Delhi District Court
4.1987 With All Consequential Benefits ... vs M/S Dharampal Prem Chand (Saugandhi) ... on 4 July, 2018
1
IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
ID No. 132/16
Prakash son of Sh Panchu Ram ( since deceased)
Represented through legal heir
Smt Poonam Devi w/o
Sh Prakash, mason
represented by Delhi Nagar Nigam Workshop Karamchari Sangh ®
14A, Old Market, Timarpur, Delhi54.
Vs
The Management of Municipal Corporation of Delhi,
Through its Commissioner, Town Hall,
Chandni Chowk, Delhi110006.
Date of Institution: 10.05.2011
Date of Order:04/07/2018
O R D E R
1) Workman has raised the present dispute and on failure of
conciliation proceedings, GNCT of Delhi referred the dispute to this
2
Tribunal for adjudication in the following term of reference
"Whether the demand of Sh Prakash son of Sh
Panchu Ram for grant of pay scale of Rs.260400
(9501500) (30504590) for the post of mason w.e.f.
1.4.1987 with all consequential benefits is justified, and if so what directions are necessary in this respect?"
2) Statement of claim was filed on behalf of the workman. In the statement of claim, workman has stated that he was appointed as Mason in Engineering Department and the workman was appointed as Mason on muster roll in the year 1970 and got the wages of skilled worker. The workman was regularized on the post of mason w.e.f.
01/04/78 vide office order dated 30/03/79 in the pay scale of Rs.210 270 instead of pay scale of Rs.260400. The regularization of the workman in the pay scale of Rs.210270 is illegal and unjustified and contrary to the pay scale adopted by the MCD as per 3 rd pay commission. In fact, pay scale of Rs.260400 was adopted by the MCD as per 3rd pay commission and resolutions were passed by the MCD. The MCD has already granted the pay scale of Rs.260400 revised from time to time to several other similarly situated workmen w.e.f. the date of their respective regularization and has also paid the arrears of back wages along with all the consequential benefits. Therefore, the workman is also entitled to be regularized on the pay scale of Rs.260 400 revised from time to time from the date of his regularization i.e. 01/04/78. The management had adopted the recommendations of pay 3 commission and had passed resolution from time to time. As per the resolution No 682 dt 13/12/1973 management had adopted the recommendations of 3rd pay commission and pay scale of Rs.260350 was passed for the post of Mason and thereafter passed another resolution no. 1294 dt 24.02.1987 adopting the 4 th pay commission recommendations wherein pay scale of Rs.9501500 was passed for the post of Mason. Inspite of aforesaid pay scales for the post of Mason, the said pay scale had not been granted to the present workman, which is illegal and unjustified. However, some of the junior to the workman working on the same post were getting higher pay scale. The management had also passed a resolution no 952 dt 14/06/91 whereby the muster roll employees appointed in Horticulture department on the post of Masons and fitters, were regularized w.e.f. 01/04/99 on the post of Masons and fitters in the pay scale of Rs.950 1500 and MCD had also granted the pay scale of Rs.9501500 to Masons, fitters, carpenters and painters who were transferred from DDA to MCD. Therefore, paying different pay scale to the similarly situated workmen in the same department under one employer is illegal and unconstitutional. It has also been submitted by workman that in other department of MCD and CPWD pay scale of Rs.260400 (Rs.950 1500) is being paid to workers working on the post of Mason. In MCD similarly appointed workers and those who were transferred from DDA to MCD were also being paid in the pay scale of Rs.250400 (Rs.950 1500). It is the claim of the present workman that pay scale of Rs.210 270 revised from Rs.8001150 is being paid to the present workman on the post of mason and the same pay scale is also being paid to the assistant/junior Masons who were promoted from beldars vide office 4 order dt 10/04/91 and 11/06/99 whereas the post of present workman is mason and not the junior Mason. The post of workman i.e mason is a skilled post. The workman was being paid the wages of skilled worker, while working on muster roll. The present workman was paid pay scale of semiskilled worker after regularization, which is illegal. Vide order dt 12/7/82 it has been accepted by the management that the post of mason is skilled and pay scale of Rs.260350 for the post of Mason was increased to Rs.260400 w.e.f. 1.1.73 and which was revised to Rs.950 1500 as per 4th pay commission. The pay scale of Rs.9501500 on the post of mason has not been given to the present workman. The workman had been retired on 31/01/2009. It is also stated by the workman that he had sent a request letter to the management but no reply has been received by the workman. .
