Delhi District Court
Workmen vs . on 22 February, 2012
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No 46/10
Workmen
Sh. Bhagwan S/o Sh. Jhandumal & Sh. Ram Mehar S/o Sh. Sishram,
Represented by MCD General Mazdoor Union,
Room No. 95, Barrack No. 1/10, Jam Nagar House,
New Delhi-11
Vs.
Management
M/s Municipal Corporation of Delhi through its Commissioner, Town Hall,
Chandni Chowk, Delhi 110006.
Date of institution 19.02.2010
Date of reserving award 13.02.2012
Date of award 22.02.2012
Ref : F.24 (105)ND/628/2005/Lab./809-13 dated 17.02.2010.
AWARD
1.Workmen have raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-
''Whether demand to regularise (i) Sh. Bhagwan S/o Sh. Jhandumal and (ii) Sh. Ram Mehar S/o Sh.I.D. No 46/10 Page 1 of 15
Sishram on the post of Skilled Mason in proper pay scale, as revised from time to time, from the date of initial appointment is justified; and if yes, what directions are necessary in this respect?"
2. Statement of claim has been filed by both the workmen wherein it is stated that they were employed with the management as 'Mason' and were posted at ZE (Works), W. No. 101, Narela Zone of MCD and both of the workmen were superannuated on 31.05.2007. The details of their employment and regularization is stated as under :-
S.No Name of workman Date of employment Date of regularization
on muster roll as Mason
1. Sh., Bhagwan 22.06.1978 01.04.1982
2. Sh. Ram Mehar 24.01.1970 01.04.1978
It is stated that work of Mason is classified as 'skilled workmen' under the Central Pay Commission and also categorized after the implementation of award given by the Board of Arbitration (JCM) revising the pay scale of skilled workers of the certain categories including Mason from Rs. 260-350 to Rs. 260-400 with effect from 1.1.73, notionally to the categories as skilled workers with effect from 1.3.1973. It is stated that the pay scale of mason being skilled workman has been fixed by the Central Pay Commission w.e.f. 1.1.1973 in the pay scale of Rs. 260-400, revised in pay scale of Rs. 950-1500/- and further revision by the 5th Pay Commission w.e.f. 1.1.1996 Rs. 3050-4500/- and further revised w.e.f. 1.1.2006 but the management arbitrarily and unlawfully fixed the pay scale in the lower category i.e. semi-skilled w.e.f. 22.06.1978 and 24.01.1970 respectively in the pay scale of Rs. 210-270/- revised w.e.f. 1.1.1986 in the pay scale of Rs. 810-1150/- and after the implementation of Fifth Pay Commission, the pay scale of Rs. 2650-4000/- were fixed w.e.f. 1.1.1996 and also fixed wrong pay I.D. No 46/10 Page 2 of 15 band treating the workman as 'Semi Skilled' instead of Skilled workman.
3. It is alleged in statement of claim that the management wrongly regularized as semi-skilled workmen and fixed the pay scale of workmen of Rs. 210-270 against the office orders issued by the management of MCD. It is stated S/Shri Prabhu Ram and Janak Singh, Mason were getting the wages of a semi-skilled and the dispute for wages of skilled workmen being Mason was awarded by the Industrial Tribunal No. 1 and the Hon'ble High Court has also confirmed the award in respect of Prabhu Ram and Janak Singh. Management in pursuance of orders passed by Hon'ble High Court in case of Prabhu Ram and Janak Singh has placed them in the pay scale of Rs. 260-400 (Revised from time to time) vide its officer order dated 07.03.2005. It is stated that they had been performing their duty of a Mason as skilled workmen and are entitled the pay scale of a skilled workmen from the date they were regularized as skilled Manson and also accordingly entitled the pay scale of the skilled workmen. It is stated that the MCD General Mazdoor Union has also requested the management vide its letter dated 16.09.2005 to grant the skilled pay scale to them and the union has sponsored their cause along with other workmen S/Sh. Pratap .Chander & Ram Singh etc. It is prayed that workmen S/Sh. Bhagwan and Ram Mehar be granted entitlement to the pay scale of Mason of Rs. 260-400 w.e.f. 1.4.1982 and 1.4.1978 respectively and further revised as Rs. 950-1500 w.e.f. 01.01.1996 and further revised w.e.f. 1.1.2006 along with proper ACP provided to the skilled workmen with all consequential benefits including pensionary benefits etc.
