Delhi District Court
Horam vs . Mcd on 12 October, 2021
IN THE COURT OF JITENDRA KUMAR MISHRA:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
Ref. No.: F.24 (159) ND/663/2011/Lab/2116
Dated : 14.12.2011
I.D. No. 168/16
Horam Vs. MCD
Sh. Horam S/o Sh. Charta Ram
Fitter, R/o House No. 219, Fatehpur Beri,
New Delhi-74 through Delhi Nagar Nigam Workshop
Karamchari Sangh(R)
14-A, old market, Timarpur, Delhi-54
through his LRs
1. Maya ............ Wife
2. Krishan .............. Son.
3. Geeta W/o Sh. Sriniwas ........... Daughter
4. Babli W/o Sh Yoginder Singh.......... Daughter.
5. Meena W/o Sh. Ombeer ........... Daughter
6. Manju W/o Sh. Sunil ........... Daughter
Versus
The Commissioner
Municipal Corporation of Delhi
Town Hall, Chandni Chowk, Delhi-110006 ...... Management.
(MORE THAN NINE YEARS OLD CASE)
Date of institution : 22.12.2011
Date of reserving award : 12.10.2021
Date of award : 12.10.2021
ID no. 168/16
Horam Vs. MCD
page no. 1/30
A W A R D (O R A L)
1. Office of Dy. Labour Commissioner, North District, Govt.
of the National Capital Territory of Delhi has referred this dispute
arising between the parties named above for adjudication to this
Tribunal on 14.12.2011 vide notification No. Ref. No.: F.24 (159)
ND/663/2011/Lab/2116 with following terms of the reference:-
"Whether the demand of Sh. Horam S/o Sh.
Charta Ram, for grant of pay scale of 260-400
(950-1500) revised from time to time for the
post of fitter w.e.f 1.04.1981 with all
consequential benefits along with benefits of
first ACP scheme w.e.f 09.08.1999 and 2 nd
benefits w.e.f 1.4.2005 is justified and if yes,
what directions are necessary in this
respect?"
2. Statement of claim has been filed by the workman, wherein
it is alleged:
a) Workman is working as fitter with MCD in
engineering department and is posted in Div-IV,
Ward no. 58, South Zone(Green Park) of MCD
and the workman was appointed as beldar on
muster in the year 1975 and on 15.11.1990 he
was promoted on the post of fitter on muster roll
and was paid wages of skilled labour. In the year
1986 the workman appeared in the trade test for
the post of fitter and qualified the same and
ID no. 168/16
Horam Vs. MCD
page no. 2/30
thereafter he was posted on the post of assistant
fitter vide office order no. HC-
IV/Engg/Estt/2002/1928 dated 15.02.2002 w.e.f
18.02.2002 in the pay scale of 800-1150(2650-
4000) The management MCD granted wrong pay
scale of Rs. 800-1150 instead of Rs. 950-1500.
(b) Management has approved and adopted
the pay scale of Rs.260-400 as per 3 rd pay
commission, Rs.950-1500 as per 4 th pay
commission and Rs.3050-4590 as per 5th pay
commission for the post of fitter and has passed
resolutions and issued office orders from time to
time.
(c) MCD has already granted the pay scale of
Rs.260-400 revised from time to time to several
other situated workmen w.e.f date of their
respective regularization. MCD has passed a
resolution no. 952 dated 14.0-6.1991 and
according to which the muster roll employees
appointed in Horticulture department on the post
of Masons and Fitters were regularized w.e.f.
1.4.1990 on the posts of Masons and Fitters in the
pay scale of Rs.950-1500 and the MCD had also
granted pay scale of Rs.950-1500 to Masons,
ID no. 168/16
Horam Vs. MCD
page no. 3/30
Fitters, Carpenters and Painters who were
transferred from DDA to MCD. In other
departments of MCD and in CPWD the pay scale
of 260-400(950-1500) is being paid to workers
working on the post of fitter. It is further submitted
that vide Resolution/office order dated 19.05.1982
and 12.07.1982 it has been accepted by the MCD
that the post of fitter and other 25 posts are skilled
and the pay scale of 260-350 for above posts was
increased to 260-400 w.e.f 1.1.1973 and same
was revised to 950-1500 as per 4 th pay
Commission; that the present workman is entitled
for the pay scale of 260-400 (950-1500) on the
post of fitter as per above resolution/office order.
