Delhi District Court
Ms. Kamaljeet vs M/S Samarth Siksha Samiti on 2 February, 2024
IN THE COURT OF SH. AJAY GOEL: PRESIDING OFFICER
INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT
COURTS, NEW DELHI.
F. 24(66)/Lab./CD/16/365 Dated 04.08.2016.
Corrigendum: F. 24(66)/Lab./CD/2016/612 Dated 10.03.2017
POIT No: 1084/2016
Workwoman
Ms. Kamaljeet D/o Sh. Manbir Singh
Through General Secretary,
Delhi Labour Union (Regd. No. 1026),
Agarwal Bhawan, G.T. Road,
Tis Hazari, Delhi-54.
Vs.
The Management of
1) M/s Samarth Siksha Samiti (Regd.),
through its General Secretary,
Saraswati Bal Mandir Parisar, near DESU office,
Aram Bagh, Pahar Ganj, New Delhi.
2) The Directorate of Education,
Govt. of NCT of Delhi,
old Secretariat, Delhi-110054.
Date of Institution : 09.08.2016
Date of presentation : 10.04.2023
before this court
Date of Arguments : 01.02.2024
Date of Award : 02.02.2024
AWAR D
POIT No. 1084/2016 Page 1 of 47
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 the demand of the workman concerned
Ms. Kamaljeet D/o Sh. Manbir Singh (aged 34
year) for regularization of her services on the post
of Accounts Clerk/UDC with retrospective effect
from the initial date of her joining into the
employment along with entire difference of salary
on the principle of "Equal Pay for Equal Work"
from the initial date of her joining onwards, is legal
and justified; and if so, what relief is he entitled and
what directions are necessary in this respect?"
2. However, on the application dated 16.08.2016 of the
workwoman, a corrigendum was issued by the Labour
Department, Govt. of the National Capital Territory of Delhi and
fresh terms of reference was sent for adjudication to this Tribunal
which is
as follows:-
"Whether the demand of the workman
concerned Ms. Kamaljeet D/o Sh. Manbir Singh
(aged 34 year) for regularization of her services
on the post of Accounts Clerk/UDC with
retrospective effect from the initial date of her
joining into the employment along with entire
difference of salary on the principle of "Equal
Pay for Equal Work" from the initial date of her
joining onwards; payment of her due salary since
November, 2015 onwards and further her
transfer / post near the place of her residence or
POIT No. 1084/2016 Page 2 of 47
at a practical distant school / place, legal and
justified and if to what relief is she entitled and
what directions are necessary in this respect?"
3. Statement of Claim has been filed on behalf of the
workwoman, wherein it is averred that the workwoman concerned
joined into the employment of the management as Accounts
Clerk/UDC in the month of April, 2008 and since then she is
continuously discharging her duties with the management. Initially,
the workwoman was being paid a lump sum salary of Rs. 1500/- per
month which was enhanced from time to time and as on date she is
being paid salary of Rs. 12,300/- p.m., which amount is much less
than minimum wage and hence the management is not paying even
the minimum wages to the workwoman. That the workwoman has
approached the management again and again for regularization of
her services as she is continuously discharging her duties with the
management for the last about eight years. However, instead of
regularising her, management illegally transferred her from one
place to another so as to harass her. Details of the posting places of
the workwoman since are as under: -
S.No. Duration/Period Place of Posting
1 April 2008 to July 2008 Samarth Shiksha Samiti, Uttari
Vibhag (Zonal Office) Road
No. 70, Punjabi Bagh, Delhi-
110026.
2 August 2008 to Saraswati Bal Mandir, School
07.10.2011. Mahendru Enclave, Delhi-
110033.
3 07.10.2011 to 08.10. 2012. Saraswati Bal Mandir, School
POIT No. 1084/2016 Page 3 of 47
A-2, Paschim Vihar, Delhi-
110063.
4 09.10.2012 to 10.10. 2012. Samarth Shiksha Samiti, Uttari
Vibhag (Zonal Office) Road
No. 70, Punjabi Bagh, Delhi-
110026.
5 11.10.2012 to 04.09. 2013. Shri Sanatan Dharam Saraswati
Shishu Mandir Ramdwara,
Delhi- 110007.
6 05.09.2013 to 06.09.2013. Samarth Shiksha Samiti, Uttari
Vibhag (Zonal Office) Road
No. 70, Punjabi Bagh, Delhi-
110026.
7 06.09.02013 to 20.03.2014 Shri Sanatan Dharam Saraswati
Bal Mandir, School Road No.
70, Punjabi Bagh, Delhi-
110026.
8 20.03.2014 to 09.04.2014. Samarth Shiksha Samiti, Uttari
Vibhag (Zonal Office) Road
No. 70, Punjabi Bagh, Delhi-
110026.
9 09.04.2014 to 06.04.2015 Shri Ramswaroop Sethi
Saraswati Shishu Mandir,
School Ranjit Nagar, Delhi-
110008.
10 07.04.2015 to 10.04.2015 Saraswati Shishu Mandir,
Aaram Bagh, School Pahar
Ganj, Delhi- 110055.
11 11.04.2015 to 31.07.2015 Saraswati Shishu Mandir,
School Ramdwara, Old Subzi
Mandi, Delhi 110007.
12 01.08.2015 to 26.11.2015 Gyan Prakash Saraswati Vidya
Mandir, School, Meera Bagh,
POIT No. 1084/2016 Page 4 of 47
Delhi 110087.
4. That the action of the management regarding her illegal
transfer and non-regularization of her services on the post of
Accounts Clerk/UDC w.e.f. the initial date of her joining (i.e. April,
2008) in proper pay-scale and allowances and denial of proper
salary at par with her counter parts on the principle of equal pay for
equal work with all arrears thereof is totally illegal, bad, unjust and
malafide. 3.
5. That the transfer of the workwoman concerned is also totally
illegal and an act of victimization because the workwoman
concerned is approaching the management again and again
regarding regularization of her services. That a demand notice has
been served upon the managements by Regd. A/D post vide
communication dated 16.01.2016 which has been duly received in
their office, but no reply has been received. The workwoman has
prayed that her services be regularized in the services on the post of
Accounts Clerk/UDC with retrospective effect from the initial date
of her joining into the employment along with entire difference to
salary on the principle of "Equal Pay for Equal Work" from the
initial date of her joining onwards. She further prayed that she be
also paid her due salary since November, 2015 onwards and that the
management be directed to transfer / post the workwoman
concerned near the place of her residence or at a practical distant
school / place so that she may be able to discharge her duties
regularly and sincerely. The cost of litigation as provided in Section
11(7) of the Industrial Disputes Act, 1947 may also be awarded to
POIT No. 1084/2016 Page 5 of 47
the workwoman.
