Delhi District Court
Workman vs . on 4 March, 2014
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No 115/10
Workman
Smt. Savitri, w/o Sh. Dhan Singh, represented by Delhi Municipal
Karamchari Ekta Union, X/1837, Red House Park, Marg Rajgarh
Colony, Delhi 31.
Vs.
Management
M/s Municipal Corporation of Delhi, through its Commissioner, Town
Hall, Chandni Chowk, Delhi 110006.
Date of institution 20.03.2010
Date of reserving award 25.02.2014
Date of award 04.03.2014
Ref : F.24 (184)/ND/790/2006//Lab./1438-42 dated 05.03.2010
AWARD
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:-
''(1)Whether services of Smt. Savitri w/o Sh.I.D. No 115/10 Page 1 of 14
Dhan Singh have been terminated illegally and/or unjustifiably and if so, to what relief is she entitled and what directions are necessary in this respect? (2)Whether Smt. Savitri w/o Sh. Dhan Singh, daily wages Nursery Aya is also entitled to be regularised on her respective post in proper pay scale with all consequential benefits including retiral benefits 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 he joined the management as Nursery Aya on consolidated salary of Rs.105/- per month at a Nursery School run by Rotary Club of Delhi (South) for the welfare of children of employees of Delhi Water Supply and Sewage Disposal Undertaking, which was a part of MCD; that the employer passed a resolution no.281 dated 23.06.1979 thereby taking over the said school alongwith the staff w.e.f. 01.12.1978 and services of workman, therefore, also stood transferred to the MCD; that the workman also underwent medical test as directed by the employer and was found fit for service in MCD; that workman served the management and was transferred in various schools of MCD; that the workman was being treated as daily wager and was being paid wages as fixed and revised from time to time under the Minimum Wages Act, while his regular counter parts doing the identical work were being treated as regular employees and were being paid salaries in proper pay scale and allowances; that the management, as per its policy, regularised all the daily wagers and even junior to the workman and less in education from the workman, were I.D. No 115/10 Page 2 of 14 regularised in service; that the workman is entitled to be regularised in service atleast w.e.f. 01.04.1988 or 01.04.1982 as she was absorbed in service in MCD during the year 1980-1981 w.e.f. 01.12.1978 and her co- workmen and juniors have been regularised from the same date; that in the meanwhile, the workman reached the age of 60 years in June, 2004, which is the age of superannuation of regular employees in MCD; that the workman herein was terminated in June, 2004 arbitrarily; that the workman was not paid monetary benefits; that the said termination was purportedly effected because the workman has attained the age of 60 years, which is the retirement age of regular employees; that the management neither issued any retirement order or any notice spelling out the reasons for termination of her services.
3. It is prayed in the statement of claim that workman be treated as regular employee w.e.f initial date of appointment/absorption in MCD or atleast workmen be held entitled to regularisation in service w.e.f. 01.04.1988 or 01.04.1982 or from any other date as this Hon'ble Tribunal finds justified as per regularization policy of management; that the workman be paid same salary and benefits as are being paid to her regular counter parts; that the abrupt removal of workman from service be declared as illegal and workman be reinstated in service with all consequential benefits including payment of full back wages and continuity of service; that the workman be retired on reaching the age of superannuation and be paid entire retiral benefits including pension, gratuity, leave salary etc. as a regular employee.
4. In the written statement filed by the management, it is stated that present dispute is not an industrial dispute as it is not properly espoused by I.D. No 115/10 Page 3 of 14 the union; that no demand notice has been served upon the management; that claimant is not the workman as defined u/s 2(s) of the I.D. Act as such present dispute is not an industrial dispute as defined u/s 2(k) of I.D. Act as after completion of 60 years of age i.e. age of superannuation, there is no relationship between the parties; that as per recruitment rules for the post of Nursery Aya, one should be VIII class pass and accordingly, the claimant vide office order no.DE/140/Edu-IV/HQ was asked to appear and submit the certificate in support of her educational qualification on 13.11.96 for processing her case for regularisation, but despite the same, claimant did not submit the same and sent a reply stating that she has no documentary proof to show that she is 8th class pass; that in the absence of eligibility criteria, the claimant was not entitled for regularization; that the claimant was not engaged further on attaining the age of 60 years after 30.04.2005; that the present claim is not maintainable on the ground of latches/belated stage since the claimant was allegedly terminated in the year 2004, whereas, the present claim has been filed in the year 2010 i.e. after the lapse of more than 06 years; that management has its own regularisation policy i.e. in phased manner subject to availability of funds and post, and, therefore, the workman cannot claim for his regularisation from initial date of engagement; that no worker in management has ever been regularised from the initial date of engagement on daily wages. All other contentions made in the statement of claim have been denied and dismissal of the same has been prayed for.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 12.03.12 :-
1. Whether present dispute is an Industrial I.D. No 115/10 Page 4 of 14 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 demand notice has been served upon the management, if not, its effect? OPW
