Delhi District Court
Sh. Ifrahim Ali vs Delhi Development Authority on 12 February, 2024
IN THE COURT OF SH. AJAY GOEL: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE
AVENUE DISTRICT COURTS, NEW DELHI.
Ref. No.: F.24(3302)/96-Lab./40598-602
Dated : 27.08.1996
POIT NEW NO.: 186/2016
OLD POIT NO. 118/1996
Workman
Shri Ifrahim Ali S/o Sh. Bashir Ahmad,
Asstt. Planning Draftman,
Work posted in Area Planning,
6th Floor, Vikas Minar, New Delhi.
as represented by
Municipal Employees' Union,
Agarwal Bhawan, G. T. Road,
Tis Hazari, Delhi-54
Vs.
The Management of
M/s. Delhi Development Authority
through its Secretary,
Vikas Sadan, I.N.A. Market,
New Delhi
Date of Institution : 02.12.2013
Date of presentation : 20.04.2023
before this court
Date of Arguments : 12.02.2024
Date of Award : 12.02.2024
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
POIT No. 186/16 Page 1 of 40
parties named above for adjudication to this Tribunal with following
terms of the reference:-
"Whether the action of the management in
regularising Shri Ifrahim Ali on the post of Work
Assistant w.e.f. 06-03-84 is justified and if not, to
what relief is he entitled and what directions are
necessary in this respect?"
2. Statement of Claim has been filed wherein it has been
averred by the workman Shri Ifrahim Ali joined the employment of
Delhi Development Authority w.e.f. 23.11.81 as a Planning
Draftsman and worked from 23.11.81 to 05.03.84 as a Planning
Draftsman and he was treated as daily rated/casual/muster roll
worker although he was taken into the employment against a
permanent post. Thereafter, he was regularised as Work Assistant
w.e.f. 06.03.84 in the pay scale of 975-1540 which is revised to Rs.
1200-1800 w.e.f. 16.05.89. From his initial date of joining 23.11.81,
he was assigned the job of Planning Draftsman till this day and it
carries the pay scale of 1400-2600 with usual allowances admissible
under the rules to which he is entitled w.e.f 23.11.81. The
management dishonestly treated him as a muster roll worker and
paid lesser remuneration than those doing the identical work and the
work of the same value and did not regularise him on the post of
Planning Draftsman w.e.f. 23.11.81.
It is further averred that non-regularisation of the workman
on the post of Planning Draftsman in the pay scale of 425-640
revised to the pay scale of 1400-2600 w.e.f. 01.01.86 and denial of
salary of the Planning Draftsman w.e.f 23.11.81 on the basis of
equal pay for equal work is wholly illegal, bad, unjust and malafide
and this action of the management amounts to unfair labour practice
as provided in Section 2(ra) read with Item No. 10 of the Vth
POIT No. 186/16 Page 2 of 40
Schedule and read with Section 25 T punishable under Section 25 U
of the Industrial Disputes Act. 1947. It is further averred that even
otherwise the workman concerned has acquired the status of a
permanent Planning Draftsman w.e.f. 23.11.1981 after completing
90 days of continuous employment as provided in the Model
Standing Orders framed under the Industrial Employment (Standing
Orders) Act, 1946. The Delhi Development Authority has not
framed any rules governing the service conditions of daily rated
workers nor it has any certified standing orders governing the
service conditions of such workers. The Fundamental Rules, C.C.S.
Rules.
It is prayed that an Award be passed in favour of the workmen
Shri Ifrahim Ali holding him entitled to be regularised on the post of
Planning Draftsman with retrospective effect from 23.11.81 in
proper pay scale and allowances. It is further prayed that he be also
held entitled to the difference of salary on the principle of equal pay
for equal work for the period from 23.11.81 onward.
3. Written statement has been filed by the management,
wherein objections have been taken that:
(a) It is contended by the management the claim is not
maintainable under the provisions of Industrial Disputes Act
1947 as there exists no dispute between the parties because
D.D.A. is not an Industry and it is an authority to provide
welfare and betterment of the citizen of N.C.T. Delhi.
(b) It is further contended that no legal notice/demand notice has
been served upon the management /respondent as required
under law.
(c) It is further contended that the petition is not a proper form as
required by law, hence, present claim is not maintainable.
POIT No. 186/16 Page 3 of 40
(d) It is further contended that the workman was appointed on
daily wages as Draftsman on dated 23.11.981 and he was paid
at the rate notified by Delhi Administration from time to time.
Initially the workman was appointed on Muster Role and
thereafter he was converted into Work Charge Assistant w.e.f.
06.03.84 by D.D.A., as per his acceptance. It is further
contended that since then he is doing the work of Work
Assistant and he never objected in respect of his conversion
into Work Charged Establishment as Work Assistant. It is
further contended that the workman is not entitled to be
regularised on the post of Planning Draftsman w.e.f.
23.11.1981 and that the action of the management is legal and
justified. Rest of the contentions of the statement of claim
more or less are denied.
4. Rejoinder was filed on behalf of the workmen wherein all
objections raised in the preliminary objections have been denied by
the workmen and reiterated and affirmed the contentions made in
their statement of claim filed by them.
5. On the pleadings of the parties following issues were framed
by my ld. Predecessor on 11.08.1998 as per ex-parte award dated
30.08.1999.
1. As per terms of reference.
6. Perusal of court file reveals that during the trial before
Industrial Tribunal prior to remand back of the case, the
management initially appeared and filed its written statement but it
stopped appearing and an ex-parte award dated 30.08.1999 was
passed holding the workman entitled for regularisation on the post
of planning drafsman w.e.f. 23.11.1981 with proper pay scale and
allowances alongwith arrears of difference of salary on the principal
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of equal pay for equal work. The management preferred W.P (C) No
5669/2000 before Hon'ble High Court against the said ex-parte
award. The Hon'ble High Court of Delhi after setting aside the ex-
parte award dated 30.08.1999 remanded back the present case to this
tribunal, subject to cost of Rs. 20,000/- to be paid to workman by
the management. As per record the aforesaid cost was duly paid to
the workman vide cheque no. 317568 dated 28.11.2013. It has
further come to the notice of this tribunal from report received from
Record Room that present case file was destroyed on 26.12.2011
during weeding out process, thereafter, the case file was ordered to
be reconstructed on the basis of the proceedings filed by the parties
available with them. Perusal of file further reveals that vide order
dated 29.09.2014, my ld. Predecessor allowed the application dated
03.07.2014 filed on behalf of workman for leading additional
evidence. Accordingly, copy of affidavit of workman Sh. Ifrahim Ali
was filed by the workman and certain documents were taken on
record.
7. To prove his case, workman examined himself as WW1 and
tendered his evidence by way of affidavit Ex.WW1/A. He also
relied upon documents Ex.WW1/1 to Ex. WW1/9 and further relied
upon Ex. WW1/10 to Ex. WW1/29 alongwith Mark A to Mark S.
Ld. AR for the management has duly cross examined the workman.
