Delhi District Court
Workmen vs Municipal Corporation Of Delhi on 26 September, 2015
1
IN THE COURT OF SH. B.S. CHUMBAK : PRESIDING OFFICER LABOUR
COURT NO. XVI: KARKARDOOMA COURTS : DELHI
ID No.26/15
Workmen
Through Nagar Nigam Karamchari
Sangh Delhi Pradesh (Regd.)
P2/624, Sultanpuri, Delhi
......Workmen
VERSUS
1.Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chowk, Delhi
2. East Delhi Municipal Corporation Through its Commissioner, Udyog Sadan, Patparganj Inds. Area, Delhi .....Management Date of Institution: 13.05.2015 Judgment reserved:23.09.2015 Date of decision :26.09.2015 Reference no.F.24(239)/14/Lab./ED/770 dated 12.05.2015 AWARD
1. On considering the report submitted by the Conciliation Officer u/s 12(4) of the Industrial Dispute Act 1947 and on having been satisfied regarding existence of an Industrial Dispute between the workman and management, Deputy Commissioner, Labour Government of NCT of Delhi in exercise of power 2 conferred by Section 10(1) ( c) and 12(5) of the Industrial Dispute Act 1947 (hereinafter referred to as Act) by virtue of the labour department notification no.F.24(239)/14/Lab./ED/770 dated 12.05.2015 referred the present dispute to this labour court for adjudication with the following terms of reference :
"Whether the 'Workmen' of the MCD/East DMC working as a permanent Safai Karamcharis on daily wages basis with the management are entitled to minimum rates of wages and variable Dearness allowance as per the notification of the Ministry of Labour & Employment Govt. of India issued vide No. S.O. 928 (E) dated 24.04.2008, if so, what reliefs are they entitled and what directions are necessary in this respect?"
2. In the statement of claim it is submitted that East Delhi Municipal Corporation (management herein) has been paying salaries to the safai karamcharies posted at their different offices at the rate of minimum wages notified by the Government of Delhi for an "unskilled workman" and also revised the same from time to time under the said act while ignoring the special nature of work and its consequential risk. It is further averred that the organization working for the welfare of the safai karamcharies raised this issue regarding the special nature of work and also demanded special wages for safai karamacharies considering the nature of work and its risk. Said matter was raised before the national commission of safai karamcharies and the commission recommended the special wages on the basis of their nature of work and risk. It is further averred that the Government had accepted the recommendation of the commission and a notification was issued by the Government of India through Ministry of Labour and Empowerment, which was published in the gazette of India in extra ordinary 3 PartII Section 3 (2) dated 07.08.2008 and vide this notification the Government announced the minimum wages to the safai karamcharies @ 180/ per day plus V.D.A. The said notification was made effective w.e.f 1.4.2008 vide notification bearing no. SO925(E) dated 24.04.2008 and after the said notification all the daily wager safai karamchari who are working with the management and its predecessor (MCD) are become eligible to get wages at the rate mentioned in the aforesaid notification. Inspite of repeated visits by the safai karamchari or the office bearer of the union the management has not paid the wages accordance with the notification dated 24.04.2008. The matte was also raised before the conciliation officer but the matter is not settled due to non cooperative attitude of the management and hence the matter was referred to this court vide reference no. F.24(239)/14/Lab./ED/770 dated 12.05.2015 with the terms of reference mentioned in para no.1 and requested for seeking direction in favour of the workman and against the management to pay the wages as per notification of Ministry of Labour Government of India dated 24.04.2008 which is made effective w.e.f 01.04.2008 onwards.
3. Pursuant to the service of notice the management appeared, filed its written statement and took many preliminary objections such as no demand notice was ever served upon the management prior to raising the present dispute, terms of reference have been made mechanically by the then Ld. Deputy Labour Commissioner, no list of alleged effected workman/employees is filed and the secretary of the union also not filed any circular/document as mentioned in the statement of claim, however, in reply to para no. 6 and 7 on merit it is submitted that the notifications dated 7.8.2008 and 24.04.2008 as alleged is a matter of 4 record and the EDMC used to implement the Government notification with regard to the minimum wages to their employees/safai karamcharies and in the present claim neither the list of alleged effected persons have been filed nor any detail of the safai karamcharies who had not received the wages as per notification and requested for dismissal of the claim petition.
