his knowledge, he has not placed any such
record to show that ESI/PF of the workmen was being deducted by the
contractors namely Ms/ Amar singh, M/s DS Rawat and M/s Neha
Enterprises. He could not comment whether ESI deduction of the workmen
was being made by management no.1 and was being deposited in the ESI
code of M/s Ranbaxy for the years 1993,1994 and 1995. It is denied that PF
of concerned workman was being deducted by M/s Ranbaxy and it was
deposited with M/s Ranbaxy Employees Provident Fund Trust. He has stated
I.D. No. 152/10 Page 16 of 25
voluntarily that it was being deducted by their employer/contractor and
deposited with Ranbaxy Employees Provident Fund Trust. He has deposed
that he does not have any document to show that the claimants were given
directions by the contractors. It is denied that currently employees do work of
peon, though designated differently as office attendant etc .and are paid salary
of Rs.16,000/-. MW 3 could not show any appointment letters or memos
issued by contractors to claimants. He has voluntarily stated that it is the
matter between employee and contractor. Same was his reply with regard to
rules and regulations maintained the contractors. MW 3, during his cross-
examination, could not show any letter written by the contractors to ESI and
PF department mentioning that the claimants are their employees. He has
stated voluntarily that it is the matter between the employer and employee. It
is denied that ESI/PF is deducted by management no.1 but stamp of
contractors concerning workmen is put on thereafter.
31. I have heard arguments from Sh. Rajesh Anand, Ld. Counsel/AR for
workmen and Sh. Raj Birbal and Ms. Raavi Birbal, Ld. Counsels/ARs for
management. During arguments, it has been inter-alia submitted for workmen
that only 08 workmen are contesting the present dispute. I have perused the
entire record including also the written submissions filed on behalf of
workmen. My findings on the issues are as under:-
32. Findings on issue 1
Issue No.1 is Whether the claim is liable to be dismissed for want of
employee and employer relationship? OPM 1 & 2
33. Workmen have claimed regularisation of their service with
management no.1 M/s Ranbaxy Laboratories Ltd. In their statement of claim,
workmen have stated that Principal Employer and Contractor have been
harming the workmen financially as well as mentally by violating the
I.D. No. 152/10 Page 17 of 25
provisions of Section 7, 10 and Rule 25(5) of Contract Labour (Regulation
and Abolition ) Central Rules, 1971. It is the case of workmen that they were
employed by management No.1 and not by contractor.
34. In Delhi Cloth and General Mills Co. Ltd. and Workmen and others,
1969, AIR SC 243. In that judgment Hon'ble Supreme Court observed as
follows:-
From the provisions of Section 10 (1) (a) and 10 (4) of the
Act it appears that while it is open to the appropriate
government to refer the dispute or any matter appearing to
be connected therewith for adjudication. The Tribunal must
confine its adjudication to the points of dispute referred and
matters incidental thereto. In other words, the Tribunal is
not free to enlarge the dispute referred to it but must
confine its attention to the point specifically mentioned and
anything which is incidental thereto. The word 'incidental'
means according to Webster's New World Dictionary;
"happening or likely to happen as a result of or in
connection, with something more important; being an
incident; casual, hence, secondary or minor, but usually
associated."
"Something incidental to a dispute" must therefore mean
something happening as a result of or in connection with the
dispute or associate with the dispute. The dispute is the
fundamental thing, while something incidental thereto is an
adjunct to it. Something, incidental, therefore, cannot cut at
the root of the main thing to which it is an adjunct.
35. In view of above judgment of Hon'ble Supreme Court, this Tribunal
will confine its adjudication on the issue of regularisation as referred by
appropriate government and on matter incidental thereto and the same are
dealt with in issue no.5. Issue no.1 is decided accordingly.
36. Findings on issue no.2
Issue no.2 is : Whether the claim is liable to be rejected for non-
joinder and mis-joinder of necessary parties? OPM 1 & 2.
37. It is stated in the statement of claim that management of M/s
Ranbaxy, for depriving the workmen of facilities, has engaged a
I.D. No. 152/10 Page 18 of 25
contractor M/s Gulshan Babbar, management no.2 with a fake
agreement. Since, specific allegation has been made against management
no.2, it cannot be said that claim is bad for mis-joinder of parties.
