Delhi District Court
Presiding Officer Industrial ... vs The on 5 July, 2023
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
Ref: F.24(1304)/07/Lab./9247-51
Dated: 16.09.2008
POIT OLD NO.: 122/2008
POIT NEW NO.: 6888/2016
Workman
Sh. Sunder Pal Sharma,
S/o Sh. Ram Pratap Sharma
as represented by
Municipal Employees' Union
Aggarwal Bhawan, G. T. Road
Tis Hazari, Delhi-110054
Vs.
The Management of
Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi-110006.
Date of Institution : 30.09.2008
Date of presentation : 20.03.2023
before this court
Date of Arguments : 04.07.2023
Date of Award : 05.07.2023
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
parties named above for adjudication to this Tribunal vide
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notification No. F.24(1304)/07/Lab./9247-51 dated 16.09.2008 with
following terms of the reference:-
"Whether the termination of services of Shri Sunder
Pal Sharma S/o Shri Ram Pratap Sharma, school
attendant by the management is illegal and/or
unjustified; and if so, what relief is he entitled and
what directions are necessary in this respect?"
2. Thereafter, another corrigendum no.
F.24(1304)/2007/N.D./Corr./Lab./649 dated 29.04.2010 with the
additional terms of reference was referred for adjudication before
this Tribunal. The terms of reference are as follows:
"Whether demand for regularization of Sh. Sunder Pal
Sharma S/o Sh. Ram Pratap Sharma on the post of
School Attendant from his initial date of joining in
proper pay scale and difference of wages on the
principle of equal pay for equal work is justified, and if
so, to what relief is he entitled and what directions are
necessary in this respect?"
3. Statement of claim has been filed on behalf of the workman,
wherein it has been stated that the workman joined into the
employment of Municipal Corporation of Delhi in its Education
Department as School Attendant w.e.f. 09.09.1991 on being his
name sponsored by the Employment Exchange. He was selected for
the aforementioned post after successfully passing in the interview
conducted by the selection board. Consequent to which, vide
employment letter dated 05.09.1991, he was appointed as School
Attendant against a vacant post and since then he had been working
continuously and uninterruptedly with unblemished records. He was
POIT NEW NO.: 6888/2016 Page 2 of 30
treated as a daily rated/casual worker and was being paid wages
fixed and revised from time to time in accordance with the
Minimum Wages Act by the appropriate government, while his
counterparts who were doing identical work and work of same value
are paid their salary in proper pay scale and allowances. Despite his
continuous service of the past 15 years on a permanent and
perennial nature of work, management did not regularize his
services. A demand notice dated 21.03.2006 was served upon the
management to regularize his services but no reply was given to
him, thereafter, an industrial dispute was raised by the workmen by
filing a statement of claim dated 03.04.2006 before the conciliation
officer. The workmen has averred that during the pendency of the
aforesaid industrial dispute pertaining to regularization, the
management with the motive to victimize the workman, vide letter
dated 16.05.2006 has terminated his services on the ground he has
failed to produce VIII th Class Certificate. The action of the
management by non-regularisation of his services and denial of
payment on the principle of "Equal Pay for Equal Work" and
termination of his services is totally illegal, bad, unjust and mala-
fide.
4. It is the case of the workman that he was performing the
permanent and perennial nature of work and was posted against the
vacant post of School Attendant. That employing persons on a
regular nature of jobs and treating them as a monthly paid/muster
roll worker and paying them lesser remuneration is totally illegal
and unjustified and amounts to unfair labour practice. The action of
the management is violative of Article 14, 16 and 39 (d) of the
POIT NEW NO.: 6888/2016 Page 3 of 30
Constitution of India. Furthermore, it also amounts to exploitation
of labour. Even otherwise, the workman aforesaid has been met out
with hostile discrimination as juniors to him have been retained and
regularized in job while he was totally ignored and thrown out of
job. As far as illegal termination is concerned, the workman has
stated that he has submitted his Purva Madhyama Examination
Certificate, which is equivalent to 10th Secondary Examination of
C.B.S.E. In addition to this, he has also cleared Uttar Madhyam
Pariksha in the year 1984 which is equivalent to 12th Senior
Secondary Examination and has also cleared Shahstri Pariksha in
the year 1987 equivalent to graduate degree of Delhi University.
That the workman is quite innocent and has not committed any
misconduct, in case of any alleged misconduct, no
domestic/departmental inquiry was conducted against him and no
opportunity of being heard was given to him before terminating his
services. In case of retrenchment, no seniority list was displayed, no
notice, notice pay or service compensation was either given or
offered to the workmen during termination of his service, therefore,
the same is in violation of Section 25F, G & H of I.D. Act.
Furthermore, the management has also violated the provisions of
Section 33 of I.D. Act as no permission has been obtained from the
Conciliation Officer prior to changing the service conditions of the
workman and that no notice under section 9A was served upon him.
