Delhi District Court
Sh. Kishan Lal vs Sdmc on 24 September, 2024
DLCT130003082013
IN THE COURT OF SH. MOHINDER VIRAT:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
Ref: F.24(51)/ND/615/2006/Lab./684
Dated: 30.05.2013
POIT NO.: 102/2016
Workman
Sh. Kishan Lal S/o Sh. Durgi
represented by MCD General Mazdoor Union,
Room No.95, Barrack No.1/10,
Jam Nagar House, New Delhi - 110011.
Vs.
The Management of
M/s Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi-110092.
Earlier known as
South Delhi Municipal Corporation,
9th Floor, Civic Centre, Minto Road,
New Delhi-110002.
Date of Institution : 19.07.2013
Date of Arguments : 24.09.2024
Date of Award : 24.09.2024
POIT No. 102/2016 Page 1 of 17
AWARD
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 with following terms of the reference:-
"Whether Shri Kishan Lal S/o Sh. Durgi, Mason is entitled to the pay scale of Rs. 950-1500 w.e.f. 05-09-1989 revised from time to time alongwith all consequential benefits and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Statement of claim has been filed on behalf of the workman, wherein it has been stated that the workman Sh. Kishan Lal S/o Sh. Durgi, has been promoted from Beldar to Mason as skilled workman w.e.f. 05.09.1989 in the lower pay scale of semi-skilled workman and posted in the Ward No. 15 under Division No. 4 (Works) of the Management. He has been superannuated w.e.f. 31- 07-2008. It has been further stated that the work of Mason is classified as skilled workman under the Central Pay Commission. The Board of Arbitration (JCM) revised the pay scale of skilled workers of the aforesaid categories including Mason from Rs. 260- 350 to Rs. 260-400 with effect from 01.01.1973 notionally. It has been further stated that the actual benefits in terms of arrears of pay etc. accrued to them only w.e.f. 01.03.1973 and this benefit may be also extended to Municipal employees who have entered in Municipal service after 01.03.1973 to the categories as skilled POIT No. 102/2016 Page 2 of 17 workers including Mason. It has been further stated that the management wrongly and arbitrarily classified the concerned workman as unskilled workman for the work of Mason and granted him the lower pay scale of Rs. 810- 1150 w.e.f. 05-09-1989 in the semi-skilled category and further revised him in the pay scale of Rs. 2650-4000 w.e.f. 01.01.1996, instead of Rs. 3050-4590 and thereafter, granted him lower pay scale in the First ACP, after completion of 12 years granted pay scale of Rs. 3200-4900 w.e.f. 09-08-1999 instead of pay scale of Rs. 4000-6000 against the scheme under A.C.P. It has been further argued that the MCD General Mazdoor Union raised the dispute on 28-08-2006 in favour of workman for grant of skilled pay scale which could not be settled as Management did not accept the contention of the workman.
3. It has been further stated that in a similar matter, an award was passed by this Tribunal in ID no. 82/89 holding that workmen- Mason, Carpenter, Fitter, Painter etc. are entitled for higher pay scale of Rs. 260-400, which was upheld by the the Hon'ble High Court of Delhi vide order/Judgment dated 03.09.2009 in W.P. (C) No. 11378/2009, and thereafter, vide order/judgment dated 31.05.2011, Division Bench of Hon'ble High Court of Delhi in a common judgment i.e. LPA No. 126/2010 titled "MCD v. Abid Ali & Ors" disposed of all the appeals and writ petitions alongwith pending applications and held that all the workmen in the category of Mason, fitter, carpenter etc. are entitled to pay scale of skilled category of Rs. 260-400 revised from time to time and dismissed the POIT No. 102/2016 Page 3 of 17 Writ Petition as well as LPA filed by the Management of MCD/ upheld the award. It is, therefore, prayed by the workman to grant pay scale of Rs. 950-1500 being skilled worker revised from time to time alongwith all consequential benefits to him w.e.f. 05.09.1989 with interest till his superannuation i.e. on 31.07.2008.