6. Written statement has been filed by the management
wherein they contended that the present matter is not an industrial
dispute under Section-2(k) of the Industrial Disputes Act as it has
not been espoused by any of the employees of the Respondent
Management or Union. It is further contended that the Claimant has intentionally suppressed material facts from the Court as she might have been working on 'ad-hoc' basis previously. However, in the year 2011, she had applied for the work of clerk with the Society which Society has issued a fixed-term contract of 10 months to her i.e. 27.08.2011, which was duly accepted by her. Thereafter, she was interviewed as per the selection process on 28.06.2012 in which she was passed. Thereafter, she was issued an appointment letter dated 19.07.2012 on probation for a permanent post and thereafter she was confirmed on that post. Thereafter, on administrative grounds, her services were transferred in between and lastly her services were transferred vide transfer letter dated 26.11.2015 from Gyan Prakash Saraswati Vidya Mandir, Mira Bagh, to Samarth Shiksha Samiti Dakshiniya Vibhagiya Samiti (South Zone), Govardhan Lal Trehan Saraswati Bal Mandir Premises, New Delhi, which letter she had refused to receive. Thereafter, she was asked to give charge to the school where she was working on 26.11.2015, which also she had refused. She never reported at the transferred place and further never gave her charge in the school to somebody else. She was even apprised about the facts that the school had specifically stated that around Rs. 40,000/- and other documents and assets of the school were with her and accordingly she was directed by the Society to POIT No. 1084/2016 Page 6 of 47 give her charge to somebody else in the school and to report at the transferred place. However, she kept on writing letters to the society, but did not report at the transferred place.
7. It has been further contended by the management that the Principal of the School, Gyan Prakash Saraswati Vidya Mandir, A- Block, Meera Bagh, had even filed complaints against her to the SHO Police Station Mianwali Nagar, Paschim Vihar. She was issued various letters, including letter dated 04.01.2016, wherein she was asked specifically to report at the transferred place or to show cause why disciplinary proceedings should not be initiated against her. Thereafter, she had sent a letter dated 09.01.2016 in which she had stated that she was not well and she would report at the transferred place after 15 days. However, she did not report at the transferred place, but continued to send letters to the Management on one account or the other to which, the Society through its General Secretary had specifically sent a letter 19.06.2016 to her, wherein she was directed to report at the transferred place with immediate effect. Thereafter, letter dated 24.06.2016 was also sent to her directing her to report for duty at the transferred place, to which she had replied that as the matter was subjudice, therefore, she would not report at the transferred place and only after final decision of the matter she would take further action. It was further reported to the Management that an amount of around Rs. 1,50,000/- was also missing from the School accounts during the period when she was taking care of the accounts of the School from April 2015 to July 2015. All these facts have been intentionally suppressed and not disclosed by the Claimant concerned in its Statement of Claim.
POIT No. 1084/2016 Page 7 of 47Thus, the claim is liable to be dismissed on this count itself. Rest of the contentions of the statement of claim were also denied.
8. Rejoinder has been filed by the workmen, wherein all objections raised in the preliminary objections have been denied and the contentions made in the statement of claim are reiterated and affirmed.
9. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 05.07.2018.
1. Whether the claim of the workman has been properly espoused by the Union? OPW
2. As per terms of reference. OPW
3. Relief.
10. To prove her case, the workwoman examined herself as WW-
1. She tendered her evidence by way of affidavit Ex. WW1/A and relied upon documents Ex. WW1/1 to Ex.WW1/25. WW-1 was duly cross-examined by ld. AR for the management. Thereafter, workwoman evidence was closed.
11. To prove their case, management examined one Sh. Gajraj Singh, Secretary, West Zone, Mahashay Chunni Lal Saraswati Bal Mandir, L-Block, Hari Nagar, Delhi, as MW-1 and tendered his evidence by way of affidavit Ex. MW1/A and relied upon documents Ex. MW1/1 to Ex. MW1/17. Thereafter, MW-1 was duly cross-examined by the AR for the workwoman. Thereafter, management evidence was closed.
12. Final arguments have been heard at length as advanced by Ld. ARs for both parties.
POIT No. 1084/2016 Page 8 of 4713. 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 the claim of the workman has been properly espoused by the union? OPW
15. The AR for the Management has contended that the present dispute of the workwoman has not been properly espoused by the union. The AR for the workwoman in order to prove the proper espousal has placed reliance upon Ex. WW1/5 i.e. resolution dated 04.01.2016 passed by the Delhi Labour Union (Regd. No. 1026), for raising an industrial dispute in favour of the workwoman. 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 workwoman 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 POIT No. 1084/2016 Page 9 of 47 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 Mazdoor Union has espoused the cause of the Petitioners/Workmen."
16. 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:-
POIT No. 1084/2016 Page 10 of 47"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."
17. 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 workwoman 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 POIT No. 1084/2016 Page 11 of 47 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."
18. The workwoman in order to prove the proper espousal has placed on record, Ex. WW1/1, i.e., a copy of the legal demand notice dated 19.01.2016 which was sent on the letterhead of the Union. The Statement of Claim i.e. Ex. WW1/25 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 04.01.2016 i.e. Ex. WW1/5, wherein the union decided to raise an industrial dispute in favour of the workwoman. WW-1 in her affidavit has stated that she is member of Delhi Labour Union (Regd.) and her membership no. is 52061 and she is paying her due subscription to the Union. She further stated in her affidavit Ex. WW1/A that she approached the Delhi Labour Union for redressal of her dispute regarding regularisation of her services on the post of Accounts Clerk/UDC with retrospective ffect from the initial date of her joining into the employment.
19. Further, it is notable the management has taken the issue of espousal at belated stage, meaning thereby no such contention was taken when the matter was pending before the Conciliation Officer, therefore, at this belated stage, the management is not allowed to take this contention, moreso in the absence of any basis/reason for stating that the present dispute is not espoused properly by the POIT No. 1084/2016 Page 12 of 47 union. Hence, this tribunal holds that the contention of the management is a mere technical one and does not stand in light of the evidence placed by the workmen on record. The workwoman has placed sufficient material on record to show that the present dispute is properly espoused by the Union of the workwoman. Hence, this issue i.e. Issue no. 1 is decided in favour of the workwoman and against the management.
Issue no. 2:
As per terms of Reference.
20. Now this tribunal has to see if the demand of the workwoman, Ms. Kamaljeet D/o Sh. Manbir Singh for regularization of her services on the post of Accounts Clerk/UDC w.e.f. her initial date of joining into the employment and payment of difference of salary on the principle of equal pay for equal work w.e.f. her initial dates of joining onwards is legal and justified.