8. To prove issue of espousal, workman examined Sh. Surender
Bhardwaj, General Secretary of Municipal Employees Union as
WW-2 and tendered his evidence by way of affidavit Ex. WW2/A.
He was also cross-examined by ld. AR for the management.
Thereafter, WE was closed and matter was fixed for management
evidence.
9. To prove its case, management examined one Sh. Sushil
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Kumar, Executive Engineer, DDA as MW1. He tendered his
evidence by way of affidavit Ex.MW1/A. However, perusal of order
sheet dated 04.10.2018 reveals that said witness could not appear
before the court as he was out of India and thus, management
examined Sh. Siddhant Kashyap, Executive Engineer, DDA as
MW1. He filed his evidence by way of affidavit Ex.MW1/A in
which he affirmed the contents of the written statement and relied
upon documents Ex.MW1/1 (colly) to Ex.MW1/2. MW-1 was duly
cross-examined by ld. AR for the workmen. Thereafter,
management evidence was closed.
10. Final arguments have been heard at length as advanced by
both the parties.
11. My issue wise findings are:
Issue No. 1:
"1. As per terms of reference."
"Whether the action of the management in
regularizing Shri Ifrahim Ali on the post of Work
Assistant w.e.f. 6-3-84 is justified and if not, to
what relief is he entitled and what directions are
necessary in this respect?"
12. Before moving on to the issue of regularisation this tribunal
had to see if the case of the workman has been properly espoused by
the union. In order to prove the proper espousal, the Ld. A.R. for the
workman has placed reliance upon Ex. WW1/3 i.e. resolution dated
01.01.1995 passed by the Municipal Employees' Union for raising
an industrial dispute in favour of the workman. He also placed
reliance upon the judgement of the Hon'ble Delhi High Court in
Omji Srivastava and Ors. vs. P.W.D./C.P.W.D.,
2023/DHC/002013 decided on 17.03.2023, wherein the Hon'ble
Delhi High Court after relying upon the case of Hon'ble Supreme
POIT No. 186/16 Page 6 of 40
Court in J.H. Jadhav v. M/s Forbes Gokak Ltd., Civil Appeal No.
1089 of 2005, decided on 11.02.2005 has held that the cause of the
workman is properly espoused by the union. The relevant portion of
the judgment is reproduced below:
"20. Based on the said legal principle, this Court
examined the evidence adduced by the
Petitioners/Workmen. The Petitioners/Workmen proved
on record Exhibit WW-2/1 (Statement of Claim dated
23.12.2002 filed by the Hindustan Engineering General
Mazdoor Union on behalf of the Petitioner before the
Conciliation officer), Exhibit WW2/2(AD card for the
legal notice issued by the Union), Exhibit WW-2/3
(Authorisation letter dated 23.12.2002 issued by the
Petitioners/Workmen to Hindustan Engineering
General Mazdoor Union), Exhibit WW2/4 to Exhibit
WW2/7 (Demand letters dated 23.12.2002 &
05.02.2002 issued by the Hindustan General Mazdoor
Union to the Respondent No. 1 Management espousing
the cause of the Petitioners/Workmen). These
documents show that the Petitioners/Workmen
authorized the Hindustan General Mazdoor Union to
take up the cause. In pursuance of the said
authorisation, the said union issued demand letters and
filed the claim petition before the Conciliation Officer.
Based on the said claim Petition, the appropriate
Government referred the said dispute to the learned
Labour Court for adjudication. Just because there was
no witness from the Union, it cannot be said that the
cause of the Petitioners/Workmen has not been
espoused by the Union."
"21. As held by Hon'ble Supreme Court in J.M Jhadav
vs. Forbes Gokak Ltd reported as MANU/SC/0103/2005
: 2005 (3) SCC 202, there is no particular form
prescribed to effect the espousal. Generally, Union
passes resolutions, however sometimes proof of support
by the Union may also be available aliunde. It would
depend upon the facts of each case. In the present case,
even though no resolution was placed on record on
behalf of the Union, from the documents placed on
record by the Petitioners/Workmen, i.e. Exhibit WW2/1
to WW2/7, it is evident that the Hindustan General
POIT No. 186/16 Page 7 of 40
Mazdoor Union has espoused the cause of the
Petitioners/Workmen."
13. The similar issue came up before the Division Bench of
Hon'ble Kerala High Court in the matter of Mangalam
Publications (India) Pvt. Ltd. v. Saju George, W.A. No. 964 of
2020, decided on 01.12.2020 and held:-
"7... There is no doubt about the fact that the workman
was a member of the concerned WA No.964/2020 union.
According to the workman, the cause of the workman
was undertaken by the union even at the initial stage.
Apparently, there was no objection from the side of the
management during the relevant time. Thereafter, the
matter was considered and ultimately the dispute had
been referred for consideration by the Tribunal. Once a
reference had been made at the instance of the union, it
is not open for the management to contend at this stage
of the proceedings that the cause of the workman had
not been espoused by the union."
14. Moreover, the Hon'ble Delhi High Court in the case of
Pratap Singh & Anr. vs. Municipal Corporation of Delhi, WP(C)
No. 676/2013 vide order dated 04.02.2013 reversed the findings of
the Ld. Labour Court on the issue of espousal by categorizing it as
hypertechnical and held that the cause of the workman is properly
espoused by the union. The relevant portion of the judgement is
reproduced below:
"Learned counsel for the respondent fairly cannot
dispute the position that the view taken by the Labour
Court on the issue of espousal of the petitioners cause is
hyper technical. There is no dispute about the fact that
the union had held its meeting on 22.10.2005 and
decided to espouse the petitioners cause, on which date,
the espousal letter was also issued by the union. Merely
because Sh. B.K. Prasad may not have been the
president of the union on the said date and he became
the president in the year 2007, would make no
POIT No. 186/16 Page 8 of 40
difference. Such a hyper technical view defeats the
objective of the Industrial Disputes Act, 1947. The mere
wrong description of the designation of Sh. B.K. Prasad
in the espousal letter would not render the fact of
espousal of the petitioners cause unreliable. Pertinently,
the MCD General Mazdoor Union is a recognized
union and the said union has not come forward to claim
that they had not espoused the cause of the petitioners
on 22.10.2005. Accordingly, the decision of the Labour
Court on issue no.2 is reversed. It is held that the
petitioners cause was duly espoused by the MCD
General Mazdoor Union."
15. The workman in order to prove the proper espousal has
placed on record, Ex. WW1/1, i.e., a copy of the legal demand
notice dated 27.02.1995 which was sent on the letterhead of the
Municipal Employees Union. The Statement of Claim i.e. Ex.
WW1/4 is also filed by the same union before the conciliation
officer of the Govt. of NCT of Delhi. The union has also filed its
resolution dated 01.01.1995 i.e. Ex. WW1/3, wherein the union
decided to raise an industrial dispute in favour of the workman.
Moreover, the workman has also examined Sh. Surender Bhardwaj
(WW-2), General Secretary of the Municipal Employees Union who
also corroborated the testimony of the workman.In view of the
above, this tribunal is of the opinion that the workman has placed
sufficient material on record to prove that their case is properly
espoused by the union.