4. Written Statement was filed on behalf of the management wherein it has taken objections that the present dispute is not an Industrial Dispute, as it is not espoused by massive majority of same category of workers or by any trade union; no demand notice has been served upon the management prior to raising the present dispute; this dispute is not maintainable on the ground of latches/ belated stage as he was promoted long back on 05.09.1989; that the claim of the workman for the pay scale of Rs. 260-400 (revised pay scale of Rs.950-1500) is not justified on the main ground that there were two categories of the post of mason in the management i.e. Mason and Senior Mason (which is promotional post); that the Management vide resolution no. 902 dated 05.03.2007 circulated vide office order no. 173 dated 09.05.2007 merged both the categories of Junior Mason and Senior Mason and created the post of Mason in the pay scale of Rs.260-400/- (revised Rs.3050-4590/-) w.e.f. 01.01.1996 and all the arrears have been paid to the workman as per rules. The workman has also been given the benefit of difference of ACP Schemes after revision of the pay scale; that the demand of pay scale of Rs. 4000-6000 w.e.f. 09.08.1999 is not permissible under rules of ACP Scheme as financial up gradation POIT No. 102/2016 Page 4 of 17 under the scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/ category of post without creating new post for the purpose and the Mason being isolated post, workman was granted immediate next higher pay scale i.e. Rs.3200-4900 which is higher scale of Rs.3050-4590 and not the pay scale of Rs. 4000-6000 w.e.f. 09.08.1999. Rest of the contents of the Statement of claim have been denied by the management.
5. After completion of pleadings, the following issues were framed by the Ld. Predecessor on 22.04.2014.
"1. Whether present dispute is an Industrial Disputes as defined in section 2 (k) of Industrial Disputes Act? OPW
2. Whether the present claim of the workman has been properly espoused by the Union? OPW
3. Whether any notice of demand was served upon management, if not, its effect? OPW
6 (should have been 4). Whether statement of claim is not maintainable on ground of latches/belated stage ? OPM 7 (should have been 5). As per terms of reference."
5. To prove his case, the workman examined himself as WW-1 and filed his affidavit Ex. WW1/A and relied upon document Ex. WW1/1. This witness was duly cross-examined by ld. AR for the management. Workman also examined Sh. B.K. Prasad, President of MCD, General Mazdoor Union as WW2 and relied upon POIT No. 102/2016 Page 5 of 17 documents Ex. WW2/1 to Ex. WW2/3 and thereafter, matter was fixed for ME.
6. On the other hand, management examined one Sh. Manish Huria, Asst. Engineer, South Zone, MCD as MW-1, who filed his affidavit as Ex. MW1/1 and relied upon documents Ex. MW1/A and Ex. MW1/B. He was duly cross-examined by ld. AR for the workman and thereafter, matter was fixed for final arguments.
7. Final arguments have been heard at length as advanced by counsels for both the parties.
8. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence.
9. My issue wise findings are:-
Issue No. 1: Whether present dispute is an industrial dispute as defined in Section 2(k) of the Industrial Disputes Act? OPW
10. For deciding this issue, the AR for the workman has drawn attention to the definition of "industrial dispute" mentioned in Section 2(k) of the I.D. Act, 1947. The relevant portion is reproduced below:
"2(k) industrial disputes - means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non- employment or the terms POIT No. 102/2016 Page 6 of 17 of employment or with the conditions of labour, of any person"
11. The bare perusal of the definition clarifies the present dispute between the employer i.e. management and the employee i.e. workman regarding grant of pay scale of Rs. 950-1500 w.e.f. 05-09- 1989 revised from time to time alongwith all consequential benefits squarely falls within the definition of industrial disputes as the same is connected with the employment, or non-employment or the terms of employment or with the conditions of labour. Thus, Issue no. 1 is decided in favour of the workman and against the management. Issue disposed of accordingly.
Issue No. 2: Whether present dispute has been properly espoused by the Union?