4. Management has filed written statement taking preliminary objections that the present dispute is not maintainable before this Tribunal I.D. No 46/10 Page 3 of 15 as the claimants are not "workmen" as defined under Section 2 (s) of the Industrial Disputes Act; that the claimants Sh. Bhagwan and Sh. Ram Mehar have already retired from the services on 31.05.2007 and 30.04.2007 respectively, thus there is no "employer-employee"
relationship between the claimants and the management as such the present dispute is not an industrial dispute as defined under Section 2 (k) of the Industrial Disputes Act; that, since the claimants are not workmen and the present dispute is not an industrial dispute, this Tribunal has no jurisdiction to try and decide the present dispute and thus, the dispute is liable to be rejected outrightly; that the reference before this Tribunal is bad in law and without application of mind as the present dispute is not an industrial dispute as defined under Section 2(k) of the Industrial Disputes Act; that even otherwise the present workmen, being the regular employees, were governed by CCS Rules as such the efficacious remedy lies with the Central Administrative Tribunal, hence the present claim is liable to be rejected; that the statement of claim is not maintainable on the ground of latches/belated stage, since workmen were regularized long back on 01.04.1982 and 1.4.1978 respectively on the post of Mason and were granted the pay scale of Rs. 210-270 as per the Recruitment Rules, which they accepted without any protest and without any representation at that time; that the present dispute has not been properly espoused; that even otherwise the claim of the workmen for the pay scale of Rs. 260/400 is not justified on the main ground that there are two categories of post of Mason in the management of MCD i.e. Mason and Senior Mason and that the pay scale of Mason in III CPC was Rs. 210/270 and as regard, Sr. Mason the pay scale of 3rd CPC was Rs. 260-400; that the daily wager Mason, who were engaged on muster roll, are regularized in the entry post I.D. No 46/10 Page 4 of 15 of Mason in the initial pay-scale of Rs. 210-270 (revised pay scale of Rs. 800-1150) as per R.R. of the post; that as per R.R., Mason is promoted to the post of the Sr. Mason which is meant for the higher/promotional post, hence the claim of the claimants is contrary to the notified Recruitment Rules of the Corporation; that the claim of the claimants is not maintainable as in the Engineer Department of the MCD most of the Technical posts like painter, meson, carpenter etc carried two scales of the pay viz Rs. 210-270 & Rs. 260-400 as revised from time to time under the Pay Commission; that the post carrying the lower scale of Rs. 210-270 is the entry post of these categories on which direct recruitment or direct appointment from daily wagers/muster roll employees are made, whereas the post carrying at higher scale of Rs. 260-400 are of the promotional post and the same are normally filled up by the promotion from the posts carrying lower scale of the pay on the basis of eligibility and seniority; that even otherwise the Tribunal in the case of Mason, Painter, Fitter, Carpenter has already held that these are the feeder posts and thus, have been rightly given the pay scale of Rs. 210-270 by the management. Hence, the claimants are not entitled to any relief from this Tribunal and the present claim is liable to be dismissed.
5. In reply on merits, management has denied that the work of the Mason is classified as skilled workmen as alleged. However, management has has admitted that as per the award of the Board of Arbitration (JCM) the pay scale of Rs. 260-350 were revised to Rs. 260-
400. It is stated that the said award was not in the case of the claimants as the claimants were working in the pay scale of Rs. 210-270, whereas the aforesaid award was applicable to those categories of post, who were already drawing the pay scale of Rs. 260-350. Management has denied I.D. No 46/10 Page 5 of 15 that the Central Pay Commission has fixed the pay scale of a Mason to Rs. 260-400. It is denied that the management had been wrongly paying the pay scale of Rs. 210-270 to the claimants. It is stated that the claimants have already been granted the ACP as per rules and nothing is due from the management. Management has prayed that the claim of the workmen be dismissed in the interest of justice.
