Delhi District Court
"Whether Demand For Regularization Of ... vs . on 21 April, 2023
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT COURTS, NEW DELHI, Ref. No.: F.24(512)/E/Lab./14/2151 Dated : 02.06.2016 ID NO. 1073/2016 Workman Sh. Pankaj Vashisht S/o Sh. Suresh Chand &
2 Ors. (As mentioned in Annexure-A) R/o H. No. 705, Street No. 14, Adash Mohalla, Maujpur, Delhi -53, represented through General Secretary, Municipal Employees Union Aggarwal Bhawan, G. T. Road Tis Hazari, Delhi-110 054 Vs. The Management of M/s Commissioner East Delhi Municipal Corporation Udyog Sadan, 2nd Floor, Plot No. 419, Patparganj, Industrial Area, Delhi.
Date of Institution : 21.07.2016
Date of presentation before this court : 21.04.2023
Date of Arguments : 21.04.2023
Date of Award : 21.04.2023
AWARD
1 That the Dy. Labour Commissioner (East Distt.), Govt of NCT
of Delhi vide its Order bearing No. F.24(512)/E/Lab./14/2151 Dated : 02.06.2016 has referred the above dispute for adjudication to this Hon'ble Tribunal and the terms of reference read as under:-
ID No. 1073/2016 Page 1 of 14"Whether demand for regularization of Sh. Pankaj Vashisth S/o Sh. Suresh Chand & 02 others (as mentioned Annexure - A) on the post of Mate in the proper pay scale from the date of initial appointment and to pay them entire difference of salary on the principal of "Equal Pay for Equal work", is justified and if so, what directions are necessary in this respect?"
2. Statement of claim has been filed by the Claimant/workman, wherein its is claimed:
a. That the workman namely Sh. Pankaj Vashisth S/o Sh.
Suresh Chand, joined into the employment of management w.e.f. August 2000 as Mate and he was regularised on the post of Mate on 01.04.2006. Similarly, workman Sh. Greesh Kumar S/o Sh. Om Prakash joined into the employment of management w.e.f. March 2000 as Beldar. Thereafter, he started working as Mate from June 2000 and lateron he was regularised on the post of Beldar w.e.f. 01.04.2006. Similarly, Sh. Bijender Singh S/o Sh. Jame Singh joined into the employment of management w.e.f. July 1998 as Mate and thereafter, he was regularised as Beldar on 01.04.2006. Since incpetion they were taken in job as a regular muster roll employee on the post of Mate and since then they all are discharging their duties till date.
b. The workmen were regularised on the post of Beldar with retrospective effect i.e. w.e.f. 01.04.2006, though, they were supposed to be regularised on the post of ID No. 1073/2016 Page 2 of 14 Mate, but they were illegally and unjustifiably regularized on the post of Beldar.
c. The post of Beldar is much lower than the post of Mate and the post of Mate carries much higher pay scale then the post of Beldar. The workmen were supposed to be regulaized since their initial joining, however, the management regularised them only w.e.f. 01.04.2006. d. That the job of Mate which the workmen were dicharging since their respective date of joining is of regular and permanent in nature of job, while they were being treated as a contractual workers and very less remuneration was being paid to them, though they were doing the identical work, which amounts to unfair labour practice as provided in Section 2 (ra) read with Item No. 10 of the First Schedule and redad with Section 25 T punishable under Section 25 U of the Industrial Disputes Act, 1947 and further amounts to exploitation of labour and violative of Article 14, 16 and 39 (d) of the Constitution of India.
e. That the managmeent has not framed any rules or regulation governing the service conditions of the Muster Roll/Part Time seasonal workers, not it has any certified Standing orders, therefore, the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 are applicable to the workmen and the management of MCD.
f. That as per aforesaid Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, ID No. 1073/2016 Page 3 of 14 1946, workmen have already acquired the staus of permanent employee as they all have already completed 90 days of continous employment. Even otherwise, they have also completed the 240 days of continuous employment on reguarl basis since initial date of their joining into the employment of management. g. It is stated that action of management is discriminatory in nature becasue the other co-workers, who joined even subsequent to the workmen, on muster roll as Mate, have been regularised on the post of Mate, while the workmen concerned though even senior to them have been regularised only as a Beldar.
h. That the resolution no. 709 of 20.11.78 of the MCD and other resolution subsequently passed, are vague and meaningless as it overrides the mandatory provisions of Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946.
i. That the workmen served demnad notice upon the management through registered AD post vide communication dated 20.10.2015, but no reply was received thereto and it is presumed that the demand has been rejected. Thereafter, conciliation proceedings were also initiated, which resulted into failure. Hene, this reference.