It is prayed that an award be made in favour of workman directing
the management to reinstate the workman aforesaid in services with
continuity and full backwages along with all consequential benefits
either monetary or otherwise. The management be further directed
POIT NEW NO.: 6888/2016 Page 4 of 30
to regularize the services of the workman on the post of School
Attendant with retrospective effect i.e. 09.09.1991 from initial date
of joining and for the payment of difference of salary on the
principle of "Equal Pay for Equal Work" from 09.09.1991 onwards
along with cost of litigation u/s 11(7) of I.D. Act.
5. Written Statement was filed on behalf of the management,
initially on 20.01.2009. Thereafter, in light of the additional terms of
reference dated 29.04.2010, the management filed another written
statement wherein it has taken objections that the present dispute is
not an industrial dispute as it is based on false and untenable
unfounded complaint; that no demand notice has been served upon
the management; that reference has been made mechanically
without any application of mind; that the claimant has joined the
employment stating that he is fulfil the essential qualification of
VIII Pass for the post of School Attendant, however, it has brought
to the knowledge of the management vide complaint dated
01.03.2002 on behalf of Sh. Balbir Singh that the workman does not
possess essential qualification. Consequent to which, the workman
was served with various show cause notices for producing the proof
of his essential qualification of VIII Pass. Despite repeated show
cause notices, the workman failed to produce the same before the
management. When inquiring with the concerned authorities, the
management came to know that the workman is VIII Fail and not
VIII Pass. The management, due to his false and fictitious
declaration, disengaged the services of the workman on 16.05.2006.
It was further stated that the workman was simply a daily wager and
employed for a temporary nature of work, therefore, he was not
POIT NEW NO.: 6888/2016 Page 5 of 30
covered under CCS Conduct Rules, and his services can be
disengaged at any time. The management has further taken the
objection that the workman has suppressed a material fact that
earlier he filed a suit in the court of Ms. Smita Garg, Civil Judge,
Delhi in respect of aforesaid disengagement, which ultimately got
dismissed. The present claim also suffers from delay and latches as
the workman was disengaged on 16.05.2006, but the present dispute
was raised in the year 2008. Further, the management has its own
policy of regularization i.e. Phase Manner and availability of funds,
therefore, the workman can not claim regularization from the initial
dates of engagement. Rest of the contentions of the statement of
claim are denied.
6. Rejoinder was filed on behalf of the workman reiterating the
contentions of the statement of claim.
7. After completion of proceedings, the following issues were
framed by the Ld. Predecessor on 17.02.2009.
i. As per terms of reference.
8. To prove his case, workman examined himself as WW-1 and
relied upon documents Ex. WW1/1 to Ex. WW1/34. He was duly
cross-examined by ld. AR for the management. The workman also
examined Sh. Jagdish Chand, Ahlmad of Labour Commissioner-5,
Shamnath Marg, Delhi as WW-2 who tendered the phtocopies of
proceedings sheets as well as copy of statement of claim Ex.
WW2/A (colly). He was also cross-examined by ld. AR for the
management. Thereafter, vide separate statement, Ld. AR for the
workman closed workman evidence.
POIT NEW NO.: 6888/2016 Page 6 of 30
9. The management in their evidence examined Sh. Chattar
Singh, Assistant Education Officer (Class-IV) as MW-1. He
tendered his evidence by way of affidavit Ex. MW1/A in which he
has also affirmed the contents of the written statement and relied
upon documents Ex. MW1/1 to Ex. MW1/9. He was duly cross-
examined by ld. AR for the workman. The mangaement also
examined Sh. Balbir Singh Vashisth as MW-2 who tendered his
affidavit of evidence as Ex. MW2/1 and relied upon documents Ex.
MW2/1 to Ex. MW2/5. He was also cross-examined by ld. AR for
the workman. Thereafter, vide separate statement, the Ld. AR for the
management closed management evidence.
During the course of the proceedings, the workman Sh.
Sunder Pal Sharma passed away on 27.07.2016. Thereafter, an
appliacation for substitution of LRs alongwith original death
certificate was filed on record on 21.11.2016 and lateron affidavit of
Sh. Abhishek S/o Late Sh. Sunder Pal Sharma was taken on record
on 25.04.2023.
10. Final arguments have been heard at length as advanced by ld.
AR for the workman. However, none appeared on behalf of
management to address the arguments despite affording number of
opportunities.
11. Ld. AR for the workman argued that that the management
illegally terminated the services of the workman concerned during
the pendency of industrial dispute pertaining to regularisation of his
services in gross violation of Section 33 of the I.D Act and in
contravention to the principles of natural justice since he was not
POIT NEW NO.: 6888/2016 Page 7 of 30
granted any opportunity to defend himself against the charges
levelled against the workman. Even otherwise, in case of
retrenchment, the management did not comply with the provisions
of Section 25F, G and H of the I.D Act and the provisions contained
in Section 25F(a) and (b) are mandatory and termination of service
of workman, without giving one month's notice or pay in lieu
thereof and retrenchment compensation is null and
void/illegal/inoperative. It has been further argued that the
management has committed unfair labour practice as enumerated in
Section 2 (ra) read with item 10 of Fifth Schedule of the Industrial
Disputes Act by treating him as mere daily wager despite him
performing the work of perennial nature.
12. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents proved during
evidence.
13. My issue wise findings are:-
Issue No. 1: As per terms of reference.
It is contended by the A.R. for the workman that the
management illegally terminated the services of the workman
concerned during the pendency of industrial dispute pertaining to
regularisation of his services in gross violation of Section 33 of the
I.D. Act. Reliance is placed upon Ex. WW1/29 i.e. Statement of
Claim filed on behalf of the workman, Ex. WW1/30 i.e. Written
Statement filed on behalf of the management and Ex. WW1/31 i.e.
Rejoinder filed before the Conciliation Officer. The Workman also
filed a Complaint u/s 33A of the I.D before the Conciliation Officer
POIT NEW NO.: 6888/2016 Page 8 of 30
Ex. WW1/32, to which the management has filed its Reply Ex.
WW1/33 and Ex. WW1/34 the rejoined therein.
14. The management, in its Written Statement dated 25.03.2011,
filed before this Tribunal has admitted at Para 9 that the present
claim is not maintainable because the claimant has already been
disengaged on 16.05.2006. Further, the management during the
cross-examination of the workman on 25.08.2009 gave a suggestion
the the services of the workman were disengaged by the
management on 16.05.2006 to which the workman admitted and
stated that "it is correct that I was disengaged by the management on
16.05.2006." This Tribunal also summoned Sh. Jagdish Chand,
Almad from the Office of the Labour Commissioner, who brought
the conciliation record in regard to the workman concerned. He
stated in his cross-examination dated 03.05.2013, that "the
statement of claim was filed by the workman on 03.04.2006 and
first date was fixed for 22.05.2006 which is at Point A on Ex.
WW2/A. Further, the Management Witness-01, namely, Sh. Chattar
Singh, admitted in his cross-examination dated 19.01.2010 that "it
is correct that the services of the workman were terminated on
16.05.2006." Therefore, the factum of termination during the
pendency of the dispute pertaining to regularisation is established.
When asked about the pendency of regularisation dispute, the
management showed complete ignorance and stated "I do not know
whether workman had filed any claim before conciliation officer
w.r.t. his regularisation." On the other hand, the MW admitted that
"Ex. WW1/30 is the reply of the management before the
conciliation officer." The management has very well participated in
POIT NEW NO.: 6888/2016 Page 9 of 30
the conciliation proceedings of regularisation of workman, and also
filed a written statement to this effect, but has shown complete
ignorance about the his regularisation case. Therefore, due to the
contrary stance taken by the management, the credibility of the
witness and his statement can not be accepted as it is. The workman
has established the factum of termination during the pendency of the
his dispute pertaining to regularisation before the conciliation
officer. The management has not placed any document on record to
show that it has taken prior permission from the
concerned/appropriate authority before terminating his services.
Now, the tribunal has to look into the effect of termination when no
prior permission is taken by the management.
15. The AR for the workman has placed its reliance upon the case
of the division bench of Hon'ble Delhi High Court in Badshah
Singh vs Delhi Jal Board, LPA No. 604/2014 decided on
27.08.2019, wherein the court after relying upon the constitution
bench judgement of Jaipur Zila Sahakari Bhoomi Vikas Bank
Ltd. v. Ram Gopal Sharma, Appeal (civil) 87-88 of 1988 decided
on 17.01.2002, held the termination order passed by the
management during the pendency of the industrial dispute without
seeking permission from the appropriate authority void ab initio.
The relevant poriton of the said judgement is reproduced below:
"15. The view that when no application is made or the
one made is withdrawn, there is no order of refusal of
such application on merit and as such the order of
dismissal or discharge does not become void or
inoperative unless such an order is set aside under
POIT NEW NO.: 6888/2016 Page 10 of 30
Section 33A, cannot be accepted. In our view, not
making an application under Section 33(2) (b) seeking
approval or withdrawing an application once made
before any order is made thereon, is a clear case of
contravention of the proviso to Section 33(2) (b). An
employer who does not make an application under
Section 33(2) (b) or withdraws the one made, cannot
be rewarded by relieving him of the statutory
obligation created on him to make such an application.
