Delhi District Court
Workman vs . on 22 August, 2013
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No 305/10
Workman
Sh. Satish Kumar s/o Sh. Chander Bhan Singh & Sh. Krishan Pal s/o
Sh. Dhara Singh, c/o Municipal Employees Union, Aggarwal Bhawan,
GT Road, Tis Hazari, Delhi.
Vs.
Management
M/s Delhi Jal Board, Varunalaya Building, Phase II, Karol Bagh, New
Delhi.
Date of institution 07.04.2010
Date of reserving award 14.08.2013
Date of award 22.08.2013
Ref : F.24 (141)08/Lab/CD/496 dated 11.03.2010
AWARD
1.Workmen have raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-
''Whether the demand for regularisation of Sh. Satish Kumar s/o Sh. Chander Bhan Singh & Sh. Krishan I.D. No 305/10 Page 1 of 10 Pal s/o Sh. Dhara Singh on the post of Mate in proper pay scale from the date of their initial appointment is justified; and if so, what directions are necessary in this respect?
2. Statement of claim has been filed by the workmen, wherein it is stated that they were appointed as Beldar w.e.f. August, 1991 and 06.04.1991 respectively and were assigned the duties of Mates; that initially they were treated as muster roll employees and were being paid as per Minimum Wages Act while their counter parts were being paid in proper pay scale and allowances with other facilities like EL, CL, Gazetted holidays etc; that thereafter management issued an office order dated 14.10.2002 regularising the services of workmen w.e.f. 01.04.1999, but on the post of Beldar instead of Mate; that the post of Mate carries much higher pay scale than the post of Beldar; that the workman is still discharging the duties of mate as on date; that the demand notice was also served upon the management by Regd. AD Post vide communication dated 21.07.2008, but no reply to the same was received; that conciliation proceedings also failed; and hence this dispute.
3. It is prayed that that workmen be granted regularisation on the post of Mate in proper pay scale and allowances from the initial date of their joining and management be directed to pay them the entire difference of salary with all consequential benefits.
4. In the written statement filed by the management, it is stated that the workman does not fulfill the eligibility criteria for regularisation as Mate from initial date of his engagement as per policy and recruitment rules of the management in this regard; that the present is not an industrial dispute as the same is not espoused by the Union; that the present I.D. No 305/10 Page 2 of 10 reference is highly belated as the workman is claiming that he has been in the employment of management in the year 1991 and the reference has been made on 11.03.2010; that no demand notice has been served upon the management; that the post of mate is 100% promotional post; that the workmen consented to be regularised as Beldar with "no objection"; that the wages were paid as per uniform procedure and criteria without any discrimination. All other averments made in the statement of claim have been denied and dismissal of the claim has been prayed for.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 09.01.2012 :-
1. Whether statement of claim is not maintainable on ground of latches/belated stage? OPM
2. Whether present dispute is an Industrial Dispute as defined in section 2(k) of Industrial Disputes Act? OPW
3. Whether any notice of demand was served upon the management, if so, its effect? OPW
4. As per terms of reference.
6. Workmen Sh. Satish Kumar and Sh. Krishan Pal examined themselves as WW 1 and WW 2 respectively. In their affidavits, they have reiterated more or less the contentions made in statement of claim. In cross-examination, WW 1 has deposed that he was daily wager/muster roll employee and that there was no provision for written test for appointment of muster roll employees. It is deposed that at the time of his appointment, there was no policy for regularisation of muster roll employees, but now there is such policy, under which he was regularised. It is deposed that he joined as Belear due to constraints.
7. WW 2, in his cross-examination, has deposed that he was appointed as daily wager/ muster roll Beldar on 6.4.91 and was regularised I.D. No 305/10 Page 3 of 10 w.e.f. 1.4.99. He was not aware whether there is any policy for regularisation of muster roll employees. He is not aware whether post of Mate is promotional post or that no direct appointment can be made on this post.
8. WW 3 Sh. Surender Bhardwaj, General Secretary of Municipal Employees Union has relied upon copy of resolution as Ex. WW1/4, whereby the union has resolved to raise the present dispute in favour of the workmen. In his cross-examination, he has denied that the workmen are not members of his union or that no meeting of the union was held on 8.9.08.