16. Now moving on to the merits of the case, it is the case of the
workman that he joined employment with the Delhi Development
Authority (DDA) on 23.11.1981 as a Planning Draftsman. He has
worked as such from 23.11.1981 to 05.03.1984, during which time
he was treated as a daily rated, casual, or muster roll worker, despite
being hired for a permanent post of Planning Drafting and
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discharging its duties. The management regularised his services on
the post of a Work Assistant, as opposed to Planning Draftsman
w.e.f. 06.03.1984, with an initial pay scale of 975-1540, which was
later revised to 1200-1800 effective from 16.05.1989. The workman
is aggrieved with the action of the management of regularising his
services on the post of Work Assistant as opposed to Planning
Draftsman and that too w.e.f. 06.03.1984 instead of his initial date
of joining. He has averred that he has continuously and exclusively
performed the duties of a Planning Draftsman and such he is entitled
to be regularised on the post of Planning Draftsman w.e.f.
23.11.1981.
17. The management in its written statement has admitted that the
workman was appointed on daily wage basis as Draftsman on
23.11.1981 and was paid wages as notified by the Delhi
Administration from time to time. It is submitted that he was
initially appointed on muster roll basis, and thereafter he was
converted to work charge establishment as Work Charge Assistant
w.e.f. 06.03.1984 after his acceptance and continued to perform the
said job. The workman never objected to his conversion from
"Planning Draftsman" to that of "Work Assistant". Therefore, he is
not entitled to be regularised on the post of Planning Draftsman. The
management has further denied that the workmen have been
continuously performing the duties of Draftsman from 23.11.1981,
to till this date. It is contested that the nature of duties and other
service conditions of muster roll and regular employees are not the
same. Daily wagers are not accountable to any authority, and no
sensitive work is assigned to them, unlike regular employees. The
work of daily wagers is not identical, and their status and nature of
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appointment differ from that of regular employees. It is averred that
the workman had been rightly regularised/converted to the post of
Work Assistant and since then he had been performing the work
Assistant to till the date of his retirement.
18. The workman, in support of his claim, has placed reliance
upon Ex. WW 1/8, which is the experience certificate dated
01.09.1984 issued by the Delhi Development Authority. It bears the
signature of Sh. I. Mohan, Deputy Director (City Planning), and
records, "Certified that Shri Ifrahim Ali S/o Shri Bashir Ahmad
has been working since 23-11-1981 to till date, in City Planning
Wing(U.V.P.C.) of Delhi Development Authority as a
draftsman(Civil) on Daily Wages at the rate of Rs.18.50/- per
day." Ex. WW1/9, an order dated 31.03.1993 issued by the Delhi
Development Authority bearing the signatures of the Joint Director
(AP)-I, states that "With reference to the decision taken in the
Chamber of Commander (Plg.), Sh. Ifrahim Ali, Plg D/man is
hereby temporarily transferred to Dwarka Project Unit-II to assist
in the preparation of the Zonal Plan for Planning Division-IV....
Sh. Ifrahim Ali, Plg D/man will report to Sh. H.S. Sikka, Jt.
Director (Plg.)." Ex. WW1/18 to Ex. WW1/28 are the absentee
statements issued by the management to the workman from
21.11.1995 to 20.12.1995, from 21.07.2004 to 20.08.2004, from
16.04.2006 to 15.05.2006, from 21.08.2004 to 20.09.2004, from
16.03.2006 to 15.04.2006, from 16.05.2006 to 15.06.2006, from
16.10.2005 to 15.10.2005, from 16.08.2005 to 15.09.2005, from
15.07.2005 to 16.08.2005, from 16.06.2005 to 15.07.2005, and from
11.10.2009 to 10.11.2009 recording the workman, Sh. Ifrahim Ali,
working as Plg. D/man (i.e., Planning Draftsman). Ex. WW1/29 is
POIT No. 186/16 Page 11 of 40
the Draft Zonal Development Plan, Zone-H (North West Delhi-I),
mentioning the name of the workman Sh. Ifrahim Ali, along with his
signature and designation as "yojna paropkar," i.e., Planning
Draftsman.
19. The workman in his cross-examination dated 03.05.2018
deposed that he is 59 years old as of the current date and is still
working with the management. He admitted it to be correct that
from 06.03.1984, he is working on the post of "Work Assistant"
with the management and is also receiving the salary for the said
post. He refuted the suggestion of the management that no
recruitment has taken place on the post of "Draftsman" with the
management since 1984. He admitted that he had been working
as Planning Draftsman with the management on daily wages
with effect from 23.11.1981 to 05.03.1984. He further admitted that
he was never recruited on the post of Draftsman as a regular
employee. Again in cross-examination dated 05.07.2018, he stated
that it to be correct that he was converted from muster roll
employee to work charge employee as Work Assistant with
effect from 06.03.1984. He denied the suggestion of the
management that Ex.WW1/8 as also Ex.WW1/17 to Ex.WW1/28
are false and forged documents. He admitted to the suggestion of
the management that Mark B is the circular dated 17.05.1991 of
the management in respect of the seniority list of planning
Draftsmen from Serial No. 105 to Serial No. 135 as Annexure A
to the same, which is now Ex.WW1/M1 (colly.). He also admitted
that the management had informed him that his application for
planning Draftsmen was rejected. It is wrong to suggest that the
management had not received any demand notice. It is wrong to
suggest that he is deposing falsely.
POIT No. 186/16 Page 12 of 40
20. On the other hand, the management witness (MW-1) in his
cross-examination deposed that he joined the management of
DDA on 10.12.2013 as an Assistant Executive Engineer. He
admitted to having no personal knowledge about the matter
prior to his joining. He further stated that the workman had
never worked under his control and supervision. He stated he
had gone through the complete service record of the concerned
workman, Sh. Ifrahim Ali, but had not brought his personal file
and other service material to court. He confirmed that the address
of the management at point A on Ex.WW1/1 is correct, noting that
even an illiterate person carrying this address at point A will be able
to reach the office of the Secretary, DDA. This was also his response
regarding the address at point A on Ex.WW1/2. He denied ever
receiving any memo or charge sheet from DDA. Ex.WW1/6 is the
correct copy of the written statement filed by the management
before the Conciliation Officer. He cannot admit or deny if
Ex.WW1/8 was issued by DDA or not. Ex.WW1/9 was issued by
Area Planning-I of DDA; however, this document is not
available in the records of the workman seen by him.
Ex.WW1/10 is issued by the head office of the DDA. Mark A is a
document issued by DDA. He cannot admit or deny if
Ex.WW1/11 is in the office of the Vice Chairman of DDA (vol.
However, it is not in the service book of the workman).
Ex.WW1/M1 is the copy of the seniority list. Mark C is the
DOPT guidelines, now Ex.WW1/M2. He cannot admit or deny if
Ex.WW1/12 was received in the office of the Assistant Director,
Personnel-II; however, it is not in the personal file of the
workman. Ex.WW1/13 is the copy of the letter regarding the
submission of the service book of the concerned workman.