If it is so done, he will be happier or more comfortable
than an employer who obeys the command of law and
makes an application inviting scrutiny of the authority
in the matter of granting approval of the action taken
by him. Adherence to and obedience of law should be
obvious and necessary in a system governed by rule of
law. An employer by design can avoid to make an
application after dismissing or discharging an
employee or file it and withdraw before any order is
passed on it, on its merits, to take a position that such
order is not inoperative or void till it is set aside under
Section 33A notwithstanding the contravention of
Section 33(2) (b) proviso, driving the employee to have
recourse to one or more proceeding by making a
complaint under Section 33A or to raise another
industrial dispute or to make a complaint under
Section 31(1). Such an approach destroys the
protection specifically and expressly given to an
employee under the said proviso as against possible
victimization, unfair labour practice or harassment
because of pendency of industrial dispute so that an
employee can be saved from hardship of
unemployment."
16. The proviso of Section 33 of the I.D. Act makes it abundantly
clear that no such workman shall be discharged or dismissed, unless
POIT NEW NO.: 6888/2016 Page 11 of 30
he has been paid wages for one month and an application has been
made by the employer to the authority before which the proceeding
is pending for approval of the action taken by the employer. The
same view also found force from the case of Tops Security Ltd vs
Subhash Chander Jha, LPA 1044/2011 decided on 16.07.2012.
17. The AR for the workman has also argued that even otherwise,
the services of the workman were terminated in gross violation of
the principles of natural justice and he was not granted any
opportunity whatsoever to defend himself against the charges
levelled against the workman. Reliance is placed upon South Delhi
Municipal Corporation vs. Ramesh Singh, W.P.(C) No.
11226/2020 decided on 05.01.2021.
18. It is an admitted position that the workman concerned joined
into the employment of the management w.e.f. 09.09.1991 as School
Attendant and since then he worked continuously and
uninterruptedly till 16.05.2006. The management stated in his
written statement at Para 4 that a complaint dated 01.03.2002 was
received from Sh. Balbir Singh Vashisth wherein it was brought to
the notice of the management that the workman does not posses the
essential qualification for the post of School Attendant. Consequent
to which, the services of the workman were terminated by the
management vide letter dated 16.05.2006 on account of not being
able to produce certificate of VIII Pass. The management witness in
his cross-examination dated 19.01.2010 stated that "I can not say as
to whether any chargesheet was served by the management on the
workman. An inquiry was held in which the school certificate of the
POIT NEW NO.: 6888/2016 Page 12 of 30
workman had been called but no disciplinary inquiry was held
against him." It is the contention of the management that since the
workman concerned was merely a daily wager, therefore, no
departmental enquiry was conducted.
19. At this point attention is drawn towards the case of South
Delhi Municipal Corporation vs. Ramesh Singh, W.P.(C) No.
11226/2020 decided on 05.01.2021, wherein the Hon'ble Delhi
High Court has held that the principles of natural justice would
apply to a daily wager and the workman can not be terminated
without offering them the opportunity of being heard. The relevant
portion of the judgement is reproduced below:
"8. Mr. Birbal says that respondent/workman during
the course of the inquiry by the vigilance department
had made a statement that he had indulged in the
aforementioned activity as complained of by Smt.
Saroj.
8.1 Mr. Birbal, however, does accept that in the reply
to the show cause notice, the stand taken by the
respondent/workman was that the said statement was
made under coercion.
9. Mr. Birbal also accepts the fact that the
respondent/workman was given no opportunity to
either cross-examine the complainant i.e. Smt. Saroj or
to lead in his defence any evidence before the enquiry
officer.
9.1 Mr. Birbal, however, says that since the
respondent/workman was a daily-wager this procedure
was not adopted.
POIT NEW NO.: 6888/2016 Page 13 of 30
10. Be that as it may, in my view, if nothing less, the
principles of natural justice would definitely apply
even to a daily-wager.
11. The respondent/workman, in the very least, should
have been confronted by the complainant i.e. Smt.
Saroj so that he could have cross-examined her."
20. Therefore, as per the position laid down by the Hon'ble Delhi
High Court in the aforementioned case, the workman concerned
despite being a daily wager is entitled to the domestic/departmental
inquiry. Merely because he was a daily wager and not a regular and
permanent employee of the management, the basic tenets of the law
i.e. principles of natural justice can not go in vacuum and resume
once he becomes a permanent employee. These basic tenets of the
law, just like the industrial law, always remains and does not
discriminate between the part-time, seasonal muster-roll, daily
wagers, regular, permanent or any other category of the workman
for that matter. In the present case, it is an admitted position that no
domestic/departmental inquiry was conducted before terminating
the services of the workman concerned. The Hon'ble Supreme
Court in MCD vs. Naresh Kumar & Ors., Writ Petition (C) No.
2989 of 2002 decided on 27.08.2007, where in similar facts and
circumstances the termination of the services of the workman was
held illegal and non-est. The relevant portion of the judgement is
reproduced below:
16. The counsel for the respondent workman has
rightly relied on the judgment of the Supreme Court in
the case of Praveen Kumar Jain (supra) where the
circumstances were similar to the case in hand, the
employee having indulged in a misconduct, his
POIT NEW NO.: 6888/2016 Page 14 of 30
services were terminated without holding a
departmental enquiry. After taking note of the facts of
the case, the Supreme Court held as below:
Para 4 : Unfortunately, for the appellant the
impugned order of termination extracted above
does not show that it was passed after a
departmental enquiry wherein the disciplinary
authority was satisfied about the said misconduct.