9. Management examined Sh. Prakash Chand, Asst. Commissioner as MW 1. In his affidavit, he has reiterated the contents of written statement filed by management. In his cross-examination, he has deposed that if a person is appointed as Safai Karamchari on muster roll, his services are regularised as Safai Karamchari and so is the position in case of Beldar. He has deposed that Ex. WW1/1 is correct copy of legal demand notice duly received by the management. He has deposed that Ex. WW1/5 is the correct copy of identity card issued by the management in respect of the workman Sh. Satish Kumar. It is deposed that no qualifications for appointment in direct recruitment to the post of Mate are mentioned in Ex. MWW1/2. He has deposed that it is a matter of record that in Ex. WW1/19 and Ex. WW1/23 there is mention of material issued by the management to the workmen as Mate. It is denied that workmen did not consent willingly for regularisation on the post of Beldars.
10. I have heard arguments from Sh. Rajiv Agarwal, Ld. Counsel/AR for the workmen and Sh. S.P. Saini, Ld. Counsel/AR for management.
I.D. No 305/10 Page 4 of 1011. On issue no.1 regarding delay and latches, no arguments have been advanced for management.
12. On issue no.2, it has been argued for workman that since, resolution passed by the union for raising the present dispute has been proved on record, present dispute is properly espoused and thus, the present is an industrial dispute as defined u/s 2(k) of Industrial Disputes Act.
13. On issue no.3, it has been argued for workman that demand notice was duly sent to the management vide registered post and copy of the same alongwith its postal receipt and AD Card has been duly proved on record.
14. On issue no.4, it has been argued for workman that workmen are entitled to be regularised on the post of Mate on the basis of various documents i.e. identity card, muster roll record and other documents as proved in the evidence for workmen. It has further been argued that since, the workmen have worked for more than 90 days continuously as Mate, they acquire the status of permanent employee on the post of Mate, as per Schedule 1 Rule 2 of The Industrial Employment (Standing Orders) Central Rules, 1946. During arguments, management has denied the case of workmen.
15. I have carefully gone through record of the case. My findings on the issue are as under :-
16. Findings on issues no.1 Issue no.1 is : Whether statement of claim is not maintainable on ground of latches/belated stage? OPM
17. Onus of proof of this issue is upon management. No arguments I.D. No 305/10 Page 5 of 10 have been advanced for management on this issue. Hence, issue no.1 is disposed of as not pressed.
18. Findings on issue no.2 Issue no.2 is : Whether present dispute is an Industrial Dispute as defined in section 2(k) of Industrial Disputes Act? OPW.
19. Objection of the management in the written statement in this regard is that the present is not an industrial dispute as the same is not espoused by the Union.
20. Section 2(k) of I.D. Act defines the term "industrial dispute".
Same is reproduced as below:-
"industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any person;
21. WW 3 Sh. Surender Bhardwaj, General Secretary of Union for workmen has proved on record resolution Ex. WW1/4, passed by the Municipal Employees' Union to raise the present dispute. In view of this specific document, it is clear that the claim of the workman has been espoused by the Union. Hence the plea of management, that present is not an industrial dispute as the same is not espoused by the union, is baseless.
22. Accordingly, it is held that the claim of the workman has been properly espoused by the Union and present dispute is an industrial dispute as defined u/s 2(k) of I.D. Act. Issues no.2 is decided accordingly.
23. Findings on issue no.3 Issue no.3 is : Whether any notice of demand was served upon the management, if so, its effect? OPW I.D. No 305/10 Page 6 of 10
24. Workman (WW 1) has proved on record copy of legal demand notice as Ex. WW1/1, its postal receipt has been proved as Ex. WW1/2 and AD Card has been proved as Ex. WW1/3. In view of these specific documents, it is held that notice of demand was duly served upon the management. Issue no.3 is decided accordingly.
25. Findings on issue no.4 Issue no.4 is As per terms of reference. Terms of reference are "Whether the demand for regularisation of Sh. Satish Kumar s/o Sh. Chander Bhan Singh & Sh. Krishan Pal s/o Sh. Dhara Singh on the post of Mate in proper pay scale from the date of their initial appointment is justified; and if so, what directions are necessary in this respect?"
26. Workman Sh. Satish Kumar has proved on record copy of identity card Ex. WW1/5 issued by the management to the workman, showing his designation as "Mate". He has also proved on record copies of office orders Ex. WW1/10, Ex. WW1/17 and Ex. WW1/18, wherein workman Sh. Satish Kumar has been shown as Mate. Workman Sh. Satish Kumar has also proved on record copy of muster roll record Ex. WW1/6, wherein he has been shown as mate for the period from August, 1991 to October, 2002.