3) Management/MCD has filed the written statement wherein they have taken the preliminary objection that the present dispute is not an Industrial Dispute, as the same has not been espoused by the union. The statement of claim is not maintainable on the ground of latches, since workman was regularized long back on 01/04/1978. The claim of the claimant is not maintainable in view of the fact that claimant is a regular employee of the management. All the employees of the management are governed by the Central Civil Rules, as such in case of any dispute, the efficacious remedy lies with the Central Administrative Tribunal, hence present claim is liable to be dismissed. The claim of the claimant for the pay scale of Rs.260400 revised pay scale of Rs.9501500 is not justified on the ground that there are two categories of the post of mason, ie Jr mason/mason and Sr mason. The post of junior mason & Mason are the same post and post of senior 5 mason is promotional post to the post of junior mason/mason. The pay scale of mason/Jr mason in III CPC was Rs.210270 and the pay scale of senior mason was Rs.260400. It has also been submitted by the management that as per the recruitment rules, the entry grade for the post of mason was of Rs.210270, revised to pay scale of Rs.800 1150 and pay scale of Rs.260400 is the pay scale for the promotional post of senior mason. The claim of the workman for the pay scales of Rs.260400 is not justified since this scale is for the post of Sr Mason. In the present claim, the claimant is claiming parity with CPWD but management has its own notified recruitment rules and regulations and the recruitment rules of CPWD are not applicable to the employees of the management. The workman was engaged on daily wages on the semiskilled category and was lateron regularized on the semiskilled post of mason whereas the pay scale of Rs.260400 is the pay scale meant for the skilled post of mason as such the claim of the claimant is liable to be dismissed. Management has also submitted that no dispute exists between the parties as the management vide resolution no 902 dt 5/3/07 has merged both the junior category of mason, carpenters, painters, fitter and wireman w.e.f 1/1/96 and the claimant has already been given the benefit of the said office order and he has also been granted the pay scale of Rs.260400 (Rs.30504590) w.e.f. 1/04/96.
4) On 16/01/2012, following issues were framed by my Ld Predecessor:
1) Whether the present dispute is an industrial dispute as defined in section 2 (K) of Industrial Dispute Act?OPW
2) Whether the present claim of the workman has been properly espoused by the union? OPW.6
3) Whether the statement of claim is not maintainable on ground of latches/belated stage?OPM
4) As per terms of reference.
5) After framing of issues, workman has led his evidence and in support of his case, workman has appeared as WW1 and has tendered his affidavit in evidence as Ex WW1/A. Workman has also relied upon documents Ex. WW1/1 to Ex WW1/43.
6) From the side of management, only one witness is examined i.e. MW1 Sh. S.K. Singhal, Executive Engineer and he has tendered his evidence by way of affidavit Ex. MW1/A and relied upon documents from Ex. MW1/1 to Ex. MW1/5.
7) In the present case, workman Prakash had expired on 08/03/2015. An application was moved on behalf of legal heirs of the workman for impleading wife of workman as a party in the present case.
The family of the workman consists of wife, four sons and one daughters. All the children of the workman were married and they had given no objection in case wife of workman be impleaded as legal heir in the industrial dispute in the name of the workman. Said application of the applicant had been allowed by my Ld Predecessor vide order dated 13/07/2015.
8) Arguments were heard from Ld A.R for the parties.
9) I have considered the evidence led by the parties, the arguments advanced by Ld Authorized Representatives of the parties and gone through the file. After considering the same, my issue wise findings are as under:
ISSUE NO. 1 AND 2 71) Whether the present dispute is an industrial dispute as defined in section 2 (K) of Industrial Dispute Act?OPW
2) Whether the present claim of the workman has been properly espoused by the union? OPW.
10) I will dispose off issue no. 1 and 2 simultaneously as they are inter connected.