21. It is the case of the workwoman that she joined the management as an Account Clerk/UDC in the month of April 2008 and since then has worked continuously and uninterruptedly with the management. Initially, when she was appointed, she was paid a monthly salary of Rs. 1500/-, which was later on enhanced to Rs. 12,300/-, which is even lower than the prescribed minimum wages. The management initially disputed the initial date of joining of the workwoman and stated in Para 1 of the Written Statement that "the claimant concerned is working with the society from 01.08.2011 for which she had given an application dated 21.06.2011 as a clerk." Again, in Para 5 of the preliminary objections, it is stated that "the POIT No. 1084/2016 Page 13 of 47 claimant concerned might have been working on an ad-hoc basis previously." Again, the AR for the management in the workwoman cross-examination dated 22.07.2022 put the suggestion to the workwoman that "you have worked from 2008 to 2011 as ad-hoc, then you had worked under a fixed term contract of 10 months on 27.08.2011, afterwards you were interviewed as per selection process on 28.06.2012, in which you passed and hence you were issued an appointment letter dated 19.07.2012 on probation for a permanent post upon which you were confirmed subsequently. What do you have to say?" To this question, the workwoman responded that "from April 2008 I was working there and in the year 2011 the management forcefully signed on contract and shown my previous service as nil. In the year 2012 the management again forcefully signed on a letter, the salary mentioned on it was not of permanent or contractual and not minimum wages. I worked as UDC accounts clerk with the management." When the management witness was asked regarding the initial date of joining of the workwoman in his cross-examination dated 06.12.2023, he showed his lack of knowledge and stated that "I do not know if the workman was working as Account Clerk w.e.f. April 2008 with the management. I had not seen any records of Saraswati Shishu Mandir, Mahendru Enclave prior to making my affidavit."
22. The workwoman has consistently maintained her stance in her Affidavit Ex. WW1/A as well as in her cross-examinations dated 04.03.2022 and 22.07.2022 that she had been working with the management w.e.f. April 2008. It is the management whose stance kept fluctuating during the course of the trial, initially stating that POIT No. 1084/2016 Page 14 of 47 the workwoman might have been working previously on an ad-hoc basis. Thereafter, during cross-examination, the AR for the management itself suggested to the workwoman that she had worked from 2008 to 2011 on an ad-hoc basis, and pursuant to which she was given employment on a permanent basis on the post of Clerk/Receptionist. Therefore, it is clear from the evidence and the pleadings that the workwoman has been a part of the management since April 2008, a fact that has withstood the scrutiny of cross-examination and the changing stances of the management itself.
23. The workwoman has stated that she has been consistently approaching the management for the regularization of her services from the initial date of joining and for the consequent enhancement of salary and service conditions. Thereafter, the management has resorted to victimization and has kept transferring her from one place to another within short spans of intervals. In its Written Statement at Para No. 3, the management has acknowledged the fact of her being transferred eight times within three years, from 2012 to 2015. Some of these transfers were effected within intervals of just one to two months. The management has not disclosed any transfers prior to 2008. It has merely stated that the said transfers occurred due to administrative reasons but has failed to disclose those reasons.
24. As a matter of caution, even though the present dispute pertains to the regularization of the services of the workwoman, yet the terms of reference have to be seen in light of the pleadings of the parties. From the pleadings of the parties, i.e., the statement of claim POIT No. 1084/2016 Page 15 of 47 filed before the conciliation officer, it appears that the case pertains to the issue of regularization as well as illegal transfer. The workwoman is also aggrieved by the transfer order dated 26.11.2015, as per which she was transferred from Gyan Prakash Saraswati Vidya Mandir, Mir Bagh to Samarth Shiksha Samiti Dakshiniya Vibhagiya Samiti (South Zone) Goverdhan Lal Trehan Saraswati Bal Mandir Parisar, Ring Road, Nehru Nagar, New Delhi- 110065, which is stated to be very far from her place of residence, i.e., Meer Vihar, Madan Pur Dabas, Delhi-81. Prior to eight days of the issuance of the aforesaid transfer order, the workwoman had written a letter dated 18.11.2015 to the management stating that she had been working for the past 7-8 years with the management with utmost loyalty and devotion and had also duly complied with all the transfer orders issued by the management. She sought an increment of her wages in accordance with the regular pay scale fixed by the government. Ironically, only after eight days of writing this letter, the workwoman was again transferred 20-25 kms from her previous place of posting. When the management witness was cross- examined on this aspect on 06.12.2023, he stated that "I have no knowledge whether the workman was transferred 12 times as mentioned in Para No. 3 of Statement of Claim. The management has a transferred policy. We have not brought it on record. This is the choice of the management as to when, where and whom to transfer". The said cross-examination continued on 11.01.2024 where the management witness admitted it to be correct that "the last transfer of the workman was from Meera Bagh to Goverdhan Trehan Nehru Nagar....the distance between Meera Bagh and POIT No. 1084/2016 Page 16 of 47 Nehru Nagar is about 15-20 kms. It is correct that the management does not pay any conveyance allowance to the workman."
25. Further, after the issuance of the transfer order, the management failed to place on record whether it had issued any relieving letter to allow the workwoman to join the next place of posting. When the management witness was questioned on this aspect in his cross-examination on 11.01.2024, he provided an evasive response. The management witness denied the suggestion that relieving orders are passed repeatedly after the issuance of a transfer order. He volunteered that the place to which the employee has been transferred issued a relieving letter, suggesting this is not the responsibility of the management committee. He admitted that Ex. WW1/6 to Ex. WW1/10, which are relieving letters issued to the workwoman upon her transfers from one place to another, were issued by them. When further questioned by the AR for the workwoman, "Q I put it to you that no relieving order was issued to the workman after her last transfer dated 26.11.2015? A. My answer to this question is that after the transfer dated 26.11.2015, we issued many letters to the workman to join at the transferred place and cleared the dues of the transferee school." Later on, he conceded and admitted that "it is correct that no relieving order was ever issued to the workman after her last transfer."
26. From the pleadings, evidence led both oral and documentary, it becomes evident that the workwoman was transferred numerous times by the management from one place to another in a short span of time. Even though the management has argued that transfer from one place to another is one of the service conditions of the employee POIT No. 1084/2016 Page 17 of 47 and the employer has every right to do the same, it becomes necessary to reiterate that such a right is not absolute but comes with its checks and balances. The management is supposed to record its reasons in writing with respect to the need for transfer to its employee, and the said employee has every right to know those reasons. Recorded reasons for transfer ensure that the transfer posting is not a method of harassment but based on facts and circumstances. The management has merely stated that due to administrative reasons, the workwoman was admittedly transferred eight times during the span of three years from 2011 to 2015. No reasons have been disclosed by the management as to why the workwoman was transferred eight times in such a short span of time.
27. The management has stated that the workwoman was transferred according to their transfer policy; however, this alleged transfer policy has not been placed on record. Consequently, there is no evidence to substantiate the existence of any such policy or whether the conditions of the transfer policy, if it exists, have been met with respect to the concerned workwoman. The workwoman has placed on record her salary slip for the month of January 2015, Ex. WW-1/19 which shows her monthly salary as Rs. 12,950/-. The management contends that they have been paying the monthly salary to the workwoman in accordance with the payscale of the management, but they have failed to provide any documentation to substantiate if the management is paying wages in accordance with the recommendations of Pay Commission.