27. Similarly, workman Sh. Krishan Pal has has proved on record copy of muster roll record Ex. WW2/3, wherein he has been shown as Beldar/mate for the period from April, 1991 to December, 1993.
28. The records, as mentioned above, have not been specifically denied by the management. No suggestion has been put to the workmen that the said muster roll record and other documents are forged or I.D. No 305/10 Page 7 of 10 fabricated. In view of these documents i.e. Ex. WW1/5, Ex. WW1/6, 1/10, Ex. WW1/17, Ex. WW1/18 and Ex. WW2/3, it is clear that the workmen worked with management as 'Mate' for the period as mentioned above.
29. It has been argued for workmen that since, the workmen have worked for more than 90 days continuously as Mate, they acquire the status of permanent employee on the post of Mate, as per Schedule 1 Rule 2 of The Industrial Employment (Standing Orders) Central Rules, 1946. Said Rule 2 is reproduced as under:-
Classification of workmen.-(a) Workman shall be classified as-
(1) Permanent
(2) probationers
(3) badlis
(4) temporary
(5) casual
(6) apprentices.
(b) A 'permanent' workman is a workman who
has been engaged on a permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial establishment including breaks due to sickness, accident, leave, lockout, strike (not being an illegal strike) or involuntary closure of the establishment.
(c) A 'probationer' is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months' service therein. If a permanent employee is employed as a probationer in a new post he may, at any time during the probationary period of three months, be reverted to his old permanent post.
(d) A 'badli' is a workman who is appointed in the post of permanent workman or probationer who is temporarily absent.
(e) A 'temporary' workman is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period.I.D. No 305/10 Page 8 of 10
(f) A 'casual' workman is a workman whose employment is of a casual nature.
(g) An 'apprentice' is a learner who is paid an allowance during the period of his training.
30. It has been argued that the workmen fall in none of the above categories except that of 'permanent'.
31. It is worth noting that it has not been proved on record that workmen were appointed on the post of Mate. No appointment letter or office order appointing or promoting the workmen as Mate has been proved on record. Hence, the workmen cannot be treated as regularly or permanently appointed as Mate.
32. Hon'ble Supreme Court in Selva Raj Vs. Lt. Governor of Island, Portblair, 1999 LAB. I. C. 598 held that when an employee worked on higher post, though temporary and in a officiating capacity, he is entitled to salary attached to higher post and that payment of higher salary, however, shall not amount to promotion. Similar observations were made in Commissioner MCD vs. Richpal Singh WP (C) No.6979/2011 decided on 20.03.2012 by Hon'ble Mr. Justice Sh. P.K. Bhasin of Hon'ble Delhi High Court and Sultan Singh & Ors. Vs. MCD WP (C) No.5453/12 decided on 15.3.13 by Hon'ble Mr. Justice Sh. Pradeep Nandrajog and Hon'ble Mr. Justice Sh. Pratibha Rani of Hon'ble Delhi High Court.
33. In view of above judgments, workmen are not entitled to the status of the Mate, but are entitled to pay scale attached to this post for the period they worked as Mate.
34. Thus, it is held that demand for regularisation of the workmen on the post of Mate in proper pay scale from the date of their initial appointment is not justified, however, they are entitled to the pay scale (as revised from time to time) attached to the post of Mate. Workman Sh.I.D. No 305/10 Page 9 of 10
Satish Kumar is entitled for the pay scale (as revised from time to time) attached to the post of Mate, for the period from August, 1991 to October, 2002. Similarly, workman Sh. Krishan Pal is entitled for the pay scale (as revised from time to time), attached to the post of Mate, for the period from April, 1991 to December, 1993. Management will pass separate orders regarding arrears of difference of salary of Beldar and Mate in respect of the workmen, within three months from the enforcement of this award. Issue no.4 and terms of reference are decided accordingly and award is passed in these terms.
35. Record shows that management has not complied orders regarding payment of cost of Rs.1700/- imposed on it on different dates. Vide order sheet dated 22.3.2011, management was allowed to file written statement subject to cost of Rs.700/- to be paid to workmen. The said cost has not been paid. Further, 8.3.13, the case was adjourned for management evidence subject to cost of Rs.1000/- to be deposited with District Legal Service Authority, Karkardooma Courts, Delhi. Said order regarding cost has not been complied by the management. Necessary steps may be taken by Govt. of NCT of Delhi for recovery of the costs.
36. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court
on 22.08.2013 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No 305/10 Page 10 of 10