OPW
12. Ld. AR for the workman in order to prove the proper espousal, has examined WW-2 namely Sh. B.K. Prasad, President of MCD, General Mazdoor Union, who placed reliance upon Ex. WW2/2 i.e. espousal/resolution dated 30.06.2006 passed by the MCD General Mazdoor Union (Registered) in favour of the workman, statement of claim Ex. WW2/1 as well as copy of certificate of registration of the MCD General Mazdoor Union under Trade Union Act, 1926 Ex. WW2/3. 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 Court in J.H. Jadhav v.
POIT No. 102/2016 Page 7 of 17M/s Forbes Gokak Ltd., Civil Appeal No. 1089 of 2005, decided on 11.02.2005 has observed that there is no strict format required for a union espousing the cause of the workman, and this can vary and may also include resolutions or other forms of evidence depending on the case to case. Even in the absence of formal resolution, the court relied upon various documents such as statement of claim filed before the conciliation officer, legal demand notice, authorisation letters etc. among other documents and held that the cause of the workman had been properly espoused by the union. 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.
"Even otherwise, in the present case, the statement of claim (Ex. WW1/3) filed before the conciliation officer by the Delhi Labour Union. The resolution dated 13.10.2020 i.e. Ex. WW1/4, wherein the union decided to raise an industrial dispute in favour of the workman have also been placed on record. Even the legal demand notice Ex. WW1/1 was sent on the letterhead of the union. In view of this discussion above, the workman has placed sufficient material on record to show his case has been properly espoused by the union."
13. In view of the above mentioned facts and precedents of law, contention of the management is a mere technical one, and does not stand in light of the evidence placed by the workman on record. Therefore, I hold that the dispute is properly espoused by the Union POIT No. 102/2016 Page 8 of 17 of the workman. Accordingly, Issue no. 2 is decided in favour of the workman and against the management. Issue disposed of accordingly.
Issue No. 3: Whether any notice of demand was served upon the management, if not its effect? OPW
14. The management has contended that no demand notice has been served upon them prior to raising the present industrial dispute, hence the same is not maintainable.
15. Even though the management has taken this objection that no legal demand notice was served upon them, it would not have any impact on the present dispute because the same is not mandatory before raising the present dispute. Reliance is placed upon Workmen of M.C.D. vs. M.C.D., W.P.(C) No. 13023/2005 decided on 06.08.2007, wherein the Hon'ble Court has held that making a written demand is not a sine qua non for raising an industrial dispute. Once the appropriate Government has passed an administrative order referring an industrial dispute for adjudication to the industrial adjudicator, it has to be assumed that an administrative decision was arrived at by the Government after examining the material placed on the record that there exists an industrial dispute. Accordingly, Issue no. 3 is also decided in favour of the workman and against the management. Issue disposed of accordingly.
Issue no. 4 (6): Whether statement of claim is not maintainable on ground of latches/belated stage?OPM POIT No. 102/2016 Page 9 of 17
16. The onus to prove this issue was on the management. The management has contended in its written statement that the claim of the claimant is not maintainable on account of delay and laches, as the workman was promoted long back on 05.09.1989 and he raised present dispute only in 30.05.2013. Ld. AR for the workman has argued that firstly, the limitation act is not applicable to Industrial Adjudication. Secondly, there is no delay as alleged by the management, because the workman was working on the post of Mason w.e.f. 05.09.1989, which was a semi-skilled post and granted him pay scale of Rs. 210-270 instead of pay scale of Rs. 260-400, which amounts to continuous wrong and giving rise to fresh cause of action every day. Even otherwise, the workman kept approaching the management time and again for his grievances, however the management did not pay any heed to it. Ld. AR for the workman argued that the present claim is not hit by delay and latches because limitation act, as such does not apply to the the proceedings under Industrial Disputes Act.