(d) Workman has sent a request letter to the
Commissioner MCD regarding his pay scale on
17.07.2006 but no reply was received from the
department, thereafter, union of the workman sent
a 15 days demand/legal notice to the
Commissioner MCD on 28.08.2006 but no reply
was received by the Union. Workman is member
of the Union for the last several years. Therefore,
on the basis of aforesaid facts the workman is
fully entitled to be regularized in the pay scale
Rs.260-400(950-1500) passed by the Corporation
ID no. 168/16
Horam Vs. MCD
page no. 4/30
for the post of fitter we.f. 01.4.1981 and to get
arrears of all consequential benefits.
3. Written Statement filed on behalf of management wherein
preliminary objections have been taken inter alia that the present
claim is not maintainable as claimant is not workman as defined U/s
2(s) of the ID Act. It is further submitted that claimant had retired on
31.12.2009 and there was no employer employee relationship
between the parties. It is further objected that present dispute has not
been espoused. It is further objected that statement of claim is not
maintainable on the account of latches/belated stage as deceased
workman was promoted to the post of Assistant Fitter from the post of
Beldar w.e.f 01.04.1081 without any protest and without any
representation at that time. The present claim has been filed in the
year 2011 i.e. after lapse of more than 30 years. In support of its
submissions, the management relied upon State of Punjab Vs. Kali
Dass & another 1997 LLR 349. Management further relied upon
Nedungadi Bank Ltd Vs. K. P. Madhauankutty and ors 2000(2)
SCC 455. Management further relied upon Haryana State Co-op
Land Development Bank Vs. Neelam reported in (2005) 5 SC 91. It
ID no. 168/16
Horam Vs. MCD
page no. 5/30
is further objected that all the employees of the management are
governed by Central Civil Service Rules. Therefore, in case of any
dispute the remedy lies with the Centre Administrative Tribunal. It is
further objected that claim of workman is contrary to notified
recruitment rules. The management further relied upon Delhi
Municipal Workers Union (Registered) Vs Management of MCD, CWP
No. 1756/2004 decided on 12.12.2006 wherein it was held that pay
scales granted by the MCD are correct and the petitioners were not
entitled for the pay scale of 260-400 as claimed. It is denied by the
management that claimant was working as fitter with the
management. It is further alleged that claimant was working as
Assistant fitter with the management. It is not denied that claimant
was initially engaged as beldar and thereafter regularized as Beldar
and finally, was promoted in the year 1981.
It is further alleged by the management that as per
recommendations of fourth pay commission the pay scale for the post
of fitter/Junior Grade Fitter/Assistant Fitter was 950/1500/- as alleged.
It is alleged that said pay scale was for the post of fitter/senior grade
fitter. It is further alleged that in none of the recommendation of the
ID no. 168/16
Horam Vs. MCD
page no. 6/30
pay commission, the pay scale of the Assistant fitter working in MCD
has been enhanced from 210-270 to 260-400. It is further submitted
that nature of work in Horticulture department is different as such,
there are separate recruitment rules for the post of Assistant fitter
working in the Horticulture department. It is further submitted that as
per the notified RR for the post of Assistant Fitter in Horticulture
department the pay scale is Rs.260-400. It is further submitted that
the persons who were transferred from DDA were given the pay scale
of Rs.260-400 because they were getting the same pay scale while
working in DDA. It is further submitted that PWD is a separate
department and has the separate entity. The rules and regulations of
CPWD are not applicable upon the management/MCD. On the
contrary, management herein in this case has its own rules and
regulations and has its own notified recruitment rules by which all the
appointment and promotions are made by the management. It is
further alleged that claimant was promoted from the post of Beldar
which is an unskilled post to the post of Assistant Fitter, which is a
semi skilled post. It is further denied that vide office orders dated
19.05.1982 and 12.07.1982 the pay scale for the post of fitter was
ID no. 168/16
Horam Vs. MCD
page no. 7/30
increased to 260-400. Meaning thereby, the said office order was
applicable only to those category of workers who were already
drawing in the pay scale of Rs.260-350. The claimant was drawing
the salary in the pay scale of Rs.210-270 as such. Rest of the
contents of statement of claim are denied by the management.
4. Vide order dated 24.09.2021, my ld. Predecessor framed
following issues.
a). Whether claimant is workman as defined
under Section 2(s) of Industries Disputes Act?
OPW
b). Whether the present claim of the workman
has been properly espoused by the Union? OPW
c). Whether statement of claim is not
maintainable on ground of latches/belated stage?
OPM
d). As per terms of reference.
