Delhi District Court
Upon The Judgment Of Secretary, State Of ... vs . Uma on 13 September, 2018
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IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
ID No. 951/16
Sh Narender Kumar
s/o Sh Sukhbir Singh
as represented by Delhi Public Labour Union
Aggarwal Bhawan, G.T. Road, Tis Hazari
Delhi
vs
Delhi Public Library
through its Director, H Block
Near main Market Sarojini Nagar, New Delhi.
Date of Institution: 07/03/2008
Date of Order:13/09/2018
O R D E R
1) Workman has raised the present dispute and on failure of
conciliation proceedings, GNCT of Delhi referred the dispute to this
Tribunal for adjudication in the following term of reference
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"Whether Delhi Public Library is an industry as per
the provisions of Industrial Dispute Act 1947 and
whether Govt of NCT Delhi is the appropriate Govt
in respect of the said management and if yes,
whether the demand to regularise Sh Narender
Kunmar son of Sh Sukhbir Singh as helper in the
proper pay scale from the date of his joining the
employment ie 11/05/90 is justified and if yes,to
what relief is he entitled".
2) Workman has filed the statement of claim. In the statement
of claim, workman has stated that he joined the employment of the
management w.e.f. 11/05/90 as a helper. He was being treated as a
daily rated/casual/muster roll worker and was being paid the wages as
fixed and revised from time to time under the Minimum Wages Act. The
services of the workman were terminated w.e.f 20/03/91 without
assigning any valid reason thereof. The workman had filed an industrial
dispute and award was passed in favour of the workman and the
workman was entitled to the reinstatement in the services with
continuity of services and full back wages. Thereafter, management has
also challenged the said award by filing writ petition. During the
pendency of said petition, management has passed an order dt
10/04/06 for joining of duties by the workman in pursuance of the order
dt 14/03/06 passed by Hon'ble High Court of Delhi. Although, workman
is entitled to be treated as regular and permanent employee from the
initial date of his joining but the management has not taken any steps to
regularize the services of the workman in proper pay scales and
allowances with retrospective effect from 11/05/90. It is the claim of the
workman that nonregularization of services of the workmen w.e.f
11/05/90 on the post of helper in proper pay scale and allowances and
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denial of proper salary to him at par with his counterparts on the
principle of 'equal pay for equal work' with all arrears is wholly illegal
and unfair. Demand notice was served upon the management but no
action has been taken by the management. Hence, the present
reference.
3) Written statement has been filed by the management
wherein the management has contested the claim of the workman. In
preliminary objections, it has been stated by the management that
Delhi Public Library is an Autonomous body of the Govt of India, which
has been established by the Central Govt. The library is not producing
any goods or services with a motive to make any gain or profit but it is
only rendering services without any monetary consideration ie free of
cost. The management has challenged the jurisdiction of Govt of NCT,
Delhi in respect of the reference in the matter by way of filing of writ
petition WP (C) 444/2007 pending before the Hon'ble High Court of
Delhi. Present statement of claim is not maintainable because the daily
wager has not come to the court with clean hands. Delhi Public Library
is not an industry within the meaning and definition of Industry under the
Industrial Dispute Act 1982. It has been denied by the management
that the daily wager has acquired the status of permanent employee.
With these submissions, Ld A.R for the management has prayed that
statement of claim of workman be dismissed.
4) Rejoinder to the written statement was filed by the workman
wherein he has controverted all the allegations levelled by the
management on the workman, in the written statement filed by
Management.
5) On 07/05/2008, following issues were framed by my Ld
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Predecessor:
1) As per terms of reference.
2) Relief
6) In workman evidence, Sh Narender Kumar, workman
himself has appeared as WW1 and tendered his affidavit as Ex.WW1/A.
He has relied upon the documents from Ex.WW1/1 to Ex.WW1/11. In
examination in chief, WW1 has reiterated the facts as mentioned in the
statement of claim. WW2 Shri Surender Bhardwaj has tendered his
examination in chief by way of affidavit Ex.WW2/A and has relied upon
document Ex.WW1/3
7) In Management evidence, Smt Sudha Mukherjee, has
appeared as MW1. She has tendered her affidavit as Ex.MW1/A and
she has relied upon the documents from Ex.MW1/1 to Ex.MW1/4 and
also Ex.WW1/10
8) I have heard arguments from Ld A.R for the parties and
gone through the file.
