Delhi District Court
Sh. Arvind Kr. 14 Ors vs M C D North on 20 January, 2024
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref: F.24(286)ND/2011/Lab./(12)/2000
Dated: 15.07.2014
POIT NO.: 227/2016
Workman
Sh. Arvind Kumar & 14 Ors., (Annexure -A)
as represented by
Municipal Employees' Union
Aggarwal Bhawan, G. T. Road
Tis Hazari, Delhi-110054.
Vs.
The Management of
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk, Delhi-110006
through its Commissioner,
now after trifurcation of erstwhile MCD,
North Delhi Municipal Corporation through its Commissioner
Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg
New Delhi-110 002.
Date of Institution : 16.07.2014
Date of presentation before this court : 11.04.2023
Date of Arguments : 20.01.2024
Date of Award : 20.01.2024
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
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parties named above for adjudication to this Tribunal vide
notification dated 15.07.2014 with following terms of the
reference:-
"(1) Whether services of Sh. Arvind Kumar & 14 ors.
(Annexure-A) have been terminated illegally and/ or
unjustifiably by teh management and if yes, to what
relief are they entitled and what directions are
necessary in this respect?
(2) Whether the demand of workmen Sh. Arvind
Kumar & 14 Ors (Annexure-A for regularization of
their services on teh post of APD/Beldar as per policy
of the management, is justified; and if so, what
directions are necessary in this respect?"
2. Statement of claim has been filed on behalf of the
workmen, whose particulars are mentioned in the table below:
Sl. Name and Father's Designation Date of Joining
No. Name
1. Arvind Kumar A.P.D. 07.07.1998
S/o Jaipal Singh
2. Raj Kumar Singh A.P.D. 07.07.1998
S/o Sri Pal Singh
3. Rajender Singh A.P.D. July 1996
S/o Krishan Pal
4. Devender A.P.D. 01.07.2004
S/o Sunder Lal
5. Vikas Sharma Beldar 01.07.2004
S/o Jai Pal Sharma
6. Lalit Kumar A.P.D. 01.07.2004
S/o Birender Kumar
Sharma
7. Sushil Tyagi A.P.D. 09.08.1996
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S/o Raghuwar Dayal
8. Lekh Raj Beldar 01.07.2001
S/o Bansi Lal
9. Sanjay Beldar 23.06.1991
S/o Fakira
10. Arvind Kumar Beldar 01.07.2004
S/o Ram Saran Sharma
11. Manoj Kumar Beldar 01.07.2001
S/o Mohan Lal
12. Syed Ahmed Beldar 01.07.2000
S/o Shafique Ahmad
13. Sonu Kashyap Beldar 01.07.2002
S/o Hanuman Prasad
14. Yash Pal A.P.D. 03.07.2004
S/o Raj Pal Yadav
15. Girraj Sharma Beldar 01.07.2001
S/o Lalit Prasad
3. It is averred that the workmen concerned joined the
employment of the management as APD/Beldar w.e.f. the dates as
mentioned in the table above. It is the grievance of workmen that
they were treated as Daily Rated/Muster Roll Workers and were
paid wages in accordance with minimum wages act whereas on the
other hand their regular and permanent counterparts performing the
identical work and work of same value but who were being treated
as regular employees are being paid their salary in proper pay scale
and allowances. It is stated that all the workmen aforesaid were
given job for a period of 3 months in a year and thereafter, every
year they were given breaks. It is stated that workmen are supposed
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to be regularised since their respective initial date of joining but the
management has not taken any step. It is stated that workmen have
raised an industrial dispute regarding regularizatio and prior to
raising the same, legal notice of demand dated 01.09.2011 was also
sent and received by management. It is further stated on 30.09.2011
after receipt of that notice and after raising of present dispute, the
J.E. of management namely Sh. Vinod Bansal of City Zone has
refused duties to workmen concerned and informed that there is no
further requirement of their services and they need not come in
future and thus management has terminated the services of the
workman on account of victimization. It is stated that action of
management is in clear contravention of section 33-A and it has no
right at all to change services conditions. It is stated that the job
against which the workmen have been working is of a permanent
and regular nature of job. That employing persons on regular nature
of jobs and treating them as a monthly paid/muster roll workers and
paying them lesser remuneration than those doing the identical work
and the work of same value amounts to unfair labour practice as
provided in Section 2(ra) read with Item No.10 of Fifth Schedule
and read with Section 25 T punishable under Section 25 U of the
Industrial Dispute Act, 1947. That it is violative of Article 14, 16
and 39 (d) of the Constitution of India. That it amounts to sheer
exploitation of labour. Hence, present claim was filed.
4. Written Statement was filed on behalf of the
management wherein it has taken objections that no demand-notice
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has been served upon the management prior to raising the present
dispute and as such the present dispute is not an industrial dispute
and claimants were engaged only for 3 months in a calender year in
Monsoon season as APD/Beldar and as such they have not
completed 240 days in any calender year in any manner. It was also
stated that claim has not been signed by all the claimants and in the
absense of espousal, the claim filed by the union is false and
fabricated and further present dispute is not an industrial dispute as
defined U/s 2 (k) of the I.D. Act
5. On merits, it was stated that workmen have not filed
any supporting documents with the present claim showing their
designation and thus the claim is not maintainable. It was also stated
taht workmen were engaged on contract basis which is purely on
temporarily basis for three months of monsoon season and at the
time of engagement they were given the affidavit of MCD from time
to time for their monsoon season. It was stated that workmen were
paid wages as fixed and revised from time to time as per notification
of minimum wages issued by GNCTD under Minimum Wages Act.
It was also stated that in phased manner the department is
regularizing the casual employees who were appointed till
13.06.2007. Rest of the contentions of the statement of claim were
also denied.
6. Perusal of file reveals that vide order datred
26.09.2017, ld. Predecessor of this court closed the right to file WS
on behalf of the management after affording number of
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opportunties to the management. However, on 06.06.2023 written
statement was filed by the management after seeking the liberty of
the court and accordingly, following issues were framed vide order
dated 06.06.2023:-
"1. Whether demand notice have been served
upon the MCD?OPW
2. Whether the workman have not completed
240 days in any calander year previously to
filing of the claim?OPR
3. Whether the cause have not been properly
espoused?OPR
4. Whether the claim is time barred?OPR
5. As per terms of reference?OPW
6. Relief."
7. To prove their case, workmen examined Sh. Arvind
Kumar S/o Sh. Jai Pal Singh as WW-1, Sh. Raj Kumar Singh as
WW-2, Sh. Rajender Singh as WW-3, Sh. Devender as WW-4, Sh.