4. Whether claimant is workman as defined under section 2(s) of Industrial Disputes Act?
OPW
5. Whether present claim is barred because of undue delay and latches, as alleged in the WS?
OPM
6. As per terms of reference.
6. Workman examined herself as WW 1. In his affidavit, he has reiterated more or less the contentions made in statement of claim.
7. In cross-examination, WW 1 has deposed that she is illiterate and she does not know when she was appointed and how old she is. She has deposed that it might be correct that she was born in 1945 and she was approximately 70 years old. She has deposed that she has not filed any document showing her date of birth. She has admitted that when she left the job, she was 60 years old. She has deposed that she is neither a member of any union nor any meeting of union took place in her presence.
8. WW 2 Sh. Manvendra Nath Singh, General Secretary of Delhi Municipal Karamchari Ekta Union has relied upon copy of annual return of the union as Ex. WW2/1. He has deposed in his affidavit that present case has been properly espoused by the members of the executive I.D. No 115/10 Page 5 of 14 committee of the union in its meeting vide espousal dated 10.11.2006. In his cross-examination, he has denied that workman is not member of the union. He has deposed that he has no record to show that workman ever attended the meeting of the union at any time. He has denied that the espousal is false as workman is not member of the union.
9. WW 2 has also led additional evidence, whereby he has tendered documents Ex. WW2/1 to Ex. WW2/10, relating to some information provided by the management under RTI Act. In his cross- examination, he has deposed that he personally does not know whether the list Ex. WW2/19 is correct or not. He has stated voluntarily that the information must be correct, being provided under RTI Act.
10. Management has examined Ms. Savita Rani, Dy. Director of Education, Central Zone as MW 1. In her affidavit, she has, more or less, reiterated the contents of written statement filed by management. In his cross-examination, MW 1 has deposed that workman has not worked at any time under her supervision. It is deposed that earlier workman was employed as Nursery Aya in a school run by Rotary Club of India. She has stated voluntarily that she was employed as a part time employee. It is denied that the workman was employed as full time regular employee in School of Rotary Club. She has deposed that she has not filed any document on record in this regard. It is admitted that said school of Rotary Club was taken over by MCD in the year 1979 and staff including the present workman were absorbed by MCD. It is admitted that workman Smt. Savitri was taken by MCD as its employee as daily wager and since then, she has worked with MCD as daily wager on continuous basis till the date of her superannuation w.e.f. 30.4.05 and she was paid wages as are I.D. No 115/10 Page 6 of 14 paid to daily wager i.e. minimum wages as revised by Delhi Govt from time to time. It is admitted that work of the workman was satisfactory. She does not know whether or not any notice of superannuation was issued to workman Smt. Savitri. It is deposed that no official order of retirement of workman was issued as she was working as daily wager. She has deposed that she has no knowledge as to whether the permission of competent authority was taken before retiring the workman on alleged superannuation. MW 1 is not aware of any provision under which the workman was retired on superannuation. It is deposed that no monetary benefit related to retirement was given to the present workman, as she was working as daily wager. She has deposed that workman employed with Education Department is regularised by Addl. Commissioner or Director. She has deposed that no separate order was issued to workman about rejecting her claim for regularisation. She has deposed voluntarily that there was order on file. She has deposed that the file relating to consideration of workman for regularisation is not traceable in the department. It is denied that there is no such file, wherein case of the workman was ever considered for regularisation. It is denied that the case of the workman was never put to competent authority for consideration of her regularisation and as such there is no such file. It is admitted that Ex. MW1/W1 is the letter issued by the SDMC. MW 1 has deposed that she does not know whether the workmen working on the post of Nursery Aya, Chowkidar, who were not 5th class pass have been regularised in service pursuant to policy of regularisation. It is denied that while regularising the workman in MCD, the requirements of educational qualifications are not compulsory as per policy of regularisation of MCD. MW 1 has deposed that she cannot say whether in MCD regularisation of class IV workmen I.D. No 115/10 Page 7 of 14 including nursery Aya have been done as per recruitment rules of MCD. MW 1 could not say that several Nursery Ayas have been regularised in MCD without having education of 5th class pass, as it is being dealt by head quarter. It is deposed that MCD is having only one single policy for regularisation of daily wagrers in phase manner, which is applicable upon all the departments of MCD. It is denied that claimant had submitted all the required certificates and documents with the department for consideration of her case for regularisation. It is admitted that workman was not paid gratuity and other pensionary benefits. She has deposed voluntarily that same was not applicable on the workman, being daily wager. She has deposed that workman was not paid retrenchment compensation and notice pay as she was not retrenched but retired at the age of 60 years.