3. Written statement filed by the management, wherein the management has taken objections that the present dispute is not maintainable as phase manner policy of EDMC do not allow engagmenet/appointment of an employee on regular ID No. 1073/2016 Page 4 of 14 basis; workmen are concealing the true facts and also not filing any copy of circular dated 15.12.2010 and application dated 08.12.2010, made by workman Pankaj Vashisth to the management for joining post of Beldar as per office order dated 07.12.2010, therefore, the workmen have no locus standi for filing present suit; the workmen did not file any document with the claim, which show that the workmen were appointed on the post of Mate, rather the workmen were appointed by the Engg. Department EE(M-II), Ward No. 256, Yamuna Vihar, Shahdara, North Zone, EDMC Delhi as daily wage Karamchari for the post of Beldar and they were working as Beldar since their joining. It is further averred that the demand of the workman is illegal and against the policy of the EDMC and also against the law. Rest of the contentions of the statement of claim are denied by the management.
4. The workman has filed a rejoinder, wherein all objections raised in the preliminary objections have been denied and the contentions made in the statement of claim are reiterated and affirmed.
5. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 22.05.2018:-
i. Whether the claim of the workman has been properly espoused by the Union? OPW ii. As per terms of reference. OPW iii. Relief.
7. The workmen examined themselves and tendered their evidence by way of an affidavit and relied upon documents ID No. 1073/2016 Page 5 of 14 Ex.WW1/1 to Ex.WW1/20. Ex. WW1/5, Ex. WW1/6 Ex.
WW1/8 and Ex. WW1/10 pertain to Pankaj Vashisht in which the designation mentioned as Mate. Ex. WW3/1, Ex. WW3/2, Ex. WW3/3 prove the case of Bijender Singh. These documents, out of which some of them have been issued by the management itself i.e. attendance record, proforma of the workmen concerned and office order dated 20.09.2002, establish that the workmen Sh. Pankaj Vashisth and Sh. Bijender Singh were designated as Mate by the management and they had been performing the work of Mate since their initial date of joining. Sh. Greesh Kumar performed the work of Belder during his initial period from March 2000 to May 2000, and from June 2000 he started working as Mate. WW2/1 is with respect to this person which shows him as Beldar in the month of March, April and May, but his designation is mentioned as Mate from June onwards. Other documents placed on the record, corrobrate the same. The workmen also filed documents pertaining to the legal demand notice sent to the management and its postal receipt, the resolution of the union and the statement of claim filed before the conciliation officer.
8. The workmen were cross-examined by the AR for the management, wherein they denied the suggestion that they had never been appointed on the post of Mate with the management or that they had never worked on the said post. They also denied that the workmen concerned were initially taken in employment on the post of Beldar and have been working as such since their initial joining. Workmen admitted ID No. 1073/2016 Page 6 of 14 that their services were regularised on the post of Beldar with all consequential benefits w.e.f. 01.04.2006 and had consequently joined on the said post vide joining report dated 08.12.2010. The workmen also denied the suggestion of the management that their claim has not been properly espoused by the union.
9. The Secretary of the Union, Sh. Pradeep Kumar Kaushik has also examined himself as WW-4 and relied upon Ex. WW1/4. He tendered his evidence by way of his affidavit Ex. WWW/A.
10. In his cross-examination, he stated that the workmen approached the union in September 2015 and filed a written request to that effect. He confirmed that there are around 2500-3000 employees of the management who are members of their union. Thereafter, the workmen evidene was closed.
11. To prove its case, management examined one Sh. Arun Singh S/o Sh. Rajveer Singh, Assistant Engineer (Civil), Division EE/M-II/SH North Zone, EDMC as MW-1. He tendered his evidence by way of affidavit Ex.MW1/A in which he has affirmed the contents of the written statement.
12. The said witness was cross-examined by the AR for the workmen, wherein he admitted that Ex WW1/4 is the correct copy of the espousal. He stated that he does not have any basis on which averments made by him in Para No. 6 of his Affidavit, which pertains to the objection that the present dispute has not been supported by the massive majority of the workmen. He also mentioned that he does not even have the ID No. 1073/2016 Page 7 of 14 knowledge of the term "espousal" as mentioned in Para 6 of his affidavit.
13. The said witness showed his ignorance towards the service particulars of the workmen concerned, he volunteered and stated that "I only know that they are seeking regularization as a Mate, no other fact is known to me". He further admitted that, for instance, if a workmen is initially appointed on a particular post like Safai Karamchari or Beldar on muster roll then he/she is supposed to be regularised as a regular employee on the said post only. The said witness categorically admitted the details/particulars mentioned in the Statement of Claim filed on behalf of the workmen. He further admitted the designation mentioned as Mate in respect of the workmen concerned in the Ex. WW1/5, Ex. WW1/6, Ex. WW1/7, Ex. WW1/8, Ex. WW1/10, Ex. WW2/1, Ex. WW2//2, Ex. WW2/3, Ex. WW3/1, Ex. WW3/3 and Ex. WW3/4.
14. Vide separate statement dated 23.05.2022, the management closed its evidence.
15. Final arguments have been heard at length as advanced by Sh.
Rajiv Aggarwal, Ld. AR for workmen and Sh. Arvind Kumar, Ld. AR for management.
16. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence.
17. My issue wise findings are:-
Issue no.1:
Whether the claim of the workman has been properly espoused by the Union? OPW ID No. 1073/2016 Page 8 of 14
18. The Ld. AR of the workmen relied on the judgment of Hon'ble Supreme Court in the matter of J.H. Jadhav v. M/s Forbes Gokak Ltd., Civil Appeal No. 1089 of 2005, decided on 11.02.2005. The relevant para of the judgment reads as under:-
"7. As far as espousal is concerned there is no particular form prescribed to effect such espousal. Doubtless, the Union must normally express itself in the form of a resolution which should be proved if it is in issue. However proof of support by the Union may also be available aliunde. It would depend upon the facts of each case."
19. The similar issue came up before the Division Bench of Kerala High Court in the matter of Mangalam Publications (India) Pvt. Ltd. v. Saju George, W.A. No. 964 of 2020, decided on 01.12.2020 and held:-
"7......There is no doubt about the fact that the workman was a member of the concerned WA No.964/2020 union. According to the workman, the cause of the workman was undertaken by the union even at the initial stage. Apparently, there was no objection from the side of the management during the relevant time. Thereafter, the matter was considered and ultimately the dispute had been referred for consideration by the Tribunal. Once a reference had been made at the instance of the union, it is not open for the management to contend POIT NO. 932- 2016 Page No. 11 of 18 at this stage of the proceedings that the cause of the workman had not been espoused by the union."ID No. 1073/2016 Page 9 of 14
20. The management has taken this objection in their written statement, however, it does not disclose the ground/reason upon which this objection is taken. The management, despite taking the objection, failed to even explain the term "espousal" in his cross-examination. Ex. WW1/1 is the copy of the legal demand notice which was issued by the Municipal Employees Union. Thereafter, the Statement of Claim is also filed by the same union before the conciliation officer of Govt. of NCT of Delhi. The union has also filed the resolution passed in the meeting dated 05.10.2015 exhibited as Ex. WW1/4 wherein the union passed a resolution to take up the cause of the workmen.
21. In view of the above, I hold that the dispute is properly espoused by the Union of the workmen. Hence, this issue i.e. Issue No. 1 is decided in favour of the workmen and against the management.
Issue no. 2:
As per terms of reference. OPW
22. The workmen 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 management employed the workmen on daily wages/muster roll and extracting the work of Mate, however, when it came to regularisation of their services, the management regularised them as Beldar. He argued that the action of management is nothing sort of victimization and punishment, wherein the workmen despite performing his work with utmost sincerity ID No. 1073/2016 Page 10 of 14 and loyalty were demoted by the management without offering any explanation/justification whatsoever, therefore, the same amounts to unfair labour practice. He placed his reliance upon the judgment of Hon'ble Supreme Court titled as Chief Conservator of Forest and Anr. v. Jagannath Maruti Kondhare & Ors. (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 OnLineDel 7796.
23. The Ld. 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 argued that as per the said judgement this tribunal does not have power to regularize the services of the workmen. The constitution bench of the Hon'ble Supreme Court has held that regularization 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. He also argued that the services of the workmen concerned have been regularized as per the policy of the management, therefore, this tribunal does not have power to intervene in the same.
24. On this point the Ld. AR for the workmen placed reliance on the case of Project Dir. Dep. Of Rural Development v. Its Workmen, (supra), wherein the Hon'ble Delhi High Court has held that the Industrial Tribunal has the power to direct regularization of services in cases where pursuant to unfair ID No. 1073/2016 Page 11 of 14 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. It is a well settled position of law in view of various judgements of the Hon'ble Supreme Court as well as of Hon'ble Delhi High Court, that the law laid down in Uma Devi (supra) pertains to the administrative branch of law and the same has no application on Industrial law.
25. This tribunal has considered all the material on record as well as legal submissions of the parties and is of the opinion that the argument of the management that this tribunal does not have power to regularize the services of the workmen would not stand in 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 tribunal has vast powers to create new rights and liabilities especially in view 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. Moreover, this tribunal cannot remain a mute spectator to the sheer exploitation of workmen by the management. It is an undisputed fact that the workmen were employed as Mates by the management and had been performing the duties of the said post since their respective dates of joining. Therefore, it is beyond the understanding of this tribunal that management chose to regularize their services on the post of Beldar instead of Mate.` ID No. 1073/2016 Page 12 of 14
26. The management has put forth the argument that this decision was in accordance with their policy. However, the MW himself has stated that as per the practice of, a workman appointed as a safai karamchari will be regularized on the post of safai karamchari alone, with no scope for promotion or demotion. In this context, it is pertinent to question why the management did not adhere to this established practice in the present case. The management's lack of uniformity in regularizing the services of their workmen constitutes blatant discrimination against the workmen, resulting in the denial of consequential benefits associated with the post of Mate. It is worth noting that the post of Mate holds a higher status and salary than that of Beldar. Therefore, if the management is regularizing the services of workmen who have been performing the duties of Mate on the post of Beldar, it amounts to demotion and the same is in complete disregard to the principles of natural justice and the procedure established by law. Therefore, this tribunal is of the opinion that the workmen should be regularized on the post of Mate, as they had been performing the duties of the same since their respective dates of joining.
27. The management has not placed on record any policy pertaining to regularisation of Mate nor it has pleaded or argued that the workmen should not be regularised from their initial date of joining. However, on the contrary, the workmen had been performing the work and duties of Mate from their respective initial dates of joining and the same had been admitted by the management witness in his cross-
ID No. 1073/2016 Page 13 of 14examination. In these circumstances, the tribunal holds that the workmen Sh. Pankaj Vashisth , Sh. Greesh Kumar and Sh. Bijender Singh are entitled to be regularised on the post of Mate w.e.f. their respective initial dates of joining i.e. August 2000, March 2000 and July 1998 in regular pay scale with all consequential benefits. Hence, the issue no. 2 is decided in favour of the workmen and against the management. Issue no.3:
Relief
28. In view of my foregoing findings on Issue no. 1 to 2, the workmen Sh. Pankaj Vashisth S/o Sh. Suresh Chand, Sh. Greesh Kumar S/o Sh. Om Prakash and Sh. Bijender Singh S/o Sh. Jame Singh are entitled to be regularised on the post of Mate w.e.f. their respective initial dates of joining i.e. August 2000, March 2000 and July 1998 in regular pay scale with all consequential benefits. Thus, the management is directed to implement the award within 60 days of the publication of this award, failing which the management will be liable to pay interest @ 8 % per annum from the date of award. The award is passed accordingly.
29. Copy of the award be sent to the appropriate Government for publication as per rules. File be consigned to the Record Room.
Announced in the open Tribunal on this 21.04.2023.
(Ajay Goel) POIT-I/RADC, New Delhi.
ID No. 1073/2016 Page 14 of 14