On the contrary, it seeks to terminate the services
of Respondent 1 by way of a simple discharge and
not by way of any penalty. It is only during the
proceedings before the Labour Court that a
different stand was taken that it was by way of
penalty. This stand was obviously taken by the
appellant because the order of simplicities
termination would have remained stillborn as
Section 25F of the Industrial Disputes Act was
admittedly not complied with by the appellant.
With this difficulty staring in the face, a stand was
taken that it was by way of penalty. If it was by
way of penalty then at least a regular
departmental enquiry had to be conducted. It was
also required to be followed by the enquiry
officer's report resulting in adverse finding
against Respondent 1 and its acceptance by the
disciplinary authority. Nothing of this sort was
done. There is neither the enquiry officer's report
holding Respondent 1 guilty of charge which in
fact was never framed against him nor is there any
acceptance of such a finding of the enquiry officer
by the disciplinary authority. In fact the
disciplinary authority has never held Respondent
1 guilty of any charge of misconduct....
17. Same is the situation even in the present case.
The petitioner MCD did not conduct any
departmental enquiry prior to issuance of the
termination order and consequently, the impugned
order of termination is illegal and non est. As
observed above, even a implicate discharge order,
passed without following the due process of law is
POIT NEW NO.: 6888/2016 Page 15 of 30
vocative of Section 25F of the Act. The respondent
workman before being visited by such a grave
civil consequence as termination of service was
entitled to be afforded an opportunity of hearing
followed by a departmental enquiry. There is force
in the plea of the respondent workman that the
petitioner MCD was well entitled to prove the
misconduct even before the Labour Court.
However, neither was such a plea taken in the
written statement, nor was any other effort made
by the petitioner MCD to seek an opportunity to
prove the allegations leveled against the
respondent workman.
21. Even otherwise, in the present case the management did not
comply with the provisions of Section 25F, G and H of the I.D Act.
Nothing is placed on record by the management that before
termination of the services of the workman concerned, he was given
one month notice, notice pay or retrenchment compensation among
other things. It is a well settled position of law that the provisions
contained in Section 25F(a) and (b) are mandatory and termination
of service of workman, without giving one month's notice or pay in
lieu thereof and retrenchment compensation is null and
void/illegal/inoperative as held by the Hon'ble Supreme Court in
Devinder Singh vs. Municipal Council, Sanaur, AIR 2011 SC
2532.
"19. Section 25 couched in negative form. It imposes a
restriction on the employer's right to retrench a
workman and lays down that no workman employed in
any industry who has been in continuous service for
not less then one year under an employer shall be
retrenched until he has been given one month's notice
in writing indicating the reasons for retrenchment and
the period of notice has expired or he has been paid
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wages for the period of notice and he has also been
paid, at the time of retrenchment, compensation
equivalent to fifteen days' average pay for every
completed year of continuous service or any part
thereof in excess of six months and notice in the
prescribed manner has been served upon the
appropriate Government or the authority as may be
specified by the appropriate Government by
notification in the Official Gazette.
20. This Court has repeatedly held that the provisions
contained in Section 25F(a) and (b) are mandatory
and termination of the service of a workman, which
amounts to retrenchment within the meaning of Section
2(oo) without giving one month's notice or pay in lieu
thereof and retrenchment compensation is null and
void/illegal/inoperative."
22. In view of the admitted position and the mandate of the law,
this tribunal holds that the management has terminated the services
of the workman concerned during the pendency of his dispute for
regularization of his services without taking prior permission from
the concerned authority and the same is in contravention to Section
33 of I.D. Act. Thus, management has clearly committed unfair
labour practice as mentioned in the Fifth Schedule at Item No. 5(a),
(b) and (f) of the I.D. Act by terminating the services of the
workman concerned by way of victimization and in colourable
exercise of employer's rights.
23. This tribunal further holds that the management did not
follow the principles of natural justice as no domestic/departmental
inquiry was conducted and services of workman were terminated on
16.05.2006 with undue haste and without offering any opportunity
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of being heard. Even in case of termination simpliciter, the
management contravened Section 25 F, G and H of the I.D. Act.