9) I have considered the arguments submitted by Ld
Authorized Representatives for the parties. I have also gone through
the material available on record.
10) After considering the submissions of Ld AR for the parties,
evidence led by the parties and the material on record, my issue wise
findings are as under:
The issue no. 1 " As per terms of reference?.
11) Present reference has been sent to this Tribunal by the Govt of
NCT Delhi in respect to three points; firstly whether the Delhi Public
Library is an industry ; secondly whether Govt of NCT Delhi is
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appropriate Govt or not and thirdly whether the workman is entitled to
be regularized from initial date of joining i.e. 11.05.1990 .
12) Although, reference has been sent by the government in
respect to decide the issue whether the Delhi Public Library is an
industry or not, as Management has taken the objection that Delhi
Public Library is not an industry but no evidence has been led by the
management to prove that Delhi Public Library is not an industry.
Therefore, it appears that by way of keeping silence, management has
admitted that Delhi Public Library is an industry. Similarly no evidence
has been led by the management to prove that Govt of NCT of Delhi is
not an appropriate Govt to refer the present dispute to the Industrial
Tribunal. Thus, by the conduct of management, it can be inferred that
both these points have been admitted by management in favour of
workman, as management has not contested these points.
13) It is also important to mention here that as per the case of the
workman, he has joined the management as helper on 11/05/90 but his
services were later on terminated on 20/03/91 by the management, due
to which workman preferred industrial dispute before Labour Court,
Delhi. Ld.Labour Court vide award dt 27/03/1998 passed in favour of
the workman had directed the management to reinstate the workman
with full back wages and continuity of service. This fact has not been
denied by the management. Passing of award by the Ld. Labour Court
in respect of any industrial dispute between the workman and
management clearly shows that management has already accepted the
jurisdiction of industrial tribunal/Labur courts in respect of industrial
dispute raised by the workman regarding his illegal termination and
award has been passed against the management in this case.
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Management cannot thus, now, deny that they are not an industry or
that this Tribunal has no jurisdiction to pass any order against the
management.
14) In view of above discussion, it is clear that once the reference
has been made to the Industrial Tribunal, Tribunal is under the duty to
adjudicate the reference and cannot reject the reference on the ground
that it has not been made by the appropriate authority. Further, if
management had any grievance against the reference, they should
have challenged the same before Hon'ble High Court of Delhi, which is
the appropriate forum for deciding that issue.
15) Coming to the third aspect of regularization on the post of helper
as claimed by the workman, workman herein is claiming that he is
entitled to be regularized on the post of helper w.e.f. 11/05/90 ie the
date when he has firstly joined the services of management. Workman
has admittedly not proved any Appointment letter given by the
management to him by which, he could have shown that he was
employed with the management on 11/05/90 or that he was appointed
by the management at the post of helper. Although, in cross
examination, workman has stated that he was sponsored by the
Employment Exchange for the post of helper but no such letter or
document has been placed on record by the workman. Also in the entire
statement of claim filed by the workman, workman has no where stated
that he was ever sponsored by the Employment Exchange or that he
has joined the services through Employment Exchange, therefore, this
stand taken by the workman in his crossexamination, while appearing
as WW1 appears to be an afterthought and beyond pleadings.
16) It is also the case of the workman that he is entitled to be
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regularized from the date of his joining ie 11/05/90 as Delhi Public
Library has also regularized his juniors but has discriminated against
him and has not regularized him from the initial date of his joining. In the
evidence, management has examined MW1 Ms Sudha Mukherji,
Deputy Director, Delhi Public Library. Even in the crossexamination of
MW1, no document has been put to the management by the workman,
which could exactly prove his date of joining and mode of joining the
services of the management. Although, MW1 has admitted that
workman was working with Delhi Public Library. She has also admitted
that services of workman were terminated and later on after the award
was passed by the Labour Court in favour of the workman, he was re
instated with back wages.