11. I have heard arguments from Sh. M.N. Singh, Ld. Counsel/AR for the workman and Sh. Abhinav Kumar, Ld. Proxy Counsel/AR for Sh. Umesh Gupta, Ld. Counsel/AR for management. Workman has relied upon the following judgments:-
1. ANZ Grindlays Bank vs. General Secretary, Grindlays Bank Employees Union and Others, 2001-I- LLJ 132 (Bombay), wherein it was held that the Union was capable of espousing the cause of the Individual workman even in a reference of individual dispute under section 2-A of the Industrial Disputes Act.
2. Municipal Employees' Union vs. Secretary (Labour) and Anr. 1999-II-LLJ 192 (Delhi), wherein it was held that an Industrial Dispute could be raised in regard to non-employment of even persons, who might not be workmen under the employer at the notional time.
3. Ajaib Singh vs. The Sirhind Co-operative Marketing cum Processing Service Society Ltd. and another, wherein delay of 07 years was shown to be existing and admitted and in that case it was held that Court can mould relief by refusing back wages or I.D. No 115/10 Page 8 of 14 directing payment of part of back wages.
4. Bhagwati Prasad vs. Delhi State Mineral Development Corporation AIR 1990 SUPREME COURT 371, wherein it was held that Once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification.
12. I have carefully gone through record of the case. My findings on the issue are as under :-
13. Findings on issues no.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 issues are taken up together as they are interconnected.
14. In this regard, management in its written statement has taken preliminary objection that present dispute is not an industrial dispute as it is not properly espoused by the union.
15. Section 2(k) of I.D. Act provides 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 non-employment or the terms of employment or with the conditions of labour, or any person;
16. WW 2 Sh. Manvendra Nath Singh, General Secretary of Delhi Municipal Karamchari Ekta Union has proved on record copy of annual return of the union as Ex. WW2/1. He has deposed that present case has been properly espoused by the members of the executive committee of the union in its meeting vide espousal dated 10.11.2006. Workman (WW 1) I.D. No 115/10 Page 9 of 14 has proved on record Resolution/espousal dated 10.11.2006 as Ex. WW1/17, whereby cause of the workman has been espoused by the Union. There is nothing in his cross-examination to the contrary. In view of this specific document, it is held that claim of the workman has been properly espoused by the Union. Hence, present is an industrial dispute as defined u/s 2(k) of Industrial Disputes Act. Issue no.1 and 2 are decided accordingly.
17. Findings on issue no.3 Issue no.3 is : Whether demand notice has been served upon the management, if not, its effect? OPW
18. Workman (WW1) has duly proved on record copy of demand notice 17.11.06 as Ex. WW1/18 and copy of postal receipt has been proved as Ex. WW1/1. There is nothing in cross-examination to the contrary. In view of said documents, it is held that notice of demand was served upon the management. Issue no.3 is decided accordingly.
19. Findings on issue no.4 Issue no.4 is : Whether claimant is workman as defined under section 2(s) of Industrial Disputes Act? OPW
20. In this regard, objection of management, in the written statement, is that claimant is not the workman as defined u/s 2(s) of the I.D. Act as such present dispute is not an industrial dispute as defined u/s 2(k) of I.D. Act as after after completion of 60 years of age i.e. age of superannuation, there is no relationship of employer and employee between the parties;
21. Section 2 (s) of Industrial Disputes Act defines the term "workman". Same is reproduced as below :-
"Workman" means any person (including and apprentice) employed in any industry to do any manual, unskilled, skilled, I.D. No 115/10 Page 10 of 14 technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
22. Industrial dispute has been defined under section 2(k) of Industrial Dispute Act which is as follows:-
''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 non-employment or the terms of employment or with conditions of labour, of any persons.