Vikas Sharma as WW-5, Sh. Lalit Kumar as WW-6, Sh. Sushil
Kumar as WW-7, Sh. Lekh Raj as WW-8, Sh. Sanjay as WW-9, Sh.
Arvind Kumar S/o Sh. Ram Sharma as WW-10, Sh. Manoj Kumar
as WW-11, Sh. Syed Ahmed as WW-12, Sh. Sonu Kashyap as WW-
13, Sh. Pradeep Kaushik as WW-14, Sh. Girraj as WW-15 who filed
their affidavits Ex. WW1/A to Ex. WW-15/A in lieu of their
examiation in chief and have relied upon documents Ex. WW1/1 to
Ex. WW1/25, Ex. WW2/1 to Ex. WW2/7, Ex. WW3/1 to Ex.
WW3/9, Ex. WW4/1 to Ex. WW4/8, Ex. WW5/1 to Ex. WW5/9,
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Ex. WW6/1 to Ex. WW6/5, Ex. WW7/1 to Ex. WW7/19, Ex.
WW8/1 to Ex. WW8/4, Ex. WW9/1 to Ex. WW9/4, Ex. WW15/1 to
Ex. WW15/8. All the workmen witnesses were duly cross-examined
by ld. AR for the management.
8. On the other hand, the management examined one Sh.
Divyanshu, Assistant Engineer, Electric, West Zone, Delhi as as
MW-1, who filed his affidavit as Ex. MW-1/A. He tendered his
evidence and thereafter, he was also cross-examined by the AR for
the workman.
9. Final arguments have been heard at length as advanced
by counsels for both the parties.
10. I have gone through the entire records of the case
including pleadings of the parties, evidence led and documents
proved during evidence.
My issue wise findings are:-
Issue no. 1
i) Whether demand notice have been served
upon the MCD?OPW
11. The workman has placed its reliance upon Ex. WW1/1,
along with its postal receipts Ex. WW1/2 and the same suggests the
due delivery of the said demand notice in the office of the
management. The management witness admitted in his cross-
examination the authenticity of these documents. Further, even
through the management has taken this objection that Ex. WW1/1
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was never received in the office of the management, it would not
have any impact on the present dispute because the same is not
mandatory before raising the present dispute. Reliance is placed
upon Workmen of M.C.D. vs. M.C.D., W.P.(C) No. 13023/2005
decided on 06.08.2007, wherein the Hon'ble Court has held the
following:
"5. Keeping in view the aforementioned judgment,
which clearly notes that there is no specific
requirement in the I.D. Act that a dispute has to be
raised only by making a demand in writing, any such
interpretation given to Section 2(k) of the I.D. Act
which narrows the definition of the term, "industrial
dispute" is not permissible. Thus it cannot be held that
merely because a demand was not given in writing by
the petitioners to the respondent management, there
does not exist any industrial dispute between the
parties. Making a written demand is not a sine qua non
for raising an industrial dispute. Once the appropriate
Government passed an administrative order referring
an industrial dispute for adjudication to the industrial
adjudicator, it has to be assumed that an administrative
decision was arrived at by the Government after
examining the material placed on the record that there
exists an industrial dispute."
12. In view of the above, this tribunal holds that requirement of
demand notice is not sine-qua-non for raising an industrial dispute
under I.D. Act. Even otherwise, the workman has placed on record
the aforementioned documents which suggest the workman has duly
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sent the demand notice to the management. Therefore, this issue is
decided in favour of the workmen and against the management.
2. Whether the workman have not completed 240
days in any calander year previously to filing of
the claim?OPR
13. The management has contended that the workman has
not completed 240 days of continuous service. The workman also in
their statement of claim filed before this tribunal has stated in Para 3
that "it would be pertinent to note that all the workmen aforesaid
were given job for a period of 3 months in a year, and thereafter
every year they were given breaks."
14. Further, the documents on behalf of the workmen on
the court records Ex. WW1/7 (muster roll), Ex. WW1/8 (Sanction
order) of Sh. Arvind Kumar, Ex. WW2/1 (attendance record), Ex.
WW2/7 (I.D. Card) of Sh. Raj Kumar Singh, Ex. WW3/1 to Ex.
WW3/4 are the sanction orders/attendance record of Sh. Rajender
Singh, Ex. WW4/4 is the duty pass of Sh. Devender Kumar, Ex.
WW5/5 is duty pass of Sh. Vikas, Ex. WW7/11 to Ex. WW7/18 are
the work orders of Sh. Sushil Kumar, Ex. WW8/3 is the calculation
of number of days of work performed by Sh. Lekhraj, WW9/3
(muster roll) of Sh. Sanjay Singh, document at page 131 to 133 are
the muster roll of Sh. Syed Ahmad, Ex. WW11/7, Ex. WW11/8, Ex.
WW11/10, Ex. WW11/13, Ex. WW11/16, Ex. WW11/17 are the
sanction orders/work certificate issued by the management for Sh.
Manoj Kumar, Ex. WW13/1 to Ex. WW13/4 are the sanction orders,
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work certificates and duty pass issued by the management for Sh.
Sonu Kashyap, Ex. WW15/1 to Ex. WW15/4 are the duty pass,
sanction order, muster roll for Sh. Girraj Sharma. The aforesaid
documents are fairly conceded by the management witness to be
correct. However, even though reliance is placed upon the aforesaid
documents on behalf of the workmen, however, the said documents
failed to prove that the workmen have worked through out the year
continuoulsy and uninterruptedly. The workman has failed to place
any document to show that the workmen have completed 240 days
of continuous services in a calendar year, on contrary their own
written statement as well as documents placed on record suggests
otherwise that the workmen have not completed 240 days of
continuous service.
15. Therefore, based on their own admission in the
statement of claim and failing to provide any substantiating
document, this tribunal is of the opinion that the workmen have not
completed 240 days of service in any calendar year prior to the
filing of the statement of claim. Hence, this issue is decided in
favour of the management and against the workmen.
Issue No. 3:
3. Whether the cause have not been properly
espoused?OPR
16. The AR for the Management has contended that the
present dispute of the workman has not been properly espoused by
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the union and the said union does not have any locus standi to file
the case.