17) Management has proved on record one document
Ex.MW1/5, which is a list of employees, employed at the post of helper,
wireman, mali, Safai Karamchari with the management. In the list,
there are 92 people stated to have been working as helper, out of which
there are two persons with the name of Narinder Kumar, one is at Sl
No 7 and other is at Sl. No 92. Management has also placed on record
the Seniority List of Jr Library Attendant with their respective date of
joining and their status i.e. whether permanent or temporary, which is
Ex.MW1/WA. Comparing these documents ie Ex.MW1/5 and
Ex.MW1/WA, it is clear that name of the person Narinder Kumar at Sl
No 7 in the list Ex.MW1/5 is not the name of present workman, as
workman has joined the management on 11/5/90 whereas Narinder
Kumar at serial no. 7 has joined the services of the management on
01/10/83 and thereafter there is no other employee with the name of
Narinder Kumar as having been employed with management full time
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in the document Ex.MW1/WA. As it is clearly mentioned in the
document Ex.MW1/5 that workman Narinder Kumar was working as
part timer. Thus, from these documents, it is clear that workman has
not been able to show that he was working as full time workman with
management or was entitled to be regularized on the post of
helper/Junior Library Attendant.
18) Ld A.R for the Management in his arguments has relied
upon the judgment of Secretary, State of Karnatka and ors Vs. Uma
Devi (2006) 4 Supreme Court Cases 1 on the point that casual/daily
wager workers can not be regularized . In Uma Devi's case Hon'ble
Supreme Court had observed that :
"The courts have not always kept the legal aspects in
mind and have occasionally even directed that these
illegal, irregular or improper entrants be absorbed into
service. A class of employment which can only be called
"litigious employment", has risen like a phoenix seriously
impairing the constitutional scheme. While directing that
appointments, temporary or casual, be regularized or
made permanent, the courts are swayed by the fact that
the person concerned has worked for some time and in
some cases for a considerable length of time. Such an
argument falls when tested on the touchstone of
constitutionality and equality of opportunity enshrined
in Article 14 of the Constitution. Merely because a
temporary employee or a casual wage worker is
continued for a time beyond the term of his appointment,
he would not be entitled to be absorbed in regular service
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or made permanent, merely on the strength of such
continuance, if the original appointment was not made
by following a due process of selection as envisaged by
the relevant rules. It is not open to the court to prevent
regular recruitment at the instance of temporary
employees whose period of employment has come to an
end or of ad hoc employee who by the very nature of
their appointment, do not acquire any right".
19) On the other hand, Ld A.R for the workman has relied upon
the following judgment, to prove that case of Uma Devi is not applicable
to present facts:
1) Rajinder Singh vs UOI (Manu/DE/3286/2014)
2) Umrala Gram panchayat vs The Secretary, Municipal Employees
Union and others/MANU/SC/0354/2015.
20) In case Rajinder Singh vs UOI (Manu/DE/3286/2014)
Hon'ble High Court of Delhi has observed that:
" Mr Aggarwal, further submitted that the Ld Tribunal
while holding the petitioner not entitled to any relief has
heavily relied upon the judgment of Secretary, State of
Karnatka vs Uma Devi and Ors MANU/SC1918/2006;
2006 (4) SCC 1, which is not applicable to the facts and
circumstances of the present case as the petitioner has
invoked the provisions of Industrial Dispute Act wherein
Section 22 (ra) read with Item No. 3 (2) has provided to
employ persons as casual/daily wager/muster roll and
treat them as such for years together amounts to unfair
labour practice, which is punishable under section 25 (T)
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and (U) of the Act. Thus, the Ld Tribunal failed to
appreciate that the Uma Devi's case (supra) arose in the
context of power of Writ Court to direct regularization of
the employees and Court had no occasion to consider the
provisions of Industrial Dispute Act. Therefore, the case of
Uma Devi (supra) could not be construed as having
obliterated the Industrial Dispute Act and the rights
thereunder applicable to a workman. It was rendered in
the context of service law and the court has no occasion to
address the special powers of the Industrial Adjudicator".
21) Hon'ble Supreme Court of India in case titled as Umrala
Gram Panchayat vs The Secretary, Municipal Employees Union
and ors has held that:
" On a perusal of the same we have come to the conclusion
that the High Court has rightly dismissed the case of the
Appellant as the Labour Court has dealt with the same in
detail in its reasoning portion of the Award in support of
its finding of fact while answering the points of dispute
and the same cannot be said to be either erroneous or
error in law. In support of the above said conclusion
arrived at by us, we record our reasons hereunder:
It is an admitted fact that the work which was being done
by the concerned workman was the same as that of the
permanent workmen of the AppellantPanchayat. They
have also been working for similar number of hours,
however, the discrepancy in the payment of wages/salary
between the permanent and the nonpermanent workmen
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is alarming and the same has to be construed as being an
unfair labour practice as defined under section 2(ra) of
the ID Act r/w Entry No 10 of the Fifth Schedule to the ID
Act, which is prohibited under section 25 (T) of the ID Act.