6. On the basis of pleadings of the parties, following issues were framed vide order dated 25.04.2011 :-
1. Whether there is relationship of employer & employee between the parties ? OPW
2. Whether present dispute is an Industrial Dispute as defined in section 2(k) of Industrial Disputes Act ? OPW
3. Whether statement of claim is not maintainable on ground of latches/belated stage? OPM
4. Whether the present claim of the workmen has been properly espoused by the Union? OPW
5. As per terms of reference.
7. Workmen examined themselves as WW 1 & WW 2. In their affidavits, they have reiterated the contentions made in statement of claim. In their cross-examination, WW 1 & WW 2 have admitted that they have already retired from municipal services w.e.f. 31.05.2007 and 30.04.2007 respectively and are drawing pension after their superannuation. They have stated that initially, they were engaged on muster roll basis with the management as Mason and were regularized on the same post w.e.f. 1.4.82 and 1.4.78 respectively. They have admitted that at the relevant time, all I.D. No 46/10 Page 6 of 15 their counter parts, who were regularized on the post of Mason, were granted pay scale of Rs. 210-270. They have admitted that they did not submit any representation/protest at the time of their regularization when the office orders of regularization. They have denied the suggestion that the document Ex. WW 1/ 2 is only applicable to those employees/senior masons who were drawing the pay scale of Rs. 260-350 and not for 210-
270. They have denied the suggestion that Rules/Recruitment Rules of CPWD are not applicable upon the management/MCD as both have separate and independent entity. They have denied the suggestion that the pay scale of Rs. 260-400 was meant for the senior mason as per the RRs. They could not say whether any demand notice was given to the management. They have denied the suggestions that their cause of action has not been espoused by the union.
7. Workmen have also examined Sh. B.K. Prasad, President of MCD General Mazdoor Union as WW 3. WW 3 tendered his affidavit Ex. WW 3/1 in examination-in-chief and relied upon documents Ex. WW 3/1 to WW 3/ 4. In his cross-examination, he has deposed that he does no know the date when he was elected as President of this union but voluntarily stated that about 4 years back, he was elected as President of the union. He has denied the suggestion that no document has been filed to show that he has been elected as President of the Union. He has stated voluntarily that WW 3/2 is the document about the office bearers of the Union, in which his name has been shown as President. He has deposed that meeting to espouse the present cause was held by the union on 22.10.05. He has admitted that the meeting was not the general body meeting. He has stated voluntarily that this meeting was conducted by I.D. No 46/10 Page 7 of 15 the managing committee. He has deposed that the present union has about 7-8 thousand members. He has denied the suggestion that for raising of any dispute, the support of massive majority of the members of the union is required. He has deposed that eleven members were present in the meeting, who had espoused the cause of the workmen. He has denied the suggestion that the dispute of the workmen suffers from latches. He has admitted that the concerned workmen were working in the engineering department. He has denied to the suggestion that the present dispute is not an industrial dispute.
8. Management has not led its evidence despite opportunities given.
Accordingly, ME was closed and case was listed for final arguments.
9. I have heard arguments from Sh. B.K Prasad, Ld. AR for the workmen and Sh. R B Rao, Ld. AR for management. I have carefully gone through record of the case. My findings on the issues are as under :-
10. Findings on the issue No 1 Issue No 1 is "whether there is relationship of employer & employee between the parties ? OPW". The management has taken preliminary objection in written statement that the claimants i.e. Sh. Bahgwan and Sh. Ram Mehar have already retired from the services on 31.05.2007 & 30.04.2008 respectively and are not "workmen" as defined under Section 2 (s) of the Industrial Disputes Act and thus, there is no "employer-employee" relationship between the parties.
11. Section 2 (s) of Industrial Disputes Act defines the term "workman". The said section is reproduced as below :-
"Workman" means any person (including and apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or I.D. No 46/10 Page 8 of 15 implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
12. Admittedly, workmen S/Sh. Bhagwan and Ram Meha were employed with the management w.e.f. 22.06.1978 and 24.01.1970 and have retired from services on superannuation w.e.f. 31.05.2007 and 30.04.2007 respectively. Therefore, the relation of employer-employee cannot be denied. The management has not produced any authority where there is any restriction of raising of dispute pertaining to his arrears/dues/other benefit due to him after retirement. No evidence has been led by the management regarding non-relationship of employer and employee. In my considered view workman can raise the industrial dispute relating to the arrears/dues benefit after retirement and even their LRs, in case of death of workman, can raised the industrial dispute relating to the arrears/dues/benefits of deceased workman. Therefore, this issues is decided in favour of workmen and against the management.