4. Rejoinder on behalf of workman to the written statement filed by management is also filed controverting therein all the allegations as alleged in the written statement and reaffirm the contents of the statement of claim as true and correct, thereafter case was fixed for settlement of issues.
5. After hearing arguments and on the basis of contentions from both the sides following issues were framed by this court vide order dated 22.07.2015:
1. As per terms of reference.
"Whether the 'Workmen' of the MCD/East DMC working as a permanent Safai Karamcharis on daily wages basis with the management are entitled to minimum rates of wages and variable Dearness allowance as per the notification of the Ministry of Labour & Employment Govt. of India issued vide No. S.O. 928 (E) dated 24.04.2008, if so, what reliefs are they entitled and what directions are necessary in this respect?"
2. Relief
6. No other issue was arises or pressed, therefore, case was fixed for workman evidence.
7. In support of their case Sh. R.K. Pandit, Secretary of the registered trade union 5 examined himself as WW1 and filed his affidavit Ex. WW1/A stating therein all the facts which were stated by him in the statement of claim. He also relied upon the documents Ex.WW1/1 to Ex.WW1/10. Ex.WW1/1 is the copy of registration of trade union, Ex. WW1/2 is the copy of registration of amendments in constitution of union, Ex. WW1/3 is the copy of list of office bearers, Ex. WW1/4 is the copy of representation given by the union to the office of management alongwith its postal receipts, Ex. WW1/5 is the copy of gazette notification dated 07.08.2008 of minimum rates of wages in respect of safai karamcharis, Ex. WW1/6 is the copy of representation filed by the union to the Commissioner, MCD, Ex. WW1/7 is the copy of resolution in respect of the demand for the wages to all daily wagers/safai karamcharis working with the management, Ex. WW1/8 is the copy of espousal letter, Ex. WW1/9 is the copy of legal demand notice dated 11.09.2014 and Ex. WW1/10 is postal receipts.
8. During his cross examination by AR for management he deposed that as per the Constitution of the Union, General Secretary is competent to raise a dispute on behalf of workman/member of union. He also admitted that CCS rules are applicable to the workman those are working with the management as a permanent employee. He also admitted that he has not filed the copy of the complaints of about 35,000 employees on the ground that they made a complaint orally. He also admitted that he had not filed any document showing thereby that the workman raised demands before the union but denied the suggestion that the union has not made a representation to the management before filing the present claim. He also admitted that in the resolution Ex.WW1/7 the day and month is not mentioned. Rest of his testimony is reiterated by him 6 as submitted by him during examination in chief.
9. Sh. Vinay Chaudhary Administrative Officer appeared as MW1 and filed his affidavit Ex. MW1/A stating therein all the facts which were stated by him in written statement.
10. During his cross examination he admitted that the North Delhi Municipal Corporation is the Nodal Corporation for the matters pertaining to their employees and East Delhi Municipal Corporation used to follow most of the circulars rules and regulations. He also admitted that the Gazette notification Ex. WW1/5 would be binding upon the management if the said notification is further notified by the Government of Delhi. He further admitted that the notification Ex. WW1/5 will be implemented by the EDMC also in case same is notified by the government of NCT of Delhi and further approved by the corporation. He also admitted that the corporation is bound to make payments to all the safai karamcharies working under them, at the rate of minimum wages to his cadre. Rest of his testimony is reiterated by him as submitted by her during examination in chief, thereafter, management evidence was closed and case was fixed for final arguments.
11. I have heard the arguments on behalf of Ld.AR on behalf of both the parties.
12. AR for management submitted that the present claim is not maintainable on the following grounds :
i) The General Secretary of the Trade Union being not the concerned 7 employee is not having locus standi to file the present claim.
ii) No demand notice was served upon the management before raising the impugned claim.
