Delhi District Court
Kuldeep And 6 Others vs Sdmc on 10 October, 2023
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW
DELHI.
F.24(416)Lab/SD/2020/15706
Dated 09.12.2020
POIT NO.: 22/2021
Workmen
Sh. Kuldeep S/o Sh. Phool Singh &
6 Ors. (as Annexure - A)
R/o Village & Post Office Dabada Khurd,
Tehal-Bahadurgarh Dist Jhajar, Haryana,
working as Drivers, South Delhi Municipal Corporation
Delhi. through General Secretary,
Municipal Employees Union (Registration No. 793),
Agarwal Bhawan, G.T. Road,
Tis Hazari Delhi-110 054.
Vs.
The Management of
South Delhi Municipal Corporation,
Through its Commissioner (South),
Dr. S.P Mukherjee Civic Centre,
J.L. Nehru Marg, New Delhi-110002.
Date of Institution : 19.02.2021
Date of presentation : 10.03.2023
before this court
Date of Arguments : 10.10.2023
Date of Award : 10.10.2023
AWAR D
1. The Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the parties
POIT NO. 22/2021 Page 1 of 20
named above for adjudication to this Tribunal with following terms of the
reference:-
"Whether the demand of workmen Sh. Kuldeep & 6 Others (
as Annexure - A) for regularization of service on the post of
Driver in proper pay scale and allowances with
retrospective effect from the respective initial date of their
joining into the employment on the principle of "Equal Pay
for Equal Work" from the initial date is legal and justified,
and if so, what relief are they entitled and what directions
are necessary in this respect?"
2. Statement of claim has been filed on behalf of the workmen, whose
particulars are mentioned in the table below:
S.N Name Post Date of
o Appointment
1. Sh. Kuldeep Driver 29.12.2015
S/o Sh. Phool Singh
2. Sh. Rambir Sharma Driver 29.12.2015
S/o Sh. Raj Singh
3. Sh. Sandeep Kumar Driver 29.12.2015
S/o Sh. Krishan Lal
4. Sh. Dinesh Kumar Driver 29.12.2015
S/o Sh. Dalel Singh
5. Sh. Joginder Driver 30.12.2015
S/o Sh. Jai Pal
6. Sh. Pushpender Singh Driver 30.12.2015
S/o Sh. Ram Bhaj
7. Sh. Inder Dev Driver 30.12.2015
S/o Sh. Balbir Singh
3. The workman aforesaid joined into the employment of the
management afiresaud since the year, December 2015 as Driver as details
POIT NO. 22/2021 Page 2 of 20
given above. They were taken in job on contract basis and at that time
their driving tests was also conducted and their medical was also done
and ultimately they wree taken in job as a driver on contract basis. That
the workman concerned are being paid a lump-sum salary of Rs. 16,000/-
per month while their other counterparts who are doing the identical work
and the work of same value but who are being treated as regular
employees are being paid their salary in proper pay scale and allowances,
but the workmen concerned were completely ignored in this regard. That
though the workmen aforesaid are continuously discharging their duties
with the management aforesaid since December 2015 but the
management has not taken any step till date regarding regularising of
their services and non payment of difference of salary on the principal of
equal pay for equal work with all arrears thereof is totally illegal, bad,
unjust and malafide amounting to unfair labour practice for the following
amongst other reasons. It is the case of the workmen that the job against
which the workmen aforesaid have been working is of a permanent and
regular nature of job. That employing persons on regular nature of jobs
and treating them as a monthly paid/muster roll workers and paying them
lesser remuneration than those doing the identical work and the work of
same value amounts to unfair labour practice as provided in Section 2(ra)
read with Item No.10 of Fifth Schedule and read with Section 25 T
punishable under Section 25 U of the Industrial Dispute Act, 1947. That it
is violative of Article 14, 16 and 39 (d) of the Constitution of India. That
it amounts to sheer exploitation of labour. That workman concerned has
acquired the status of permanent employees outright from the date of his
joining after completing 90 days of continuous service as prescribed in
the Model Standing Orders framed under the Industrial Employment
Standing Orders Act, 1946. That employing persons on regular nature of
jobs and treating them as a monthly paid/muster roll workers and paying
POIT NO. 22/2021 Page 3 of 20
them lesser remuneration than those doing the identical work and the
Work of same value amounts to unfair labour practice as provided in
Section 2(ra) read with Item No. 10 of Fifth Schedule and read with
Section 25 T punishable under section 25 U of the Industrial Dispute Act,
1947. That it is violative of Article 14, 16 and 39 (d) of the
Constitution of India. That it amounts to sheer exploitation of
labour. It is, therefore, prayed that an Award be made in favor of the
Workmen and the management be directed to regularize their services on
the post of Driver with retrospective effect from their respective initial
dates of joining into the employment or as per policy and to pay them
entire difference of salary on the principle of "Equal Pay for Equal Work"
from thier initial joining till regularization and all consequential benefits
thereof, monetary or otherwise along with the cost of litigation u/s 11(7)
of the I.D. Act.
