Delhi High Court
Mahipal Singh vs Trade Fair Authority Of India And Ors. on 4 February, 1992
Equivalent citations: 48(1992)DLT357, 1992(22)DRJ395, (1993)IILLJ876DEL
JUDGMENT Mahinder Narain, J.
(1) The petitioner Mahipal Singh has Filed this writ petition, seeking a writ of mandamus, directing his reinstatement, and seeking his regularisation in accordance with the policy of the Government of India, consequent upon the decision of the Supreme Court in Air 1986 Supreme Court 583 Surinder Singh and another C.P.W.D. on the post of Junior Engineer/Technical Assistant with retrospective effect, and sought ante-. -dated benefits.
(2) The facts giving rise to this petition, as stated in the petition, arc that the petitioner asserted that he was appointed as a Technical Assistant with the respondent authority on 09.10.1987 on daily wage basis, which daily wages were to be paid lo him at the rate of Rs.48.00 per day. The petitioner asserted that his appointment had come through, as the respondent authority had asked the Employment Exchange for personnel to Fill that post, and on his name being recommended by the Employment Exchange, he was offered employment by the respondent authority.
(3) The petitioner slated that he received a communication No.4- TFA(21)/E.I./87, dated 04.09.1987, which required him to fill up a proforma, and send it to the authority concerned. The said letter dated 04.09.1987 reads as under:- NO:4-TFA(21)/E.I./874THSept., 1987. To: Shri Mahipal Singh s/o Shri Man Chand 1449/18-A-Durga Pun Loni Road Shahdara Delhi Sub: Filling up daily wage posts of Technical Assistant (Electrical) on daily wage basis for India International Trade Fair 1987. Sir, Your name has been sponsored by the Employment Exchange for the daily wage post of the Technical Assistant (Civil/Electrical) in the Trade Fair Authority of India. The post carries daily wage rate of Rs.48.00 per day and your services can be terminated without notice, at any time. In case you are interested, you may kindly fill up the enclosed proforma and send the same to the undersigned Along with photo copies of Educational/Professional certificates, Proof of your age, experience etc. before 15th September, 1987. Yours faithfully, sd/- ( V.P. Gupta ) Assistant MANAGER(ADMN.) (4) The petitioner stated that he filled up the said proforma which was required to be filled up by, and thereafter he received another communication being No.4-TFA(21)E-l/87 dated 09.10.1987, whereby he was required to report for duty on or before 14.10.1987 to the respondent authority. The said letter which was sent by special messenger, and was deemed to be an urgent communication, reads as under:- NO:4-TFA(21 )E-l/87 9th October, 1987. To: Shri Mahipal Singh c/o Shri Vijaypal Singh H.No.1449/18-ADurgapuri, Loni Road, Shahdara, Delhi. Sub: Filling up the post of Technical Assistant (Elect.) on daily wage basis for India International Trade Fair, 1987. Dear Sir, Please refer to your interview held on 6.10.1987 for the post of Technical Assistant (Electrical). You are requested to report for duty on or before 14.10.1987 at 10.00 A.M. and contact the undersigned in Room No.34 Administration Building, Pragati Bhawan, Pragati Maidan, New Delhi, failing to do so it will be presumed that you are not interested to take up the assignment and the offer will be treated as cancelled. Yours faithfully, sd/- ( V.P. Gupta ) Assistant MANAGER(ADMN.) (5) The petitioner stated that he joined the duty as a Technical Assistant on 09.10.1987, and continued to receive payment at the rate of Rs.48.00 per day for the initial 55 days, where after the amount of his pay of Rs.48.00 per day was reduced to Rs.25.00 per day. He asserts (hat he continues to get Rs.25.00 per day as his daily wage.
(6) The petitioner asserted that he is a scheduled caste, and that in that category, there was no other eligible candidate except the petitioner for appointment as Assistant Engineer/Technical Assistant.
(7) The petitioner also asserted that he holds 3- years diploma in electric engineering from a recognised Polytechnic.
(8) The petitioner states that two posts of Technical Assistant (Electrical) on regular basis were lying vacant, with the Trade Fair Authority, respondent, and the respondent in violation of the directions issued by the Supreme Court in Air 1986 Supreme Court 583 Surinder Singh and another v. C.P.W.D., is not regularising the petitioner despite availability of post.