17. Ld. AR for the workman placed reliance upon case law titled as Kuldeep Singh vs. G.M., Instrument Design Development and Facilities Centre and Anr., AIR 2011 SC 455, wherein the Hon'ble Supreme Court has observed the following in Para 21 of the judgment:
"In view of the above, law can be summarized that there is no prescribed time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is more so in view of the language used, POIT No. 102/2016 Page 10 of 17 namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time"
refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate Court or Forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under Section 10(1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for laches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or Forum for adjudication. Even though, there is no limitation prescribed for reference of dispute to the Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly, when disputes relate to discharge of workman. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal. However, in view of the explanation offered by the workman, in the case on hand, as stated and discussed by us in the earlier paragraphs, we do not think that the delay in the case on hand has been so culpable as to disentitle him any relief. We are also satisfied that in view of the details furnished and the explanation offered, the workman cannot be blamed for POIT No. 102/2016 Page 11 of 17 the delay and he was all along hoping that one day his grievance would be considered by the Management or by the State Government.
19. Further, the Hon'ble Supreme Court in the case of Ajaib Singh vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Anr., AIR 1999 SC 1351, observed the following in Para 11 of the judgment:
"11. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman...."
20. In view of the judgments above, even though the Limitation Act does not apply to the proceedings under Industrial Disputes Act, yet the dispute has to be raised within a reasonable time and there should not be any inordinate delay. In the present case, the management classified the concerned workman as unskilled workman for the work of Mason and granted him the lower pay scale of Rs. 810- 1150 w.e.f. 05-09-1989 in the semi-skilled category and further revised him in the pay scale of Rs. 2650-4000 w.e.f. 01.01.1996, instead of Rs. 3050-4590 and thereafter, granted him lower pay scale in the First ACP, after completion of 12 years POIT No. 102/2016 Page 12 of 17 granted pay scale of Rs. 3200-4900 w.e.f. 09-08-1999 instead of pay scale of Rs. 4000-6000 against the scheme under ACP. However, nothing has been placed on record by the management to show that there existed two category of 'Mason' i.e. Junior Mason and Sr. Mason. It is notable that no plea pertaining to delay was taken by the management when the conciliation proceedings were ongoing before the conciliation officer. Further, although the management has taken the contention regarding the alleged delay/latches by the workman. However, they have not shown any prejudice suffered due to this purported delay.
21. In view of the discussion above, this tribunal holds that the present dispute is very well maintainable and the same can not be termed as delay in raising the present dispute. Hence, Issue no. 4 is decided in favour of the workman and against the management. Issue disposed of accordingly.
Issue No. 5 (7): As per terms of reference.
"Whether Shri Kishan Lal S/o Sh. Durgi, Mason is entitled to the pay scale of Rs. 950-1500 w.e.f. 05-09-1989 revised from time to time alongwith all consequential benefits and if so, to what relief is he entitled and what directions are necessary in this respect?"
22. Ld. AR for the management argued that the claim of the workman for the grant of pay scale of Rs. 260-400 (revised to Rs.950-1500) is not justified on the ground that there were two categories of the post of mason in the management i.e. Junior POIT No. 102/2016 Page 13 of 17 Mason and Senior Mason is the promotional post, which carries the pay scale of Rs. 260-400/-. It has been further argued that the workman was also granted the benefit of difference of ACP Scheme after revision of the pay scale. It has been further argued that demand of workman for grant of pay scale of Rs. 4000-6000 w.e.f. 09.08.1999 is not permissible under rules of ACP Scheme as financial up gradation under the scheme shall be given to the next higher grade in the existing hierarchy/cadre/category of post without creating new post for the purpose and the Mason being isolated post, the workman was granted immediate next higher pay scale i.e. Rs. 3200-4900 which is immediate higher scale of Rs.3050-4590.
23. It is admitted position of both the parties that the workman was initially appointed as Beldar and thereafter, he was promoted to the post of Mason w.e.f 05.09.1989. The only dispute is with regard to the pay scale as the management granted workman pay scale of Rs. 210-270, whereas the claim of the workman is that the post of Mason carried pay scale of Rs. 260-400.