11) Industrial dispute has been defined in Section 2 (k) of Industrial Dispute Act. For better understanding Section 2 (k) is reproduced as under:
"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 condition of labour, of any person"
12) Thus from the definition of Industrial Dispute given in section 2 (k) of the Industrial Dispute Act, it is clear that any dispute between the employer and employer or between the employer and workmen or workmen & workmen, which is connected with the employment or non employment or terms and conditions of the employment would be treated as an industrial dispute. It is also to be noted that section 2 (k) of Industrial Dispute deals with the dispute of 'workmen' and not 'workman' ie any dispute of an individual workman, unless the same is 8 espoused or sponsored or supported by the union of workmen will not be treated as industrial dispute.
13) It has been held in various cases as early as in the year 1955 that unless the dispute of individual workman is supported by the union of the workmen or sponsored by the group of workmen the dispute will not be an industrial dispute u/s 2 (k) of the Industrial Dispute Act.
14) In case Workmen of M/s Dharampal Prem Chand (Saugandhi) vs M/s Dharampal Prem Chand (Saugandhi) (1965) 3 SCR 394, Hon'ble Supreme Court of India dealt with the issue of espousal of individual dispute of workman. In this case, Hon'ble Supreme Court had held that:
"The decisions of this court have consistently taken the view that in order that a dispute between a single employee and his employer should be validly referred under section 10 of the Act, it is necessary that it should have been taken up by the Union to which the employee belongs or by a number of employees. On this view, a dispute between an employer and a single employee cannot, by itself, be treated as an industrial dispute, unless it is sponsored or espoused by the Union of the workmen or by a number of workmen."
15) After the decision of case Workmen of M/s Dharampal Prem Chand (Saugandhi) vs M/s Dharampal Prem Pal (Saugandhi) 9 (mentioned above), Section 2 A of Industrial Dispute Act has been added in the Act, in 1965, which provides that any individual workman who has been discharged, dismissed, retrenched or otherwise terminated from the services by the employer, then all the dispute between that workman and his employer connected with or arising out of such discharge, dismissal or retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman or any "union of workmen" is party to the dispute. Thus, from the joint reading of section 2 (k) of Industrial Dispute Act and Section 2A of Industrial Dispute Act, it is clear that individual workman can raise the industrial dispute only in respect of the dispute arising out of his discharge, dismissal or retrenchment or termination. And all other causes of dispute is to be espoused by the union of the workmen.
16) In J.H. Jadhav vs Forbes Gokak Ltd, 2005 AIR (SC) 998, Hon'ble Supreme Court had observed that:
"The definition of Industrial Dispute" in Section 2 (k) of the Act shows that an Industrial Dispute means any dispute or difference between an employer and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of the employment or with the condition of labour, of any person. The definition has been the subject matter of several decisions of this 10 Court and the law is well settled. The locus classicus is the decision in the Workmen of M/s Dharam Pal Prem Chand (Saugandhi), 1965 (3) SCR 394 wherein it was held that for the purpose of Section 2 (k) it must be shown that (1) the dispute is connected with employment or nonemployment of a workman: (2) the dispute between a single workman and his employer was sponsored or espoused by the union of workmen or by a number of workmen; the phrase "the union"
merely indicates the Union to which the employee belongs even though it may be union of a minority of the workmen (3) the establishment had no union on its own and some of the employees had joined the Union of another establishment belonging to the same industry. In such a case it would be open to that Union to take up the cause of the workmen if it is sufficiently representative of those workmen, despite the fact that such Union was not exclusively of the workmen working in the establishment concerned.
17) Later on in case of Management of M/s Hotel Samrat Vs Govt of NCT and orsWPC No 6682 and WP C 6247 of 2004 decided on January 4, 2007, Hon'ble High Court of Delhi has dealt with the issue of 11 espousal of industrial dispute. In this case, Hon'ble Mr Justice S.N. Dhingra has elaborated the requirement of espousal of individual dispute of workman by the union. In this case Hon'ble High Court had observed:
"The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workman as a body or a considerable section of them, make common cause with the individual workman and espoused his demand.