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Ex.WW1/14 is the letter written by the workman to the Deputy
Director, Personnel-II; however, it is not in the personal file of
the workman. Ex.WW1/15 is issued by DDA, Personnel Branch-
II. He cannot say if Ex.WW1/16 is the letter issued by DDA
regarding absorption in the Planning Department as Planning
Draftsman addressed to the workman. The same is his reply to
Ex.WW1/17. He cannot say if the Mark B letter dated
24.11.1999 was issued by DDA or not (vol. The same is not part
of the service book of the workman). Mark C, which is now
Ex.WW1/M3, is the certificate of the qualification of the
workman as a Draftsman. Mark G, which is now Ex.WW1/M4,
is the copy of the recruitment rules for the post of Planning
Draftsman. He cannot say if Mark H was issued by the Deputy
Director, Area Planning Wing-I. He cannot admit or deny if
Ex.WW1/18 is issued by DDA or not. The same is his reply to
Ex.WW1/19 to Ex.WW1/28. He has never been checked by the
concerned officers about the correctness of the documents filed
by the workman on the record of this Court. It is incorrect to
suggest that he has not checked the correctness of the documents
filed by the workman on the records of this Court, as he knew the
genuineness of the documents. It is incorrect to suggest that he has
not brought the personal file and other documents pertaining to the
workman because if he had, it would have proved the case of the
workman. He stated that he has to check the correctness of
Mark-I to Mark S. Consequently, the cross-examination of the
management witness was deferred with the direction to MW-1
to check the correctness of documents and drawings of the
workman.
21. On the next date of cross-examination, 28.04.2022, MW-1
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stated that he had inquired about the documents that were put to
him in his cross-examination on 11.02.2021 from the concerned
Department but had not received any response (vol. He has
received a response about his absentee period). He refuted the
suggestion that he is not placing the true facts in this regard
intentionally and deliberately and that he is concealing. He also
stated that he had not brought the personal file of the concerned
workman. He again refuted the suggestion that he had not
brought the personal file deliberately and intentionally, as it
proves the case of the workman (vol. He can bring the personal
file of the workman if directed to do so). Consequently, the
cross-examination was further deferred with a direction to the
management witness for the production of the personal file of
the workman.
22. On 20.04.2023, when MW-1 was recalled for further cross-
examination, he stated that he had verified some of the documents
submitted by the workman from the office of management. He
stated to have verified the absentee records of the workmen, the
existing plan of Associate Trader at Anand Parvat Industrial
Area, and the layout plan of a vacant pocket in Naraina Vihar
for a religious and senior citizen recreation center. He admitted
that the documents filed by the workman in this case before this
court could not be verified. He denied the suggestion that he had
intentionally and deliberately not verified, knowing well that the
documents filed by the workman and issued by management are
genuine and are on this court's record. He further denied that the
workman has been working on the job of Draftsman continuously
since the initial date of joining the service until the date of his
superannuation. He also denied that the workman had never worked
POIT No. 186/16 Page 15 of 40
as a Work Assistant. He admitted that the salary and status of a
Draftsman are higher than those of a Work Assistant in
management. He refuted that the workman is entitled to the relief
claimed by him.
23. After going through the pleadings and the evidence led by the
parties, it is established that the workman was initially appointed as
a Planning Draftsman by the management w.e.f. 23.11.1981 and had
worked as such until 05.03.1984. Thereafter, the management
claimed that the workman was converted to a Work Assistant w.e.f.
06.03.1984, and since then, he had been discharging the work of a
Work Assistant alone. However, the workman has presented
evidence, including experience certificates and orders (Ex. WW1/8,
WW1/9), indicating that he has been continuously performing the
duties of a Planning Draftsman since his initial employment date.
These documents suggest that he had been performing the role and
responsibilities of a Planning Draftsman rather than a Work
Assistant as claimed by the management. Moreover, the absentee
statements and the Draft Zonal Development Plan (Ex. WW1/18 to
Ex.WW1/28, WW1/29) listing Ifrahim Ali as Planning Draftsman
further supports his claim that he had been discharging the work of a
Planning Draftsman throughout his tenure. Furthermore, there are
other documents, i.e., Mark 'D', an experience certificate dated
24.11.1999 issued by the management, recording that Ifrahim Ali
had been working as a Planning Draftsman. Likewise, are Mark 'I'
to Mark 'S', which are the drafts prepared by the workman and also
bear his name, signature, and designation as a Planning Draftsman.
Even though these documents are merely marked, this tribunal had
given directions to the management to verify these documents from
their records. Notably, as the management is the custodian of the
POIT No. 186/16 Page 16 of 40
records and these documents were issued by the management
themselves, their originals are also supposed to lie with the
management alone. The management has failed to show that the
documents, or even a single document filed by the workman on their
court records, are forged and fabricated. Despite several directions
from this tribunal to verify the said documents, the management has
failed to do so. Neither has the management placed on record the
inquiry/steps it had taken to verify the said documents. It is
important to reiterate that if the said documents are admitted to be
correct, then they support the case of the workman that he had been
discharging the functions of a Planning Draftsman. Therefore, this
tribunal takes an adverse inference against the management as,
despite directions, the management failed to confirm the
authenticity of the documents knowingly well that admitting these
documents will disprove their case.
24. Attention is also drawn towards the admission of the
workman witness (WW-1) that he had been working on the post of
Work Assistant w.e.f. 06.03.1984. This admission of the workman
will not be any help to the management because it is not the case of
the workman that he had not been working on the post of Work
Assistant, instead the workman's case is that despite converting the
workman to the post of Work Assistant, he had been discharging the
work of Planning Draftsman from his initial date of joining
onwards. Most importantly, the AR for the management not once
gave a suggestion to the workman that he had not been discharging
the duties of Planning Draftsman after 06.03.1984 or that he had
stated false in his Affidavit in this regard.
25. The AR for the management contended that the workman had
duly accepted the terms of his conversion and did not make any
POIT No. 186/16 Page 17 of 40
protest to it. Therefore, after accepting the terms of his employment
he cannot claim it to be unfair labour practice at this stage and seek
regularisation from his initial date of joining on the post of Planning
Draftsman.
26. So far as the argument of the management that the workmen
duly consented for his conversion to the post of Work Assistant, it is
important to note that the management cannot rely solely on this
purported consent to justify its arbitrary actions. Given that the
workman is a lowly paid employee and considering his
socioeconomic background, it is unreasonable to assume that he
possesses equal bargaining power in determining the terms of his
employment, including decisions related to his demotion and
subsequent regularisation. Moreover, Ex. WW11, Ex. WW1/12 and
Ex. WW1/14 are the representations given to the management after
his conversation to the post of Work Assistant for absorption of his
services to the post of Planning Draftsman. The Hon'ble Supreme
Court in Central Inland Water Transport Corpn. v. Brojo Nath
Ganguly, (1986) 3 SCC 156 has observed the following with
respect to the validity of such contracts where the parties are not in a
equal bargaining power to set the terms and conditions. The relevant
portion of the judgement is as follows:
"89. ...... This principle is that the courts will not
enforce and will, when called upon to do so, strike
down an unfair and unreasonable contract, or an
unfair and unreasonable clause in a contract, entered
into between parties who are not equal in bargaining
power. It is difficult to give an exhaustive list of all
bargains of this type. No court can visualize the
different situations which can arise in the affairs of
men. One can only attempt to give some illustrations.