4. Written Statement was filed on behalf of the management
wherein it has taken objections that contractual worker are not covered
under the definition of workman defined under Section 2(s) read with
Section 2 (00) (bb) of ID Act, 1947. That the reference has been made
mechanically without due application of mind and as such the claim of
the claimants are liable to be dismissed. As per the RR's for the post of
Driver, the same is liable to be filled up by way of passing the test
conducted by the DSSSB and the claimant has been engaged on purely on
contract basis for the specific period till the proper recruitment is made
through DSSSB. That the present claim is not maintainable in view of the
judgment of Hon'ble Supreme Court in case of Uma Rani vs. Registrar
Co-operative society as reported in (2004) 7 Supreme Court cases
112, as well as case titled as Secretary, State of Karnatka Vs. Uma
Rani wherein the constitutional bench of Hon'ble Supreme Court has
POIT NO. 22/2021 Page 4 of 20
held that Tribunal/Courts below cannot direct the organization to
regularize the employees. Hence in view of the settle Law laid down by
the Supreme Court in the Secretary, State of Karnataka vs. Uma Rani.
Hence the present claim is not maintainable and the same is liable to
dismissed. It is further contended that the present case is bad in law and
contrary to the rule and regulations as well as settled policy of the
management. In fact the claimant appointed as Driver on the contract
basis purely for a specified period or till such time the post is filled up on
regular basis by DSSSB, whichever is earlier and the said appointment
letter was duly accepted by the workmen without any protest till date.
Rest of the contentions of the statement of claim were also denied.
5. Rejoinder was filed on behalf of the workman reiterating the
contentions of the statement of claim.
6. After completion of proceedings, the following issues were framed
by the Ld. Predecessor on 17.11.2021.
(i) Whether any demand notice has been served upon
the management? If so its effects. OPM
(ii) Whether the management has indulged in unfair
labour practice by not granting regular status and
salary and other benefits to the workmen? OPW
(iii) As per terms of reference.
7. To prove their case, the workmen examined themselves as WW-1
to WW-7 and relied upon documents Ex. WW1/1 to Ex. WW1/23,
WW2/1, Ex. WW2/3, WW3/1, Ex. WW3/3, WW4/1, Ex. WW4/3,
WW5/1, Ex. WW5/3, WW6/1, Ex. WW6/3, WW7/1 and Ex. WW7/2.
The workmen, after duly tendering of their evidence by way of affidavits
Ex. WW1/A to Ex. WW7/A, were duly cross-examined by the AR for the
Management.
POIT NO. 22/2021 Page 5 of 20
8. Per contra, the management examined one Sh. Rahul Deswal S/o
Sh. Ved Manter, Working as Administrative Officer, DEMS Department,
Najafgarh Zone, Delhi as MW-1 and filed an affidavit in lieu of
examination-in-chief. He tendered his evidence and thereafter duly cross-
examined by the AR for the workmen.
9. Final arguments have been heard at length as advanced by
counsels for both the parties.