17. The AR for the Workman in order to prove the proper
espousal has placed reliance upon Ex. WW1/16 i.e. resolution dated
24.08.2011 passed by the Delhi Labour Union for raising an
industrial dispute in favour of the workmen. 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
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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 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."
18. 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
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management to contend at this stage of the proceedings
that the cause of the workman had not been espoused
by the union."
19. Moreover, the Hon'ble Delhi High Court in the case of
Pratap Singh & Anr. vs. Municipal Corporation of Delhi, WP(C)
No. 676/2013 vide order dated 04.02.2013 reversed the findings of
the Ld. Labour Court on the issue of espousal by categorizing it as
hypertechnical and held that the cause of the 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."
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20. The workmen, in order to prove the proper espousal,
has placed on record Ex. WW1/1, i.e., the copy of the legal demand
notice dated 01.09.2011 and 15.09.2011 Ex. WW1/4, sent on the
letterhead of the Municipal Employees Union. Ex. WW1/15 is the
Statement of Claim filed by the Municipal Employees Union before
the conciliation officer of the Govt. of NCT of Delhi. The union has
also filed its resolution dated 24.08.2011, i.e., Ex. WW1/16, wherein
the union decided to raise an industrial dispute in favor of the
workman.
21. Further, it is notable the management has taken the
issue of espousal at belated stage, meaning thereby no such
contention was taken when the matter was pending before the
Conciliation Officer, therefore, at this belated stage, the
management is not allowed to take this contention, moreso in the
absence of any basis/reason for stating that the present dispute is not
espoused properly by the union. Hence, this tribunal holds 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. The
workmen have placed sufficient material on record to show that the
present dispute is properly espoused by the Union of the workmen.
Hence, this issue is decided in favour of the workmen and against
the management.
Issue No. 4:
4. Whether the claim is time barred?OPR
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22. 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 stating that the workmen have
raised an industrial dispute for seeking regularization w.e.f. their
initial dates of joining, however, the present reference has been
made in the year 2014 i.e. after 10 to 16 years of their services.
23. On the other hand the AR for the workmen have argued
that the management has not regularized the services of the
workmen and kept extracting the work of APD/Beldar on daily
wage basis which amounts to unfair labour practice and is
continuously wrong on the part of the management. In addition to
this the management illegally terminated the services of the
workmen on 30.11.2011 which gave new cause of action to the
workmen. The workmen raised an industrial dispute by way of filing
of statement of claim before the conciliation officer on 28.09.2011,
hence, there was no delay on the part of the workmen. Even
otherwise, it is also argued the limitation act, as such does not apply
to the proceedings under Industrial Disputes Act.
24. 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
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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, 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
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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 theManagement or by the State
Government."
25. 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."
In view of the judgments above, even though the
limitation act does not 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 workmen sent a
legal demand notice was sent to the management in
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the year 01.09.2011 (Ex. WW1/1). Subsequently, the
workman initiated an industrial dispute by way of
filing the statement of claim on 28.09.2011 (Ex.
WW1/15). It is notable that the management
services of the workmen were terminated on
30.09.2011 which further gave rise to the new cause
of action. Moreover, the non-regularisaiton of the
services of the workmen if they are entitled amounts
to continuing wrong on the part of the management
and upon which the limitation does not apply. 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 APD/Beldar, if the
workmen are entitled to, is a continuing wrong on
the part of management. 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.
Issue No. 5:
5. As per terms of reference?OPW
26. Now, this tribunal has to see if the services of the
workmen have been illegally terminated by the management.
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27. The AR for the workmen contended that the services of
the workmen were illegally terminated by the management w.e.f.
30.09.2011 pursuant to the serving of legal demand notice for
regularization of their service. The management has contravened the
provisions of 33 of I.D. Act as neither any permission nor any
approval was sought from the concerned authority prior to
terminating the services of the workman. The workman also argued
that the management did not comply with the provisions of Section
25F, 25G and 25H of I.D. Act, as no notice, notice pay or service
compensation was paid to them, no seniority list was displayed or
exhibited prior to their termination and even fresh hands were hired
by the management.
28. The AR for the management argued that the workmen
were working as daily wagers/muster roll basis as per the needs of
the management. They were engaged on a muster-roll/daily wage
basis for the monsoon season for a specific period as per the needs
of the management, and the service period of each employee was
dispensed with after the expiry of the monsoon season every year.
Further, the workmen were working as temporary employees and
have also not completed 240 days of continuous service for the
purpose of 25F, 25G and 25H of I.D. Act, therefore, no question of
illegal termination arises.
29. The workman in support of their service particulars
have placed on record the aforesaid documents and the same were
discussed in Issue no. 2. Further, the workmen deposed in their
Affidavits that joined in the employment of the management w.e.f.
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their respective dates of joining as mentioned in the table above.
The management did not cross-examine the workmen on their
service particulars. Therefore, this tribunal has no reason to dispute
the service particulars of the workmen. Moreso, when the
management witness conceded in this cross-examination dated
21.11.2023 that "the details of the 15 workmen given in Para 1 of
the statement of claim are correct."
30. From the bare perusal of the service records of the
workmen, it is evidence that the services of the workmen were
engaged by the management for about 3 months every year. The AR
for the Workman had also argued that the management kept
engaging the services of the workman each year for the period of
three years since their respective initial dates of joining. The
workmen thereafter raised an industrial dispute by way of filing of
statement of claim before the conciliation officer. Ex. WW1/15 is
the Statement of Claim filed before the Conciliation Officer for
seeking regularization of their services on 28.09.2011. The services
of the workmen were terminated on 30.09.2011. The factum of their
termination by the management was not disputed by the
management. The management witness has duly conceded in its
cross-examination that "it is correct that the services of the
workmen were terminated on 30.09.2011....it is correct that the
names of the workmen were deleted from the rolls of the
management w.e.f. 30.09.2011." Hence, based on the documents
filed on the court records as well as the admission of the
management witness it is established that the services of the
POIT No. 227/2016 Page No. 20/53
workmen were terminated after they have raised an industrial
dispute for regularization of their services and the same was pending
before the Conciliation Officer.