(9) The petitioner also asserted that despite the principle of equal pay for equal work, the petitioner has not been paid for doing the work of Technical Assistant. His pay was reduced from what he was entitled to in the letter of appointment, to Rs.25.00 per day. The petitioner states that he had earlier filed a writ petition being No. 1688 of 1988 before the High Court of Delhi, which came up for consideration before Liela Seth, J. and Arun B. Saharya, J., who wanted him to submit rule regarding appointment, promotion and regularisation of the petitioner, as the petitioner had not filed the same with the writ petition. That petition was withdrawn. However, when the petitioner asked the respondent for the rules, the respondent did not furnish the same to the petitioner. That the respondents have without giving termination letter to the petitioner, terminated his services. The petitioner asserts that his services were terminated on 11.08.1988 on personal whims and caprices for the reason that he had sought regularisation through a writ petition filed in this Court.
(10) In this writ petition, counter-affidavit was filed by the respondent. The counter-affidavit filed, however, was not in the form in which counter-affidavits are usually filled, inasmuch as the counter-affidavit of the respondent was not a parawise reply to the various paragraphs of the writ petition, and as such it is not easy to ascertain what assertions in the writ petition have been traversed in the counter-affidavit.
(11) During the course of arguments, however, admitted facts have emerged, and I shall proceed on that basis, and refer to the counter-affidavit and rejoinder, when required.
(12) The letter of appointment dated 09.10.1987 is not disputed by the respondent. It is also not disputed that the petitioner joined the service of the respondent on 09.10.1987. It is also not disputed that he was to be paid @ Rs.48.00 per day.
(13) The petitioner has asserted that as the petitioner was appointed by a letter of appointment addressed to the petitioner, the appointment having been done by a letter of appointment, the appointment should have been terminated by a letter of termination addressed to the petitioner. It is admitted by the respondent that no letter of termination of employment was given. The petitioner relies upon the provisions of the General Clauses Act, which states that if a thing is done in a particular manner, it can be undone in that manner.
(14) It is not disputed by the respondent that no letter of termination of service of the petitioner was given to the petitioner. The respondent, however, asserts that what was done, was that a notice was put up on the notice board, indicating termination of service of the petitioner. In my view, the fact that a letter of termination of service of the petitioner has not been produced by the respondent, is a sufficient indication for the purpose's of establishing that services of the petitioner were not terminated in the manner in which the petitioner was appointed, which is what ought to have been done.
(15) As regards the other aspects of the case, regarding the assertion that the petitioner has not been paid the amount which ought to have been paid as per terms of the letter of appointment, there is no serious controversy by the respondent that this is so. The petitioner asserts that he was paid only Rs.25.00 per day as against Rs.48.00 per day, which ought to have been paid to him.
(16) The respondent stales that the reason why Rs.25.00 were paid to the petitioner was that upon expiration of the term of the India International Trade Fair 1987, the petitioner could only be treated as a muster roll employee, and that loo as a daily wager on a daily wage of Rs.25.00 .
(17) The respondent says that the muster roll was opened after the period of India International Trade Fair 1987 was over. Copies of this muster roll register has been filed by the respondent.
(18) The case of the respondent is that after the India International Trade Fair 1987 was over. the petitioner worked as a wireman instead of Technical Assistant. He worked as a wireman as a muster roll employee. The respondent say in its counter- affidavit in para 26 (ii) that the petitioner was on the muster roll for the month of December. 1987, and that Rs.276.00 were paid to the petitioner up to 31.12.1987 for working as wireman. In the very same paragraph, it is also admitted that the petitioner worked as a wireman in January, 1988, February, 1988, March, 1988, April, 1988, May, 1988, and June, 1988. It is said in the said paragraph that in June, 1988, the petitioner worked as a wireman except for the period from 14.06.1988 to 20.6.1988. For the month of June when the petitioner worked, he was paid Rs.552.20 p. The petitioner also worked as wireman in the month of July, 1988. He also worked as a wireman in August, 1988. The case of the respondent in paragraph 26(xvi) of the counter- affidavit further is that, "for the month of August, 1988, the muster roll shows that there were one wireman Mahipal Singh and two khalasies Raj Kumar and Parsi Samual. The petitioner was absent on 07.08.1988. The muster roll was closed and he was paid Rs.288 and he gave a receipt of the same of revenue stamp under his signature. It has been noted on the muster roll that it was closed".
(20) The petitioner contends that taking the period from 1987 to 1988, when he worked for the respondent, in one year he has worked for more than 240 days, so he is entitled to be regularised.
(21) It is contended by the petitioner that this averment of the respondent that the muster roll was so closed on 07.08.1988 is false, inasmuch as from the muster roll which has been filed, it is clear that the petitioner Mahipal Singh was present even after 7th August. In fact he worked on 8th, 9th, 10th and 11th August, 1988, and it is only on 12th August that the muster roll was closed. These assertions of the petitioner are correct and are borne out from the copies of the muster roll which have been filed by the respondent. This is evidenced by the muster roll at page 141 on the record, which actually shows the presence of the petitioner on 8th, 9th, 10th and 11th August 1988, and on page 142 of the record, it is indicated that the muster roll was closed, and the petitioner is right that this closure can only be w.e.f. 12th August, 1988.
(22) It is, therefore, apparent that the respondent has not correctly stated in the counter-affidavit that the muster roll was closed on 7th August, 1988. I find that the muster roll, in fact, was closed on 12th August, 1988.
(23) There are some observations which are necessary with regard to the muster roll. The contention of the respondent is that the muster roll has been kept with respect to the employees who are temporary employees. This contention is, however, contrary to what the word "muster roll" itself mean. "Master Roll" has been defined in Collins English Dictionary as "a list of officers and men in a regiment, ship's company, etc." This seems to suggest that the muster roll is a record of men who are in employment of an employer, be it a regiment, be it a ship.The word "Muster Roll" also finds reference in the Industrial Disputes Act, 1947 in section 2(kkk), in connection with "lay-off". The said provision reads as under:- "(KKK)"lay-off" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break-down of machinery {or natural calamity or for any other connected reason} to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched. EXPLANATION. - Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause: Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day. Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall been titled to full basic wages and dearness allowance for that part of the day."
(24) The context in which the word "muster roll" is used in section 2(kkk) of the Industrial Disputes Act also indicates that the muster roll is used in the sense of the record of workmen who are actually employed in an industrial establishment on a regular basis.
(25) Thus muster roll relates not only to those who are in the regiment or in a ship, but also the employees of an industrial establishment. It is, therefore, not right to contend that a muster roll employee is a casual employee. A master roll employee by force of the words itself is a person who is on the rolls of an establishment as a workman.
(26) The respondent had taken initially an objection that the instant writ petition is not maintainable, inasmuch as (he respondent is not an authority within the meaning 'of Article 12 of the Constitution. The counsel for the respondent, however, fairly conceded that this question is no more res integra in view of the judgment of the Supreme Court in the case reported as , B.R. Singh and others etc. etc. v. Union of India and others . This was a writ petition which has been filed among others by the workmen against the Trade Fair Authority. This writ petition having been held to be maintainable by the Supreme Court, this contention of the respondent must fail.
(27) The petitioner states that the respondent has used its superior position vis-a-vis the petitioner to make him work instead of a Technical Assistant, as a muster roll employee at a reduced pay. The petitioner states that he belongs to the weaker section of the Society being a scheduled caste, and being in need of employment, he had no option, but to serve not as a Technical Assistant, not as a diploma holder in electrical engineering, but as a muster roll employee at a daily wage of Rs.25.10 p. per day. In the facts and circumstances of this case, this contention appears to be correct.
(28) The respondent's contention that the petitioner is a forger, inasmuch as he has forged the gate-pass, wherein he has held himself out a Technical Assistant, whereas he was only a wireman, is without any substance. A perusal of the gate-passes on record shows that the same were counter-signed by an officer superior to the petitioner, and such an assertion, of being a Technical Assistant, having passed the scrutiny of the superior officer, it has to be taken that the superior officer also accepted the representation in these gate-passes as a correct representation, that the petitioner is a Technical Assistant. In any case, these gate-passes were issued only for the purpose of enabling persons to take out goods from the premises of the Trade Fair Authority, and the petitioner filed these gate-passes only to support his case that he is a Technical Assistant, and not a wireman, as contended by the respondent.
(29) Another interesting fact that has to be noted in this case is that the Division Bench before whom the matter had come up on two different occasions, had passed the following orders on the dates mentioned in this order, which read as follows:- 22.9.89.Present: Mr. Dilip Singh for the petitioner. Mr. Ram Panjwani for the respondent. Counsel for the respondent should file, along with an affidavit, copies of the orders terminating the petitioner's services with effect from 3rd December, 1987 and also letter appointing him as a wireman and subsequent letter or order terminating his services as wireman. II' there are no formal orders to this effect, some documentary evidence should he produced. The affidavit be Filed within 3 weeks with copy to counsel For the petitioner who should file a reply, if any, within 3 weeks there after. To come up on 8th December, 1989. sd/- B.N. Kirpal. J. sd/- September 22. 1989 C.L. Chaudhary, J.
(30) This order makes it clear that an opportunity was given to respondent to produce the termination letter addressed to the petitioner. Despite opportunity having been given to the respondent, the respondent had Failed to produce any letter, indicating termination of services of the petitioner w.e.f. 3.12.1987. Nor had the respondent produced any letter on record by which the petitioner was appointed as a wireman after termination of his services.
ORDERdated OH. 12.1989 reads as under:- 8.12.89. Present: Mr. Dalip Singh for the petitioner. Mr. Raj Panjwani with Mr. Vijay Panjwani for the respondents. Cw 2727/88 The documents and the counter-affidavit filed by the respondents do not meet the points raised in the petition, particularly, with regard to the petitioner having continued for over .six months,and the petitioner being a Scheduled Caste. The petitioner has continued for over six months even after 3rd December, 1987. In this situation, we issue Rule. Further, four weeks' time is allowed to the respondents to file further counter-affidavit. Rejoinder, if any, to be filed within two weeks thereafter. Since the petitioner is out of job, we direct that the petition should be set down for final disposal on 20th February, 1990. High up. sd/- N.N. Goswamy, J. sd/- December 8, 1989A.B. Saharya, J.
(31) In view of the nature of the counter-affidavit filed, in view of the aforesaid orders of the Court, in view of non-production of relevant record, like the attendance register which I had directed production of, and which was not produced, it appears that the case of the petitioner is right as against the case of the respondent. In any case, I am inclined to accept that there is no order of termination of employment of the petitioner as Technical Assistant. I am further inclined to accept the case of the petitioner that owing to the superior position of the respondent, the petitioner was forced to serve as a wireman, and was treated as a muster roll employee at a much reduced rate of salary despite the fact that he was entitled to receive more money as a Technical Assistant.
(32) I must deal with one more point, which is that in the letter of appointment dated 09.10.1987, the subject is described as "Filling up the post of Technical Assistant (Elect.) on daily wage basis for India International Trade Fair 1987". The respondent on the basis of the aforesaid endorsement, asserted that the period of employment got Fixed by that "subject matter". I am not inclined to accept this contention of the respondent, for the reason that it is submitted by the respondent that International Trade Fairs always invariably, commence on 14lh November each year. 14th November is the commencement date for the reason that that happens to be the date of birth of Pt. Jawaharlal Nehru, the first Prime Minister of India, and that duration of International Trade Fairs is only 15 days. If the contention of the respondent based upon the aforesaid endorsement of the letter of appointment is correct, then the petitioner would have only been appointed w.e.f. 14.11.1987, and his employment would have been terminated on 30.11.1987. This is not what had not happened. The petitioner admittedly joined before the India International Trade Fair 1987, commenced on 14.11.1987, and continued after it was over on 30.11.1987, as the respondent purported to terminate the employment of the petitioner by putting up a notice on the notice board on 3rd November, 1987 which reads as under:- NO:4-TFA(21)/E.I./87TRADE Fair Authority Of India New Delhi, 3rd Nov. 1987. Office Order NO.ADMN./1076/87 With the approval of the Competent Authority, the following persons have been engaged as Technical Assistants on daily wages @ Rs.48.00 per day per person, in connection with I.I.T.F.'87 for the period as shown against each: S.No. Name 1. Sh. Ishwari Prasad 5.10.87 2.12.87 2. Sh.Moinuddin 5.10.87 2.12.87 3. Sh.Syed Irfan Raza Rizvi 5.10.87 2.12.87 4. Sh.Sanjay Kumar 20.10.87 2.12.87 5. Sh.Ashwini Kumar Vij 20.12.87 2.12.87 6. Sh.Mahipal Singh (Electrical) 9.10.87 2.12.87 The Authority retains the right to terminate their services without notice, at any time. sd/- (V.P. Gupta) Asstt. Manager (Admn.) To The persons concerned. Copy to:- 1. Salary/General/E.II/E.III 2. Secretary to Chairman/PA to Cgm (KVR) 3. PAs to GM(BB)/GM(MLW)/GM(SK)/FA&CAO/GM (VDNR)/GM(KNM/GM(NSB)/M(ADMN.) 4. Office Order File.
(33) It is contended on the basis of this document that the services of the petitioner as Technical Assistant were terminated on 2.12.1987.
(34) If the letter of appointment is compared with the notice of 3rd December, 1987, then it becomes clear that the petitioner was not employed for the duration of the India International Trade Fair, which commenced on 14th November, 1987 and ended on 30th November, 1987. He was employed as a Technical Assistant. The letter terminating his services was not given to him, nor his signatures obtained in lieu of receipt of this notice. Such a termination letter, bearing endorsement of its receipt has not been produced in Court, despite order of this Court dated 22.09.1989. It is to be noted that on the letter of appointment, appointing the petitioner as Technical Assistant on daily wages of Rs.48.00 per day, his signatures were obtained. The fact that the signatures of the petitioner were not obtained, in my view, is indicative of the fact that the services of the petitioner were not terminated. The person who has been appointed by a letter of appointment, his services should be terminated by letter of termination, and both the offer of employment and termination of employment mast be communicated to the person concerned. In the instant case, there is no communication of the letter of termination of employment to the petitioner.
(35) In the facts and circumstances of the case, therefore, I have to hold that the petitioner continues in service of the respondent authority, as his services have no where been terminated by the respondent, and as there is no termination of services of the petitioner, the petitioner is entitled to continue and to remain in service of the respondent till his services are terminated by appropriate order of termination. The petitioner is entitled to a writ of mandamus, and I accordingly issue a writ of mandamus, directing that the petitioner continues to be in service of the respondent as a Technical Assistant (Electrical), and is entitled to the salaries, all allowances and other benefits accruing as a result of such employment.
(36) Having held that the petitioner's services have not been terminated, and that he is entitled to continue and remain in service of the respondent till his services are terminated by an appropriate order of termination, another contention of the petitioner needs to be dealt with.
(37) The petitioner has contended that by virtue of the superior position of the respondent vis-a-vis the petitioner, the petitioner was made to serve as a wireman instead of Technical Assistant. The petitioner relies upon the judgment of the Supreme Court in the case Central Inland Water Transport Ltd. and another v. Brojo Nath Ganguly and another, , wherein the Supreme Court has accepted the position that in certain regulations made by employers need to be struck down, being a reflection of unequal bargaining powers. This position was reiterated by the Supreme Court in the case Delhi Transport Corporation v. D.T.C. Mazdoor Congress & ors., Jt 1990 (3) 725.
(38) In view of the aforesaid judgments of the Supreme Court, and in view of the admissions made in para 26 of the counter-affidavit, which has been referred to above, it is clear that the petitioner has been made to serve as a wireman instead of Technical Assistant (Electrical) in view of the superior bargaining position of the respondent. In view of what is stated in para 26 of the counter-affidavit, the contention of the petitioner that he has served for a period more than 240 days, stands established. The petitioner having continued to serve the respondent for more than 240 days in a calendar year, is entitled to be regularised.
(39) I, therefore, order and direct that the services of the petitioner be regularised as a Technical Assistant. In my view, this direction to the respondent will be in consonance with the judgment of the Supreme Court in the case Surinder Singh and another v. C.P.W.D. Air 1986 Supreme Court 583 and in the case B.R. Singh and others etc.etc. v. Union of India and others . Accordingly, this writ petition is allowed.
(40) In the facts and circumstances of the case, the petitioner is also entitled to costs, which I quantify at Rs.3,000.00 .