24. Perusal of file reveals that management has filed a W.P. (C.) No. 11378/2009 titled as Municipal Corporation of Delhi v. Sh. Abid Ali (Carpenter), whereby it challenged an Industrial Award dated 16.10.2006, passed by the Industrial Tribunal holding the workman to be entitled to the pay scale of Rs. 260-400 as revised from time to time from the date of his regularisation and the Hon'ble Delhi High Court vide order/judgment dated 03.09.2009, dismissed the writ petition of the management/MCD and upheld the POIT No. 102/2016 Page 14 of 17 award dated 16.10.2006. Thereafter, the management filed LPA against the order dated 03.09.2009, passed by the Single Bench of Hon'ble Delhi High Court among other LPAs before the Division Bench of Hon'ble Delhi High Court. The Division Bench of Hon'ble High Court of Delhi in a common judgment i.e. LPA No. 126/2010 titled "MCD v. Abid Ali & Ors" observed as under:
"13. The argument of learned Senior Counsel for the MCD to the effect that the Workmen have not challenged the entry level and promotional level distinctions is obviously fallacious for the reason that the MCD has failed altogether to produce any evidence that such categorisation existed at the relevant time, or was ever implemented.
14. We have already made a mention of Item No.11 which dealt with the Commissioner‟s letter dated 8.1.2007 and has, as Annexure-A, the letter of the Commissioner dated 12.7.1982 which fails to make any distinction between the so-called entry level and promotional level in the category of Masons/Carpenters/Painters/Fitters. This belies the existence of two separate categories sought to be introduced by the MCD much later on as a defence to the demands of the Workmen. In Item No.11, after referring to the two said alleged categories of senior and junior, it has specifically been noted that - "So far, various such awards have already been implemented under advice of CLO and some of the awards are (sic.) have also created a disparity on pay scales of workers of the "Junior"
Category itself. Under the circumstances, it will be in the interest of MCD, that the existing "Senior" and "Junior" grades of the aforesaid five "Skilled" categories of the Engineering Department are merged into one grade". Keeping in perspective that the so-called senior and junior grades were not implemented for twenty three POIT No. 102/2016 Page 15 of 17 previous years, reliance by the MCD on the letter dated 9.5.2007 can be of no substance."
25. The Division Bench disposed of all the appeals and writ petitions alongwith pending applications thereby directing "the MCD to treat the workmen/Employees as having been regularised in the pay scale of Rs. 260-400/- with effect from 1.4.1980. In other words, they will be entitled to arrears of pay and other benefits for the period 1.4.1980 to 1.1.1996 if they were recruited by then. As we have already noted, the MCD has already granted all the benefits to the Workmen/Employees with effect from 1.1.1996."
26. Perusal of file reveals that thereafter, management further approached Hon'ble Supreme Court of India and filed Special Leave Petitions. However Hon'ble Supreme Court of India vide order dated 13.08.2012, dismissed all the special leave petitions filed by the management thereby observing that "no ground is made out for our interference with the impugned judgment."
27. Thus, the decision/observation of Hon'ble Delhi High Court in the LPA No. 126/2010 titled "MCD v. Abid Ali & Ors" remained upheld/intact. Thus, in view of the above discussion and dictum of superior courts, the present industrial dispute also falls in the same category. Hence, the concerned workman namely Shri Kishan Lal S/o Sh. Durgi, is entitled to the pay scale of Rs. 950-1500 w.e.f. 05- 09-1989 revised from time to time alongwith all consequential benefits either monetary or otherwise with an interest @ 8 % per annum from the date of accrual i.e. 30.05.2013 to till the final POIT No. 102/2016 Page 16 of 17 payment is made. The award is passed accordingly. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room. Digitally signed by Mohinder Mohinder Virat Virat Date:
Announced in open Tribunal 2024.09.24 16:14:41 +0530 on this 24.09.2024 (Mohinder Virat) POIT-I/RADC, New Delhi.POIT No. 102/2016 Page 17 of 17