24. The AR for the workman has argued that once the termination
is held to be illegal the normal relief is to award reinstatement with
continuity in service with full backwages. He placed reliance upon
the judgement of Hon'ble High Court in Delhi Transport
Corporation vs Ram Kumar And Another, 1982 (44) FLR 356
wherein it was held that once the termination is held to be illegal
and unjustified, the normal rule is to award reinstatement with full
backwages and continuity in service except when the workman is
gainfully employed coupled with receiving wages equivalent to his
last drawn salary at the time of his illegal termination. The Para 14
of the aforementioned judgement is as follows:
"......The principle is that when an employee after
protracted litigation with the employer succeeds in
showing that the termination of his service was
unjustified he would normally be entitled to
reinstatement with full back wages expecting of course
if it could be shown that he had been gainfully
employed in the meanwhile. Thus full back wages
would be the normal rule and the party objecting to it
must establish the circumstances necessitating
departure, See Gujarat Steel Tubes Ltd. v. Its
Mazdoor Sabha MANU/SC/0369/1979 : (1980)
ILLJ137SC. Thus, if the employer wishes to show that
workman gainfully employed he must establish and
prove that fact; no presumption of being gainfully
employed can be raised. It is not dispute that no
evidence has been led or even shown on the record by
the appellant which shows that workman was at any
time in between employed elsewhere. In that view there
would be no justification for denying him full back
POIT NEW NO.: 6888/2016 Page 18 of 30
wages. The mere fact of long time having elapsed is
certainly not a reason to deny him his normal relief of
reinstatement because as said in Panitole Tea Estate
case. "If his dismissal was wrongful then merely
because proceedings for adjudication of the industrial
disputes have taken a long time is by itself no reason
for not directing his reinstatement if it is otherwise
justified being in accordance with normal rule."
25. Further, reliance upon case of Deepali Gundu Surwase vs
Kranti Junior Adhyapak & Ors., Civil Appeal No. 6767/2013
decided on 12.08.2013 wherein the Hon'ble Supreme Court has held
that onus to prove that the gainful employment shifts to the
management once the workman has pleaded that he/she is not
gainfully employed elsewhere. The Para 33 of the aforementioned
judgement is as follows:
"33 (iii) Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting
back wages is required to either plead or at least make
a statement before the adjudicating authority or the
Court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the
employer wants to avoid payment of full back wages,
then it has to plead and also lead cogent evidence to
prove that the employee/workman was gainfully
employed and was getting wages equal to the wages
he/she was drawing prior to the termination of service.
This is so because it is settled law that the burden of
proof of the existence of a particular fact lies on the
person who makes a positive averments about its
existence. It is always easier to prove a positive fact
than to prove a negative fact. Therefore, once the
employee shows that he was not employed, the onus
lies on the employer to specifically plead and prove
that the employee was gainfully employed and was
getting the same or substantially similar emoluments.
POIT NEW NO.: 6888/2016 Page 19 of 30
26. The Hon'ble Delhi High Court in the case of Municipal
Corporation of Delhi vs. POIT & Anr., W. P. (C) 6024/1999
awarded reinstatement once the services of the workman were found
to be terminated in contravention to Section 25G of the I.D. Act.
The relevant para is reproduced below:
"In the present case, the MCD has not been able to
produce evidence to show that while terminating
services of the Respondent workman it complied with
the requirements of Section 25G ID Act. Mr. Rajiv
Aggarwal, learned counsel for the workman submitted
that the workman is in dire need of employment and in
such circumstances the award of compensation would
not be an adequate remedy. Given the difficulty in
obtaining employment, the submission on behalf of the
workman appears to be justified. In a case like this,
lumpsum compensation in lieu of reinstatement cannot
be an adequate or satisfactory remedy for Respondent
No. 2 workman.
27. The workman has stated in his statement of claim and
Affidavit that he remained unemployed since the date his services
were illegally terminated by the management. The management has
not placed any document on record to show that the workman
concerned is gainfully employed and drawing equivalent salary. In
the absence of any evidence that the workman is gainfully employed
elsewhere, this tribunal can not assume the same. Moreover, no
exceptional circumstances or situations were advanced by the AR
for the management as to why this tribunal should deviate from the
normal rule of reinstatement and continuity in service along with
full back wages once the termination is held to be illegal. In view of
the aforementioned reasons, this tribunal holds that the workman
POIT NEW NO.: 6888/2016 Page 20 of 30
Sh. Sunder Pal Sharma S/o Sh. Ram Pratap Sharma is entitled for
reinstatement along with continuity in service and full backwages.
28. Now dealing with the regularization aspect of the case, the
AR for the Management has drawn attention of this Tribunal to the
case of Secretary, State of Karnataka and others vs. Umadevi
and others, appeal (civil) 3595-3612 of 1999, decided on
10.04.2006 and Uma Rani vs. Registrar Co-operative Society as
reported in (2004) 7 SCC 112, , wherein it was held regularization is
not and cannot be a mode of recruitment by any State within the
meaning of Article 12 of the Constitution of India or any body or
authority governed by a statutory Act or the Rules framed
thereunder. Regularization furthermore cannot give permanence to
an employee whose services are ad hoc in nature. It was also held
that the fact that some persons had been working for a long time
would not mean that they had acquired a right for regularization.