31. Section 33 of the Industrial Disputes Act prohibits the
change of service conditions of the workmen without complying
with the said provisions. The relevant portion of the said Section
states as follows:
"33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings.--(1) During the pendency of any
conciliation proceeding before a conciliation officer
or a Board or of any proceeding before [an arbitrator
or] a Labour Court or Tribunal or National Tribunal
in respect of an industrial dispute, no employer shall,
--
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 195[or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],--
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that POIT No. 227/2016 Page No. 21/53 workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
XXXX"
32. This Section makes it abundantly clear that if an industrial dispute is pending before a conciliation officer then the employer/management cannot change the service conditions of the workman in regard to any matter connected with the dispute or cannot alter the service conditions to the prejudice of the workman during the pendency of the said dispute without the express permission or approval from the concerned authority.
33. Admittedly, no such permission/approval has been sought while terminating the services of the workmen. The management witness admitted in his cross-examination that "it is correct that the workmen served a legal demand notice on the management vide letter dated 01.09.2011 demanding regularization of their services and filed statement of claim before the conciliation officer on 28.09.2011. It is correct that the services of the workmen terminated on 30.09.2011. It is correct that before terminating their services, no permission or approval was taken by the conciliation officer to terminate their services." Therefore, based on the POIT No. 227/2016 Page No. 22/53 admission of the management witness, it is established that the services of the workmen were terminated during the pendency of the industrial dispute and that no permission or approval was taken from the concerned authority prior to their termination.
34. The Hon'ble Supreme Court in Bhavnagar Municipality vs. Alibhai Karimbhai & Ors., AIR 1977 SC 1229 has held the following:
"6. It is well settled that a complaint under Section 33-A is maintainable only if the employer contravenes Section 33 of the Act. It is submitted by Mr Agarwal, on behalf of the respondents, that the object of Section 33 should be borne in mind in considering the question about alteration of conditions of service under Section 33(1)(a) of the Act. He submits that since the respondents were directly involved in the dispute and the question of their permanent status from a casual or temporary status formed the subject-matter of the dispute, the reference has been made nugatory by the action of the appellant in retrenching them. Mr Parekh, on the other hand, submits that retrenchment of the respondents does not involve alteration of conditions of service and hence there is no contravention of Section 33 of the Act.
8. Section 33 of the Act so far as material for us may be set out:
"33. (1) During the pendency of any . . . proceeding before a ... Tribunal ... in respect of an industrial dispute no employer shall--
(a) in regard to any matter connected with the workmen, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding;POIT No. 227/2016 Page No. 23/53
*** save with the express permission in writing of the authority before which the proceeding is pending."
9. There is a clear prohibition in Section 33(1)(a) against altering conditions of service by the employer under the circumstances specified except with the written permission of the Tribunal or other authority therein described.
10. In order to attract Section 33(1)(a), the following features must be present:
"(1)There is a proceeding in respect of an industrial dispute pending before the Tribunal.
(2) Conditions of service of the workmen applicable immediately before the commencement of the Tribunal proceeding are altered.
(3) The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute.
(4) The workmen whose conditions of service are altered are concerned in the pending industrial dispute.
(5) The alteration of the conditions of service is to the prejudice of the workmen."
13. Retrenchment may not, ordinarily, under all circumstances, amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of the conditions of service. In this particular case, however, POIT No. 227/2016 Page No. 24/53 the subject-matter being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service. They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services. The alteration of the method of work culminating in termination of the services by way of retrenchment in this case has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute.
14. The character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition of employment, however, insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be altered to their prejudice by putting an end to that temporary condition. This could have been done only with the express permission of the Tribunal. It goes without saying that the respondents were directly concerned in the pending industrial dispute. No one can also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case. To permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of Section 33 which is POIT No. 227/2016 Page No. 25/53 principally directed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication. We are, therefore, clearly of opinion that the appellant has contravened the provisions of Section 33(1)(a) of the Act and the complaint under Section 33-A, at the instance of the respondents, is maintainable. The submission of Mr Parekh to the contrary cannot be accepted.
35. In view of the position laid down by the Hon'ble Supreme Court, when there is a dispute pertaining to their regularization of their services were pending before the any forum, the employer cannot disengage/terminate the services of the workman and that their services however temporary be it may must subsists during the pendency of the industrial dispute. It is a well settled position of law if the conditions prescribed under section 33 of the I.D. Act are not followed, then such a termination is illegal and void ab initio. Reliance is placed upon Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and Ors., AIR 2002 SC 643 and Tops Security Ltd. vs.Subhash Chander Jha, 2012 (5) SLR 766.
36. The AR for the workman has also argued that even otherwise the said termination is in complete violation of Section 25G and Section 25H of the I.D. Act. The management has argued that since the workman has not completed 240 days of continuous service they are not protected under section 25F, 25G and 25H of I.D. Act. On this aspect attention is drawn towards the relevant provisions of the I.D. Act.
POIT No. 227/2016 Page No. 26/53"25-B. Definition of continuous service.--For the purposes of this Chapter,--
(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman;
(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer--
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
*** 25-F. Conditions precedent to retrenchment of workmen.--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
POIT No. 227/2016 Page No. 27/53(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
*** 25-G. Procedure for retrenchment.--Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
25-H. Re-employment of retrenched workmen.--Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."
37. The reading of aforesaid sections clarifies that the requirement of one year of continuous service is needed for the purpose of Section 25 F of I.D. Act. As far as Section 25G and POIT No. 227/2016 Page No. 28/53 Section 25H of the I.D. Act is concerned, no such requirement is prescribed that the workman should have continuous service of one year for him/her to be protected under said sections. The Hon'ble Supreme Court in Central Bank of India v. S. Satyam, (1996) 5 SCC 419 : 1996 SCC (L&S) 1273 has dealt with this aspect extensively and discarded the argument that the benefits of Section 25G and Section 25H require one year of continuous service for seeking its benefits. The relevant portion of the judgement is as follows:
"9. The plain language of Section 25-H speaks only of re-employment of "retrenched workmen". The ordinary meaning of the expression "retrenched workmen" must relate to the wide meaning of 'retrenchment' given in Section 2(oo). Section 25-F also uses the word 'retrenchment' but qualifies it by use of the further words "workman ... who has been in continuous service for not less than one year". Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words "workman ... who has been in continuous service for not less than one year". It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G POIT No. 227/2016 Page No. 29/53 prescribes the principle for retrenchment and applies ordinarily the principle of "last come first go" which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F.