28. Notably, the workwoman is a single mother having school POIT No. 1084/2016 Page 18 of 47 going children. When asked, the management witness expressed his lack of knowledge regarding her status as a single mother and whether her children were studying in the school. This ignorance suggests that these critical factors were not considered by the management when deciding to transfer her to another school located 20-24 kms away. Given that the workwoman is a low-paid employee, transferring her such a distance without providing reasons or conveyance allowance reeks of a mala-fide intent behind the transfer. The issuance of transfer orders by the management appears to harass a single mother who has been seeking the regularization of her services and the grant of a regular pay scale. Therefore, this tribunal is of the opinion that the management has engaged in unfair labor practice as stipulated in Entry No. 7 of the Fifth Schedule read with Section 2(ra), punishable under Sections 25T and 25U of the Industrial Disputes Act, by transferring the workwoman with a mala-fide intention from one place to another under the guise of adhering to management policy. Hence, this tribunal sets aside the order dated 26.11.2015 issued by the management, transferring her from Gyan Prakash Saraswati Vidya Mandir, Mir Bagh to Samarth Shiksha Samiti Dakshiniya Vibhagiya Samiti (South Zone) Goverdhan Lal Trehan Saraswati Bal Mandir Parisar, Ring Road, Nehru Nagar, New Delhi-110065.
29. So far as the question of regularization of the workwoman is concerned the AR for the workwoman argued that that employing the workwoman on the post of Receptionist/Clerk and treating her services as mere adh-hoc and paying him lesser remuneration as prescribed under the Pay Commission amounts to unfair labour POIT No. 1084/2016 Page 19 of 47 practices as provided in Section 2(ra) read with Item No. 10 of the Fifth Schedule. Reliance is placed upon Chief Conservator of Forests & Anr. vs. Jagannath Maruti Kondhare & Ors, (1996) 2 SCC 293 and Project Dir. Dept. of Rural Development vs. Its Workmen, 2019 SCC OnLine Del 7796. It is also argued that the action of the management by extracting the work of Receptionist/Clerk, yet paying lesser remuneration is violative of Article 23 of the Constitution of India. Reliance is placed upon Delhi Development Authority vs. Virender Kumar Tyagi, 1998(1)SC T225(Delhi).
30. This tribunal has considered all the material on record as well as legal submissions of the parties and is of the opinion that this tribunal has power to regularize the services of the workwoman with retrospective effect in the light of the judgment of Hon'ble Supreme Court titled as Chief Conservator of Forest and Anr., (1996) 2 SCC 293, the judgment of Hon'ble Delhi High Court titled as Project Dir. Dep. Of Rural Development v. Its Workmen, 2019 SCC OnLine Del 7796). 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 POIT No. 1084/2016 Page 20 of 47 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.
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61. We would now examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.."
31. 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 regularizing the services of the workmen concerned. The relevant portion of the judgement is reproduced belows as:
"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 POIT No. 1084/2016 Page 21 of 47 rather wrongly applied by various State Governments. We have called 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 POIT No. 1084/2016 Page 22 of 47 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 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)."
32. 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 POIT No. 1084/2016 Page 23 of 47 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)."
33. Therefore, is not only empowered but also obligated to rectify such injustices by regularizing the services of workmen who have been subject to unfair labor practices and prolonged casual employment for performing the permanent and perennial nature of work typically performed by regular employees.
34. It is established that the workwoman has been working with POIT No. 1084/2016 Page 24 of 47 the management w.e.f. April 2008, however, her services were treated as mere ad-hoc in nature. Thereafter, the workwoman was appointed on the permanent post of Clerk vide order dated 27.08.2011 Ex. MW1/2. The management witness conceded in his cross-examination dated 11.01.2024 that the workwoman was working as Accounts Clerk. He volunteered to state that she was handling other works also. She was designated as Receptionist and paid salary for the same. The management has failed to provide any reasons/justifications as to why the previous service rendered by the workwoman from April 2008 to 26.08.2011 is not counted for the purpose of regularization of her services. Further no justifications were provided as to why the workwoman was not employed on the permanent post from his initial date itself. It is not the case of the management that there were no vacant post available at the time of her initial appointment nor has the same been substantiated through any documentary evidence. The workwoman fulfills the requisite qualifications for the post of Clerk/Receptionist, resultantly she was hired by the management on permanent basis in the year 2011.
35. In view of the material placed on record, this tribunal holds that the management has clearly committed unfair labour practice by employing the workwoman continuously as Clerk/Receptionist and treated her merely as ad-hoc employee and continued as such from April 2008 to 31.07.2011 with the object of depriving her the status and privileges of a regular and permanent Clerk/Receptionsit despite her performing the same work as being performed the her regular and permanent counterparts. Though, the AR of the workmen has prayed that she was working as UDC/Account Clerk, POIT No. 1084/2016 Page 25 of 47 but the same is against the record as nothing has come on the record on this aspect. Though, it may be made out from the pleadings as well as from the evidence that she was doing and given some work related to accounts, but that does not mean that she was permanently employed for that work. Her paramount work/designated work was of Clerk/receptionist, so this argument of workwoman is hereby declined and the argument of the management that she was working as Clerk/Receiptionist/LDC is accepted. It is again reiterated that the management cannot indulge in unfair labour practice by treating her merely as an adhoc employee prior to 2011. This also finds strength from the judgment of Hon'ble Supreme Court in Chief Conservator of Forest (supra) wherein the Hon'ble Supreme Court of India had held that wherein it was held that employing the workmen as temporary and denying them the status and salary of a regular employee of amounts to unfair labor practice as giving them the status and privileges of permanent employee would require the management to pay the workwoman higher than the one fixed under the Minimum Wages Act. In these circumstances, this tribunal holds that the workwoman is entitled for regularization in service on the post of Receptionist/Clerk w.e.f. April 2009 by the management.
36. On the issue of payscale/salary of the workwoman, it is undisputed that the management is recognized by the Directorate of Education, Delhi. The said school is based in Delhi and therefore is governed by the provisions of the Delhi School Education Act, 1973. Section 10 of the Act deals with the salary of the employees and states as follows:
POIT No. 1084/2016 Page 26 of 4710. Salaries of employees.--(1) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority:
Provided that where the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognised private school are less than those of the employees of the corresponding status in the schools run by the appropriate authority, the appropriate authority shall direct, in writing, the managing committee of such school to bring the same up to the level of those of the employees of the corresponding status in schools run by the appropriate authority Provided further that the failure to comply with such direction shall be deemed to be non-compliance with the conditions for continuing recognition of an existing school and the provisions of section 4 shall apply accordingly.
(2) The managing committee of every aided school shall deposit, every month, its share towards pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits with the Administrator and the Administrator shall disburse, or cause to be disbursed, within the first week of every month, the salaries and allowances to the employees of the aided schools.
37. The section mandates that salaries and allowances, along with benefits such as medical facilities, pension, gratuity, and provident fund for employees of recognized private schools, must be at least at par with the employees in government schools.