Further, there is no documentary evidence produced on
record before the Labour Court which shows that the
present workmen are working less or for lesser number of
hours than the permanent employees of the Appellant
Panchayat. Thus, on the face of it, the work being done by
the concerned workmen has been permanent in nature
and the Labour Court as well as the High Court have come
to the right conclusion on the point of dispute and have
rightly rejected the contention of the AppellantPanchayat
as the same amounts to unfair labour practice by the
Appellant Panchayat which is prohibited under section 25
(T) of the ID Act and it also amounts to statutory offence
on the part of the Appellant under section 25 (U) of the ID
Act for which it is liable to be prosecuted.
22) By relying upon these judgments, Ld A.R for the workman
has tried to prove that judgment of Secretary, State of Karnatka and
ors Vs. Uma Devi does not apply to the industrial dispute cases. But
This position was clarified again by the judgment of Hon'ble Supreme
Court of India in Hari Nandan Prasad and another Vs. Employer I/R
to Management of Food Corporation of India and another, (2014) 7
Supreme Court cases 190, wherein Hon'ble Mr. Justice A K Sikri
while delivering the judgment had stated clearly that :
"On a harmonious reading of the two judgments
discussed in detail above, we are of the opinion that
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when there are post available, in the absence of any
unfair labour practice the Labour court would not
give direction for regularization only because a
worker has continued as daily wage worker/ad hoc/
temporary worker for number of years. Further, if
there are no posts available, such a direction for
regularization would be impermissible. In the
aforesaid circumstances giving of direction to
regularise such a person, only on the basis of number
of years put in by such a worker as daily wager, etc.
may amount to back door entry into the service
which is an anathema to Article 14 of the
Constitution. Further, such a direction would not be
given when the worker concerned does not meet the
eligibility requirement of the post in question as per
the recruitment rules. However, wherever it is found
that similarly situated workmen are regularized by
the employer itself under some scheme or otherwise
and the workmen in question who have approached
the Industrial/Labour Court are on a par with them,
direction of regularization in such cases may be
legally justified, otherwise, nonregularization of the
left over workers itself would amount to invidious
discrimination qua them in such cases and would be
violative of Article 14 of the Constitution. Thus, the
industrial adjudicator would be achieving the
equality by upholding Article 14, rather than
violating this constitutional provision."
23) Therefore, I am of the opinion that in view of the judgment of
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Hari Nandan Prasad and another Vs. Employer I/R to Management
of Food Corporation of India and another along with judgment of
Secretary, State of Karnatka and ors Vs. Uma Devi no back door
entry should be allowed in the job once the worker has been appointed
as daily wager, he cannot claim the right of regularization unless there
is such policy of regularization of the management.
24) During the course of final arguments, workman has admitted
that he has been regularized by the management/Delhi Public Library
w.e.f. 11/07/2017 as MTS , i.e. Multi Task Staff or Junior Library
Attendant. But workman had insisted of being regularized on the post
from the date of his initial date. I am of the opinion, firstly, workman
has not been able to prove on record, when he was appointed by the
management and at what post he was appointed by the management.
Secondly, workman has not been able to prove on record that he was
appointed against permanent vacancy or that he was sponsored by the
Employment Exchange; thirdly workman has not been able to prove on
record that his juniors have been regularized by the management prior
to him. During the cross examination, Ld A.R for the workman has put
question to MW1 that Jitender Singh Rawat who has joined the
management on 10/12/91 has been regularized by the management,
although he was junior to the workman to which MW1 Ms Sudha
Mukherji had specifically replied in her crossexamination dt 05/12/2013
that Sh Jitrender Singh Rawat was appointed against vacancy of
permanent post ie Junior Library Attendant, for which post names were
called from Employment Exchange and he was selected from that list.