Further, it was also argued that the management has its own policy
of regularization i.e. phase manner regularization policy and the
management regularizes its daily wage muster roll-employees as per
availability of the posts and funds and the said policy was upheld by
the Hon'ble Delhi High Court in MCD vs. Gauri Shankar & Ors.,
WPC No. 601/1997 dated 31.08.1999 and MCD vs. Brij Mohan,
WPC No. 17932/2004 dated 27.10.2005.
29. The workman representative has argued that the management
has committed unfair labour practice as enumerated in Section 2 (ra)
read with item 10 of Fifth Schedule of the Industrial Disputes Act
and further submitted that employing the workman on regular and
POIT NEW NO.: 6888/2016 Page 21 of 30
permanent post of School Attendant and treating him as mere
temporary workman and to continue them for several years with the
object of depriving the status of permanent workman amounts of
unfair labour practice as regularizing their services would mandate
the management to pay the salary in regular payscale to the
workman. He placed his reliance upon the judgment of Hon'ble
Supreme Court titled as Chief Conservator of Forest and Anr. ,
(1996) 2 SCC 293 and the judgment of Hon'ble Delhi High Court
titled as Project Dir. Dep. Of Rural Development v. Its
Workmen, 2019 SCC OnLine Del 7796.
30. This tribunal has considered all the material on record as well
as legal submissions of the parties and is of the opinion that this
tribunal has power to regularize the services of the workman in the
light of the judgment of Hon'ble Supreme Court titled as Chief
Conservator of Forest and Anr. (supra), the judgment of Hon'ble
Delhi High Court titled as Project Dir. Dep. Of Rural
Development v. Its Workmen, (supra). The relevant portion of the
aforesaid judgement is reproduced below:
"28. The decisions relied upon by the learned counsel for
the respondents in Ajaypal Singh (supra), ONGC (supra)
and Umrala Gram Panchayat (supra), also leave no
manner of doubt that the Supreme Court has specifically
observed that the prohibition laid down for regularization
in Uma Devi (supra) does not apply to industrial
adjudication and that the Industrial Tribunal has the
power to direct regularization of services in cases where
pursuant to unfair labour practices, employees have been
made to render services for long periods of time on causal
basis for work that should ordinarily be done by regular
employees."
POIT NEW NO.: 6888/2016 Page 22 of 30
........
"61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
31. The Constitution Bench of the Hon'ble Supreme Court in the case of Bidi, Bidi Leaves' and Tobacco Merchants Association vs. The State of Bombay, Civil Appeals Nos. 415 to 418 of 1960 decided on 15.11.1961 has held that the tribunal has the power to create new rights and liabilities upon the employer. The relevant portion of the judgment is reproduced below:
"15. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat POIT NEW NO.: 6888/2016 Page 23 of 30 Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay it has been repeatedly held that the jurisdiction of Industrial Tribunals is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, Patna Electric Supply Co. Ltd.,Patna v. Patna Electric Supply Workers' Union ).
32. In view of the above, the argument of the management that this tribunal does not have the power to regularize the services of the workman concerned in view of Uma Devi (supra) is misplaced in law.
33. Now moving on to the factual matrix of this case, it is undisputed that the workman joined into the employment of the management in the month of w.e.f. 09.09.1991 as School Attendant on daily wage basis on employment exchange, however, he was paid his salary during the end of the month. It has also come on the record that the mangement had issued a letter calling upon the workman to appear before the Selection Board. After the successful conduction of interview, the workman was taken into the job. He had worked continuously and uninterruptedly from his initial date of appointment i.e. 09.09.1991 till 16.05.2006 i.e. the date of his illegal termination. On 01.03.2002 one Sh. Balbir Singh Vashisth made a POIT NEW NO.: 6888/2016 Page 24 of 30 complaint to the management that the workman Sh. Sunder Pal, who was performing as School Attendant did not possess the requisite qualification i.e. VIII th pass for the associated post. The management has also placed reliance on Annexure C i.e. Recruitment Rules for the post of School Attendant which at point VII lists the education qualification of VIII th pass required for the said post. The workman in his cross-exmination dated 25.08.2009 had admitted that he had never passed the VIII th class examination. The workman on the other hand has filed additional list of documents containing the list of school attendants working with management (SP Zone) alongwith their educational qualification, wherein the co-workers namely Smt. Satwant Kaur, Smt. Veena Sharma, Smt. Afroz Begum (VII th pass), Smt. Kamla Devi, Sh. Ashok Kumar, Sh. Jamna Devi are mere literate and the same does not suggest whether or not they have qualified the embargo of class VIII. Similarly, same is the case with Ms. Kamla, who is working as the school attendant in Education Department, Karol Bagh Zone. Further, as per the RTI reply dated 24.06.2015 at page 2 Smt. Batto W/o Mauji Ram; at page 12 Ms. Bimla, Ms Darshna; at page 14 Ms. Ram Bhateri; at page 16 Ms. Parmeshwari Devi; at page 22 Ms. Ram Devi are shown as mere literate; at page 18 Ms. Samudri, Ms. Nirmala Devi at page 24, who are working as regular and permanent School Attendant are illiterate. It is in workman's case, coincidently right after raising an industrial dispute for regularisation of his services, the management adversely discreminated against the workman and terminated his services merely on the ground, he could not produced his class VIII th passing certificate, whereas on POIT NEW NO.: 6888/2016 Page 25 of 30 the other hand, the management having regular and permanent school attendants who are illetrate and do not possess any qualification whatsoever. The reliance of the management on the Recruitment Rules for the post of school attendant seems misplaced because, the said rules were applicable in case of direct recruitment as mentioned at point X, whereas on the other hand, the workman concerned was appointed by the management as daily wager in the year 1991 and he has an unblemished record of service since then. It is not disputed that the job of School Attendant is permanent and perennial nature. The management has not placed any document on record to show that there is any complaint/work definciency in his work. All this while, the workman has performed his work without any complaint.