POIT No. 1084/2016 Page 27 of 4738. The Hon'ble Delhi High Court in Rukmani Devi Jaipuria Public School vs. Sadhna Payal & Ors., W.P.(C) No. LPA 286/2010 decided on 11.05.2012 upheld the directions to the school for implementation of the 5th Pay Commission in terms of Section 10 of Delhi School of Education Act. The relevant portion is as follows:
"1. The learned Single Judge vide impugned judgment has directed the appellant school to pay the revised pay scale as recommended by the 5th Pay Commission w.e.f. 1.1.1996. It is an undisputed fact that on the basis of 5th Pay Commission, the pay scales of government teachers were revised w.e.f. 1.1.1996. In terms of Section 10 of Delhi Education Act and Rules framed therein, same pay scales are to be given to the teachers of all the private recognized schools as well. Therefore, we do not find any fault with the directions of the learned Single Judge.
2. We are informed that the appellant school has already implemented the recommendations of the 5th Pay Commission and has given revised pay "scale to the respondent teachers w.e.f. 1.4.1997. It has to be given w.e.f. 1.1.1996 on parity with the pay scales granted to the government teachers. The right of the teachers of the appellants school to get revision in the pay scale from the effective date i.e. 1.1.1996 cannot be denied merely because the appellant could not shift this burden on the student by enhancing the fee which is totally immaterial and irrelevant when the question of revision of pay scale of the teachers is there. We are informed that for the period 1.1.1996 to 31.3.1997, 50% of the arrears has been paid which shall be adjusted from the arrears which are to be worked out."POIT No. 1084/2016 Page 28 of 47
39. Likewise, in the case of Meenu Sachdev vs. Managing Committee of Sri Sathya Sai Vidya Vihar & Anr., W.P.(C) No. 2353/2022 the Hon'ble Delhi High Court has dealt with the petitions filed by teachers against the Managing Committee of Sri Sathya Sai Vidya Vihar and the Director of Education, Delhi, seeking the implementation of pay revisions as per the recommendations of 6th and 7th Central Pay Commission w.e.f. 01.01.2006 and 01.01.2016 respectively. The grievance of the petitioners were that other private schools have extended the benefits of 6th and 7th CPC recommendations to their Teachers and other employees, Management of the School has not implemented the said recommendations, despite the directives issued by the Government of NCT of Delhi vide Circulars dated 15.10.2008 and 17.10.2017 respectively. The Hon'ble Court after relying upon Shikha Sharma v. Guru Harkrishan Public School and Others, 2021 SCC OnLine Del 5011 and Kuttamparampath Sudha Nair vs. Managing Committee Sri Sathya Sai Vidya Vihar and Another, 2021 SCC OnLine Del 2511 has held that the Petitioners are entitled to the benefits of the pay revisions under the 6th and 7th CPC recommendations and consequent refixation of their salaries and emoluments in accordance with the Revised Pay Rules, 2008 and Revised Pay Rules, 2016, w.e.f. 01.01.2006 and 01.01.2016, respectively, in light of the statutory provisions of Section 10(1) of the DSE&R. The relevant portion of the judgement is as follows:
"10. The neat legal nodus that arises in all these writ petitions is whether the Petitioners are entitled to the POIT No. 1084/2016 Page 29 of 47 benefits of pay revisions under the 6th and 7th CPC, including arrears thereof. The issue, in my opinion, as rightly contended by the Petitioners, is no longer res integra. This Court in Kuttamparampath Sudha Nair (supra), has examined the vexed question of applicability of Section 10(1) of DSE&R to private recognized unaided schools and relevant part of the judgment is as under:
"20. The issue of applicability of Section 10(1) and other provisions of Chapter IV of the DSEA&R to unaided minority schools came up for consideration before the Supreme Court in Frank Anthony (supra) and the Supreme Court set aside the pre-existing Section 12, which had excluded the application of Section 10(1) and other provisions to the unaided minority schools. The Supreme Court also considered whether applying Section 10(1) would have the impact of eroding the minority character of the schools which entitles them to a Constitutional protection under Article 30(1) and held that it did not. The Supreme Court had observed that excellence of every school, aided or unaided, would depend upon the quality of its teachers and therefore, provisions like Section 10(1) mandating payment of salary and allowances cannot be characterized as unreasonable even in respect unaided minority institutions.
21. The judgment was followed in several cases and was also relied upon by the eleven-Judge Bench of the Supreme Court in T.M.A. Pai (supra). Relevant paras of the judgment in Frank Anthony (supra) are as follows:-
"20. Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any right of minorities to administer their educational institutions. Section 8(2), however, must, in view of the authorities, be held to interfere with such right and, therefore, inapplicable to minority institutions. Section 9 is again innocuous since POIT No. 1084/2016 Page 30 of 47 Section 14 which applies to unaided minority schools is virtually on the same lines as Section
9. We have already considered Section 11 while dealing with Section 8(3). We must, therefore, hold that Section 12 which makes the provisions of Chapter IV inapplicable to unaided minority schools is discriminatory not only because it makes Section 10 inapplicable to minority institutions, but also because it makes sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That the Parliament did not understand Sections 8 to 11 as offending the fundamental right guaranteed to the minorities under Article 30(1) is evident from the fact that Chapter IV applies to aided minority institutions and it cannot for a moment be suggested that surrender of the right under Article 30(1) is the price which the aided minority institutions have to pay to obtain aid from the government."
21. The result of our discussion is that Section 12 of the Delhi School Education Act which makes the provisions of Chapter IV inapplicable to unaided minority institutions is discriminatory and void except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions. We, therefore, grant a declaration to that effect and direct the Union of India and the Delhi Administration and its officers, to enforce the provisions of Chapter IV [except Section 8(2)] in the manner provided in the chapter in the case of the Frank Anthony Public School. The management of the school is directed not to give effect to the orders of suspension passed against the members of the staff.
23. We must refer to the submissions of Mr. Frank Anthony regarding the excellence of the institution and the fear that the institution may POIT No. 1084/2016 Page 31 of 47 have to close down if they have to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section 10 of the Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institutions to which Section 10 applies. Regarding the fear expressed by Shri Frank Anthony that the institution may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to "put the teachers in their proper place". The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised."
22. Relevant paras of the judgment in T.M.A. Pai (supra) are as follows:-
"124. In Lily Kurian v. Sr. Lewina [MANU/SC/0041/1978 : (1979) 2 SCC 124 :
(1979) 1 SCR 820] this Court struck down the power of the Vice-Chancellor to veto the decision of the management to impose a penalty on a teacher. It was held that the power of the Vice-Chancellor, while hearing an appeal against the imposition of the penalty, was uncanalized and unguided. In Christian POIT No. 1084/2016 Page 32 of 47 Medical College Hospital Employees' Union v.