10. Ld. AR for the workmen have argued that though the workmen are
continuously discharging their duties with the management since
December 2015 but the management has not taken any step till date
regarding regularising of their services and non payment of difference of
salary on the principal of equal pay for equal work with all arrears thereof
is totally illegal, bad, unjust and malafide amounting to unfair labour
practice.
11. Ld. AR for the workman further argued that employing persons on
regular nature of jobs and treating them as a monthly paid/muster roll
workers and paying them lesser remuneration than those doing the
identical work and the work of same value amounts to unfair labour
practice as provided in Section 2(ra) read with Item No.10 of Fifth
Schedule and read with Section 25 T punishable under Section 25 U of
the Industrial Dispute Act, 1947.
12. Ld. AR for the management argued that claimants are contractual
worker and hence, they are not covered under the definition of workman
defined under Section 2(s) read with Section 2 (00) (bb) of the I.D Act,
1947. As per the RR's for the post of Driver, the same is liable to be filled
up by way of passing the test conducted by the DSSSB and the claimant
has been engaged on purely on contract basis for the specific period till
POIT NO. 22/2021 Page 6 of 20
the proper recruitment is made through DSSSB.
13. I have gone through the entire records of the case including
pleadings of the parties, evidence led and documents proved during
evidence.
14. My issue wise findings are:-
Issue No. 1: Whether any demand notice
has been served upon the management? If
so its effects. OPM
15. The workman has placed its reliance upon Ex. WW1/2, i.e. the
postal receipt for the due delivery of the said demand notice Ex. WW1/1
in the office of the management. The management witness MW-1 in his
cross-examination dated 24.08.2023 has categorically admitted that "The
Ex. WW1/1 is received by the management". Even otherwise, in the case
of 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 the demand
notice is not ncessary for raising the Industrial Disptue. The relevant
portion is reproduced herein below:
"5. Keeping in view the aforementioned judgment, which clearly
notes that there is no specific requirement in the I.D. Act that a
dispute has to be raised only by making a demand in writing, any
such interpretation given to Section 2(k) of the I.D. Act which
narrows the definition of the term, "industrial dispute" is not
permissible. Thus it cannot be held that merely because a demand
was not given in writing by the petitioners to the respondent
management, there does not exist any industrial dispute between
the parties. Making a written demand is not a sine qua non for
raising an industrial dispute. Once the appropriate Government
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
POIT NO. 22/2021 Page 7 of 20
an industrial dispute.
16. In view of the categorical admission of MW-1 in his cross-
examination this fact has been amply proved that Ex. WW1/1 i.e. Legal
Demand Notice was duly received by the management. Even otherwise,
requirement of demand notice is not sine-qua-non for raising an industrial
dispute under I.D. Act as mentioned in the judgement above. Therefore,
this issue i.e. Issue no. 1 is decided in favour of the workmen and against
the management.
Issue No. 2 & 3:
(ii) Whether the management has indulged in unfair
labour practice by not granting regular status and
salary and other benefits to the workmen? OPW
(iii) As per terms of reference.
17. In the present case, no issue of espousal is made, yet this tribunal has to
see for a dispute to be an industrial dispute if the same is properly espoused by
the union. In order to prove the proper espousal, the Ld. A.R. for the workman
has placed reliance upon Ex. WW1/5 i.e. resolution dated 21.05.2018 passed by
the Municipal Employees' Union for raisning 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 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
POIT NO. 22/2021 Page 8 of 20
(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 Mazdoor Union has
espoused the cause of the Petitioners/Workmen."
18. 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."
POIT NO. 22/2021 Page 9 of 20
19. 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 revered 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
jugedment 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 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."
20. 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 08.06.2018
which was sent on the letterhead of the Municipal Employees Union. The
Statement of Claim i.e. Ex. WW1/3 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 21.05.2018 i.e. Ex. WW1/4, wherein the union decided to raise
an industrial dispute in favour of the workman. It has also come in the
testimony, as well as the cross-examination of the workmen, that they became
members of the union since April-May of 2018. They have shown the
membership receipt and stated their union membership number. The
POIT NO. 22/2021 Page 10 of 20
management witness also admitted the recognition of the Municipal Employee'
Union and stated that it is the largest union of the workers of the MCD. 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.