She has further stated in her crossexamination dt 15/07/2013, that Sh
Jitender Singh Rawat was appointed as helper by the management
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earlier, but later on he was appointed through Employment Exchange at
the post of Junior Library Attendant on 10/12/91. It shows that Jitender
Singh Rawat was earlier working as helper with the management but
later on his name was sponsored by the Employment Exchange and he
was taken into employment afresh by the management at the post of
Junior Library Attendant w.e.f. 10/12/91 and was not regularized at that
post. Therefore by this testimony of MW1, it is clear that firstly being
appointed as daily wager helper, workman cannot claim the
regularization. Since the workman has already been regularized by the
management, the only issues remains to be decided in the present
reference is whether the workman has any right to be regularized w.e.f.
11/05/90 ie the date of his initial joining or not.
25) In the case Municipal Corporation of Delhi vs Gauri
Shanker and ors JT 2004 (6) SC 126, similar situation arose before
Hon'ble High Court of Delhi wherein Hon'ble Mr Justice A.K. Sikri ( as
his Lordship then was) has observed:
"The quarrel is not about his regularization since he is
already regularized by the petitioner itself w.e.f.
1/04/1989. The question to be determined is as to
whether it can be treated that he is regularly
appointed from the date of his initial employment ie
25th October, 1983. My answer to this question is in
the negative. It may be stated that even if it is
presumed that keeping an employee on
casual/daily/muster roll for a long period amounted
to unfair labour practice and also denying the said
employee wages, which are given to the regular
workman, this is totally a different aspect. In fact in
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this award, itself, applying the principle of equal pay
for equal work, workman is given the wages which are
paid to regular employees even from the date prior to
his regularization by the management i.e. for the
period from 25th October 1983 to Ist April 1989. Since
notice in this petition was issued on limited aspect and
the amount already stands paid to the workman,
therefore I am not commenting on this aspects. Fact
remains that respondent/workman has been paid
same wages as are paid to regular workman. However, the controversy is about the regularization of the workman from the date of this initial appointment. If the reasoning of IT is accepted and the relief granted by IT is to be sustained, the effect of that would be :
(a) presumption that there was a permanent post as on 25th October, 1983 ; (b) presumption that the respondent no.1/workman applied for the said post and was duly selected by a properly constituted Selection Committee in accordance with recruitment rules.
26) It was further observed by Hon'ble Mr. Justice Sikri that : "Moreover, it is an admitted case that MCD has framed the policy of regularization of daily wagers/casual employees. It is also not denied that as per the said policy casual employees are being regularized on the basis of their seniority. It is also admitted that respondent no.1/workman was regularized w.e.f. 1st April, 1989 when his turn as per the seniority list of casual workers came. It is also not 16 denied that workmen senior to him were regularized before to 1st April, 1989. If the date of regularization of respondent no. 1/workman is taken as 25 th October, 1983 than many workers who were senior to him in the category of casual workers and regularized after 25th October, 1983 and before 1st April 1989 would become his junior. This would be against the scheme of regularization itself and would create industrial disharmony which is not the object of the industrial adjudication. In fact, as pointed out above, whenever cases on behalf of casual employees have come to the court claiming regularization on the ground that they are working for a long period and directions were given to regularize such workers, such regularization has taken place from the date of directions given by the courts when the date when action is taken by the employers pursuant to such directions."
27) My view also gets support from the view taken by Hon'ble High Court in the case of Municipal Corporation of Delhi vs Gauri Shanker and ors (mentioned above) to the effect that unless it has been proved by the workman that he has been employed against permanent vacancy or that permanent vacancy was existing at the time of his joining, he cannot be given the benefit of regularization from the date of his initial joining as by doing so, other workers who are seniors to him and have been regularized prior to him may become junior to him.
28) In view of above discussion, I am of the opinion that 17 reference is answered in negative, as it has been held by me that Govt of NCT of Delhi is an industry and reference has been made by appropriate Govt, as none of these points have been refuted or contested by the management through evidence as well as in arguments. Since the workman has already been regularized by the management, there is no requirement of passing an order of his entitlement of being regularized on this post. In view of the judgment of Municipal Corporation of Delhi vs Gauri Shanker and ors, I am of the opinion that workman cannot be allowed to be regularized from the date of his initial joining ie 11/05/90 but will have the benefit of regularization from the date, when he has been actually regularized by the management. Award is passed accordingly.
29) Copy of this award be sent to GNCT of Delhi for publication.
30) File be consigned to record room. Announced in the open Court on (SHAIL JAIN)
this 13th September, 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally signed by SHAIL SHAIL JAIN Date:
JAIN 2018.09.15
15:28:34
+0530