Christian Medical College Vellore Assn. MANU/SC/0433/1987 : (1987) 4 SCC 691 this Court upheld the application of industrial law to minority colleges, and it was held that providing a remedy against unfair dismissals would not infringe Article 30. In Gandhi Faiz- e-am College v. University of Agra MANU/SC/0070/1975 : (1975) 2 SCC 283 a law which sought to regulate the working of minority institutions by providing that a broad- based management committee could be reconstituted by including therein the Principal and the seniormost teacher, was valid and not violative of the right under Article 30(1) of the Constitution. In All Saints High School v. Govt. of A.P. MANU/SC/0059/1980 : (1980) 2 SCC 478 a regulation providing that no teacher would be dismissed, removed or reduced in rank, or terminated otherwise except with the prior approval of the competent authority, was held to be invalid, as it sought to confer an unqualified power upon the competent authority. In Frank Anthony Public School Employees' Assn. v. Union of India MANU/SC/0076/1986 : (1986) 4 SCC 707 the regulation providing for prior approval for dismissal was held to be invalid, while the provision for an appeal against the order of dismissal by an employee to a tribunal was upheld. The regulation requiring prior approval before suspending an employee was held to be valid, but the provision, which exempted unaided minority schools from the regulation that equated the pay and other benefits of employees of recognized schools with those in schools run by the authority, was held to be invalid and violative of the equality clause. It was held by this Court that the regulations regarding pay and allowances for POIT No. 1084/2016 Page 33 of 47 teachers and staff would not violate Article
30."
(emphasis supplied)
23. The issue again came up before the Supreme Court in Raj Soni v. Air Officer Incharge (Administration), MANU/SC/0250/1990 : (1990) 3 SCC 261 where the Supreme Court reiterated and re- affirmed the inflexible nature of the liability that was binding on a recognized school under the provisions of the DSEA&R and significant would it be to note that the Supreme Court categorically held that recognized private schools in Delhi, whether aided or otherwise, are governed by the provisions of DSEA&R. Relevant para of the judgment is as under:-
"11. The recognized private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules. The respondent-management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school. When an authority is required to act in a particular manner under a statute it has no option but to follow the statute. The authority cannot defy the statute on the pretext that it is neither a State nor an "authority"
under Article 12 of the Constitution of India."
24. In P.M. Lalitha Lekha v. Lt. Governor in W.P. (C) No. 5435/2008 decided on 02.02.2011 although the question involved was counting of service of the Petitioner therein for computing her pension and in that context was different on facts, but the point of law was the same as the one arising in the present petition. Co-ordinate Bench of this Court examined the provisions of Section 10(1) of the DSEA&R and observed that the first proviso to Section 10(1) clearly POIT No. 1084/2016 Page 34 of 47 obliges the DOE to direct the management of all recognized private schools to bring all benefits, including inter-alia pensionary benefits, to the same level as that of the employees of corresponding status of the schools run by the Director of Education. The second proviso enables the DOE to withdraw the recognition of the school under Section 4 of the DSEA&R in case the management fails to comply with the directions and serves a salutary purpose and empowers the DOE to issue directions aimed at fulfilling the object of Section 10(1) of the DSEA&R. It was also held that the mandate of Section 10(1) is unambiguous, regardless of whether the school receives grant-in-aid or not. It was also held that it must be kept in mind that the Delhi School Education Act contemplates unaided private schools also, as they are also granted recognition and therefore the mandate of Section 10(1) would apply to them with full rigour. Relevant paras of the judgment are as under:-
"11. The first proviso to Section 10 of the Delhi School Education Act, 1973 clearly obliges the Director of Education to direct the management of all recognized private schools to rectify any deficiency and to bring all benefits, including, inter alia, pensionary benefits up to the same level as those of employees of corresponding status of the schools run by the Director of Education. The second proviso further provides that in case the management of the school fails to comply with such directions, recognition of the school can be withdrawn under the powers given in S.4 of the Delhi School Education Act, 1973. This serves a salutary purpose and further empowers the Director of Education to issue appropriate directions aimed at fulfilling the POIT No. 1084/2016 Page 35 of 47 object of Section 10(1) of the Act.
12. The school has been given certain privileges, including recognition, on condition, inter alia, that it complies with Section 10(1). Due to the non-compliance of the conditions by the respondent school the petitioner cannot be made to suffer. If the respondent school does not come forward to honor its employees' entitlement in this behalf, then, steps need to be taken by the appropriate authority to ensure compliance.
13. The payment of pension for the period before the grant-in-aid came into the picture has to be rendered by the school, but post such grant, the liability shifts to the respondent. This is because the mandate of Section 10(1) is unambiguous. Regardless of whether it receives grant-in-aid or not. So long as it is a recognized private school, pension and other benefits of its employees must be the same as those admissible to employees of the Authority's schools. Under the first proviso, it is the respondent's duty to ensure that such payment is made. Under the Second proviso the respondent can take action if those directions are not followed. The respondents in no circumstance can be absolved from their duty.
xxx xxx xxx
15. In this context, it must be kept in mind that the Delhi School Education Act contemplates unaided private schools also. Even such schools are granted recognition. The mandate of Section 10(1) applies with full rigour to them also." (emphasis supplied)
25. Recently, a Division Bench of this Court in Dhanwant Kaur Butalia v. Guru Nank Public School in LPA 499/2013 decided on 14.01.2016 POIT No. 1084/2016 Page 36 of 47 reiterated and re-enforced that Section 10(1) with its consequential resultant mandate that scales of pay, allowances, medical facilities, gratuity, etc., paid to the Government schools should be paid to employees of corresponding status in private recognized schools, would apply to all unaided schools. Section 10(1) is a statutory purity and also a minimum standard which all recognized schools have to adhere to.
26. In the appeal before the Division Bench, the Appellant was aggrieved by an order of the learned Single Judge whereby her claim for increase of salary, consequent to implementation of 6th CPC recommendation, was rejected. The Appellant invoked provisions of Section 10(1) of DSEA&R and also relied on earlier judgments of this Court wherein it was consistently ruled that unaided schools have an obligation to ensure that emoluments of teachers and other employees are at par with those in the schools established and maintained by the appropriate Government. Judgments of this Court in Gurvinder Singh Saini v. Guru Harkishan Public School in W.P. (C) 12372/2009 decided on 02.09.2011, Deepika Jain v. Rukmini Devi Public School in W.P.(C) 237/2013 decided on 23.09.2013 and the judgment of Division Bench in Guru Harkishan Public School v. Gurvinder Singh Saini in LPA 58/2012 decided on 05.09.2012, were cited by the Appellant and taken note of by the Division Bench.