21. Now, moving on to the issue no. 2 and issue no. 3, the Ld. AR for the
Management, Sh. Rajeev Bharadwaj argued that the workman while joining the
management had full knowledge of the terms and conditions of their
employment that their appointment is on contract basis. Now, after duly
accepting the terms and conditions of their employment, the workman can not
contenst the same stating it to be an unfair labpour practice.
22. On the aspect of regularisation, the management has drawn the attention
of this Tribunal to the case of Secretary, State of Karnataka and others vs.
Umadevi and others, appeal (civil) 3595-3612 of 1999, decided on 10.04.2006,
and Uma Rani vs. Registrar Co-operative Society as reported in (2004) 7
SCC 112. In these cases, it was held that regularization is not, and cannot be, a
mode of recruitment by any State within the meaning of Article 12 of the
Constitution of India or any body or authority governed by a statutory Act or
the Rules framed thereunder. Regularization furthermore cannot give
permanence to an employee whose services are ad hoc in nature. It was also
held that the fact that some persons had been working for a long time would not
mean that they had acquired a right for regularization. Further, it was also
argued that the management has its own policy of regularization, i.e., phase
manner regularization policy, and the management regularizes its daily wage
muster roll-employees as per the availability of the posts and funds. The said
policy was upheld by the Hon'ble Delhi High Court in MCD vs. Gauri
Shankar & Ors., WPC No. 601/1997 dated 31.08.1999, and MCD vs. Brij
Mohan, WPC No. 17932/2004 dated 27.10.2005.
23. The workman representative has argued that the management has
committed an unfair labour practice as enumerated in Section 2 (ra) read with
item 10 of the Fifth Schedule of the Industrial Disputes Act. He further
POIT NO. 22/2021 Page 11 of 20
submitted that employing the workmen on a regular and permanent post of
Driver and treating them as a mere temporary workmen, and continuing them
for several years with the object of depriving them of the status of a permanent
workmen, amounts to an unfair labour practice. It is because regularizing their
services would mandate the management to pay the salary in the regular pay
scale to the workman. He placed his reliance upon the judgment of the Hon'ble
Supreme Court titled as Chief Conservator of Forest and Anr., (1996) 2 SCC
293, and the judgment of the Hon'ble Delhi High Court titled as Project Dir.
Dept. of Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796.
24. This tribunal has considered all the material on record as well as legal
submissions of the parties and is of the opinion that this tribunal has power to
regularize the services of the workman in the light of the judgment of Hon'ble
Supreme Court titled as Chief Conservator of Forest and Anr. (supra), the
judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. Of Rural
Development v. Its Workmen, (supra). The relevant portion of the aforesaid
judgement is reproduced below:
"28. The decisions relied upon by the learned counsel for the
respondents in Ajaypal Singh (supra), ONGC (supra) and
Umrala Gram Panchayat (supra), also leave no manner of doubt
that the Supreme Court has specifically observed that the
prohibition laid down for regularization in Uma Devi (supra)
does not apply to industrial adjudication and that the Industrial
Tribunal has the power to direct regularization of services in
cases where pursuant to unfair labour practices, employees have
been made to render services for long periods of time on causal
basis for work that should ordinarily be done by regular
employees."
........
"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 POIT NO. 22/2021 Page 12 of 20 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."
25. The Constitution Bench of the Hon'ble Supreme Court in the case of Bidi, Bidi Leaves' and Tobacco Merchants Association vs. The State of Bombay, Civil Appeals Nos. 415 to 418 of 1960 decided on 15.11.1961 has held that the tribunal has the power to create new rights and liabilities upon the employer. The relevant portion of the judgment is reproduced below:
"15. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat 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)."POIT NO. 22/2021 Page 13 of 20
26. In view of the above, the argument of the management that this tribunal does not have the power to regularize the services of the workman concerned in view of Uma Devi (supra) is misplaced in law.