34. The hon'ble Supreme Court in the case of Bhagwati Prasad And Ors vs Delhi State Mineral Development Corporation, AIR 1990 SCC 371 has held that once the appointments were made as daily rated workers and the workmen were allowed to work for a considerable period of time then their regularisation cannot be denied on the ground that they lacked prescribed educational qualification. The relevant portion of the judgment is reproduced herein under:-
"6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indis- putable facts are that the petitioners were appointed be- tween the period 1983 and 1986 and eversince, they have been working and have gained POIT NEW NO.: 6888/2016 Page 26 of 30 sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effec- tively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments 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 qualifications. In our view, three years' experience, ignoring artificial break in serv-ice for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be exclud- ed in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regula-rised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts.
35. In view of the admitted position, the material on record and the mandate of law, this tribunal holds that the regularisation of POIT NEW NO.: 6888/2016 Page 27 of 30 the workman concerned cannot be denied merely because he lacked the requisite qualificaion i.e. "VIII th pass" for the post of School Attendant. Once he was employed by the managmeent on daily wages as School Attendant in the year 1991 and had been working since then, now the mangment after 15 years of his service cannot terminate and not regularise his services citing the technicality of VIII th pass. This tribunal further hold that the management has clearly committed unfair labour practice by employing the workman as daily wager for performing the permanent nature of work of School Attendant and continued him for years with the object of depriving him the status and privileges of a regular and permanent employee. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest (supra) wherein the Hon'ble Supreme Court of India had held that employing workers on temporary worker for long periods and denying them the status and salary of a regular employee amounts to unfair labor practice as giving them the status and privileges of permanent employee would require the management to pay the workman higher than the one fixed under the Minimum Wages Act. In these circumstances, this tribunal holds that the workman, Sh. Sunder Pal Sharma S/o Sh. Ram Pratap Sharma is entitled for regularization in service on the post of Beldar. Therefore, the terms of reference is decided in favour of the workman and against the management.
Issue No. 3: Relief
36. To sum up the findings arrived above, this tribunal holds that the management has illegally terminated the services of POIT NEW NO.: 6888/2016 Page 28 of 30 the workman concerned during the pendency of his regularization dispute. Even otherwise, the management did not follow the principles of natural justice as no departmental/domestic inquiry was conducted before termination of services and in case of retrenchment the provisions of Section 25F, G and H were not followed. Therefore, the workman Sh. Sunder Pal Sharma S/o Sh. Ram Pratap Sharma is entitled for reinstatement along with continuity in service and full backwages.
37. With respect to the regularization, the management has stated that it has a regularization policy regarding regularization of employees of the management. However, no such policy has been placed on record by the management. The AR for the managment has submitted that the School Attendant who joined in the year 1991 were regularized by the management w.e.f. 01.04.1999. The management witness has also admitted the factum of regularisation of School Attendants who joined in the year 1991 in his cross- examination. Keeping in view the policy of the management and the factum of regularization of co-workers, this tribunal holds that the services of the workman Sh. Sunder Pal Sharma S/o Sh. Ram Pratap Sharma shall be regularized on the post of School Attendant w.e.f. 01.04.1999 in regular pay scale with all consequential benefits either monetary or otherwise. Since the workman was passed away on 27.07.2016, in view of the same, this tribunal further held that Sh. Abhishek S/o late Sh. Sunder Pal Sharma would be entitled to all arrears of Late Sh. Sunder Pal Sharma with interest of 8% from the date of accrual to till the final payments are made.
POIT NEW NO.: 6888/2016 Page 29 of 3038. The terms of references are answered in favour of the workman and against the management. The award is passed accordingly.
39. Copy of the award be sent to the appropriate Government for publication as per rules.
File be consigned to the Record Room.
Announced in the open Tribunal on this 05.07.2023 (Ajay Goel) POIT-I/RADC, New Delhi POIT NEW NO.: 6888/2016 Page 30 of 30