For instance, the above principle will apply where the
inequality of bargaining power is the result of the
great disparity in the economic strength of the
POIT No. 186/16 Page 18 of 40
contracting parties. It will apply where the inequality
is the result of circumstances, whether of the creation
of the parties or not. It will apply to situations in
which the weaker party is in a position in which he
can obtain goods or services or means of livelihood
only upon the terms imposed by the stronger party or
go without them. It will also apply where a man has
no choice, or rather no meaningful choice, but to give
his assent to a contract or to sign on the dotted line in
a prescribed or standard form or to accept a set of
rules as part of the contract, however unfair,
unreasonable and unconscionable a clause in that
contract or form or rules may be. This principle,
however, will not apply where the bargaining power of
the contracting parties is equal or almost equal. This
principle may not apply where both parties are
businessmen and the contract is a commercial
transaction. In today's complex world of giant
corporations with their vast infrastructural
organizations and with the State through its
instrumentalities and agencies entering into almost
every branch of industry and commerce, there can be
myriad situations which result in unfair and
unreasonable bargains between parties possessing
wholly disproportionate and unequal bargaining
power. These cases can neither be enumerated nor fully
illustrated. The court must judge each case on its own
facts and circumstances.
XXXXXX
91. Is a contract of the type mentioned above to be
adjudged voidable or void? If it was induced by undue
influence, then under Section 19-A of the Indian
Contract Act, it would be voidable. It is, however,
rarely that contracts of the types to which the principle
formulated by us above applies are induced by undue
influence as defined by Section 16(1) of the Indian
Contract Act, even though at times they are between
parties one of whom holds a real or apparent authority
over the other. In the vast majority of cases, however,
such contracts are entered into by the weaker party
under pressure of circumstances, generally economic,
which results in inequality of bargaining power. Such
POIT No. 186/16 Page 19 of 40
contracts will not fall within the four corners of the
definition of "undue influence" given in Section
16(1). Further, the majority of such contracts are in a
standard or prescribed form or consist of a set of
rules. They are not contracts between individuals
containing terms meant for those individuals alone.
Contracts in prescribed or standard forms or which
embody a set of rules as part of the contract are
entered into by the party with superior bargaining
power with a large number of persons who have far
less bargaining power or no bargaining power at all.
Such contracts which affect a large number of
persons or a group or groups of persons, if they are
unconscionable, unfair and unreasonable, are
injurious to the public interest. To say that such a
contract is only voidable would be to compel each
person with whom the party with superior bargaining
power had contracted to go to court to have the
contract adjudged voidable. This would only result in
multiplicity of litigation which no court should
encourage and would also not be in the public
interest. Such a contract or such a clause in a
contract ought, therefore, to be adjudged void. While
the law of contracts in England is mostly judge-made,
the law of contracts in India is enacted in a statute,
namely, the Indian Contract Act, 1872. In order that
such a contract should be void, it must fall under one
of the relevant sections of the Indian Contract Act.
The only relevant provision in the Indian Contract
Act which can apply is Section 23 when it states that
"The consideration or object of an agreement is
lawful, unless ... the court regards it as ... opposed to
public policy."
92. The Indian Contract Act does not define the
expression "public policy" or "opposed to public
policy". From the very nature of things, the expressions
"public policy", "opposed to public policy", or
"contrary to public policy" are incapable of precise
definition. Public policy, however, is not the policy of a
particular government. It connotes some matter which
concerns the public good and the public interest. The
concept of what is for the public good or in the public
interest or what would be injurious or harmful to the
POIT No. 186/16 Page 20 of 40
public good or the public interest has varied from time
to time. As new concepts take the place of old,
transactions which were once considered against
public policy are now being upheld by the courts and
similarly where there has been a well recognized head
of public policy, the courts have not shirked from
extending it to new transactions and changed
circumstances and have at times not even flinched from
inventing a new head of public policy. There are two
schools of thought-- "the narrow view" school and
"the broad view" school. According to the former,
courts cannot create new heads of public policy
whereas the latter countenances judicial law-making in
this area. The adherents of "the narrow view" school
would not invalidate a contract on the ground of public
policy unless that particular ground had been well-
established by authorities. Hardly ever has the voice of
the timorous spoken more clearly and loudly than in
these words of Lord Davey in Janson v. Driefontein
Consolidated Gold Mines Ltd. [(1902) AC 484, 500] :
"Public policy is always an unsafe and treacherous
ground for legal decision". That was in the year 1902.
Seventy-eight years earlier, Burrough, J., in
Richardson v. Mellish [(1824) 2 Bing 229, 252 : 130
ER 294, 303 and (1824-34) All ER 258, 266] described
public policy as "a very unruly horse, and when once
you get astride it you never know where it will carry
you". The Master of the Rolls, Lord Denning, however,
was not a man to shy away from unmanageable horses
and in words which conjure up before our eyes the
picture of the young Alexander the Great taming
Bucephalus, he said in Enderby Town Football Club
Ltd. v. Football Assn. Ltd. [(1971) Ch 591, 606] :
"With a good man in the saddle, the unruly horse can
be kept in control. It can jump over obstacles." Had
the timorous always held the field, not only the
doctrine of public policy but even the common law or
the principles of Equity would never have evolved. Sir
William Holdsworth in his History of English Law Vol.
III, p. 55, has said:
"In fact, a body of law like the common
law, which has grown up gradually with
POIT No. 186/16 Page 21 of 40
the growth of the nation, necessarily
acquires some fixed principles, and if it is
to maintain these principles it must be
able, on the ground of public policy or
some other like ground, to suppress
practices which, under ever new
disguises, seek to weaken or negative
them."
It is thus clear that the principles governing public
policy must be and are capable, on proper occasion, of
expansion or modification. Practices which were
considered perfectly normal at one time have today
become obnoxious and oppressive to public
conscience. If there is no head of public policy which
covers a case, then the court must in consonance with
public conscience and in keeping with public good
and public interest declare such practice to be
opposed to public policy. Above all, in deciding any
case which may not be covered by authority our
courts have before them the beacon light of the
Preamble to the Constitution. Lacking precedent, the
court can always be guided by that light and the
principles underlying the Fundamental Rights and
the Directive Principles enshrined in our
Constitution.