5. To prove his case, workman appeared as WW-1 and
tendered his evidence by way of affidavit Ex. WW-1/A. He relied upon
documents Ex. WW-1/1 to Ex. WW-1/37.
a) Ex. WW/1 muster roll wherein the present claimant has been
mentioned as Fitter;
ID no. 168/16
Horam Vs. MCD
page no. 8/30
b) Ex. WW1/2 is photocopy of office order dated 14.09.1981.
c) Ex. WW1/3 is the photocopy of representations which was
dated 17.07.2006. Ex. WW1/4 is the demand notice dated
28.08.06 issued by Union Delhi Nagar Nigam Workshp
Karamchari Sangh(Regd).
d) Ex. WW1/5 issue to Delhi Nagar Nigam Workshop Karamchari
Sangh. Ex. WW1/5 and WW1/6 are the documents regarding
registration of Union namely Delhi Nagar Nigam Workshop
Karamchari Sangh.
e) Ex. WW1/7 is the copy of settlement dated 09.01.1978.(Ex.
WW1/7 is not clearly legible).
f) Ex. WW1/8 is the copy of minutes of Meeting with
Commissioner MCD dated 03.08.1990.
g) Ex. WW1/9 is the judgment passed in Lalit Mohan Vs. MCD. Ex.
WW1/10 is the copy of judgment passed in MCD Vs. Faquir
Chand and other.
h) Ex WW1/11 is the photocopy of extracts of the Third pay
commission. Ex. WW1/12 is the copy of Resolution No. 1294 of
Corporation dated 24.02.1987. Ex WW1/13 is copy of receipt
dated 17.06.1981 regarding receiving of decision.
i) Ex. WW1/14 is photocopy of CPWD Manual Volume III.
j) WW-1/15 is photocopy of letter dated 19.05.1982.
k) Ex WW1/16 is copy of office order dated 12.07.1982.
l) Ex. WW1/17 is the office order dated 15.12.1999.
m) Ex. WW1/18 is the office order dated 09.07.2001.
n) Ex. WW1/19 is the office order dated 04.1.1999.
ID no. 168/16
Horam Vs. MCD
page no. 9/30
o) Ex. WW1/20 is the office order dated 20.01.2005.
p) Ex. WW1/21 is Letter No. ZE(W)/II/2004/1914 dated
02.12.2009;
q) Ex. WW1/22 is the office order No. D/16/AE II/BHSV/SZ/2005;
r) Ex. WW1/23 is office order No. HC-IV/Engg./HQ/2006/1332
dated 15.06.2006;
s) Ex. WW1/24 is office order No. HC-IV/Engg/HQ/2006/1333
dated 15.06.2006; Ex. WW1/25 is office order no. HC-
IV/Engg./HQ/2006/1330 dated 14.06.2006;
t) Ex. WW1/26 is the office order No. HC-TV/Engg./HQ/2006/1334
dated 15.06.2006;
u) Ex. WW1/27 is the office order no. HC-IV/Engg./HQ/2006/1329
dated 15.06.2006;
v) Ex. WW1/28 is the office order No. HR-IV/Engg./HQ/2000/1764
dated 03.07.2006,
w) Ex. WW1/29 is the office order No. HC-IV/Engg./HQ/2006/1336
dated 15.06.2006;
x) Ex. WW-1/30 is the office order No. HC-IV/Engg./HQ/2006/1335
dated 15.06.2006;
y) Ex. WW-1/31 is the office order No. HC-IV/Engg./HQ/2006/1331
dated 15.06.2006;
z) Ex. WW1/32 is the office order No. HC-IV/Engg./HQ/1762 dated
03.07.2006, Ex. WW1/33 is the office order No. HC-
IV/Engg./HQ/2006/1763 dated 3.07.2006;
aa)Ex. WW1/34 is the office order No. HC-IV/Engg./HQ/2006/1328
dated 15.06.2006;
ID no. 168/16
Horam Vs. MCD
page no. 10/30
ab)Ex. WW1/35 is the office order No. AE/Rohini-II/305-06/27
dated 25.04.2006; Ex. WW1/36 is the Schedules of
Establishment; Ex. WW1/37 is the espousal in favour of the
workman.
6 WW-1 was cross-examined at length. Workman produced
another witness namely Ajit Kumar Kalia as WW-2 who deposed that
he was General Secretary of Delhi Nagar Nigam Workshop
Karamchari Sangh(R). He also relied upon documents Ex. WW1/1 to
Ex. WW1/37. During cross-examination, he deposed that he has not
filed the copy of constitution of his Union.
7. Thereafter, vide separate statement, workman has closed
his evidence. Management has neither examined any witness nor
filed affidavit of any witness. My ld. Predecessor had given several
opportunities to the Management but no witness was examined and in
the last on 09.10.2018, my ld. Predecessor closed ME.