13. Findings on the issue No 2 Issue No 2 is "whether present dispute is an Industrial Dispute as defined in section 2(k) of Industrial Disputes Act ? OPW".
I.D. No 46/10 Page 9 of 1514. Section 2 (k) of Industrial Disputes Act is reproduced as below :-
"Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;
15. The preliminary objection of the management in para 1 of written statement is that the present dispute is not "Industrial Dispute" as defined under Section 2 (k) of Industrial Disputes Act and this Tribunal has no jurisdiction to try and decide the present dispute.
16. In Kyas Construction Company (Pvt.) Limited V. Its Workmen,1958 II LLJ 660, the Hon'ble Supreme Court has reiterated that an industrial dispute need not be a dispute between the employer and his workman and that the definition of the expression 'industrial dispute' is wide enough to cover a dispute raised by the employer's workmen with regard to non-employment of others, who may not be employed workmen at the relevant time.
17. In Delhi Development Authority V. Sudesh Kumar & Anr (2009) II LLJ 641 (Del), Hon'ble High Court has held that :
"The tribunal has the power, in the interest of industrial peace, to direct the appointment of a candidate on compassionate basis upon an industrial dispute espoused by the representative Trade union".
18. Management has not led any evidence as to how the present dispute is not an industrial dispute. Workmen were employed with the management and have retired from service after servicing for long period and they can raise industrial dispute regarding their arrears or other dues I.D. No 46/10 Page 10 of 15 from the management. Accordingly, this issue is decided in favour of workmen and against the management.
19. Findings on the issue No 3 Issue No 3 is "whether statement of claim is not maintainable on ground of latches/belated stage? OPM".
20. Workmen S/Sh. Baghwan and Sh. Ram Mehar have claimed the pay scale of 'Mason' of Rs. 260-400 w.e.f. 1.4.1982 and 1.4.1978 respectively i.e. from the date of their regularization. Workmen S/Sh. Bhagwan and Ram Mehar have retired from the services on superannuation w.e.f. 31.05.2007 & 30.04.2007 respectively. The present reference order dated 17.02.2010 has been received on 19.02.2010 after about 28 to 30 years from the dates of regularization of workmen on the post Mason and also even after about 03 years from their retirement from service on superannuation.
21. In S.Shalimar Works Limited vs Their Workmen AIR 1959 SC 1217, it was held that though no limitation is prescribed for making reference of the dispute to an Industrial Tribunal, nevertheless, it has to be made within a reasonable period. In that case delay of 4 years in raising industrial dispute was held to be fatal. In another Authority reported as Nedungadi Bank Ltd vs K.P. Madhavakutty and others AIR 2000 SC 839, delay of 7 years was held to be fatal and disentitled the workman to any relief. Similar view was reiterated in S.M. Nilajkar and others vs Telecom District Manager, Karnataka 2003(4) SCC 27. Relying upon abovesaid authorities, our own Hon'ble High Court in Satbir Singh vs Management of Suptd. Engineer and others 138(2007) DLT 528 ( DHC), has been held that inordinate and unexplained delay in raising industrial I.D. No 46/10 Page 11 of 15 dispute would defeat the rights of the workman and would disentitle him to any relief.
22. In M.R. Gupta V. Union of India & others, 1996 LAB I.C. 599, Hon'ble Supreme Court has held that :
"Where the employee's grievance was that his fixation of initial pay was not in accordance with the Rules, the assertion being of continuing wrong the question of limitation would not arise. So long as the employee is in service, a fresh cause of action arises every month when he is paid his month salary on the basis of a wrong computation made contrary to the Rules. It is no doubt true that if the employee's claim is found correct on merits, he he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. Similarly, any other consequential relief claimed by him such as promotion etc would also be subject to the defence of latches etc to disentitle him to those relief.
23. In the present case, since workmen have retired, the case is one of recovery of arrears and hence, question of limitation will arise. Thus, raising of dispute after 28 to 30 years of their regularization and also even after 03 years of retirement from service on superannuation is inordinate and unexplained delay. Therefore, the relief cannot be granted on the ground of delay and belated stage. Accordingly, this issue is decided in favour of the management and against the workmen.
24. Findings on the issue No 4 Issue No 4 is "whether the present claim of the workmen has been properly espoused by the Union? OPW". Onus to prove this issue is on the workman. Management has taken preliminary objection that the present dispute has not been properly espoused.