93. The normal rule of Common Law has been that a
party who seeks to enforce an agreement which is
opposed to public policy will be non-suited. The case of
A. Schroeder Music Publishing Co. Ltd. v. Macaulay
[(1974) 1 WLR 1308] however, establishes that where
a contract is vitiated as being contrary to public policy,
the party adversely affected by it can sue to have it
declared void. The case may be different where the
purpose of the contract is illegal or immoral. In Kedar
Nath Motani v. Prahlad Rai [AIR 1960 SC 213 : (1960)
1 SCR 861] reversing the High Court and restoring the
decree passed by the trial court declaring the
appellants' title to the lands in suit and directing the
respondents who were the appellants' benamidars to
restore possession, this Court, after discussing the
English and Indian law on the subject, said: (at p. 873)
POIT No. 186/16 Page 22 of 40
"The correct position in law, in our
opinion, is that what one has to see is
whether the illegality goes so much to the
root of the matter that the plaintiff cannot
bring his action without relying upon the
illegal transaction into which he had
entered. If the illegality be trivial or
venial, as stated by Williston and the
plaintiff is not required to rest his case
upon that illegality, then public policy
demands that the defendant should not be
allowed to take advantage of the position.
A strict view, of course, must be taken of
the plaintiff's conduct, and he should not
be allowed to circumvent the illegality by
resorting to some subterfuge or by
misstating the facts. If, however, the
matter is clear and the illegality is not
required to be pleaded or proved as part
of the cause of action and the plaintiff
recanted before the illegal purpose was
achieved, then, unless it be of such a gross
nature as to outrage the conscience of the
court, the plea of the defendant should not
prevail."
The types of contracts to which the principle
formulated by us above applies are not contracts
which are tainted with illegality but are contracts
which contain terms which are so unfair and
unreasonable that they shock the conscience of the
court. They are opposed to public policy and require
to be adjudged void.
27. Further, in the case of Dhirendra Chamoli and Ors vs State
of UP., (1986)1SCC 637 held that employees, especially those in
low-wage categories, often have no choice but to accept
employment under exploitative terms offered by the employer due
to the prevailing conditions of unemployment and their socio-
economic background. The fact that these employees accepted
POIT No. 186/16 Page 23 of 40
employment with full knowledge of the terms does not absolve the
government or the employer from the mandate of equality enshrined
in Article 14 of the Constitution, which implies equal pay for work
of equal value. Likewise, in the Officer Incharge Defence
Standardization Cell vs Mukesh Kumar, 2013(4)SC T108(Delhi),
the Hon'ble Delhi High Court emphasized that the employer cannot
use contract stipulations as a tool of exploitation. Their unilateral
imposition of oppressive and unreasonable conditions of service,
which the workman has little choice but to accept, cannot be
justified.
28. The principles laid out in the cases of Central Inland Water
Corporation (Supra), Dhirendra Chamoli (supra) and Defence
Standardization Cell (supra) reinforce the notion that employees
in such situations cannot be said to have willingly agreed to the
terms of their regularisation. Therefore, merely because the
workmen had given their consent to the demotion as well as
regularisation on the post of Work Assistant, which is admittedly
post lower both in salary and status, does not bar them from raising
the present dispute.
29. Further, admittedly, the job of Work Assistant is lower in
status and salary and if the workmen despite performing the work of
Planning Draftsman, demoted by the management to the post of
Work Assistant, that amounts to imposition of punishment. Such a
punishment cannot be inflicted upon the workmen without
following the principles of natural justice. Nothing has been placed
on record to show that the workmen had committed a misconduct
and after duly following the principles of natural justice, the
workmen was reduced to the rank of Work Assistant. It is a well
POIT No. 186/16 Page 24 of 40
settled position of law that dismissal or even reduction-in-rank can
not take place without holding any domestic/departmental inquiry.
Meaning thereby, the principles of natural justice have to be
complied with while imposing the punishment on the employee. The
Hon'ble Delhi High Court in South Delhi Municipal Corporation
vs. W.P.(C) No.11226/2020 has observed that even a daily wager is
entitled to domestic/departmental inquiry. 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.
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."
30. The Constitution Bench of the Hon'ble Supreme Court in
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp
POIT No. 186/16 Page 25 of 40
(1) SCC 600 have emphasized on the importance of the principle of
"audi alteram partem" rule, which requires hearing both sides of a
case, as integral to the rule of law and fairness, and states that this
principle cannot be bypassed without explicit exclusion by law. In
this case, the constitutional validity of Regulation 9(b) was
challenged which allowed for the termination of services of
employees without stating reasons. The said regulation was held to
be arbitrary, unregulated, and in violation of natural justice
principles and Article 14 of the Constitution of India. It is observed
that any service regulation or rule must adhere to the principles of
fairness, reasonableness, and justness, rather than being arbitrary.
The relevant portion of the judgement is as follows:
"202. Thus on a conspectus of the catena of cases
decided by this Court the only conclusion that follows
is that Regulation 9(b) which confers powers on the
authority to terminate the services of a permanent
and confirmed employee by issuing a notice
terminating the services or by making payment in lieu
of notice without assigning any reasons in the order
and without giving any opportunity of hearing to the
employee before passing the impugned order is
wholly arbitrary, uncanalised and unrestricted
violating principles of natural justice as well as
Article 14 of the Constitution. It has also been held
consistently by this Court that the government carries
on various trades and business activity through the
instrumentality of the State such as Government
Company or Public Corporations. Such Government
Company or Public Corporation being State
instrumentalities are State within the meaning of
Article 12 of the Constitution and as such they are
subject to the observance of fundamental rights
embodied in Part III as well as to conform to the
directive principles in Part IV of the Constitution. In
other words the Service Regulations or Rules framed
by them are to be tested by the touchstone of Article
POIT No. 186/16 Page 26 of 40
14 of Constitution. Furthermore, the procedure
prescribed by their Rules or Regulations must be
reasonable, fair and just and not arbitrary, fanciful
and unjust. Regulation 9(b), therefore, confers
unbridled, uncanalised and arbitrary power on the
authority to terminate the services of a permanent
employee without recording any reasons and without
conforming to the principles of natural justice. There
is no guideline in the Regulations or in the Act, as to
when or in which cases and circumstances this power
of termination by giving notice or pay in lieu of notice
can be exercised. It is now well settled that the 'audi
alteram partem' rule which in essence, enforces the
equality clause in Article 14 of the Constitution is
applicable not only to quasi-judicial orders but to
administrative orders affecting prejudicially the
party-in-question unless the application of the rule
has been expressly excluded by the Act or Regulation
or Rule which is not the case here. Rules of natural
justice do not supplant but supplement the Rules and
Regulations. Moreover, the Rule of Law which
permeates our Constitution demands that it has to be
observed both substantially and procedurally.
Considering from all aspects Regulation 9(b) is illegal
and void as it is arbitrary, discriminatory and without
any guidelines for exercise of the power. Rule of law
posits that the power is to be exercised in a manner
which is just, fair and reasonable and not in an
unreasonable, capricious or arbitrary manner leaving
room for discrimination. Regulation 9(b) does not
expressly exclude the application of the 'audi alteram
partem' rule and as such the order of termination of
service of a permanent employee cannot be passed by
simply issuing a month's notice under Regulation
9(b) or pay in lieu thereof without recording any
reason in the order and without giving any hearing to
the employee to controvert the allegation on the basis
of which the purported order is made.