The question arises how the espousal can be inferred. Espousal means that the dispute of an individual workman is adapted by union as its own dispute or a large number of workmen give support to the cause of an individual workman.
18) After observing that individual dispute of workman cannot be called as industrial dispute unless it is espoused by the executive body of the union, Hon'ble High Court held in case of Management of Messers Hotel Samrat (mentioned above) that the dispute was not properly espoused by the union and therefore held not to be an industrial dispute.
19) Coming to the facts in hand, reference has been made in respect of individual workman. Present cause of the workman has not been 12 supported by any union. At this stage, it is essential to note that in the case of Management of Messers Hotel Samrat (mentioned above), Hon'ble High Court of Delhi has very specifically mentioned that cause of individual should be supported by number of workmen and the fact whether the number of workmen had supported the cause of individual workman or not will depend upon case to case. In the present case, Sh Prakash, present workman has placed and proved the espousal letter Ex.PW1/6. Even otherwise, it is required as per law that cause of workman is to be supported or sponsored by the group of workmen and by way of document Ex.PW1/6, it is not clear as to who has sponsored the cause of the workman Prakash, as the document only bears the signature of Sh Ajit Kumar Kalia, General Secretary of the union but he has not been examined by the workman. Neither any resolution passed by the union or any minutes of meeting of union supporting the cause of workman Prakash had been placed or proved on record. Thus, in the absence of these documents, it cannot be said that cause of individual workman had been supported or sponsored by union, to make it an industrial dispute u/s 2 (K) of Industrial Dispute Act.
20) Therefore, I am of the opinion that dispute has not been properly espoused by any union. Hence issue no. 1 and 2 are decided against the workman.
ISSUE NO: 3 AND 4
3) Whether the statement of claim is not maintainable on ground of latches/belated stage?OPM
4) As per terms of reference.
21) It is important to mention herein that in the case of M/s Samrat Hotel ( mentioned above), Hon'ble High Court of Delhi has held that 13 once the dispute referred to the Industrial Tribunal is held not to be an industrial dispute as per section 2 (k) of Industrial Dispute, Industrial Tribunal will have no jurisdiction to deal with the dispute. Hon'ble Mr Justice S.N. Dhingra of Hon'ble Delhi High Court in the case of M/s Samrat Hotel ( mentioned above) has observed that :
"The Tribunal has jurisdiction to adjudicate only an industrial dispute, The Tribunal came to conclusion that the cause of the workmen was not espoused. Once the Tribunal decided the issue of espousal against the workman, the Tribunal lost its jurisdiction to adjudicate the dispute since no industrial dispute existed. However, the Tribunal considered that it was a mere technicality. I consider that the entire 'jurisprudence of Industrial Dispute Act, is in respect of resolution of collective dispute of the workmen. It is not a mere technicality. An individual dispute unless covered under section 2A cannot be raised under Industrial Dispute Act.
22) Therefore, I am of the opinion that since issue no. 1 & 2 have been decided against the workman to the effect that present dispute referred is not an industrial dispute u/s 2 (k) of Industrial Dispute Act, as the same has not been espoused by the union, thus, in view of the judgment of M/s Samrat Hotel ( mentioned above), this court has no jurisdiction to decide issue no. 3 and 4 as the dispute referred to this Tribunal has already been held to be not an industrial dispute.14
Therefore, issue no. 3 and 4 are also decided against the workman.
23) As all the issues have been decided against the claimant along with the fact that dispute referred to the Tribunal is not an industrial dispute as the same has not been espoused by the union, the reference is answered in negative. Award is passed accordingly.
24) Copy of this award be sent to GNCT of Delhi for publication.
25) File be consigned to record room. Announced in the open Court on (SHAIL JAIN)
this 4th July, 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally signed by SHAIL SHAIL JAIN JAIN Date:
2018.07.05 11:36:32 +0530 15 ID No.. 132/16 Prakash vs MCD 04.07.2018 Present: Sh Ajit Kalia, AR for the workman.
Proxy counsel for the parties.
Vide my separate judgment announced in open court, the reference is answered in negative.
Copy of this award be sent to GNCT of Delhi for publication. File be consigned to record room.
(SHAIL JAIN ) POIT2/SWD/04.07.2018