27. As the issue before the Division Bench concerned benefits under 6th CPC, reliance was placed on the CCS (Revised Pay) Rules, 2008 and Office Memorandum dated 30.08.2008 referring to the said Rules. Based on this, a Circular was issued by the Competent Authority under the DOE on POIT No. 1084/2016 Page 37 of 47 15.10.2008, directing the managements of all private recognized (aided as well as unaided) schools to implement 6th CPC recommendations. After a conjoint reading of the circulars and the Pay Rules, the Division Bench held as follows:-
"6. The Court also notices that the pre-existing Section 12 which had excluded the application of Section 10 and other provisions of the Chapter, to unaided minority schools was set aside by the Supreme Court in Frank Anthony School Employees Association v. Union of India MANU/SC/0076/1986 : (1986) 4 SCC 707 : AIR 1987 SC 311. The Supreme Court expressly considered the impact of Section 10 and whether it had the effect of eroding the minority character of schools entitled to protection under Article 30 and concluded that it did not. The said judgment has been constantly followed and it was not overruled but was approved in TMA Pai Foundation's case (supra). Section 10 with its consequential resultant mandate is that scales of pay, allowances, medical facilities, gratuity, provident fund "and other prescribed benefits"
which employees of "corresponding status" in schools of the appropriate government are to be granted to employees of all unaided schools.
7. This ipso facto ought to clinch the case in favour of the present appellant. Section 10 is a statutory purity and also a minimum standard which all recognized schools have to adhere to.
xxx xxx xxx
10. The said office memorandum of 30.08.2008 also referred to the Central Civil Service Revised Pay Rules, 2008. The effect of all these office memoranda (dated 11.09.2008, 22.09.2008 and 15.10.2008) is that the POIT No. 1084/2016 Page 38 of 47 managements of all private recognized schools aided as well as unaided had to implement the 6PC Recommendations, in the manner stipulated by Section 10 of Delhi Education Act. Circular dated 15.10.2008 was categorical in this regard. It reads as under:
"Section 10(1) of Delhi School Education Act 1973 provides that:
"The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in school run by the appropriate authority."
Therefore, the Management of all private recognized, (Aided as well as unaided) schools are directed to implement the Sixth Pay Commission recommendations-fixation of pay and payment of arrears in accordance with circular no. 30-3(17)/Cood/Cir/2008 dated 22.09.2008 vide which it has been implemented in r/o employees of Government Schools.
This issue with prior approval of competent Authority."
11. A co-joint reading of all circulars would immediately reveal that the 6PC recommendations were accepted and the Central Government formulated the revised pay rules with effect from 01.01.2006. The rules were published in 2008. Nevertheless, the entitlement following from it accrued to all with effect from 01.01.2006. The only exception was that certain types of allowances i.e. HRA, children's education allowance, special compensatory allowance etc. were to be paid prospectively with effect from 01.09.2008 (refer POIT No. 1084/2016 Page 39 of 47 para 3 of OM dated 30.08.2008). In all other respects, the pay parity mandated for government of NCT teachers was to apply to teachers and staff members of unaided schools- minority and non-minority schools.
xxx xxx xxx
13. In the present case, Section 10 remains on the statute book; it was declared to be applicable to all unaided schools including minority schools, from 1986 onwards i.e. with the declaration of the law in Frank Anthony School Employees Association's case (supra). There is no dispute that the 6PC recommendations were to be implemented from the date the Government of NCT implemented it. Such being the case, the respondent school in the present case could not have claimed ignorance of application of Section 10 and stated that it was obliged to pay arrears or implement the 6PC recommendations with effect from the date later than that applicable in the case of Government of NCT teachers and teaching staff in its schools.
14. As a consequence and in the light of the previous order of this court in Gurvinder Singh Saini's case (supra) and Uma Walia's case (supra) the impugned order and judgment of learned Single Judge is hereby set aside. The respondent is directed to disburse all the arrears of salary and allowances payable pursuant to 6PC recommendations-to the appellant except those expressly denied by virtue of the Central Government's Office Memorandum dated 30.08.2008, within six weeks from today."
28. Contention of learned counsel for the School that Section 10(1) does not specifically include unaided private schools may seem POIT No. 1084/2016 Page 40 of 47 attractive at the first blush, if one was to superficially look at the provisions of the Section, where the words used are 'recognized private school'. However, the contention cannot be accepted in view of the various judicial pronouncements where the provision of Section 10(1) has been interpreted to include both aided and unaided schools. The Division Bench in Dhanwant Kaur (supra) has clearly held that the mandate of Section 10(1) would apply to all unaided schools as the minimum standard that the provision ensures must be adhered to by all recognized schools.
29. In Dev Dutt Sharma v. Managing Society National Public School in W.P. (C) 11563/2009 decided on 02.07.2010, a Co-ordinate Bench of this Court pronounced that the mandate of Section 10(1) is unambiguous, regardless of whether the institution receives grant-in-aid or not. Since the Act itself contemplates unaided private schools for recognition, mandate will apply with full rigour to them. The Supreme Court in Frank Anthony (supra) held that impact of Section 10(1) would not have the effect of eroding the minority character of the Minority Institutions, who are entitled to protection under Article 30(1) of the Constitution of India.
30. Additionally, it may be noted that this is also the understanding of the DOE which is implicit in the various Circulars issued by them from time to time in this regard. Vide order dated 19.08.2016, DOE, in exercise of powers conferred under Sections 17(3), 24(3) and 18 of the Delhi School Education Act, 1973 read with Rules 50, 177 and 180 of the Delhi School Education Rules, 1973 adopted the CCS (Revised Pay) Rules, 2016, under which benefits of 7th Pay Commission are paid to the POIT No. 1084/2016 Page 41 of 47 Government employees. Directions were accordingly issued by the DOE, vide Circular dated 17.10.2017 to all the unaided private recognized schools to extend the benefits of 7th CPC to its employees in accordance with Section 10(1) at par with the Government employees. By another order dated 09.10.2019, the DOE reiterated its directions to the unaided schools to comply with the mandate of Section 10, failing which necessary action shall be taken as per provisions of DSEA&R against the defaulting Schools. Relevant paras of the order dated 17.10.2017 are as under:-
"In continuation of this Directorate's Order No. DE.15(318)/PSB/2016/18117 dated 25/08/2017 and In exercise of the powers conferred under action 17(3) and section 24(3), of the Delhi School Education Act, 1973 read with sub sections 3, 4 and 5 of Section 18 of the Delhi School Education Act, 1973 and with rules 50, 177 and 180 of the Delhi School Education Rules, 1973 and in continuation of the previous orders No. DE. 15/Act/Duggal.
Com/203/99/23039-23988 dated 15.12.1999, F.DE 15/Act/2K/243/KKK/883-1982 dated 10.02.2005, E.15/Act/2006/738-798 dated 02.02.2006, relevant paras of F.DE/15 (56)/Act/2009/778 dated 11.02.2009, F.DE-
15/ACT-I/WPC-4109/13/6750 dated
19.02.2016, F.DE-15/ACT-I/WPC-
4109/PART/13/7905-7913 dated 16.04.2016 & F.DE/PSB/2017/16604 dated 03/07/2017, I, Saumya Gupta, Director of Education, hereby issue following directions to all the Unaided Private Recognized Schools in the National Capital Territory of Delhi for the implementation of 7th Central Pay Commission's Recommendations under Central Civil Services (Revised Pay) Rules, 2016 with effect from 01.01.2016.POIT No. 1084/2016 Page 42 of 47
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2. Period of Implementation of 7th CPC The benefits of 7th Central Pay Commission Recommendations have been implemented by the Govt. of India, Department of Expenditure, Implementation Cell, Ministry of Finance in a staggered manner. As per the notification dated 25/07/2016 issued by Govt. of India, Ministry of Finance, basic pay of the Govt. employee has been increased for the period 01/01/2016 to 30/06/2017 and increased allowances have been allowed to the Govt. employees w.e.f. 01/07/2017. Thus, in accordance with sub- section (1) of Section 10 of Delhi School Education Act, 1973, the benefits of the recommendations of 7th CPC to the employees of Private Unaided Recognized Schools of Delhi will also be extended in a similar manner."