XXXXXX
232. The right to life includes right to livelihood. The
right to livelihood therefore cannot hang on to the
POIT No. 186/16 Page 27 of 40
fancies of individuals in authority. The employment is
not a bounty from them nor can its survival be at
their mercy. Income is the foundation of many
fundamental rights and when work is the sole source
of income, the right to work becomes as much
fundamental. Fundamental rights can ill-afford to be
consigned to the limbo of undefined premises and
uncertain applications. That will be a mockery of them.
31. Therefore, merely because the workman was a daily wage
employee prior to his regularization, that does not mean that the
principles of natural justice would not apply to him while demoting
him from Planning Draftsman to Work Assistant. Therefore, in view
of the above, this tribunal is of the opinion that the management has
indulged in unfair labour practice by demoting the workman to the
post of Work Assistant from Planning Draftsman without complying
with the principles of natural justice.
32. So far as the case of regularisation of the workman is
concerned, the the AR for the management has argued that
according 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 Cooperative
Society as reported in (2004) 7 SCC 112, this tribunal does not
have the power to grant regularisation as it would amount to
backdoor entry into service. Regularisation is not, and cannot be, a
mode of recruitment by any State under the purview of Article 12 of
the Constitution of India or any body or authority governed by a
statutory Act or the Rules framed thereunder. Regularisation also
cannot confer permanence on an employee whose services are ad
hoc in nature. It was further held that the mere fact that some
individuals had been working for an extended period does not mean
they have acquired a right to regularisation.
POIT No. 186/16 Page 28 of 40
33. 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 for performing
the permanent work of Planning Draftsman and making him
perform the job of Planning Draftsman and treating him as mere
Work Assistant for the purpose of status and salary, as the job of
Planning Draftsman carries higher status and salary is also against
the principle of "equal pay for equal work" as mentioned in the
Constitution of India. In fact the management has exploited the
services rendered by the workman aforesaid and the said action on
their part amounts to unfair labour practice as the same is done with
the object of depriving the status of permanent Planning Draftsman
as regularising his services on the post of Work Assistant would
mandate the management to pay the salary in regular payscale to the
workman. The workmen are entitled to be regularised on the post of
Planning Draftsman w.e.f. his initial dates of joining into the
employment of the management. 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.
34. 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
POIT No. 186/16 Page 29 of 40
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."
........
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.."
35. 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 POIT No. 186/16 Page 30 of 40 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 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)."
36. Further, the Hon'ble Supreme Court in the case of Sheo Narain Nagar & Ors. vs. State of U.P. & Anr., (2018) 13 SCC 432 has observed the following with regard to the practice of using Uma Devi (supra) as a tool to further exploit the services of the worker and not regularising the services of the workmen concerned. The relevant portion of the judgememt is as follows:
"7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called POIT No. 186/16 Page 31 of 40 for the data in the instant case to ensure as to how many employees were working on contract basis or ad- hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1) (d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there POIT No. 186/16 Page 32 of 40 should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise.
This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."
37. Hence, the reliance of the management on the judgments of Uma Devi (supra) to argue that this tribunal does not have the power to regularize the services of the workman concerned is misplaced in law. Notably, the Hon'ble Supreme Court in Chief Conservator of Forest (supra) and Hon'ble Delhi High Court in Project Dir. Dep. Of Rural Development (supra) and the Constitution Bench of the Hon'ble Supreme Court in Bidi Leaves (supra) clearly establish that Industrial Tribunals possess wide ranging powers, which include power to create new rights and liabilities, alter terms of employment, and impose new obligations on employers in the interest of social justice and industrial peace. Furthermore, the Hon'ble Supreme Court in Sheo Narain Nagar (supra) highlights the misuse of the Umadevi (supra) to further perpetuate exploitative employment practices, rather than adhering to its true spirit, which emphasizes on regular employment. This Tribunal, therefore, is not only empowered but also obligated to rectify such injustices by regularizing the services of workmen who have been subject to unfair labour practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
38. In the present case, it is established that the workman had been working with the management w.e.f. 23.11.1981 as Planning Draftsman continuously and uninterruptedly. Despite appointed him POIT No. 186/16 Page 33 of 40 as Planning Draftsman, the workman was illegally converted to the post of Work Assistant on 06.03.1984. The management after his conversion to Work Assistant, kept extracting the work of Planning Draftsman from him and making him payment/salary of Work Assistant alone. It has also been established that the workman had been performing the work of Planning Draftsman from his initial date of joining to till the date of his superannuation. It is not the case of the management that the work and conduct of the workman was not satisfactory and that no evidence in this regard has also been placed on court record. The management has stated in its written statement at Para No. 2 of Reply on Merits that when the workman was brought on as a Work Charge Assistant, there was no vacancy for a Draftsman in D.D.A. and from 1984, a complete ban on any appointments in DDA was imposed, and this ban still continues because of which, no vacancy for a Draftsman exists in DDA. The workman placed on record the seniority list of Planning Draftsmen, i.e., Ex.WW1/M1 (colly.), which was also admitted by the management witness during his cross-examination. Not only this, but the AR for the management also suggested to the workman in the latter's cross-examination that Mark B is the circular dated 17.05.1991 from the management regarding the seniority list of Planning Draftsmen from Serial No. 105 to Serial No. 135 as Annexure A to the same, which is now Ex.WW1/M1 (colly.). This means there is no dispute between the parties regarding the authenticity of this document. Notably, the seniority list of all the Planning Draftsmen mentions their date of appointment, which took place from 25.11.1986 to 03.11.1987, contrary to the claim of the management that no appointments had taken place in the establishment of the management post-1984 or that no vacancies POIT No. 186/16 Page 34 of 40 were available.
39. Therefore, in view of the of the admitted position and the material on record, this tribunal holds that the management has clearly committed unfair labour practice by employing the workman for performing the permanent work of Planning Draftsman and making him perform the job of Planning Draftsman and treating him as mere Work Assistant and continued with such an arrangement from their initial date of joining to till date solely with the object of depriving him the status and privileges of a regular and permanent Planning Draftsman. This also finds strength from the judgement 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 muster roll/contract basis for long periods and denying them the status and salary of a regular employee amounts to unfair labour practice as giving them the status and privileges of permanent employee would require the management to pay the workman higher salary associated with the said post than the one fixed under the Minimum Wages Act. Therefore, this tribunal has come to the conclusion that the action of the management in regularizing Sh. Ifrahim Ali on the post of Work Assistant w.e.f. 06.03.1984 is unjustified and amounts to unfair labour practice as stipulated in Entry No. 10 of Fifth Schedule read with 2(ra) and punishable under Section 25T and 25U of the I.D. Act.