25. Workmen have examined WW 3 Sh. B.K. Prasad, President of MCD General Mazdoor Union. WW 3 has relied upon documents Ex.
I.D. No 46/10 Page 12 of 15WW 3/1 to Ex.WW 3/4. Document Ex. WW 3/1 is the copy of the certificate of registration dated 23.01.92,of trade union, document Ex. WW 3/2 is list of office bearer of MCD General Mazoor Union, document Ex. WW 3/3 is copy of letter issued by Commissioner, MCD dated 29.05.2005 vide which permission has been accorded to MCD Generald Mazdoor Union for negotiation and correspondence in respect of the workmen working under Horticulture Department of MCD, Document Ex. WW 3/4 is espousal/sponsorship letter dated 22.10.2005 and document Annexeure G is copy of demand notice dated 16.09.05 in respect workman Sh. Bagwan along with two other workmen.
26. Perusal of document i.e. espousal/Sponsorship letter Ex. WW 3/4 relied by WW 3 in support of espousal of cause of action of workmen shows that the meeting of managing committee of union was held on 22.10.05 and espousal letter was issued on the same date. However, the demand notice is dated 16.09.2005 i.e a date before the date of meeting of managing committee and espousal letter. Demand notice can only be sent after espousal of the cause. Thus, espousal letter Ex. WW 3/4 cannot be treated as a valid document in support of espousal of cause of workman by the union. Further more, the demand notice dated 16.09.2005 is signed by WW 3 Sh. B.K. Prasad, President of the union. In his cross- examination on 30.08.2011, he has admitted that the meeting was not the general body meeting. In his cross-examination, he has deposed that he does no know the date when he was elected as President of this union but voluntarily stated that about 4 years back, he was elected as President of the union. As per the deposition of WW 3, he was elected the President of union in the year 2007, whereas the demand notice signed by him bears I.D. No 46/10 Page 13 of 15 the date of 16.09.05 showing it to have been sent by speed post. As per the deposition of WW 3, he was not president during the year 2005, when the alleged demand notice was sent to the management. In view of the above, I am of the considered view that the cause of action of workmen is not properly espoused. Accordingly, this issue is decided in favour of the management and against the workmen.
27. Findings on the issue No 5 Issue No 4 is "As per terms of reference". Term of reference is ''Whether demand to regularise (i) Sh. Bhagwan S/o Sh. Jhandumal and
(ii) Sh. Ram Mehar S/o Sh. Sishram on the post of Skilled Mason in proper pay scale, as revised from time to time, from the date of initial appointment is justified; and if yes, what directions are necessary in this respect?"
28. Workman Wh. Bhagwan has relied upon document Ex. WW 1/4 which is the office order of the management vide which in pursuance of orders passed by Hon'ble High Court in case of Prabhu Ram Vs. Secretary & Others in W.P. No 1128/2004, approval of Additional Commissioner (Engg.) has been given to place in the pay scale of Rs. 260-400 (Revised from time to time) Sh. Prabhu Ram, Mason and Sh. Janak Singh, Mason. Hon'ble High Court in W.P. (C) Nos. 3302/2003, 3334/2003, 14188/2005, 18136/2005, 18150/2005, 18158/2005, 18538/2005, 3528/2006 & 3648/2006, vide order dated 25 September 2009 on the basis of Hon'ble High Court decision in the case of MCD Vs. Abid Ali (Carpenter) W.P. (C) No 11378/2009 has ordered to grant the pay scale of Rs. 260-400 to nine different workmen employed as fitters, carpenters, masons and, painters who were regularized to these post and the management had I.D. No 46/10 Page 14 of 15 placed them in the pay scale of Rs. 210-270.
29. Though, the present workmen were also entitled to enhancement of the pay scale from Rs. 210-270 to Rs. 260-400 from the date of their regularization as per the decision of Hon'ble High Court but in view of the findings on issues No 3 & 4, workmen are not entitled to the pay scale of Rs. 260-400 as the case of the workmen has not been properly espoused and claim has been filed at the very belated stage. In view of the above, workmen are not entitled for relief claimed. Reference is answered accordingly.
30. Copy of this award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open court
on 22.02.2012 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No 46/10 Page 15 of 15