27. Now, moving on to the factual matrix of this case, the stated that they joined into the employment of the management in the year 2015 (dates mentioned in the table above). Ex. WW3/3 i.e. common appointment order of Sh. Kuldeep S/o Sh. Pool Singh, Sh. Rambir Sharma S/o Sh. Raj Singh, Sh. Sandeep Kumar S/o Sh. Krishan Lal and Sh. Dinesh Kumar S/o Sh. Dalel Singh w.e.f. 29.12.2015. Ex. WW6/3 is the common appointment order dated 31.12.2015 of Sh. Joginder S/o Sh. Jaipal, Sh. Pushpender Singh S/o Sh. Ram Bhaj and Sh. Inder Dev S/o Sh. Balbir Singh w.e.f. 30.12.2015. The workmen concerned underwent the selection procedure of the management which consisted of interview/trade test and only after successfully passing the selection procedure the workmen concerned were duly selected. Ex. WW1/8, Ex. WW2/1, Ex. WW3/2, Ex. WW4/2, Ex. WW6/2, Ex. WW5/2 and Ex. WW7/2 are letters sent to the workmen concerned by the management informing them that they have been shortlisted by the competent authority for engagement on contract basis for performing the work/duties assigned to the Drivers in South Delhi Municipal Corporation. The workmen were directed to report for appearing for interviews/trade test to the office of Executive Engineer along with their original testimonials, including Heavy Driving License, experience certificate and attested copies of all these documents for trade test. The workmen concerned have been working continuously and uninterruptedly since their initial date of joining into the employment of the management. Ex. WW1/9 and Ex. WW1/10 are the extension orders issued by the management with a break of one day. No reasons has been stated in the extension order for giving one day break in the services of the workman.
28. The workmen concerned in their deposition before this Tribunals as well as in the cross-examination dated stated that they joined the services of the management as Heavy Vehicle Driver in the year 2015 in DEMS Department and since then they have been working continuously and uninterruptedly. They POIT NO. 22/2021 Page 14 of 20 also affirmed in their cross-examination that prior to their appointment, their interview and driving test were taken and only after clearing the same the management appointment them pursuant to their selection process. The workmen also stated that they only had a choice between the hunger and employment on whatever employment conditions were offered to them by the management.
29. Further, during the cross-examination of the Management Witness MW- 1, Sh. Rahul Deswal on 24.08.2023, he made the following admissions were made, which are crucial for the adjudication of the present dispute and hence are reproduced herein:
"The documents filed by the workmen on this court record are admitted and are not in dispute. The Ex. WW1/1 is received by the management. That the service details of the workmen as mentioned in para 1 of the statement of claim of the workmen filed before this court are correct. It is correct that the concerned workmen are working as a heavy vehicle driver with the management. Vol. As Contract workers. It is correct that the posts of the heavy vehicle drivers were advertised by the management. It is correct that the concerned workmen alongwith other candidates applied for the said post of heavy vehicle driver. It is correct that the concerned workmen were duly selected after due process of selection process done by the management. It is correct that the concerned workmen fulfilled the requisite conditions/qualifications for the post of heavy vehicles drivers in accordance with the recruitment rules of the management. It is correct that the work and conduct of the workmen is satisfactory and there is no complaint. It is correct that from their initial date of appointment they are working continuously and uninterruptedly. It is correct that the budget is made and funds are allocated in accordance with the sanctioned post. It is correct that in the present case also the funds are allocated for the post of heavy vehicle driver in the regular pay scale, whereas the workmen were paid only Rs. 16000/- p.m. It is correct that the salary in the regular pay scale is much higher than Rs. 16000 p.m. It is correct that the job of the heavy vehicle driver is continuing since inception of management i.e. 1958 to till date and is likely to continue in the foreseen future. It is correct that the population of Delhi is increasing with the POIT NO. 22/2021 Page 15 of 20 passage of time and accordingly the work of drivers is also increasing. Vol. We have started the practice of employing drivers through the contractor who collects the garbage. It is correct that the nature of work and working hours as well as the responsibilities of the concerned workmen and their counterparts, who are treated as regular and permanent heavy vehicle driver working on the post is same and identical. The management is not having any policy to regularise the services of the concerned workmen. It is incorrect to suggest that the concerned workmen were employed on the salary of Rs. 16000/- with the object of denying them the salary of a regular heavy vehicle driver. It is correct that the regular and permanent heavy vehicle driver is paid far higher salary than the concerned workmen. It is incorrect to suggest that the management has employed the concerned workmen with the object to deny them the status of the permanent employee. It is incorrect to suggest that the management has indulged in unfair labour practices by treating the concerned workmen as contractual. It is incorrect to suggest that the averments made by me in my affidavit Ex. MW1/A are false or that I have deposed falsely."