40. The management has indulged in an unfair labour practice and the same is prohibited and punishable under Section 25T and 25U of the I.D. Act. The said sections are reproduced below as:
"25T. Prohibition of unfair labour practice.--No employer or workman or a trade union, whether POIT No. 186/16 Page 35 of 40 registered under the Trader Unions Act, 1926 (18 of 1926), or not, shall commit any unfair labour practice.
25U. Penalty for committing unfair labour practices.-- Any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.]"
41. Such unfair labour practices are criminal acts and punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. It is highlighted that this Tribunal can not become a party to such unfair labour practices and perpetuate further injustices, especially when the workman is not at fault. This tribunal finds no reasons as to why the services of the workman should not be regularised w.e.f. his initial dates of joining.
42. This tribunal has power to grant relief from the retrospective date in view of the peculiar facts and circumstances of this case. Reliance is placed upon the judgement of Hon'ble Supreme Court in Sarva Shramik Sangh v. Indian Hume Pipe Co. Ltd., (1993) 2 SCC 386 wherein it is held that that Industrial Tribunals/Labour Courts have power to award relief w.e.f. a date anterior to the date of raising the dispute. The relevant portion of the judgement is reproduced below as:
"7. We find it difficult to agree with Shri Pai. In principle we find no basis for the said contention. The Industrial Disputes Act does not provide for any such limitation. The definition of the expression "industrial dispute" in clause (k) of Section 2 of the Act does not contain any such limitation. We are unable to see on what basis can such restriction be inferred or implied. It must be remembered that the Industrial Tribunal/Labour Court is supposed to be a substitute forum to the civil court. Broadly speaking, the relief POIT No. 186/16 Page 36 of 40 which the civil court could grant in an industrial dispute can be granted by the Industrial Tribunal/Labour Court. Indeed the Industrial Tribunal/Labour Court is not bound by technical rules of procedure which bind the civil court. (See J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. L.A. Tribunal of India [AIR 1964 SC 737 : (1963) 2 LLJ 436, 444 : (1964) 3 SCR 724] .) In such circumstances we see no justification for holding that the Industrial Tribunal -- or for that matter a Labour Court -- has no jurisdiction to grant relief from a date anterior to the date on which the dispute is raised. Take a case where the Labour Union raises a dispute on a particular date but says that the said relief should be granted from an anterior date. We see no reason why the Industrial Tribunal should be held to have no power to grant relief with effect from such anterior date if it is found to be warranted by the facts and circumstances of the case. Here it is necessary to emphasize the distinction between the existence of power and its exercise. It is one thing to say that the Tribunal has no power to grant such relief and it is an altogether different thing to say that in a given case it ought not to grant such relief. We are only emphasizing the aspect of power. Whether in a given case relief should be granted with effect from a date anterior to the date of raising the dispute is a matter for the Tribunal to decide in the facts and circumstances of that case.
43. The same view was further upheld by the Hon'ble Delhi High Court in Delhi Administration v. Yogender Singh, 1996 SCC OnLine Del 849 observing that the Industrial Tribunal is well versed with the power to grant relief from a date anterior to the date on which the dispute is raised. The relevant portion of the judgement is reproduced below:
"43. Besides the factual position distinguishing the case in hand from the cases cited above, it needs also to be kept in view that the Industrial Tribunal is not bound by the rigid rules of law. The process which an POIT No. 186/16 Page 37 of 40 Industrial Tribunal employs in coming to a decision is not a judicial process. It may confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing document. It may even create new rights and obligations which it may consider essential for keeping industrial peace. (See Bharat Bank, Ltd. 1950 LlJ 921. It is for this reason that it is said that the Award of the Tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by these limitations. [See Western Indian Automobile Association v. Industrial Tribunal 1949 Llj 245. It may also be remembered that if found to be warranted by the facts and circumstances of the case, the Industrial Tribunal may even grant relief from a date anterior to the date on which the dispute is raised (See: Sarva Shramik Sangh v. Indian Hume Pipe Co. Ltd MANU/SC/0487/1993: (1993) ILLJ 965SC. This, then, is the power of the Industrial Tribunal."
44. The management has not led any cogent evidence as to why the workmen concerned should not be granted relief of regularization w.e.f. his initial date of joining. The Hon'ble Delhi High Court in Govt. of NCT of Delhi through Directorate of Family Welfare vs. Nisha & Ors., W.P. (C) 15950/202 decided on 12.12.2023 has also upheld the validity of the award passed by this tribunal in respect of regularisation of ANMs from their initial date of joining pursuant to the findings of unfair labour practice. In these circumstances, this tribunal holds that the workman Sh. Ifrahim Ali is entitled to be regularised in service on the post of Planning Draftsman w.e.f. 23.11.1981 in the regular pay scale, along with all consequential benefits, either monetary or otherwise.
45. So far as the claim of equal pay for equal work is concerned, the workman has stated that he had been performing the work of POIT No. 186/16 Page 38 of 40 Planning Draftsman since his initial date of joining as being performed by his regular and permanent counterparts working on the post of Planning Draftsman. The management had contended that the workman cannot equate himself with the regular and permanent counterparts, as their roles, nature of duties, functions are dissimilar. The management has not placed any evidence on record to show that there is any variation in the duties/roles/responsibilities of work of Planning Draftsman being performed by the workman from his initial date of joining than than the regular and permanent Planning Draftsman. This tribunal cannot merely believe the hollow words of the management without any backing in the form of documentary evidence. Hence, the management has failed to show any dissimilarities in roles, responsibilities and nature of work of Planning Draftsman performed by the workman vis-a-vis regular and permanent Planning Draftsman. The Hon'ble Supreme Court in the case of Dhirendra Chamoli and Ors. vs. State of U.P., (1986)1 SCC 637 and State of Punjab and Ors. vs. Jagjit Singh and Ors., AIR 2016 SC 5176 that so long as workmen are performing the same duties as their regular counterparts, they are entitled to the same salary and service conditions as that of regular employees. Hence, in view of the same, this tribunal holds that the workmen are also entitled to the difference of salary and service conditions for the post of Planning Draftsman from his initial date of joining on the principle of equal pay for equal work. Hence, the terms of reference are answered in favour of the workman and against the management.
Relief:
46. In view of my findings on the foregoing issue, this tribunal POIT No. 186/16 Page 39 of 40 holds that the workman Sh. Ifrahim Ali is entitled to be regularised in service on the post of Planning Draftsman w.e.f. 23.11.1981 in the regular pay scale, along with all consequential benefits, either monetary or otherwise. It is further held that the workman is also entitled to the difference of salary and service conditions for the post of Planning Draftsman from his initial date of joining on the principle of equal pay for equal work. The management is directed to implement the award within 60 days of its publication, failing which, the management will be liable to pay an interest at the rate of 8% p.a. from the date of terms of reference i.e. 27.08.1996 to till its realization. The award is passed accordingly.
47. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Digitally signed Announced in the open Tribunal AJAY by AJAY GOEL Date: on this 12.02.2024. GOEL 2024.02.12 14:22:47 +0530 (Ajay Goel) POIT-I/RADC, New Delhi. POIT No. 186/16 Page 40 of 40