10. The next provision is Section 25-H which is couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25-F. It does not require curtailment of the ordinary meaning of the word 'retrenchment' used therein. The provision for re- employment of retrenched workmen merely gives preference to a retrenched workman in the matter of re- employment over other persons. It is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman.
11. Chapter V-A providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25-F applies but for all cases of retrenchment and, therefore, there is no reason to restrict application of Section 25-H therein only to one category of retrenched workmen. We are, therefore, unable to accept the contention of Shri Pai that a restricted meaning should be given to the word 'retrenchment' in Section 25-H. This contention is, therefore, rejected.
38. Further the Hon'ble Delhi High Court in Management of Municipal Corporation of Delhi vs. Presiding Officer, Industrial Tribunal & Anr., 2011 SCC OnLine Del 5759 which further relied upon the case of Hon'ble Supreme Court in Harjinder Singh vs. Punjab State Warehousing Corporation, AIR 2010 SCC 1116, has also upheld such an interpretation. In this case, the MCD challenged an Award passed by the Industrial Tribunal POIT No. 227/2016 Page No. 30/53 wherein the termination of the workman was held to be illegal and he was granted reinstatement with continuity of service, full back wages and all consequential benefits. The workman admittedly did not work for 240 days in a calendar year and the question pertaining to the applicability of Section 25G and H was discussed. The relevant portion of the judgement is as follows:
"4. The admitted position being that the workman did not complete 240 continuous days of service in twelve months of a calendar year, the question of violation of Section 25F ID Act did not arise. As regards the claim under Section 25G ID Act, a perusal of the impugned Award of the Labour Court reveals that after filing its written statement, the management did not adduce any evidence. The workman, on the other hand, filed an affidavit and was also cross-examined. While he did not deny that he was a daily wage worker, he denied the suggestion that there was any difference in the nature of work being performed by him and that performed by his counterparts in regular service. He denied that the sanction of work against which he was employed had expired or that he was gainfully employed elsewhere.
XXXX
9. Mr. Rajiv Aggarwal referred to the decision of the Supreme Court in Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 SCC 192 : AIR 2010 SC 1116 to urge that for the purposes of Section 25G ID Act there was no necessity of showing that the workman had completed 240 days of continuous service in one calendar year. Mr. Kanth did not dispute the above proposition but submitted that the seniority list now produced by the MCD along with the writ petition does not reflect the name of the workman at all, and therefore there was no basis for the contention POIT No. 227/2016 Page No. 31/53 of the workman that persons junior to him had been regularized in contravention of Section 25G ID Act.
10. It is not in dispute that the persons who are shown in the seniority list enclosed with the present writ petition were daily wagers who have been subsequently regularized. Since the Petitioner's services were not regularized his name does not figure in the list. That, however, does not absolve the MCD from its statutory liability under Sect ion 25G ID Act to apply the 'first come, last go' principle. For the purpose of Section 25G ID Act the MCD was required to maintain a list of all such workers whether employed on a daily wage basis or otherwise for short periods of time. It is only from such a list that it would be possible to ascertain whether the principles of Section 25G ID Act have been followed by the MCD when it regularized or terminated the services of a workman. Absent such list, an adverse inference would have to be drawn against the MCD for failing to comply with Section 25G ID Act while terminating the services of Respondent No. 2-workman. That is precisely what the Tribunal has done in the instant case.
11. The above legal requirement flows from the very wording of Section 25G ID Act. In Harjinder Singh the Supreme Court explained as under:
'It is settled law that for attracting the applicability of Section 25G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of 'last come first go' without any tangible reason.' POIT No. 227/2016 Page No. 32/53
14. In the present case, the MCD has not been able to produce evidence to show that while terminating services of the Respondent workman it complied with the requirements of Section 25G ID Act. Mr. Rajiv Aggarwal, learned counsel for the workman submitted that the workman is in dire need of employment and in such circumstances the award of compensation would not be an adequate remedy. Given the difficulty in obtaining employment, the submission on behalf of the workman appears to be justified. In a case like this, lumpsum compensation in lieu of reinstatement cannot be an adequate or satisfactory remedy for Respondent No. 2 workman. The Petitioner was working as a carpenter at least on two occasions on daily wage basis. Therefore, it is not understood how in terms of the RRs the Petitioner cannot work as such. In any event no such plea having been taken before the Tribunal, it cannot be permitted to be urged at this stage.
XXXX
16. For the aforementioned reasons, this Court finds no reason to interfere with the impugned Award dated 21st October 1998 of the Tribunal."
39. Therefore, the aforesaid judgements makes it clear that Section 25G and Section 25 H apply to all retrenched workmen, and not just those covered under Section 25-F. Therefore, even in the present case, the workman did not complete one year of continuous service then also the management is under the mandate of law to comply with the provisions of Section 25G and Section 25H of the I.D. Act.
40. The management witness (MW-1) in his cross- examination has conceded the following:
POIT No. 227/2016 Page No. 33/53"It is correct that before terminating their services, no permission or approval was taken by the conciliation officer to terminate their services. The documents filed by the workmen on the court record are seen by me and there is no dispute regarding the correctness of the same. No notice or notice pay in lieu of notice was either offered or paid to the workmen. No retrenchment compensation was either offered or paid to the workmen. Vol. We have not given any termination order in writing to the workmen. It is correct that the names of the workmen were deleted from the rolls of the management w.e.f. 30.09.2011. No seniority list was either displayed or exhibited on or before 30.09.2011. Management has no evidence or document to show that the workmen are gainfully employed elsewhere after 30.09.2011.
........
It is correct that similarly situated workers who are junior to the workmen are still in the employment of the management."
41. Based on the admission of the management witness, the factum of the termination of the workman is not disputed. It is also admitted that the management did not display or exhibit any seniority list while terminating the services of the workmen concerned. It has also come on record that the similarly situated juniors of the workmen are still working with the management. Hence, it is established that the management did not comply with the provisions of Section 25G of the I.D. Act at the time of termination of the services of the workmen. The division of Patna High Court in Gaffar and Ors. vs Union of India (UOI) and Ors., 1983(31)BLJR282 have highlighted the importance of Rule 77 of I.D Rules for the purpose of Section 25G of I.D. Act and failing to POIT No. 227/2016 Page No. 34/53 implement the same renders the termination/retrenchment illegal. The relevant portion of the judgement is reproduced below:
"4. The Rule 77 of the Industrial Disputes (Central) Rules, 1957 which is mentioned below requires preparation and publication of a list of all workmen in the concerned category at least 7 days in advance:
Maintenance of seniority list of workmen--The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be pasted on a Notice Board in a conspicuous place in the premises of the Industrial Establishment at least seven days before the actual date of retrenchment.