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33. The Court notes that the DOE has consistently taken a stand that the private recognized unaided schools are bound to comply with provisions of Section 10(1) and this is discernible from Circular dated 15.10.2008 issued by the DOE after the CCS (Revised Pay) Rules, 2008 were notified, pursuant to 6th CPC. The Circular was taken note of by the Division Bench in Dhanwant Kaur (supra) and is extracted in the earlier part of the judgement. This obviates any doubt that provisions of Section 10(1) of the DSEA&R shall apply to the Respondent/School and it is under a statutory obligation to pay the revised salaries and emoluments under 7th CPC to the Petitioners, in accordance with the various DOE circulars and orders referred and alluded to above.
POIT No. 1084/2016 Page 43 of 4734. In any event, it is not open to the School to even argue that the provisions of Section 10(1) of the DSEA&R would not apply to the Petitioners as it was clearly mentioned in the appointment letters that Terms and Conditions of appointment would be governed by the DSEA&R. While incorporating this stipulation in Clause 3 of the appointment letters, the School did not carve out any exception or caveat that provisions of Section 10(1) will not apply to the teachers. Clause 3 of the respective appointment letters reads as under:-
"The terms and conditions of appointment are to be governed by the Delhi School Education Act & Rules, 1973."
11. The issue again arose for consideration before this Court in Shikha Sharma (supra) and the Court held as follows:
"26. So, it is clear that the pay and allowances of the employees of unaided minority Schools cannot be less than those of the employees of the Government run Schools. There is no dispute that the benefits of 6th and 7th CPC have been given to the employees of the Government run Schools. If that be so, the employees of the unaided minority Schools are also entitled to get the benefits of the recommendations as made by the 6th and 7th CPC reports. So, this plea of Mr. Abinash Kumar Mishra is liable to be rejected. The plea of Mr. Mishra, that till such time the DoE grants approval to the Schools to collect the arrears of fees, the Schools must not be directed to pay the benefits of 7th CPC is concerned, the same is unmerited. The employees are entitled to equal pay and other benefits, by operation of Section 10 of the DSE Act, in other words, by operation of law, the POIT No. 1084/2016 Page 44 of 47 said benefits are payable. The same does not pre-suppose the approval being granted by the Director to the Schools to claim higher fee or arrears thereof."
12. From a reading of the aforesaid judgments, this Court finds merit in the plea of the Petitioners that their case is covered by the judgments on all four corners and similar benefits ought to be granted to them. It would be pertinent to note that the Respondent School in the present case and in the case of Kuttamparampath Sudha Nair (supra) is the same and for this additional reason, no distinction can be drawn between the Petitioners herein and the Petitioners in the said case. It is therefore held that Petitioners are entitled to the benefits of the pay revisions under the 6th and 7th CPC recommendations and consequent refixation of their salaries and emoluments in accordance with the Revised Pay Rules, 2008 and Revised Pay Rules, 2016, w.e.f. 01.01.2006 and 01.01.2016, respectively, in light of the statutory provisions of Section 10(1) of the DSE&R. In case benefits of the 6th CPC have been granted to any Petitioner but fixation has not been correctly done, the School shall ensure that correct re-fixation is done and arrears of the differential amounts are released.
40. Therefore, in light of the aforesaid judgements as well as Section 10(1) of the Delhi School of Education Act, the workwoman is entitled for the pay scale for the post of Clerk/Receptionist in terms of the recommendations of the Pay Commissions from time to time.
41. Therefore, the demand of the workwoman, Ms. Kamaljeet D/o Sh. Manbir Singh for regularization of her services on the post of Accounts Clerk/UDC w.e.f. April 2008 i.e. her initial date of joining into the employment and payment of difference of salary on POIT No. 1084/2016 Page 45 of 47 the principle of equal pay for equal work w.e.f. her initial dates of joining onwards is legal and justified. Hence, the terms of reference are answered in favour of the workwoman and against the management.
Relief:
42. In view of my findings on the foregoing issues, this tribunal holds the management has engaged in unfair labor practice as stipulated in Entry No. 7 of the Fifth Schedule read with Section 2(ra), punishable under Sections 25T and 25U of the Industrial Disputes Act, by transferring the workwoman with a mala-fide intention from one place to another under the guise of adhering to management policy. This tribunal sets aside the order dated 26.11.2015 issued by the management, transferring her from Gyan Prakash Saraswati Vidya Mandir, Mir Bagh to Samarth Shiksha Samiti Dakshiniya Vibhagiya Samiti (South Zone) Goverdhan Lal Trehan Saraswati Bal Mandir Parisar, Ring Road, Nehru Nagar, New Delhi-110065. The management is directed to reinstate the workwoman with continuity in service w.e.f. 26.11.2015 in any of the nearby schools or offices of the Management near to the residence of the workwoman. As far as the question of back wages for the interregnum period is concerned, admittedly the workwoman has not worked after order dated 26.11.2015 passed by the management and the right of the workwoman vis-a-vis right of the managmeent of no work no pay has to be balanced. It is also to be kept in mind that without giving any reason for the transfer, so many transfers took place with respect to workwoman without any charges or without having any material or cause of action for any enquiry, so POIT No. 1084/2016 Page 46 of 47 all of them are to be taken into account. Even though the transfer order is held to be mala-fide and illegal in nature, but keeping in mind the fact that the management is an educational institute and considering the 7.5 long years of service rendered by the workwoman and the workmen remained unemployed throughout, the management has also failed to show any gainful employment of the workwoman, this tribunal is of the view that the interest of justice would meet if workwoman is granted 25% of backwages for the interregnum period from 26.11.205 to till the date of this award.
43. On the issue of regularization, this tribunal further holds that the tribunal holds that the workwoman is entitled for regularization of her service on the post of Receptionist/Clerk w.e.f. April 2009 in regular pay scale as per the recommendations of Pay Commissions from time to time with all consequential benefits either monetary or otherwise. The management is further directed to implement the said award within 60 days of its publication, failing which, the management will be liable to pay an interest at the rate of @ 8% per annum from the date of reference i.e. 04.08.2016 to till the final payments are made. The terms of reference are decided in favour of the workwoman and against the management. The award is passed accordingly.
44. 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 02.02.2024.
(Ajay Goel) POIT-I/RADC, New Delhi.
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