Iii) The name of the employees who have not received the benefit inspite of making representation in the office of management are not disclosed.
iv) This court has no jurisdiction to issue directions to the management in general.
v) It is not in dispute that the management is not bound by the averments mentioned in the circulars/notification issued by Government of India/NCT of Delhi. It is also not denied that the notification dated 24.04.2008 as alleged has not been implemented by the management and requested for dismissal of the claim petition.
13. On the other hand Ld. AR on behalf of workman submitted that the notification dated 24.04.2008 is not fully implemented by the management inspite of repeated representation made by the individual workman as well as by the office bearer of the registered trade union. It is further submitted that by virtue of the provisions of constitution of the association the general secretary is competent to raise any general claim, in welfare of the members of the union and the present case is lawfully filed by the general secretary on behalf of the employees admittedly employed with the management. The copy of the registration certificate of the Union and of the constitution is already placed on record which is Ex. WW1/1. It is further submitted that as per provisions of item (2) of schedule 2 appended with section 7 of Industrial Dispute Act the court is competent to adjudicate the matter relating to the application and interpretation 8 of standing orders and submitted that secretary of the association has the locus standii to file the present claim on behalf of all the members of the registered trade union/employees working with the management having same nature of dispute and this court is competent to adjudicate the claim by virtue of II schedule of Industrial Dispute Act and requested for rejection of the contention of Ld. AR for the management.
14. After hearing arguments and on the basis of evidence adduced by both the parties my findings on the issues are as follows :
ISSUE NO.1 "Whether the 'Workmen' of the MCD/East DMC working as a permanent Safai Karamcharis on daily wages basis with the management are entitled to minimum rates of wages and variable Dearness allowance as per the notification of the Ministry of Labour & Employment Govt. of India issued vide No. S.O. 928 (E) dated 24.04.2008, if so, what reliefs are they entitled and what directions are necessary in this respect?"
15. After hearing arguments, I carefully perused the averments mentioned in the notification dated 07.08.2008 wherein it is mentioned as under :
"Whereas the proposals to fix the minimum rates of wages per day payable to the employees engaged in the scheduled employment of "Employment of Sweeping and Cleaning excluding activities prohibited under the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993", was published in the Gazette of India, Extraordinary, Part II, Section 3, Sub section (ii), 9 as required by clause (b) of sub section (1) of section 5 of the Minimum Wages Act, 1948 (11 of 1948), vide notification of the Government of India in the Ministry of Labour and Employment S.O. 925 (E) dated the 24th April, 2008 for information of and inviting objections and suggestions from all persons likely to be affected thereby, till the expiry of the period of two months, from the date on which copies of Gazette notification were made available to the public;
And, whereas, no objections or suggestions have been received on the said proposals by the Central Government.
Now, therefore, in exercise of the powers conferred by clause (a) of sub section (1) of Section 3 read with clause (i) of sub section (1) of Section 4 and sub section (2) of section 5 of the said Act, the Central Government after consulting the Advisory Board, hereby fixes the minimum rates of wages payable to the employees employed in this scheduled employment.
The minimum rates of wages, which will be effective from the date of this notification shall consist of
(a) basic rates of wages as set out in column (2) of Part I of the Schedule annexed herewith and payable to the employees working in areas mentioned in column (1) thereof, and
(b) a special allowance, hereinafter referred to as Variable Dearness Allowance, part II of the said Schedule shall be adjusted by the Chief Labour Commissioner (Central) at an interval of 10 six months commencing on the Ist October and 1st April on the basis of average Consumer Price Index Number for Industrial Workers for the each preceding period of six months ending on 30th June and 31st December every year respectively, at the rate mentioned in column (2) of Part II of the Schedule.
SCHEDULE
Part I - Basic rates of minimum wages
Area Daily wages
(1) (2)
A Rs.180.00/
B Rs.150.00/
C Rs.120.00/
PartII Rate of Special Allowance
Rate of Variable Dearness allowance for every point rise or fall on Consumer Price Index Number (Base 2001=100) beyond 133 for Industrial Workers which is six months average upto 31st December, 2007.