This provision has been included in the Rules so that the object of Section 25G of the Industrial Disputes Act may be effectively achieved. The Industrial rule relating to retrenchment of 'last come, first go' where other things are equal has been recognised for long and affords a healthy safeguard against discrimination. The principle was given statutory recognition by amendment of the Act in 1953. The Rule 77 was framed with a view to facilitate a retrenched workman to verify that he is not being discriminated against otherwise it may be impracticable for him to collect relevant information and' enforce his right. The minimum time of seven days allowed for this purpose is not unnecessarily long, for the workman should get an adequate opportunity to scrutinize the correctness of the seniority list before he is thrown out Viewed from this angle, it should be held that the requirement mentioned in Rule 77 is mandatory and its violation renders an order of retrenchment illegal."POIT No. 227/2016 Page No. 35/53
42. The similar view was also taken by the Hon'ble Bombay High Court in Prakash Murlidhar Dalal vs. Tata Engineering & Locomotive Co. Ltd. & ors., 1996(4)BomCR269 and observed the following:
"14. Under rule 81 of the said Rules, it is incumbent on the employer to prepare a list of all workmen in the particular category and when retrenchment is contemplated, list of all workmen in such category has to be arranged according to the seniority of service and such copy is required to be posted on the notice board in conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment. The provisions contained in rule 81 of the Rules are for the benefit of workman and to obviate the discrimination which may be done by an employer while retrenching the workman and, therefore, for strict adherence of 'last come first go' mandatorily requires that the employer should maintain seniority list of workmen in the particular category and such list should be posted on a notice board in conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment. The provision contained in rule 81 for effective compliance of Section 25-G is mandatory and its breach, at least of nonpreparation of seniority list of particular category of workman would definitely vitiate any order of retrenchment of a workman since in the absence of seniority list, compliance of Section 25-G cannot be checked and verified. Admittedly, in the present case, no seniority list of workmen appointed by the employer-company has been maintained and, therefore, also not published by posting it on the notice board in conspicuous place of the industrial establishment at least seven days before the retrenchment of the workman-complainant. Not only that no seniority list of the watchman POIT No. 227/2016 Page No. 36/53 employed by the employer-company on all India basis was maintained, but also no seniority list of the workmen or watchmen even employed at Amravati Regional Sales Office was maintained.
Thus, total disregard and non-compliance of rule 81 of the Industrial Disputes (Bombay) Rules, 1957 in the facts and circumstances has vitally affective the retrenchment/termination order."
43. The similar view was also taken by the Hon'ble Supreme Court of India in Harjinder Singh vs. Punjab State Warehousing Corporation, AIR 2010 SC 1116. In view of the admitted position and the mandate of the law, this tribunal is of the opinion that the services of the workmen were terminated in utter violation of the principles of last come first go, as no seniority list was displayed or exhibited by the management prior to their termination. The juniors to the workmen are still working with the management, whereas their services were terminated. Notably the services of the workman were terminated during the pendency of the industrial dispute in complete contravention to Section 33 of the I.D. Act. The management has taken the garb of "exigency/need based work", however, the same would be futile when there is evidence on record that similarly situated junior workmen are still working with the management. Therefore, after giving thoughtful consideration to the present case, this tribunal comes to the conclusion that the management has clearly committed unfair labour practice as POIT No. 227/2016 Page No. 37/53 mentioned in Fifth Schedule at Item No. 5(a), and (b) of the I.D. Act by terminating the services of the workman concerned by way of victimization and in colourable exercise of employer's rights and violated provisions of Section 25G and 33 of the I.D. Act.
44. The AR for the workman have argued that once the termination is held to be illegal the normal relief is to award reinstatement with continuity in service and full backwages. He placed reliance upon the judgement of Hon'ble High Court in Delhi Transport Corporation vs Ram Kumar And Another, 1982 (44) FLR 356 wherein it was held that once the termination is held to be illegal and unjustified, the normal rule is to award reinstatement with full backwages and continuity in service except when the workman is gainfully employed coupled with receiving wages equivalent to his last drawn salary at the time of his illegal termination. The Para 14 of the aforementioned judgement is as follows:
"......The principle is that when an employee after protracted litigation with the employer succeeds in showing that the termination of his service was unjustified he would normally be entitled to reinstatement with full back wages expecting of course if it could be shown that he had been gainfully employed in the meanwhile. Thus full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure, See Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha MANU/SC/0369/1979 : (1980)ILLJ137SC. Thus POIT No. 227/2016 Page No. 38/53 if the employer wishes to show that workman gainfully employed he must establish and prove that fact; no presumption of being gainfully employed can be raised. It is not dispute that no evidence has been led or even shown on the record by the appellant which shows that workman was at any time in between employed elsewhere. In that view there would be no justification for denying him full back wages. The mere fact of long time having elapsed is certainly not a reason to deny him his normal relief of reinstatement because as said in Panitole Tea Estate case. "If his dismissal was wrongful then merely because proceedings for adjudication of the industrial disputes have taken a long time is by itself no reason for not directing his reinstatement if it is otherwise justified being in accordance with normal rule."
45. Further, reliance upon case of Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors., Civil Appeal No. 6767/2013 decided on 12.08.2013 wherein the Hon'ble Supreme Court has held that onus to prove that the gainful employment shifts to the management once the workman has pleaded that he/she is not gainfully employed elsewhere. The Para 33 of the aforementioned judgement is as follows:
"33 (iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully POIT No. 227/2016 Page No. 39/53 employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments."
46. The workmen have stated in their Affidavits that they remained unemployed since the date their services were illegally terminated by the management i.e. 30.09.2011. The management witness in his cross-examination has conceded that "the management has no evidence or document to show that the workmen are gainfully employed elsewhere after 30.09.2011." In the absence of any evidence that the workmen are gainfully employed elsewhere, this tribunal can not assume the same. Further, the Hon'ble Supreme Court in BSNL v. Bhurumal, 2013 SCC OnLine SC 1092 at page 189 give the following caveat while granting the relief pursuant to the illegal termination. The relevant portion of the said judgement is as follows:
"35. We would, however, like to add a caveat here. There may be cases where termination of a daily- wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some POIT No. 227/2016 Page No. 40/53 policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.
(emphasis supplied)
47. No exceptional circumstances or situations were advanced by the AR for the management as to why this tribunal should deviate from the normal rule of reinstatement and continuity in service along with back wages once the termination is held to be illegal. Admittedly the juniors to the workman are still working with the management and the management has a policy of regularization which is confirmed by the management witness in his cross- examination and the same is also placed on record as Ex. MW1/W1. Therefore, this tribunal is of the opinion that the workmen are entitled for reinstatement with continuity in service. However, as far as the question of backwages are concerned, the workmen have only worked for 3 months each year since the date of their initial dates of joining. Even though it is the management who has not provided the work to the workmen for the rest of the days, this will not change the fact that their services were only engaged during the monsoon seasons. Therefore, this tribunal does not agree with the contention of the workmen that they are entitled to full backwages. The interest of justice would meet if the workmen are granted 20% back wages as opposed to 100% back wages.
POIT No. 227/2016 Page No. 41/5348. In view of the aforementioned reasons, this tribunal holds that the workmen are entitled for reinstatement along with continuity in service and 20% backwages.
Regularisation
49. Now dealing with the regularization aspect of the case, the AR for the Management has drawn attention of this Tribunal to the case of Secretary, State of Karnataka and others vs. Umadevi and others, appeal (civil) 3595-3612 of 1999, decided on 10.04.2006 and Uma Rani vs. Registrar Co-operative Society as reported in (2004) 7 SCC 112, wherein it was held regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization. Further, it was also argued that the management has its own policy of regularization i.e. phase manner regularization policy and the management regularizes its daily wage muster roll-employees as per availability of the posts and funds and the said policy was upheld by the Hon'ble Delhi High Court in MCD vs. Gauri Shankar & Ors., WPC No. 601/1997 dated 31.08.1999 and MCD vs. Brij Mohan, WPC No. 17932/2004 dated 27.10.2005.
POIT No. 227/2016 Page No. 42/5350. The workman representative has argued that the management has committed unfair labour practice as enumerated in Section 2 (ra) read with item 10 of Fifth Schedule of the Industrial Disputes Act and further submitted that employing the workman on regular and permanent post of Beldar/Asst. Pump Driver and treating them as mere temporary workmen and to continue them for several years with the object of depriving the status of permanent workman amounts of unfair labour practice as regularizing their services would mandate the management to pay the salary in regular payscale to the workman. He placed his reliance upon the judgment of Hon'ble Supreme Court titled as Chief Conservator of Forest and Anr., (1996) 2 SCC 293 and the judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. of Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796.
51. This tribunal has considered all the material on record as well as legal submissions of the parties and is of the opinion that this tribunal has power to regularize the services of the workman in the light of the judgment of Hon'ble Supreme Court titled as Chief Conservator of Forest and Anr. (supra), the judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. Of Rural Development v. Its Workmen, (supra). The relevant portion of the aforesaid judgement is reproduced below:
"28. The decisions relied upon by the learned counsel for the respondents in Ajaypal Singh (supra), ONGC (supra) and Umrala Gram Panchayat (supra), also leave no manner of doubt that the Supreme Court has specifically observed that the prohibition laid down for regularization in Uma Devi (supra) does not apply to POIT No. 227/2016 Page No. 43/53 industrial adjudication and that the Industrial Tribunal has the power to direct regularization of services in cases where pursuant to unfair labour practices, employees have been made to render services for long periods of time on causal basis for work that should ordinarily be done by regular employees."
........
61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
52. 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 POIT No. 227/2016 Page No. 44/53 view to secure peace and harmony between the employer and his workmen and full co-operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the tribunal can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay it has been repeatedly held that the jurisdiction of Industrial Tribunals is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna Electric Supply Workers' Union)."
53. Further, the Hon'ble Supreme Court in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 has observed the following with regarding to the practice of using Uma Devi (supra) as a tool to further exploit the services of the worker and not regularizing the services of the workmen concerned.
"7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-POIT No. 227/2016 Page No. 45/53
hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the POIT No. 227/2016 Page No. 46/53 year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise.
This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."
54. In view of the judgements above, the argument of the management that this tribunal does not have the power to regularize the services of the workman concerned in view of Uma Devi (supra) is misplaced in law.
55. Attention is drawn to the cross-examination of the management witness (MW-1) dated 21.11.2023. He admitted that the service particulars of the workmen, as mentioned in the statement of claim, are correct. He also conceded that the concerned workmen were paid the minimum wages, which were fixed and revised from time to time under the Minimum Wages Act. It has also been recorded that a large number of posts for Beldar and Assistant Pump Drivers (APD) have been lying vacant with the management since 1992 to the present date. He further admitted that the work and conduct of the workmen were satisfactory. The said witness also admitted that the nature of work, working hours, and responsibilities of the concerned workmen were the same as those of their regular and permanent counterparts, who were treated as regular and permanent Beldar/APD. He also accepted that the mode of appointment for Beldar and APD is such that they are first employed POIT No. 227/2016 Page No. 47/53 on a muster roll as daily wagers, and then their services are regularized by the management in terms of their policy of regularization. When the witness was confronted with Resolution No. 709, he acknowledged it to be the phased manner policy of the management. He also accepted that the workmen were fulfilling the requisite qualifications for the post of APD/Beldar when they were initially appointed, which is why they were employed by the management.
56. Based on the evidence placed on record as well as the testimonies of the parties, it is evident that the job they were performing was permanent and perennial in nature when the management had a regular and permanent post for the said category. It is further admitted by MW-1 that the work, duties, and number of working hours of the workmen are identical to those of the regular and permanent employees of the management. It is also conceded that the work and conduct of the workmen have been found satisfactory by the management. This tribunal has failed to understand that despite the workman performing the same work as being performed by the regular counterparts for the post of Asst. Pump Driver/Beldar and having satisfactory work and conduct yet the services of the workmen were engaged on daily wage basis as opposed to granting permanent employment.
57. During the course of arguments, the AR for the workman drew attention towards the Resolution No. 1002 of 05.01.1967 of the management Ex. WW1/17. The said resolution POIT No. 227/2016 Page No. 48/53 prescribes the following at Sr. No. 1 at recommendations of the Sub Committee:
"(A) A seniority list of all Muster-roll, seasonal, part-
time, employees in different departments, zone-wise who have worked during the last one year be prepared within 2 months;
XXXXX (C) Vacancies be filled up by muster-roll, seasonal and part-time employees on seniority-cum-merit basis and suitability basis;
XXX"
58. The aforesaid policy of the management stipulates that a combined seniority list of part-time, seasonal and muster roll employees are to be maintained and their services are to be regularized in phased manner as per the phased manner regularization policy of the management. Instead, the workmen raised their demands for their regularization, the management on contrary terminated their services.
59. In view of the admitted position and the material on record, this tribunal holds that the management has clearly committed an unfair labour practice by employing the workmen on a muster roll daily wage basis for performing the permanent nature of work of Asst. Pump Driver/Beldar and continued them for several years with the intent of depriving them of the status and privileges of a regular and permanent employee. This view is supported by the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra), Sheo Narayain (Supra) Project Director (supra), wherein the Hon'ble Supreme Court of India as well as Hon'ble POIT No. 227/2016 Page No. 49/53 Delhi High Court has held that employing workers as temporary workers for long periods and denying them the status and salary of a regular employee amounts to an exploitative and unfair labor practice. This is because giving them the status and privileges of a permanent employee would require the management to pay the workman a salary higher than the one fixed under the Minimum Wages Act.
60. In these circumstances, this tribunal holds that the workmen are entitled to be regularized on their respective posts. So far as regularization from the initial date of joining is concerned, admittedly the management has a regularization policy, and the same has also been placed on record as Ex. MW1/1. When there is a policy for regularization, this tribunal does not find any reasons to deviate from the said policy. However, it is noted that the policy has only considered the period upto 31.03.2003, the workers who were appointed after the prescribed period mentioned in the policy, in such case this tribunal deems it fit to grant regularization after two years of completion of their services. It is reiterated that the management has several posts of Beldar/Asst. Pump Drivers are lying vacant to till date. Hence, there is no point in engaging workers on a daily wage basis for performing the permanent and perennial nature of work. Therefore, the services of the workmen are entitled to be regularized on their respective posts in regular pay scale in accordance with the policy of the management with all consequential benefits either monetary or otherwise. Hence, the POIT No. 227/2016 Page No. 50/53 terms of reference are answered in favour of the workmen and against the management.
Relief:
61. In view of my findings on the foregoing issues, this tribunal is of the opinion that the services of the workmen were terminated in utter violation of the principles of last come first go, as no seniority list was displayed or exhibited by the management prior to their termination. Further, it is notable that the services of the workman were terminated during the pendency of the industrial dispute in complete contravention to Section 33 of the I.D. Act.
Therefore, after giving thoughtful consideration to the present case, this tribunal comes to the conclusion that the management has clearly committed unfair labour practice as mentioned in Fifth Schedule at Item No. 5(a), and (b) of the I.D. Act by terminating the services of the workman concerned by way of victimization and in colourable exercise of employer's rights and violated provisions of Section 25G and 33 of the I.D. Act. Therefore, this tribunal holds that the workmen are entitled for reinstatement along with continuity in service and 20% backwages.
62. On the aspect of regularization, the management further argued that the services of the workman cannot be regularised with retrospective effect as they have not worked with the management w.e.f. 2011 itself. This argument of the management does not go well with their own conduct. It is reiterated that it is the management who has violated provisions of Section 25 POIT No. 227/2016 Page No. 51/53 G (principles of last come first go), while deleting the names of the workmen from their rolls. The management is not allowed to have premium of their own wrong doings when it is them who had completely disregarded the provisions of Industrial Disputes Act. The workmen herein engaged in long drawn litigation solely because of the illegal actions of the management. Therefore, this tribunal does not find force in the argument of the management and holds that the workmen concerned are entitled to be regularized on their respective posts w.e.f. the dates as mentioned in the table below (as per the policy of the management) in regular payscale with all consequential benefits either monetary or otherwise. So far as the argument of no work performed by the workmen is concerned, this tribunal in order to balance the same, deems it appropriate to grant only 20% of arrears of regular pay scale for the interregnum period of termination i.e. 30.09.2011 to till the date of award. However, all the benefits of regularisation are to be accrued w.e.f. their respective dates as mentioned in the table below.
Sr. Name Post Date of Date of
No. App. Regularisation
1. Arvind Kumar Asst. Pump 07.07.1998 01.04.2005
S/o Jaipal Singh Driver
2. Raj Kumar Singh Asst. Pump 07.07.1998 01.04.2005
S/o Sri Pal Singh Driver
3. Rajender Singh Asst. Pump July 1996 01.04.2004
S/o Krishan Pal Driver
4. Devender Asst. Pump 01.07.2004 01.07.2006
S/o Sunder Lal Driver
5. Vikas Sharma Beldar 01.07.2004 01.07.2006
S/o Jai Pal Sharma
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6. Lalit Kumar Asst. Pump 01.07.2004 01.07.2006
S/o Birender Kumar Sharma Driver
7. Sushil Tyagi Asst. Pump 09.08.1996 01.04.2004
S/o Raghuwar Dayal Driver
8. Lekh Raj Beldar 01.07.2001 01.04.2006
S/o Bansi Lal
9. Sanjay Beldar 23.06.1991 01.04.1999
S/o Fakira
10. Arvind Kumar Beldar 01.07.2004 01.07.2006
S/o Ram Saran Sharma
11. Manoj Kumar Beldar 01.07.2001 01.04.2006
S/o Mohan Lal
12. Syed Ahmed Beldar 01.07.2000 01.04.2006
S/o Shafique Ahmad
13. Sonu Kashyap Beldar 01.07.2002 01.04.2006
S/o Hanuman Prasad
14. Yash Pal Asst. Pump 03.07.2004 03.07.2006
S/o Raj Pal Yadav Driver
15. Girraj Sharma Beldar 01.07.2001 01.04.2006
S/o Lalit Prasad
63. 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% p.a. from the date of reference 10.07.2014 to till its realization. The award is passed accordingly. A copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in the open Tribunal on this 20.01.2024 (AJAY GOEL) POIT-I/RADC, New Delhi.
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