30. From the aforementioned testimonies of the workmen as well as the management witness, the admitted position emerges that the workman joined in into the employment in the year 2015 (as mentioned in their statement of claim). The management witness also admitted the service details of the workman stated in the statement of claim are correct and the documents filed by the workman including the exhibits discussed above are admitted and not in dispute. It is also admitted that the workmen concerned were appointed pursuant to the issuance of open advertisement for the post of Heavy Vehicle Driver, thereafter duly underwent the selection procedure including the trade test and interview. It is also not admitted that the workman fulfils the requisite qualifications for the post of heavy vehicle drivers in accordance with the recruitment rules of the management and that they have been working continuously and uninterruptedly from their initial date of joining. It is also admitted that the job they were performing was permanent and perennial in nature since the same has been continuing from the very inception of the POIT NO. 22/2021 Page 16 of 20 management and as stated by the management witness it will like to continue in future also. The management also found the work and conduct of the workman satisfactory. It is further admitted that the work, duties, and number of working hours of the workman are identical to those of the regular and permanent employees of the management. This tribunal fails to understand that despite having requisite qualifications, undergoing selection procedure, founding their work and conduct sati-factory, the services of the workmen were not regularised by the management till date or that why the concerned workmen were appointed on the contract basis in the first place.
31. The management argued that the work which the workmen are performing is mere need based, hence their services were hired as a stop gap arrangement for the time being. This argument of the management contradicts their action, had it been the case, then the management should not be extending their services from time to time. It is important to highlight that the workmen have been working for the past 7 years. Further, the argument of the management that the workmen after knowing the terms and conditions of their employment can not ask for regularisation or contend unfair labour practice on the part of the management does also not stand in view of the unequal bargaining power between the workman and management for stating the terms and conditions of the employment. The workmen stated in their cross- examination that they only had a choice between hunger and employment on whatever conditions offered to them. The Hon'ble Delhi High Court in the case of The Officer Incharge Defence Standardization Cell vs. Mukesh Kumar, W.P. (C) 3453/2007 decided On: 21.05.2013 relied upon the judgement of Bhikku Ram, S/O Sh. Lalji v. Presiding Officer Industrial Tribunal cum Labour Court, (1996) III LL J 1126 P & H, wherein the Court observed as follows:
"21. Therefore, while interpreting and applying various parts of Section 2(oo),the competent Court/Tribunal shall have to keep in mind the provisions of Section 2(ra) read with Section 25T and U and various paragraphs of the Fifth Schedule and if it is found that the action of the employer to engage a workman on casual basis or as a daily-wages or even on temporary basis for long periods of time with intermittent breaks and subsequent POIT NO. 22/2021 Page 17 of 20 termination of service of such workman on the pretext of non- renewal of contract of employment or termination of contract of employment on the basis of a stipulation contained therein is an act of unfair labour practice, such an action of the employer will have to be nullified and the Court will be fully justified in rejecting the plea of the employer that termination of service of the workman does not amount to retrenchment but is covered by Clause (bb). In the context of various paragraphs of the Fifth Schedule, Clause (bb) which is an exception to the principal section will have to be given a narrow interpretation. This clause has the effect of taking away a right which was vesting in the workman prior to its insertion. Therefore, the same cannot be allowed to be used as a tool of exploitation by the employer who, as already observed above, enjoys a position of dominance as against the workman. The employer is always in a position to dictate the terms of service vis-a-vis the workman or to be workman. The employer can unilaterally impose oppressive and unreasonable conditions of service and the workman will be left with little choice but to accept all such conditions. The employee cannot possibly protest against the incorporation of arbitrary, unreasonable and even unconscionable conditions of service in the contract of employment. Any such protest by the employee or a to be employee will cost him job or a chance to enter employment. In respect of a work of permanent or continuing nature, the employer can always give an employment of fixed term or incorporate a condition in the contract of employment/appointment letter that the employment will come to an end automatically after a particular period or on the happening of a particular event. In such a situation, if the Court finds that the conditions are arbitrary and unreasonable and the employer has forced these conditions upon a workman with the sole object of avoiding his obligation under the Industrial Disputes Act, a bald plea of the employer that the termination of service is covered by Clause (bb) will be liable to be rejected."