Area Variable Dearness
Allowance
(1) (2)
A Rs.1.35 Paise
B Rs.1.13 Paise
C 90 Paise
Explanation : For the purpose of this notification
1. Area 'A' and Area 'B' as indicated in Annexure to this notification shall respectively comprise all the places as specified in the said annexure as such areas, and include all places within a distance of fifteen kilometers from the periphery of a Municipal 11 Corporation of Municipality or Cantonment Board or Notified Area Committee or a particular place and Area 'C' shall comprise of all the other places not mentioned in the Annexure and to which the Minimum Wages Act, 1948 extends. The places added or upgraded from time to time by the Ministry of Finance for the purpose of payment of House Rent Allowance to Central Government employees shall be taken to be added from the date of such addition or up gradation for the purposes of classification specified in Annexure to this draft proposal.
2. Where the existing rates of wages of any employee, based on contract or agreement or otherwise, are higher than the rates notified herein, the higher rates shall be protected and treated as minimum rates of wages, applicable for the purpose of this notification to such employee.
3. The Minimum rates of wages include also the wages for weekly day of rest.
4. The minimum rates of wages are applicable to employees employed by contractors also.
5. The minimum rates of wages for disabled persons shall be same as payable to the workers of appropriate category.
6. The men and women employees shall get the same rates of wages for the same work or work of similar nature.
7. The minimum rates of wages and Variable Dearness Allowance both constitute the minimum rates of wages to be enforceable under the Minimum Wages Act, 1948 (11 of 1948).
12However it is not denied that the management falls within the Area "A"
16. Matter relating to the application and interpretation of both these order is well within the jurisdiction of Labour Court as provided under Schedule II of the Industrial Dispute Act, hence the plea taken by the management is devoid of met and hence declined.
17. I also perused the aims and object of the registered trade union mentioned in its constitution and also relied upon the provisions of section 15 Chapter (III) of Trade Union Act 1926 which deals with the rights and liabilities of the registered trade union wherein it is provided that the general funds of registered trade union shall not be spent on any other objects then the following namely :
a) xxxx
b) xxxx
c ) The prosecution or defence of any legal proceedings to which the Trade
Union or any member thereof is a party, when such prosecution or defence is undertaken for the purpose of securing or protecting any rights of the Trade Union as such or any rights arising out of the relations of any member with his employer or with a person whom the member employs.
d) the conduct of trade disputes on behalf of the Trade Union or any member thereof.
e to k) xxxxx 13
18. In view of the contention on behalf of both the parties and also on perusal of the aims and objects of the union as mentioned in the constitution and the provisions of Trade Union Act discussed above, I am of the considered view that the secretary of the trade union is competent to raise general demand on behalf of members of the union having same nature of dispute/same cause of action even without disclosing the name of individual workman, therefore, the contention of Ld. AR on behalf of management is not tenable in law hence declined.
19. On the main issue between both the parties, I carefully perused the testimony of WW1 and MW1 wherein it is admitted by MW1 that the notification dated 24.04.2008 which is Ex. MW1/12 is in possession of the management and are applicable to the daily wager safai karamcharies of the East Delhi Municipal Corporation, thereby the testimony of WW1 is corroborated by MW1 who is the Administrative Officer appeared on behalf of management. MW1 also corroborated the fact that EDMC used to implement the Government notification regarding minimum wages payable to the daily wager employees. He also admitted that the management never refused to implement the impugned notification in case the employees raises demand in the concerned office of management. In such circumstances, I am of the view that nothing remains to be adjudicated by this court. It is however ordered that the management shall implement the notification dated 24.04.2008 and to ensure to make the payment of all the dues arising out of said notification within a period of two months of publication of award in terms of the averments mentioned in the above mentioned notification. It is further clarified that on the event of making representations by the employee in the office of the management and in case his 14 representation is not disposed off on merit within the period of two months from the date of his making representation, the said employee shall become entitled for interest @ 9% p.a w.e.f the date on which his dues are become payable till its realization.
20. Reference is answered accordingly. Copy of the award be also sent to the appropriate Government for publication as per law. File be consigned to Record Room after necessary compliance by Ahlmad.
Announced in the Open Court (B.S. CHUMBAK)
on 26 September 2015 Additional District & Session Judge
th
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi