Delhi District Court
Sh. Rajbir S/O Sh. Shouli vs . on 24 March, 2018
IN THE COURT OF SH. CHANDRA GUPTA:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL,
DWARKA COURTS, NEW DELHI
I.D. No. 181/16 (Old No.516/10)
Workman
Sh. Rajbir S/o Sh. Shouli,
C/o Municipal Employees' Union,
Agarwal Bhawan, G.T. Road, Tis Hazari,
Delhi110054.
Vs.
Management
M/s Municipal Corporation of Delhi
Through its Commissioner, Town Hall, Chandani Chowk, Delhi.
Date of institution : 04.06.2010
Date of reserving award : 19.03.2018
Date of award : 24.03.2018
Ref No.: F.24 (304)/ND/565/2006/Lab/424953 Dated : 02.06.2010
A W A R D
1. Workman has raised the present industrial dispute through Union
and on failure of conciliation proceedings, GNCT of Delhi referred the
dispute to this Tribunal for adjudication in following terms of reference:
"Whether demand of Sh. Rajbir S/o Sh. Shouli,
Beldar, for regularization in proper pay scale from
initial date of joining and difference of salary on
I.D. No 181/16 Page 1 of 39
principle 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 workman, wherein it is
stated that the workman joined into the employment of management w.e.f.
27.01.1984 as a 'Mali/Beldar' and was posted at Roshanara Garden, Delhi;
that he was being treated as a daily rated/casual/muster roll worker and was
being paid wages as fixed and revised from time to time under the Minimum
Wages Act, while his counterparts doing the identical work and the work of
the same value, but who are being treated as regular employees were being
paid their salaries in proper pay scale and allowances; that they were also
enjoying other facilities like uniform, E.L., C.L.,
Gazetted/Festival/Restricted Holidays, which were completely denied to the
workman aforesaid; that the workman has a unblemished and uninterrupted
record of services to his credit except a few artificial and notional breaks
given by the management from time to time; that the services of the
workman were terminated w.e.f. 25.03.1985 without assigning any valid
reason thereof; that the impugned termination of services was challenged by
raising an industrial dispute, which was referred for adjudication by the
appropriate Government to the Labour Court and ultimately an Award was
made in favour of the workman by Sh. M.K. Gupta, the then Presiding
I.D. No 181/16 Page 2 of 39
Officer, Labour Court No. IX, Delhi on 19.09.2002 in I.D. No. 1727/1994 by
which the termination of services of the workman was held illegal and
unjustified and it was held that the workman was entitled to be reinstated
with continuity with full back wages w.e.f. 04.04.1991 onwards alongwith
all consequential benefits thereof either monetary or nonmonetary; that in
consequence of the aforesaid award, the workman concerned has also been
assigned duties w.e.f. March, 2006; that although the workman was entitled
to be treated as a regular and permanent employee from the initial date of his
joining into the employment or as per policy of the management w.e.f.
01.04.1989 but the management has not taken any steps to regularize the
services of the workman in proper pay scale and allowances with
retrospective effect from 27.01.1984 or as per its own policy w.e.f.
01.04.1989; that the nonregularization of the services of the workman w.e.f.
27.01.1984 on the post of Mali/Beldar or as per policy of the management
w.e.f. 01.04.1989 in proper payscale and allowances and denial of proper
salary at par with his regular counterparts on the principle of "Equal Pay for
Equal Work" with all arrears thereof is wholly illegal, bad, unjust and
malafide and amounting to unfair labour practice for the following amongst
other reasons; that the job against which the workman had been working is
of a permanent and regular nature of job; that employing persons on regular
I.D. No 181/16 Page 3 of 39
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) r/w Item No.10 of Fifth Schedule and r/w 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; that the management of Municipal Corporation of
Delhi has not framed any rule or regulation nor got it passed by the U.P.S.C
and nor notified in the official Gazette for governing the service conditions
of the so called muster roll/parttime/seasonal workers nor it has any
certified Standing Orders, governing service conditions of such workers and,
therefore, the Model Sanding Orders framed under the Industrial
Employment (Standing Orders) Act, 1946 are applicable to the workman and
the management of Municipal Corporation of Delhi and its Undertakings;
that the workman has acquired the status of a permanent employee from the
initial date of his joining into the employment i.e. 27.01.1984 after
completing 90 days of continuous employment as provided in the Model
Standing Orders framed under the Industrial Employment (Standing orders)
Act, 1946; that the workman has acquired the status of permanent employee
from the initial date of his joining into the employment after completing 240
I.D. No 181/16 Page 4 of 39
days of continuous employment on regular basis as has been held by the
Hon'ble High Court of Delhi in case of Harish Kumar Vs. Registrar, Delhi
High Court; that the action of the management in employing the workman as
casual or temporary and to continue him as such for years together with the
object of depriving him of the status and privileges of a permanent workman
amounts to unfari labour practice as provided in Section 2 (ra) r/w Item No.
10 of the 5th Schedule of the Industrial Disputes Act, 1947; that it is against
the intention of the legislation as contained in Section 4 of the Equal
Remuneration Act, 1976; that the Authorised Representative of the
workman has filed an RTI application regarding the status of Malies joined
in the Horticulture Department of the M.C.D. on muster roll w.e.f.
27.01.1984, when their services were regularized in regular payscale and
their date of regularization; that the Admn. Officer (Hort.) vide his reply
dated 22.04.2008 has informed that the coworkers of the workman were
regularized w.e.f. 01.04.1989, as per phased manner policy of the
corporation; that the workman has been meted out with hostile
discrimination as juniors to him have been regularized in service in proper
pay scale and allowances and he had been completely ignored in this matter;
that there was no break in the service of the workman as he had been granted
continuity of service by the Labour Court for the period of enforced non
I.D. No 181/16 Page 5 of 39
employment/termination; that it is violative of Resolution No. 1002 of
05.01.1967 of the Standing Committee of the Municipal Corporation of
Delhi according to which name of the workman should have been entered
into the seniority list from the initial date of his joining into the employment;
that any scheme, policy, instructions and directions of the management for
regularization of services of the muster roll employees cannot override the
mandatory provisions of the law of the land; that the Resolution No. 709 of
20.11.1978 of the M.C.D. and other Resolutions, subsequently passed by the
M.C.D., framing a scheme for regularization of workers is vague and
meaningless as it overrides the mandatory provisions of the Model Standing
Orders framed under the Industrial Employment (Standing Orders) Act,
1946 and the provisions of the Industrial Dispute Act, 1947 in relation to
confirmation of service of the socalled muster roll wage workers who
according to law should be declared permanent from the initial date of their
joining into the employment of the M.C.D; that as provided in Article 39 (d)
r/w Article 14 of the Constitution of India, the principle of equal work for
equal work applies to men and women and is concerned with pay, benefits
and holidays, etc; that a demand notice was also served upon the
management by registered AD post vide communication dated 01.06.2006
duly received in the office of the management but no reply was received and
I.D. No 181/16 Page 6 of 39
it was presumed that the demand had been rejected; that thereafter,
conciliation proceedings were also initiated but the same resulted into failure
due to adamant and non cooperative attitude of the management. Hence this
reference.
3. It is prayed that an Award be made in favour of the workman Sh.
Rajbir S/o Sh.Shouli holding him as entitled for regularization on the post of
Mali/Beldar from the initial date of his joining into the employment i.e.
from 27.01.1984 or as per policy of the management w.e.f. 01.04.1989 and
the management be directed to pay him the entire difference of salary with
all arrears on the principal of "Equal Pay for Equal Work" for the period
from 27.01.1984 onwards; that the cost of litigation as provided in Section
11 (7) of the Industrial Disputes Act, 1947 may also be awarded to the
workman.
4. In the written statement filed by the management, it is stated that the
present dispute is not an industrial dispute, as it is not properly espoused by
the Union; that no demand notice has been served upon the management;
that the reference has been made mechanically without application of mind
and the real dispute has not been brought out, therefore, the present dispute
is bad in law and as such the claim of the claimant is liable to be rejected;
that the claimant has filed the present claim by presenting some misleading
I.D. No 181/16 Page 7 of 39
facts before this Hon'ble Court; that the claimant earlier raised an industrial
dispute bearing I.D. No. 1727/94 alleging the illegal termination; that the
award was passed in favour of the claimant directing reinstatement and
restricting the back wages from the demand notice dated 04.04.1991; that the
management challenged the said award before the Hon'ble High Court vide
CWP No.5510/2003; that the Hon'ble High Court vide its order dated
01.09.2003 stayed the operation of the impugned award dated 19.09.2002;
that the claimant requested the management to engage him on daily wages
for he was suffering from some severe financial crunch; that feeling pity on
the claimant the management allowed him duties vide office order No.
DOHI/ADC (Hort.) AO (H)/DA/2006/1283 dated 17.03.2006 subject to the
outcome of the CWP No. 5510/2003, to which the claimant agreed and
joined the duties vide his joining order dated 29.03.2006; that hence the
present claim is nothing but the breach of his own commitment by the
claimant; that the said writ petition is still pending before the Hon'ble High
Court and the stay granted by the Hon'ble High Court on dated 01.09.2003 is
still in operation and as such, the present claim is bad in law and is liable to
be rejected; that since the issue of termination has not yet been decided
finally, hence, no question of regularization arises at the present stage and
the present claim is premature at the present juncture, thus liable to be
I.D. No 181/16 Page 8 of 39
dismissed; that even though the present claim for regularization is not at all
maintainable at the present juncture, the management has its own policy of
regularization i.e. in the Phased Manner and availability of the funds and
post, so workman cannot claim for his regularization from the initial date of
engagement; that no worker/daily wager in the M.C.D. has ever been
regularized from the initial date of engagement on daily wages; that the
Hon'ble High Court of Delhi in various cases have already upheld the policy
of regularization of the M.C.D. as such the claimant is estopped from
claiming the regularization from the initial date of engagement; that the
policy of regularization of the management has been upheld by the Hon'ble
High Court in case of MCD Vs. Gauri Shankar & Ors in CWP No. 601/1997
dated 31.08.1999, 1999 VAD (Delhi) 905; that the Hon'ble High Court has
categorically held that the workmen will be regularized as per their seniority
and management/MCD has its policy to regularise the workers and also
latest case of MCD Vs. Brij Mohan in CWP No. 17932/2004 dated
27.10.2005 that the workman will be regularized in terms of policy of
MCD; that the present dispute is also not maintainable in view of the recent
judgment passed in "State of Karnataka Vs. Uma Devi" by the constitutional
bench of Hon'ble Supreme Court of Delhi, wherein the Hon'ble Apex Court
has clearly held that the Tribunal/Labour Court cannot direct the
I.D. No 181/16 Page 9 of 39
management for regularising the workman; that the claim of the workman
for regularization as well as "equal pay for equal work" is not maintainable
in view of the judgment passed in case titled as State of Haryana Vs. Jasmer
Singh, reported in (1996) 11 SCC 77 in which the Hon'ble Supreme Court
has specifically observed that "the respondents who are employed on daily
wages cannot be treated as on at par with persons on regular service as the daily wager are not required to possess the qualification prescribed for the regular workers", similar is case titled as "M.C.D. Vs. POITII" reported in 2000 II AD (Delhi) 442; that the present claim is not maintainable in view of the judgment of the Hon'ble Supreme Court in case of Uma Rani Vs. Registrar Cooperative Societies as reported in (2004) 7 Supreme Court Cases 112. On merits it is submitted that the workman was engaged as a daily wager Mali with the specific period from time to time and was paid wages as per the Minimum Wages Act; that it is denied that the claimant was entitled for any E.L., C.L., Gazatted Holidays etc.; that the said facility is only available with the regular employees as per Govt. rules and regulations; that the Hon'ble Court had given the back wages only from the date of demand notice; that the management challenged the said award before the Hon'ble High Court vide CWP No. 5510/2003; that the Hon'ble High Court vide its order dated 01.09.2003 stayed the operation of the I.D. No 181/16 Page 10 of 39 impugned award dated 19.09.2002; that the claimant requested the management to engage him on daily wages for he was suffering from some severe financial crunch; that the management allowed him duties vide office order No. DOHI/ADC (Hort.) AO(H)/DA/2006/1283 dated 17.03.2006 subject to the outcome of the CWP NO. 5510/2003, to which the claimant agreed and joined the duties vide his joining order dated 29.03.2006; that it is denied that the workman is entitled to be treated as regular and permanent employee from the initial date of joining, employment or as per the policy of the management w.e.f. 01.04.1989; that it is denied that the claimant was supposed to be regularized w.e.f. 27.01.1984 or 01.04.1989 as alleged; that it is denied that the claimant is entitled for difference of salary at par with the regular employees as alleged; that it is denied that the workman was working on a permanent/regular nature of job; that it is denied that the management employs persons on a regular nature of work and treat them on daily wagers/muster roll; that it is denied that the action of the management is violative of Article 14, 16 & 39 (d) of the Constitution of India and that the action of the management amounts to sheer exploitation of labour; that it is denied that the workman has acquired the status of a permanent employee or the management has deprived the workman of any status or privilege; that it is denied that the action of the management amounts to unfair labour I.D. No 181/16 Page 11 of 39 practice as provided u/s 2 (ra) of the I.D. Act or is punishable u/s 25T, 25U of the I.D. Act; that the award vide which, the claimant was directed to be reinstated has already been stayed by the Hon'ble High Court of Delhi; that the management/MCD has its own policy of regularization of regular daily wager and all those workmen are regularized under the said regularization policy and even the present claimant have already been regularized as per the policy of the corporation vide the aforesaid office orders; that it is denied that the claimant was entitled for regularization w.e.f. the date of initial appointment on daily wages or w.e.f. 01.04.1989 or any other date.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 21.11.2011:
1. Whether present dispute is an Industrial Dispute as defined in Section 2 (k) of Industrial Disputes Act?OPW.
2. Whether the present claim of the workman has been properly espoused by the Union?
OPW
3.Whether any notice of demand was served upon the management, if so, its effect?OPW
4. As per terms of reference.
6. Workman examined himself as WW1 in workman evidence. In his affidavit Ex.WW1/A, he has reiterated more or less the contents of his statement of claim. He has also relied upon documents Exts.WW1/1 to WW1/13. In his affidavit by way of evidence the workman has deposed that I.D. No 181/16 Page 12 of 39 he joined into the employment of the Municipal Corporation of Delhi in its Horticulture Department w.e.f. 27.01.1984 as a Mali/Beldar and was posted at Roshanara Garden, Delhi; that he was being treated as a daily rated/casual/muster roll worker and was being paid wages as fixed and revised from time to time under the Minimum Wages Act, while his counterparts were getting their salary in proper pay scale and allowances; that he had unblemished and uninterrupted record of services to his credit except a few artificial and notional breaks given by the management from time to time; that his services were terminated w.e.f. 25.03.1985 without assigning any reason; that the impugned termination was challenged by raising an industrial dispute; that the said dispute was decided in favour of the workman by Sh. M.K. Gupta, the then Presiding Officer, Labour Court No. IX, Delhi on 19.09.2002 in I.D. No. 1727/1994 by which the termination of services of the workman was held illegal and unjustified and he was held entitled to reinstatement in service with continuity of service with full back wages w.e.f. 04.04.1991 onwards alongwith all consequential benefits thereof either monetary or nonmonetary; that in consequence of the aforesaid award, the workman had also been assigned duties w.e.f. March, 2006; that he is entitled to be treated as a regular and permanent employee from the initial date of his joining employment or as per policy of the I.D. No 181/16 Page 13 of 39 management w.e.f. 01.04.1989 but the management had not taken any steps to regularize the services of the workman in proper pay scale and allowances with retrospective effect from 27.01.1984 or as per its own policy, w.e.f. 01.04.1989; that the nonregularization of his services w.e.f. 27.01.1984 on the post of Mali/Beldar or as per policy of the management w.e.f.01.04.1989 in proper pay scale and allowances and denial of proper salary is wholly illegal, bad, unjust and malafide and amounting to unfair labour practice; that the job against, which he had been working was of a regular and permanent nature of job; that the action of the management in employing persons on regular nature of job and treating them as a monthly paid/muster roll worker and paying them lesser remuneration was totally illegal and unjustified; that infact the management exploited the services rendered by the workman; that he had acquired the status of a permanent employee from the initial date of his joining into the employment i.e. 27.01.1984 after completing 90 days of continuous employment; that he had also completed 240 days of continuous employment; that his Authorised Representative had filed an RTI application regarding the status of Malies joined in the Horticulture Department of the M.C.D. on muster roll w.e.f. 27.01.1984, when their services were regularized in regular payscale and their date of regularization; that the Admn. Officer (Hort.) vide his reply I.D. No 181/16 Page 14 of 39 dated 22.04.2008 had informed that the coworkers of the workman were regularized w.e.f. 01.04.1989, as per phased manner policy of this Corporation; that he had been meted out with hostile discrimination as juniors to him had been regularized in service in proper pay scale and allowances and he had been completely ignored in this matter; that there was no break in the service of the workman as he had been granted continuity of service for the period of enforced nonemployment; that a demand notice was also sent to the management by Regd. A/D post vide communication dated 01.06.2006 which was duly received in their office but no reply was received and it was presumed that the demand had been rejected; that thereafter, conciliation proceedings were also initiated but same resulted in to failure due to adamant and non cooperative attitude of the management.
7. Thereafter, workman has been cross examined on behalf of the management in the workman evidence in which he has deposed that he was member of Municipal Employees Union since 1985; that he joined the management after award in the year, 2006. Vol. As per Ex.WW1/4; that it was correct that he joined on 29.03.2006 as a daily wager employee; that management had its own policy of regularization i.e. Phased Manner Regularization Policy; that it was correct that the management challenged I.D. No 181/16 Page 15 of 39 the said award; that it was wrong to suggest that he requested the management to engage him as daily wager; that it was wrong to suggest that he was deposing falsely in this regard; that it was wrong to suggest that after receiving his request, management vide office order dated 17.03.2006 appointed him as daily wager subject to the outcome of CWP No.5510/03; Vol. Same had been dismissed; that it was wrong to suggest that the said CWP was not dismissed; that it was wrong to suggest that he was not entitled for regularization w.e.f. 01.04.1989 as per policy of the management as he was reinstated in the service w.e.f. 04.04.1991; that he did not remember the date of sending Ex.WW1/1; that it was correct that it did not bear his signature; Vol. It was sent through union; that he did not know the mode of sending the same; that meeting of the union was held in the year 2006 for espousing his cause; that it was wrong to suggest that he was deposing falsely or that his case was false.
8. Workman has also led the evidence of WW2 Sh. Surender Bhardwaj, General Secretary of the Union of the workman in workman evidence, who has tendered his affidavit by way of evidence Ex.WW2/A and relied upon document already exhibited as Ex.WW1/9 in the same vide which he has deposed that he is the General Secretary of Municipal Employees' Union and as such being aware of the facts and circumstances of the case, competent to I.D. No 181/16 Page 16 of 39 depose herein; that in April, 2006, the workman namely Shri Rajbir S/o Shri Shouli, a member of this union and posted in Horticulture Department, Tourist Camp Site, J.L. Nehru Marg, New Delhi, approached their union for redressal of his grievance for securing his regularization in service on the post of Mali/Beldar with retrospective effect from the initial date of his joining into the employment i.e.27.01.1984 and for securing him entire difference of salary on the principle of "Equal Pay for Equal Work" for the period from 27.01.1984 onwards; that at that time Sh. Vinay Kumar was the General Secretary of Municipal Employees Union; that he was also part and parcel of this Municipal Employees Union since last many years and as such he had seen Sh. Vinay Kumar writing and signing and as such he could identify his signature; that as the workman concerned approached their union for securing his regularization in services on the post of Mali/Beldar with retrospective effect from the initial date of his joining into the employment i.e. 27.01.1984 and also for securing him entire difference of salary on the principle of "Equal Pay for Equal Work" for the period from 27.01.1984 onwards; that consequently, a resolution was also passed in the meeting of union held on 08.05.2006; that a copy of said resolution duly signed by Sh. Vinay Kumar, the then General Secretary of Municipal Employees' Union is already on record marked and same may kindly be treated as Ex. WW1/9; I.D. No 181/16 Page 17 of 39 that as such the case of the workman concerned was duly espoused by their union and as such their union pursuing for redressal of grievance of the workman concerned; that their union is registered union under the Trade Union Act, 1926.
9. In his cross examination on behalf of the management he has deposed to the effect that he did not remember when his union was registered. Vol. It is 30 years old Union; that it was correct that he had neither filed any document regarding registration of the Union nor he had brought the same on that day. Vol. He could produce the same; that he had not filed on record constitution of the Union; that it was correct that he had neither filed any document regarding recognition of the Union by MCD nor he had brought the same on that day. Vol. He could produce the same; that it was correct that he had neither filed list of members of execution committee of the Union nor he had brought the same on that day. Vol. He could produce the same; that their executive body consists of 15 members, but he did not remember exact details of designation and names of office bearers; that their Union has no branch; that it was wrong to suggest that their Union did not represent sufficient numbers of workmen; that last election of their Union was held in November, 2012; that Union had sent list of elected executive members to the Registrars of Trade Union and also to the MCD; I.D. No 181/16 Page 18 of 39 that he had neither placed the document regarding sending of the said list to the Register or MCD nor he had brought the same on that day. Vol. He could produce the same; that he had neither placed the document regarding filing of annual returns before the Registrar of Trade Union nor he had brought the same on that day. Vol. He could produce the same; that it was wrong to suggest that he had neither placed the above mentioned documents nor he had brought the same on that day as there is no such documents with the Union; that the agenda of executive meeting dated 08.05.2006 was sent 15 days prior to the meeting, but he did not remember the exact date; that he had neither placed on record coy of said agenda and minutes of executive meeting dated 08.05.2006 before this Hon'ble Tribunal nor he had brought the same on that day. Vol. I could produce the same; that all 15 executive members were present in the executive meeting held on 08.05.2006; that they were maintaining Minutes Register of each and every meeting of executive committee of their Union; that he had not brought the same, but he could produce the same; that it was wrong to suggest that he was deposing falsely.
Thereafter, workman evidence has been closed, on record, and case was fixed for management evidence.
10. In the management evidence, the management has led the evidence I.D. No 181/16 Page 19 of 39 of MW1 Sh.Devki Nandan Sharma, Assistant Director (Horticulture), Civil Line Zone, North Delhi Municipal Corporation, 16 Rajpur Road, Delhi 110054, who has tendered his affidavit by way of evidence Ex.MW1/A, in which he has deposed to the effect that he was posted as Assistant Director (Hort.) in the Civil Line Zone of the North DMC and was well conversant with the facts of the case and competent to swear by way his affidavit; that the claimant was engaged as a Daily Wager Mali on 27.01.1984 for a specific period, which was extended upto 24.03.1985 only and the claimant was paid the wages as per the Minimum Wages Act; that the claimant was never engaged by the management after 24.03.2985; that the claimant raised an industrial dispute bearing I.D. No. 1727/94 against the alleged termination on 25.03.1985, in which an award dated 19.09.2002 was passed by the Court of Sh. M.K. Gupta, the then POLC, Delhi thereby holding that the claimant was entitled for reinstatement in service but restricted his back wages w.e.f. the date of demand notice i.e. 04.04.1991; that the management had challenged the aforesaid award, before the Hon'ble High Court of Delhi vide CWP No. 5510/2003 and the Hon'ble High Court of Delhi had stayed the operation of the impugned award vide order dated 01.09.2003; that the claimant had requested the management to engage him, on daily wage basis, as he was suffering from severe financial crunch; that I.D. No 181/16 Page 20 of 39 feeling pity on the claimant, the management had allowed the claimant to join his duties, vide office order dated 17.03.2006, subject to outcome of the aforesaid Civil Writ Petition; that the claimant had agreed and joined his duties vide joining letter dated 29.03.2006; that the claimant had recovered the arrears of the wages through attachment; that the aforesaid Writ Petition was disposed of, as having become infructuous, on the statement of the petitioner's counsel therein, vide order dated 24.01.2012, though the Writ Petition had never become infructuous as the claimant was allowed to join his duties subject to outcome of the aforesaid Writ Petition; that the management was having its own Phase Manner Regularization Policy and regularizes the daily wager employees as per the said Phase Manner Regularization Policy, subject to availability of funds and posts; that no one could claim regularization from the initial date of his engagement; that even otherwise, the regularization could not be claimed as a matter of right; that actual working for 240 days in a calendar year for last three continuous years was a precondition for regularization of a daily wager employee; that the claimant would be considered for regularization, only when his counter parts, who were engaged during the financial year 200506 are considered as per Phase Manner Regularization Policy and as such the claim of the claimant regarding regularization is prematured; that no demand notice had I.D. No 181/16 Page 21 of 39 been received in the office of the management, from the claimant prior to raising of the present dispute; that the claimant is not entitled for any relief from this Hon'ble Court and his claim is liable to be dismissed.
11. In his crossexamination on behalf of the workman in the management evidence he has deposed that Ex.WW1/1 and 1/3 bear correct address of the management at point A and B; that he could not say whether Ex.WW1/1 was received by the management or not; that the workman was reinstated w.e.f. 17.03.2006 vide Ex.WW1/4; that it was correct that he had not filed any document to show that the claimant had requested the management to allow him to join duties; that it was correct that Ex.WW1/13 was the reply of management to RTI application; that he could not say if the co employees of the claimant had been regularized w.e.f. 01.04.1989 as per policy; that Ex.MW1/W1 is the copy of order of Hon'ble High Court dated 24.01.2012 vide which the management withdrew its Writ Petition; that it was correct that working hours of the workman were same to his regular counter parts; that it was correct that he had not filed any document to show that nature of duties, education and responsibilities of the concerned workman were different from his regular counter parts; that he cannot file any document in this regard; that it was wrong to suggest that workman was entitled for equal pay at par with his regular counter parts; that it was wrong I.D. No 181/16 Page 22 of 39 to suggest that the municipal counsel Ms. Saroj Bidavat was having instructions of the management to withdraw the writ petition from the Hon'ble High Court; that an action had been initiated by the management against Ms. Saroj Bidavat; that he could not say whether the said action had reached finality or not; that it was wrong to suggest that no such action had been initiated against Ms. Saroj Bidavat; that he did not know whether the order Ex.MW1/W1 had been challenged before any court or not. Vol. But the file was under process with Law Department of MCD; that he could not tell as to how many posts fell vacant after 1984; that it was wrong to suggest that he was intentionally withholding this information; that it was wrong to suggest that workman was entitled to be regularised w.e.f. 01.04.1989 as per policy; that it was wrong to suggest that he was deposing falsely.
Thereafter, management evidence has been closed, on record.
12. I have heard arguments from Sh. Abhinav Kumar, Ld. AR for the workman and Ms. Radha Singh, Ld. AR for management and also have carefully gone through record of the case.
Ld. AR for the workman has also filed written submissions and relied upon citations viz. Municipal Employees Union Vs. The Secretary (Labour) and Anr. (1999) LLR 1020; J.H.Jadhav Vs. Forbes Gokak Ltd. (MANU/SC/0103/2005; Rajender Singh Vs.UOI. (MANU/DE/3286/2014); Umrala Gram Panchayat Vs. The Secretary, Municipal Employees Union I.D. No 181/16 Page 23 of 39 and Ors. (MANU/SC/0354/2015); ONGC Ltd. Vs. Petroleum Coal Labour Union and Ors. (MANU/SC/0457/2015); Union of India and Ors. Vs. Dineshan K.K. (MANU/SC/0395/2008); Union of India and Ors. Vs. Rajesh Kumar Gond. (MANU/SC/0769/2013); State of Punjab & Ors. VS. Jagjit Singh and Ors., MANU/SC/1357/2016; Municipal Corporation of Delhi Vs. Ram Milan (MANU/DE/399/2015); Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Ors. (MANU/SC/0942/2013).
My findings on the issues are as under :
13. Findings on issue nos.1 and 2 Issue no.1 is : Whether present dispute is an Industrial Dispute as defined in section 2(k) of Industrial Disputes Act? OPW. Issue no.2 is :
Whether the present claim of the workman has been properly espoused by the Union? OPW. These two issues are interconnected and thus are taken up together.
14. Objection of the management in this regard in its written statement is that the present dispute is not an industrial dispute as it is not espoused by the Union, therefore, reference is bad in law and as such the claim of the claimant is liable to be rejected.
15. Section 2(k) of I.D. Act defines the term "industrial dispute". Same is reproduced as below: "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour, of any person;"
I.D. No 181/16 Page 24 of 39
16. It is seen from the record that the workman has led the evidence of WW2 Sh. Surender Bhardwaj, General Secretary of Municipal Employees' Union, Aggarwal Bhawan, G.T. Road, Tis Hazari, Delhi110054 in workman evidence, who has tendered his affidavit by way of evidence Ex.WW2/A and also relied upon document already exhibited as Ex.WW1/9 proved in the evidence of WW1 in workman evidence which is letter of espousal of the cause/claim of the workman in the instant dispute on the part of the union of the workman, to which there is no rebuttal in the cross examination of the workman or of WW2 that the same has not been passed by the union of the workman on the date alleged/as mentioned in the same or that the said union is not competent to espouse the case/cause of the workman qua the management in the instant dispute or that the said document/letter of the union of the workman in respect of the espousal of the cause/claim of the workman for the regularization of his service as a daily wager Beldar/Mali with the management is a nonexistent letter.
17. It is thus seen from the record that WW2 Sh. Surender Bhardwaj, General Secretary of the Union of the workman has proved on record the resolution dated 08.05.2006 passed in the meeting of the Union espousing the cause of the workman in respect of his regularization in service on the post of Mali/Beldar with the management w.e.f. the initial date of his joining I.D. No 181/16 Page 25 of 39 into the employment of the management i.e.27.01.1984 and for securing him entire difference of salary on the principle of "Equal Pay for Equal Work"
for the period from 27.01.1984 onwards, Ex.WW1/9, on record. In view of the same it is thus seen that the cause/claim of the workman in respect of the regularization of his services as a daily wager Beldar/Mali with the management has been properly espoused by the union of the workman and thus, the present dispute is an industrial dispute as defined u/s 2(k) of the Industrial Disputes, Act 1947 (as amended upto date). Issues nos.1 and 2 are decided accordingly.
18. Findings on issue no.3 Issue no.3 is : Whether any notice of demand was served upon the management, if not, its effect? OPW.
In Shambu Nath Goyal vs. Bank of Baroda, Jullundur, (1978), 2 SCR 793, Hon'ble Supreme Court after referring to section 2(k) of the Industrial Disputes Act, 1947, which defines "Industrial Dispute", held as below:
"A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or nonemployment or terms of employment or with the conditions of labour of any person, there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming intoexistence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 2 forbids going on strike without giving a strike notice."
I.D. No 181/16 Page 26 of 39
Though demand notice has been served upon the management but was not replied by the management, it will have no material effect on the award as no such notice was required to be given. Issue no.3 is decided accordingly.
19. Issue no.4 (As per terms of reference) It is seen from the record that the workman has appeared as WW1 in the workman evidence and filed his affidavit by way of evidence Ex.WW1/A in the same as also relied upon documents Exts.WW1/1 to WW1/13 in the same, on record. Ex.WW1/1 being copy of the legal demand notice dated 01.06.2006 of the Union of the workman to the management in respect of the claim/cause of the workman in the instant dispute; Ex.WW1/2 being the copy of its postal registration receipt; Ex.WW1/3 being copy of acknowledgment card; Ex.WW1/4 being copy of the office order No. DOH I/ADC(Hort.)/AO(H)/DA/2006/1283 dated 17.03.2006 of the management implementing award dated 19.09.2002 passed by the Court of Sh. M.K. Gupta, Presiding Officer Labour Court No. IX, Delhi in I.D No. 1727/1994 vide which the termination of the services of the workman on the part of the management as a Daily Wager Beldar/Mali w.e.f. 25.03.1985 has been held illegal and the relief of reinstatement in service with continuity of service, however, alongwith full back wages w.e.f. 04.04.1991 awarded in favour of I.D. No 181/16 Page 27 of 39 the workman and against the management subject to the out come of CWP No. 5510/2003 titled MCD Vs. Rajbir instituted by the management against the said award; Ex.WW1/5 is the joining report dated 29.03.2006 of the workman on the post of Daily Wages Beldar/Mali with the management pursuant to Ex.WW1/4; Ex.WW1/6 being the copy of the award dated 19.09.2002 of the Court of Sh. M.K. Gupta,Ld. POLCIX, Karkardooma Courts, Shahdara, Delhi passed in I.D No. 1727/94 between the parties titled Municipal Corporation of Delhi and Sh. Rajbir, holding the termination of the services of the workman as a Daily Wages Beldar/Mali with the management w.e.f. 25.03.1985 as illegal and unjustified and awarding the relief of reinstatement with continuity of service with full back wages, as abovesaid, alongwith its publication certificate of the appropriate Government; Ex.WW1/7 being the recovery certificate dated 14.07.2003 issued by the appropriate Government in respect of the dues towards backwages standing in favour of the workman and against the management under the said award; Ex.WW1/8 being copy of the cheque of the management in favour of the workman in respect of the said amount; Ex.WW1/9 being copy of the espousal of the Union in respect of the cause/claim of the workman for regularization of his service on the post of Mali/Beldar with the management w.e.f. the date of his joining with the I.D. No 181/16 Page 28 of 39 management on the same along with all consequential dues; Ex.WW1/10 being the statement of claim on behalf of the workman in respect of the instant dispute before the Conciliation Officer/Assistant Labour Commissioner, Govt. of NCT of Delhi, Nimri Colony, Ashok Vihar, New Delhi; Ex.WW1/11 being copy of the written statement of the management before the said authority to the same; Ex.WW1/12 being copy of rejoinder filed on behalf of the workman to the written statement of the management before the said authority; Ex.WW1/13 being reply dated 23.04.2008 & 22.04.2008 on behalf of the management to an application dated 01.04.2008 under RTI Act, 2005 moved by the Union of the workman in respect of the information from the management regarding the regularization of the Beldars/Malies who had joined with the management on muster roll w.e.f. 27.01.1984 and when their services were regularized in regular pay scale and the date of their regularization as also by the services of the workman with his initial date of joining as 27.01.1984 as Mali on muster roll in Civil Lines Zone with the management has not been regularized till date.
20. The workman has also led the evidence of Sh. Surender Bhardwaj as WW2 in the workman evidence, who has tendered his affidavit by way of evidence Ex.WW2/A as also relied upon document already exhibited as Ex.WW1/9 in the evidence of workman/WW1 in the workman evidence I.D. No 181/16 Page 29 of 39 which is the letter of espousal of the cause/claim of the workman by the Union of the workman in the instant dispute.
Both the WW1 and WW2 have been cross examined on behalf of the management in WE, as abovesaid.
21. The management has led the evidence of MW1 Sh. Devki Nandan Sharma, Assistant Director (Horticulture), Civil Line Zone, North Delhi Municipal Corporation, 16 Rajpur Road, Delhi110054, who has tendered his affidavit by way of evidence Ex.MW1/A and has been cross examined on behalf of the workman in the management evidence, in which he has admitted that Ex.MW1/W1 is the copy of order of Hon'ble High Court of Delhi dated 24.01.2012 vide which the management withdrew its CWP No.5510/03 against the award dated 19.09.2002 of the Court of Sh. M.K. Gupta, Presiding Officer Labour Court No. IX, Karkardooma Court, Shahdara, Delhi in I.D No. 1727/1994 vide which the termination of the services of the workman on the part of the management as a Daily Wages Beldar/Mali w.e.f. 25.03.1985 has been held illegal and the relief of reinstatement in service with continuity of service, however, alongwith full back wages w.e.f. 04.04.1991 awarded in favour of the workman and against the management, as mentioned in the same.
22. It is thus seen from the record that in view of admittedly the I.D. No 181/16 Page 30 of 39 management having withdrawn/not pressed its CWP No.5510/03 instituted/filed against the award dated 19.09.2002 of the Court of Sh. M.K. Gupta, Presiding Officer Labour Court No. IX, Karkardooma Court, Shahdara, Delhi in I.D No. 1727/1994 vide which the termination of the services of the workman on the part of the management as a Daily Wages Beldar/Mali w.e.f. 25.03.1985 has been held illegal and the relief of reinstatement in service with continuity of service, however, alongwith full back wages w.e.f. 04.04.1991 awarded in favour of the workman and against the management, vide order dated 24.01.2012 of the Hon'ble High Court of Delhi passed in this regard in the same, copy of which is Ex.MW1/W1, on record, which is reproduced as herein under: "Learned Counsel for the petitioner today states that this Writ Petition has in fact become infructuous since the respondent no.1workman has already been reinstated in service in compliance of the award of the Labour Court and the relief of back wages given to him also stands satisfied in view of the fact that he has recovered the back wages through execution proceedings.
In view of this submission of counsel for the petitioner, the writ petition is disposed of as having become infructuous. I.D. No 181/16 Page 31 of 39 C.M. No.11326/2011 In view of the aforesaid, counsel for applicantrespondent no.1/workman does not press this application. The same is, therefore, dismissed as not pressed."
the award dated 19.09.2002 passed by the Court of Sh. M.K. Gupta, Presiding Officer, Labour Court No.IX, Karkardooma Court, Shahdara, Delhi in I.D No. 1727/1994 between the parties holding the termination of the services of the workman on the part of the management as a Daily Wages Beldar/Mali w.e.f. 25.03.1985 as illegal and awarding the relief of reinstatement in service with continuity of service, however, alongwith full back wages w.e.f. 04.04.1991 as mentioned in the same, Ex.WW1/6, on record, has become final.
23. It is further seen from the record that vide office order No. DOH I/ADC(Hort.)/AO(H)/DA/2006/1283 dated 17.03.2006 Ex.WW1/4, the workman has been reinstated in service as Daily Wages Beldar/Mali on the part of the management in compliance of the said award on which post the workman has joined the employment of the management vide joining report dated 29.03.2006 pursuant to the same, Ex.WW1/5, which factum is also admitted by the MW1 Sh. Devki Nandan Sharma, Assistant Director (Horticulture), Civil Line Zone, North Delhi Municipal Corporation, 16 I.D. No 181/16 Page 32 of 39 Rajpur Road, Delhi110054 in his cross examination on behalf of the workman in management evidence when he states that the workman was reinstated w.e.f. 17.03.2006 vide Ex.WW1/4.
24. It is further seen from the record that MW1 Sh. Devki Nandan Sharma, Assistant Director (Horticulture), Civil Line Zone, North Delhi Municipal Corporation, 16 Rajpur Road, Delhi110054, has admitted in his cross examination on behalf of the workman in management evidence that it was correct that Ex.WW1/13 is the reply bearing No. DOH/DDH(HQ)/08/147 Dated 23.04.2008 of the management to RTI application/query on behalf of the workman with the replies to questions given vide communication No.ADC/AO(Hort.)./HQ/2008/20 dated 22.04.2008 of the management to the effect: Sl. Question Answer No .
1. Beldars/Malies Beldars/Malies who joined in who joined in Hort.Deptt. of MCD on Muster Roll Hort.Deptt. of w.e.f. 27.01.1984, their services were MCD on regularized in regular payscale and Muster Roll their date of regularization w.e.f. w.e.f.01.04.1989 as per 'Phased 27.01.1984, Manner Policy' of Corporation.
when their services were regularized in regular pay scale and their date of regularization.
I.D. No 181/16 Page 33 of 39
2. Sh. Rajbir S/o Due to pendency of court case Sh.
Sh. Shouli Rajbir S/o Sh. Shouli was not
(initial date of regularized till date. The case is
joining pending in High Court vide C.W.P.
27.01.1984) No.5510/2003 titled M.C.D.Vs.
Mali, as Rajbir & Others. Workman reinstated
Muster Roll in on duty vide office order
Civil Line No.ADC/AO/20 dated 21.04.2006
Zone. The and posted in Civil Line Zone in
workman compliance of directions of High
concerned not Court and file is pending in rule on
regularized till 12.01.2007.
date? Why
25. In view of the said exhibit it is thus evident that the counter parts of the workman who had joined the management as Beldars/Malies on muster roll w.e.f. 27.01.1984 as the workman had been regularized by the management in their services as muster roll employees with the management on regular pay scale w.e.f. 01.04.1989 as per Phased Manner Regularization Policy of the management in this regard and that the case of the workman could not be considered for such regularization of his services along with his counter parts/peers/coworkmen on account of pendency of court case/industrial dispute instituted by the workman in respect of illegal termination of his services as a Beldar/Mali on muster roll with the management w.e.f. 25.03.1985 on the part of the management and for his reinstatement in service with the management on the same with all consequential benefits and also in view of the pendency of CWP No. I.D. No 181/16 Page 34 of 39 5510/03 titled MCD vs. Rajbir filed by the management against the award dated 19.09.2002 passed by the Court of Sh. M.K. Gupta, POLCIX, Karkardooma Court, Shahdara, Delhi in I.D. No. 1727/94, Ex.WW1/6, between the workman and the management qua the claim of the workman of illegal termination of his services as a Beldar/Mali on muster roll with the management w.e.f. 25.03.1985 ordering reinstatement of the workman in service with the management with continuity of service, however, with full backwages w.e.f. 04.04.1991 onwards, with the further reply that the workman has been reinstated in duty with the management as Beldar/Mali on muster roll vide office order No.ADC/AO/20 dated 21.04.2006 and posted in Civil Line Zone in compliance of directions of High Court and file is pending in rule on 12.01.2007. However, it has been further admitted by the MW1 Sh.Devki Nandan Sharma, Assistant Director (Horticulture), Civil Line Zone, North Delhi Municipal Corporation, 16 Rajpur Road, Delhi110054 in his cross examination on behalf of the workman that Ex.MW1/W1 is the copy of order of Hon'ble High Court dated 24.01.2012 vide which the management withdrew its Writ Petition, the said order having been quoted hereinabove.
26. It has further been admitted by the said MW1 in his cross examination on behalf of the workman in management evidence in respect I.D. No 181/16 Page 35 of 39 of the said order of the Hon'ble High Court of Delhi Ex.MW1/W1 that he does not know whether the order Ex.MW1/W1 has been challenged before any court or not.
27. It is thus evident that the services of the workman as Beldar/Mali on muster roll with the management have been ordered to be reinstated with the management with continuity of service and full backwages w.e.f. 04.04.1991 onwards vide award dated 19.09.2002 of the Court of Sh.M.K. Gupta, the then Presiding Officer, Labour Court No. IX, Karkardooma Court, Shahdara, Delhi passed between the parties, Ex.WW1/6, holding therein that termination of the services of the workman as a Beldar/Mali on muster roll with the management on the part of the management w.e.f. 25.03.1985 was illegal and that he was thus entitled for reinstatement in service on the said post with continuity of service along with full back wages w.e.f. 04.04.1991 onwards as awarded in his favour and against the management vide said award, as abovesaid, and the CWP No. 5510/2003 of the management filed against the said award has been disposed of vide order dated 24.01.2012 of the Hon'ble High Court of Delhi passed in this regard, Ex.MW1/W1, as follows;
"Learned Counsel for the petitioner today states that this Writ Petition has in fact become infructuous since the I.D. No 181/16 Page 36 of 39 respondent no.1workman has already been reinstated in service in compliance of the award of the Labour Court and the relief of back wages given to him also stands satisfied in view of the fact that he has recovered the back wages through execution proceedings.
In view of this submission of counsel for the petitioner, the writ petition is disposed of as having become infructuous. C.M. No.11326/2011 In view of the aforesaid, counsel for applicantrespondent no.1/workman does not press this application. The same is, therefore, dismissed as not pressed."
and thus workman is deemed to be in the continuous employment with the management w.e.f. 27.01.1984, the initial date of his joining on the post of Beldar/Mali on muster roll with the management, which is not disputed, he having been reinstated on the said post consequent to the passing of the said award w.e.f. 17.03.2006 vide office order No. DOH I/ADC(Hort.)/AO(H)/DA/2006/1283 dated 17.03.2006, Ex.WW1/4, of the management in this regard along with the joining report dated 29.03.2006 of the workman pursuant to the same, Ex.WW1/5, along with payment of due wages to him as on the date of his reinstatement vide the said award through I.D. No 181/16 Page 37 of 39 execution proceedings instituted by the workman against the management in this regard as also vide Ex.WW1/13, it is the admitted case of the management in respect of the claim of the workman for his regularization on the post of Beldar/Mali on muster roll with the management w.e.f. the initial date of his joining on the post of Beldar/Mali with the management along with all consequential benefits thereto that the Beldars/Malies who had joined the management on muster roll w.e.f. 27.01.1984, their services were regularized in regular pay scale w.e.f. 01.04.1989 as per "Phased Manner Policy" of the management/Corporation in this regard as also that the case of the workman for his regularization in his services as a Beldar/Mali on muster roll with the management could not be considered along with his counterparts/peers, in view of the pendency of the litigation between the parties in respect of the alleged illegal termination of the workman on the post of Beldar/Mali on muster roll with the management w.e.f. 25.03.1985 on its part and for his reinstatement in service on the said post with the management along with all consequential benefits thereto, which stands disposed of, as abovesaid.
28. In view of the above undisputed facts, on record, it is felt appropriate that the management be directed to regularize the services of the workman as a Beldar/Mali on muster roll with it with effect from the date I.D. No 181/16 Page 38 of 39 when his counterparts/peers have been regularized on the same, as abovesaid, viz. w.e.f. 01.04.1989 as per phased manner regularization policy of the management/Corporation in this regard. The instant issue is answered accordingly.
29. The award is passed and the reference is answered in these terms. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to the Record Room. Digitally signed by CHANDRA CHANDRA GUPTA GUPTA Announced in open Tribunal Date: 2018.03.24 15:58:49 +0530 on 24.03.2018 (CHANDRA GUPTA) Presiding Officer, Industrial Tribunal Dwarka Courts, New Delhi.
I.D. No 181/16 Page 39 of 39