38. In the written statement management has pleaded that workmen have
been working under three contractors, but only one contractor has been
made as a party. Document Ex. WW1/4 and Ex. WW1/76 which are the
copies of statements of account of Ranbaxy Employees Provident Fund
Trust in respect of workman Rajesh Kumar Haro and Sh. Dharam Singh
respectively, are bearing name of Contractor as Amar Singh. It shows that
workmen have been working under more than one contractors. Said M/s
Amar Singh has not been made party in the present claim. Thus, it is held
that claim is bad for non-joinder of necessary parties. Issue no.2 is decide
accordingly.
39. Findings on issues no.3 and 4
Issues no.3 is : Whether the claim is liable to be rejected for the want
of loucs-standi without legal and valid authorisation in favour of the
Union? OPM. Issue no.4 is :Whether the claim is not maintainable for
want of legal and valid espousal? OPM
40. These issues are taken up together, as these are interconnected
issues.
41. As regards espousal by Union, WW 9 Sh. Pramod Kumar Rajput,
Secretary of workmen Union in his examination-in-chief has deposed that
workmen held a joint meeting on 11.4.2001 in the Union Office and told
about their grievance. It is deposed that workmen also signed espousal
letter Ex. WW9/1. WW 4 has further deposed in his cross-examination
that he was member of the Union prior to commencement of this dispute.
He did not remember the date, since when he started paying monthly
I.D. No. 152/10 Page 19 of 25
subscription. He has voluntarily stated that subscription slips are kept in
the file of ID No.62/04 pending adjudication before IT No.II. It is further
deposed that all the workmen in this dispute became members of Union
on the same date. It is further deposed that meeting of the Union took
place at Giri Nagar, Kalkaji, New Delhi but he did not remember the date
of meeting. He did not know exact number of the workmen present in the
meeting but all the workmen were present. He has deposed that there
were 42-45 members present in the meeting.
42. In view of above deposition and espousal letter Ex. WW 9/1, it is
held that the claim is not liable to be rejected for the want of loucs-standi
and further the claim is maintainable being legally and validly espoused.
Issues no. 3 and 4 are decided accordingly.
43. Findings on issues no.5
Issue no.5 is As per terms of reference. Terms of reference are
Whether the demand of the workmen shown at Annexure -'A' for
regularisation of their services under M/S Ranbaxy Labs. Ltd. is justified
and if so, to what relief are they entitled and what directions are necessary
in this respect?"
44. Workmen have prayed for regularisation with management no.1 at
the principle of "equal work-equal pay" from the date of their
appointments.
45. It is admitted by WWs, in their cross-examination, that they
were not provided with appointment letter. No application for the
purpose of seeking employment with management No.1 against any
advertisement for vacancy, has been brought on record by workmen.
Hence, workmen have not been able to prove that they went through
I.D. No. 152/10 Page 20 of 25
the prescribed procedure for appointment on regular basis.
46. In Hindustan Shipyard Limited and others vs. D.P. Sambasiva Rao
and others, (1996) 7 SCC 499, Hon'ble Apex court enunciated that the
process of regularisation involves regular appointment which can be done
only in accordance with the prescribed procedure. The directions of the
High Court for regularisation of medical officers engaged de hors the
regular procedure was set aside.
47. In Jaidev vs. Indira Gandhi National Open University & Another,
102, (2003) DLT 234 (DB), Hon'ble High Court arrived at the conclusion
that no direction can be given to bye-pass the regular selection process
even in the face of the existence of regular vacancies.
48. Thus, in view of above propositons of law, no direction can be
issued to bye-pass the regular selection process.
49. Though, workmen have been working for management, they have to
go through the regular selection process i.e. application for appointment,
selection of successful candidates and issuance of appointment letter etc.
for claiming regularisation. Workmen have neither gone through these
steps for regular appointment nor they have got any appointment letter to
show that they were appointed by the management No.1 on regular basis.
Thus, they cannot be allowed to claim regularisation with management
No.1 irrespective of the fact whether they are employees of management
No.1 or contractor.
50. In Arundhati Ajit Pargaonkar (Dr.) vs. State of Maharashtra &
Others, 1994 II CLR 1113, it was observed that the appellant was not
entitled to claim that she should have been deemed to have been
regularised as she had been working without break for nine years.
51. In view of above judgment, plea of workmen, that they have been
I.D. No. 152/10 Page 21 of 25
working with management No.1 continuously since their appointments,
will not entitle them for regularization.
52. As regards claim of workman regarding equal pay for equal work, in
paras 5(a) and (b) of statement of claim, it is stated by workmen that
some regular employees working with the management at the same post
of workmen herein, are getting wages of Rs.7954/-, whereas the workmen
herein are being paid wages @ Rs.2670/- pm. and thus, they are entitled
for equal pay for equal wages as per Rule 25(V) of Contract Labour
(Regulation and Abolition) Central Rules, 1971. However, no
documentary evidence has been produced by the workmen to substantiate
their plea that regular employees of management no.1 are getting wages
of Rs.7954/- per month.
53. In the written submissions filed on behalf of workmen, it is
stated that presently, the workmen are paid a sum of Rs.5900/- per
month/ Rs.5200/- per month in hand after deductions, where as the
permanent peons and sweepers, now designated as office attendants,
are now paid a sum of around Rs.16000/- per month in hand. In the
written submissions, it is further submitted that all the documents
pertaining to accounts and all the facts pertaining to the payment of salary
to Peon/Sweeper/attendance are within the knowledge of management
no.1 but deliberately, with malafide intention and despite repeated
directions passed by Ld. Predecessor court, management no.1 did not
bring on record relevant documents and facts pertaining to payment of
salaries, so that true and correct salary might come on record and,
therefore, adverse inference be drawn against management no.1 in this
regard.
54. In Surendra Nagar District Panchayat Vs. Dahyabhai Amar Singh vs.
I.D. No. 152/10 Page 22 of 25
2006 SCC (L&S) 38, it has been held by Hon'ble Supreme Court as
under:-
As regards non-compliance with Section 25-G and 25-H
suffice it to say that the witness examined by the appellant
has stated that no seniority list was maintained by the
department of daily-wagers. In the absence of regular
employment of the workmen, the appellant was not
expected to maintain seniority list of the employees engaged
on daily wages and in the absence of any proof by the
respondent regarding existence of the seniority list and his
so-called seniority, no relief could be given to him for non- compliance with provisions of the Act. The courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. In order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have been produced. (emphasis added)
55. It is the case of management no.1 in evidence of MW 1, in cross- examination, that management No.1 did not have any sweeper or Peon during the year 2004-05. In ID No.62/04, pending between the workmen and M/s Ranbaxy Laboratories Ltd. the management No.1 herein, same witness Sh. Mukesh Gupta has deposed that in his cross-examination that as on date there are no peons or sweepers working in the management. Thus, no adverse inference can be drawn against management no.1 in this regard, in view of above proposition of law laid down by Hon'ble Supreme Court.
56. As per submissions of workmen, the posts of Peons and Sweepers have now been designated as Office Attendant. However, there is nothing on record that alleged office attendants perform the same type of work as the present claimants. Proviso to Rule 25(V) of Contract Labour (Regulation and Abolition) Central Rules, 1971 is reproduced as below:-
Provided that in the case of any disagreement with regard to the type of work, the same shall be decided by the Deputy Chief Labour Commissioner (Central).I.D. No. 152/10 Page 23 of 25
57. In State of Haryana and Others vs. Charanjit Singh and Others etc AIR 2006 SC 161, it has been held by Hon'ble Supreme Court as under:-
Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work for equal value. The principle of "equal pay for equal work" has no mechanical application in every case. ............... A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of principle of "equal pay for equal work"
requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body. (emphasis added)
58. In view of above proposition of law and Proviso to Rule 25(V) of Contract Labour (Regulation and Abolition) Central Rules, 1971, the issue whether office attendant and present workmen perform equal work as tested on anvil of function and responsibility, can be decided by expert body i.e. Deputy Chief Labour Commissioner (Central). However no such report of Dy. Chief Labour Commissioner has been given in this regard in the present case, which is a lacunae in the claim of workmen regarding equal pay for equal work at par with regular employees of management no.1.
59. Moreover, in State of Haryana and others Vs. Jasmer Singh and others, (1996) 11 SCC 77, it has been opined that daily-wagers should not be equated with regular workman and can at best claim payment of minimum wages only.
I.D. No. 152/10 Page 24 of 2560. In view of above proposition of law and facts and circumstances of the case, claim of workman regarding 'equal pay for equal work' at par with regular employees of management no.1 does not survive.
61. In view of above discussion, I am of the considered opinion that, workmen cannot be allowed to seek regularisation with management no.1 at par with their regular employees. Thus, it is held that demand of workmen for regularisation of their services under M/s Ranbaxy Labs. Ltd. is not justified. Workmen are not entitled to the relief claimed and no directions are necessary in this respect. Award is passed accordingly and reference is answered in these terms.
62. Copy of this award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open courts
on 06.03.2012 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi
I.D. No. 152/10 Page 25 of 25