32. The aforesaid judgement acknowledged the ultimate negotiation power for dictating the terms of employment lies with the employer. Therefore, merely because the workman accepted the terms and conditions of the employment would not become a leverage to the management to indulge in unfair labour practice and keep exploiting the them under the garb of contractual POIT NO. 22/2021 Page 18 of 20 appointment. The management witness admitted that despite the allocation of funds for the post of Heavy Vehicle Drivers, the workmen are paid the meagre amount of Rs. 16000/- per month and the regular and permanent heavy vehicle drivers are paid higher salary than the concerned workmen. The management should not forget that it is a state under Article 12 of the Constitution of India, therefore, it is under obligation to obey the law of the land and should act like a model employers to both private and state entities.
33. The AR for the workman filed an application u/s 11(3)(b) of the I.D. Act seeking total number of sanctioned and vacant post of Heavy Vehicle Driver from the year 2010, including the regularisation policy of Heavy Vehicle Drivers and complete file from the initiation of selection/appointment till the date workmen were granted appointment. The said application was allowed vide order dated 10.03.2023. Despite the directions of this tribunal the aforesaid information was not brought on record by the management. Therefore, this court will draw an adverse inference against the management that the management has various posts of Heavy Vehicle Drivers lying vacant and it does not have any regularisation policy for the post of Heavy Vehicle Driver.
34. In view of the admitted position and the material on record, this tribunal holds that the management has clearly committed an unfair labour practice by employing the workmen as daily wagers for performing the permanent nature of work of a Heavy Vehicle Driver and continued them for years with the intent of depriving them of the status and privileges of a regular and permanent employee. This view is supported by the judgment of the Hon'ble Supreme Court in Chief Conservator of Forest (supra), wherein the Hon'ble Supreme Court of India held that employing workers as temporary workers for long periods and denying them the status and salary of a regular employee amounts to an unfair labor practice. This is because giving them the status and privileges of a permanent employee would require the management to pay the workman a salary higher than the one fixed under the Minimum Wages Act.
35. Even though the management has stated in its written statement that it has a phased manner policy of regularization, the same has not been presented POIT NO. 22/2021 Page 19 of 20 on the record despite the directions of this tribunal. The management witness admitted that the management does not have any policy to regularise the services of the concerned workmen. concerned workmen have maintained the stance that the management does not have any policy of regularization pertaining to drivers.
36. In these circumstances, when there is no policy of regularisation, this tribunal holds that the workmen whose particulars are mentioned in the table above are entitled to regularization in service on the post of Driver w.e.f. their respective initial dates of joining in the regular pay scale with all consequential benefits, either monetary or otherwise. 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 of 8% per annum from the date the arrears became due, i.e., their respective initial date of joining, until the date of its realization. Hence, the issue i.e. issue no. 3 and 4 are decided in favour of the workmen and against the management. The award is passed accordingly.
37. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in the open Tribunal on this 10.10.2023 (Ajay Goel) POIT-I/RADC, New Delhi POIT NO. 22/2021 Page 20 of 20