23. In Municipal Employees Union vs. The Secretary (Labour) & Another 1999 LLR 1020, it has been held as under:-
It is clear that even a dispute between an employer and his workmen which is connected with non-employment of any person can be an industrial dispute. The beneficiary of the claim need not be a workman of the employer at the time of raising the dispute. A dispute can be raised by the workmen of the employer even in respect of the non employment of any person who is not his workman at the material time.
24. It is not in dispute that workman was employed with the Management and that she has superannuated. She has raised the present dispute with regard to her regularisation during the period she worked I.D. No 115/10 Page 11 of 14 with the management. Therefore, present dispute relates to terms of employment i.e. for the period she was in service of the Management. I, therefore, hold that present dispute is not barred on account of the fact that workman ceased to be an employee after her retirement. Thus, claimant is a workman u/s 2(s) of Industrial Disputes Act. Issue no.4 is decided accordingly.
25. Findings on issue no.5 Issue no.5 is : Whether present claim is barred because of undue delay and latches, as alleged in the WS? OPM
26. Objection of the management in this regard, in the written statement, is that the present claim is not maintainable on the ground of latches/belated stage since the claimant was allegedly terminated in the year 2004 whereas the present claim has been filed in the year 2010 i.e. after the lapse of more than 06 years.
27. It is worth noting that cause of the workman has been espoused by the Union vide resolution dated 10.11.06, thereafter demand notice was sent on 17.11.2006 and the reference order is dated 05.03.2010. Before the reference order, conciliation proceedings would also have taken place.
Hence, in my considered opinion, there is continuity of proceedings in raising the present dispute by the workman and thus, it is held that the present claim is not barred by undue delay and latches. Issue no.5 is decided accordingly.
28. Findings on issue no.6 Issue no.6 is As per terms of reference. Terms of reference are ''(1)Whether services of Smt. Savitri w/o Sh. Dhan Singh have been terminated illegally and/or unjustifiably and if so, to what relief is she I.D. No 115/10 Page 12 of 14 entitled and what directions are necessary in this respect? (2)Whether Smt. Savitri w/o Sh. Dhan Singh, daily wages Nursery Aya is also entitled to be regularised on her respective post in proper pay scale with all consequential benefits including retiral benefits and if so, what directions are necessary in this respect?"
29. As regards first term of reference regarding legality of termination of services of workman, management has taken a plea in the written statement, in this regard, that the workman on attaining the age of 60 years, was superannuated from the service and hence, it is not a case of illegal termination. It has been admitted by workman in her cross- examination that when she left the job, she was 60 years old. Moreover, during the arguments, it was conceded for workman that retirement age of regular employees of management is 60 years. Hence, it is clear that services of workman automatically came to an end on attaining the retirement age of 60 years. Thus, it is held that services of workman has not been terminated illegally and unjustifiably. This term of reference stands disposed of accordingly.
30. As to the second terms of reference regarding claim of workman regarding her regularization at her respective post of Nusery Aya with retiral benefits, management, in its written statement, has taken a plea that the claimant was asked to submit the certificate in support of her educational qualification on 13.11.96 for processing her case for regularisation, but despite the same, claimant did not submit the same and sent a reply stating that she has no documentary proof to show that she is 8th class pass and in the absence of eligibility criteria, the claimant was not entitled for regularization.
31. In Bhagwati Prasad vs. Delhi State Mineral Development I.D. No 115/10 Page 13 of 14 Corporation (supra) it was held that once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification.
32. In view of this observation of Hon'ble Supreme Court, management is not justified to deny regularisation to the workman at her respective post of Nursry Aya, on the ground that she does not possess educational qualification. Hence, the management is directed to consider the case of workman for regularisation, keeping in view the observation of Hon'ble Supreme Court, in case titled as Bhagwati Prasad vs. Delhi State Mineral Development Corporation AIR 1990 SC 371, and to pass necessary order in this regard separately, giving proper reasons therein, within 03 months from the enforcement of this award. Claim of retiral benefit is incidental to the relief of regularization, order upon which shall be passed by management, as stated above. Issue no.6 and terms of reference are decided accordingly and award is passed in these terms.
33. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal
on 04.03.2014 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No 115/10 Page 14 of 14