8. On 03.03.2020 upon an application moved on behalf of
workman for impleadment of LRs of deceased workman who is stated
to have expired on 26.01.2019, my ld. Predecessor passed in the said
order directions for impleadment of LRs of deceased workman filed
along with death certificate of the deceased workman and LRs of the
deceased workman as mentioned in para no. 2 of the application i.e
his widow Smt. Maya, one son Sh. Krishan and four daughters
namely Ms. Geeta, Ms. Babli, Ms. Meena and Ms. Manju who are
stated to be legal heirs of the deceased workman, brought on record.
ID no. 168/16
Horam Vs. MCD
page no. 11/30
9. Written arguments have been submitted on behalf of
workman as well as on behalf of management. Arguments have also
been addressed orally today itself. Arguments have been considered.
10. I have gone through the entire pleading of the parties,
evidence led by the parties and document proved by the parties
during evidence. My issue wise findings are as:-
11. Issue No. 1.
Whether claimant is workman as defined under
Section 2(s) of Industries Disputes Act? OPW
The present issue has been raised as preliminary
objections in the written statement by the management wherein it is
objected that claimant was retired on 31.12.2009 and thereafter there
is no employer employee relationship between the management and
the claimant. However, during arguments it is admitted fact that
claimant was employed with the management in the year 1980 as per
Ex. WW1/1 and was regularized vide Ex. WW1/2. Moreover, during
arguments it is submitted by the parties that the claim before the
Conciliation authorities have been filed by the workman in the year
ID no. 168/16
Horam Vs. MCD
page no. 12/30
2006 itself. Moreover, it is not disputed by the management that the
workman had worked with the management till his retirement i.e. upto
31.12.2009. Therefore, in view of such submissions made by the
parties in their pleadings as well as in arguments, this issue is
answered in favour of workman with the finding that the workman is
workman within the definition of Section 2(s) of the Industrial
Dispute Act.
Issue no. 2
Whether the present claim of the workman
has been properly espoused by the Union?
OPW
Onus to prove this issue was upon the workman. Workman has
proved Ex. WW1/37 wherein it is mentioned that in a meeting of
Executive held on 29.07.2006 it was decided to raise industrial
dispute in favour of workman and against the management.
During cross-examination, Workman deposed that he was the
member of Delhi Nagar Nigam Union of Timarpur since the year
2002. Ex. WW1/37 bears address of Nimri colony, Delhi. A suggestion
was denied by the workman that he was not the member of the said
union, that is why he had not filed any receipt of the Union. He has
ID no. 168/16
Horam Vs. MCD
page no. 13/30
further deposed that he had given written complaint regarding non
grant of pay scale of Rs.260-400 to the Union for the first time in the
year 2002. It is admitted by him that he had not filed copy of such
complaint before the Court. He denied the suggestion that he had not
given written complaint to the Union. He did not remember as to when
the meeting of the Union was held regarding present dispute. He did
not know as to how many office bearers were there in the said
meeting.
Document Ex. WW1/37 is perused. This is the copy of espousal
passed by the Union in favour of the workman to raise the present
dispute. It is also not in dispute that present union is a registered
union. It is also not in dispute that present workman is the member of
the Union. It is also not in dispute that workmen were present when
resolution was passed wherein espousal to raise the present dispute
was passed. In my considered view, the cause of the workman has
been properly espoused. Therefore, this issue is also answered in
favour of workman and against the management.
Issue No. 3
Whether statement of claim is not maintainable on ground
of latches/belated stage? OPM
ID no. 168/16
Horam Vs. MCD
page no. 14/30
From the perusal of the record, it shows that the workman made
representation asking for his regularization as fitter and on the other
hand, the management has not shown as to what prejudice has
caused to them by raising the present dispute by the workman. The
management has no where stated that the relevant documents
pertaining to this case are not available with the management or the
same had been destroyed due to delay in raising the dispute by the
workman. The workman has placed all the relevant records to decide
the controversy.
The Govt. of NCT has referred the present dispute. The
management has not challenged the reference order on the ground of
delay and latches before the appropriate forum. The management
has also not brought any evidence on this issue.
The workman has also filed a copy of judgment of Hon'ble
Supreme Court in Ajaib Singh Vs. The Sirhind Co-operative
Marketing-cum-Processing Service Society Ltd and Anr. 1999
LLR 529 wherein para no. 10 it has been specifically observed:
"..................It follows, therefore, that the provisions of
Articles 137 of Schedule to Limitation Act, 1963 are
not applicable to the proceedings under the act and
ID no. 168/16
Horam Vs. MCD
page no. 15/30
that the relief under it cannot be denied to the
workman merely on the ground of delay. The plea of
delay if raised by the employer is required to be
proved as a matter of fact by showing the real
prejudice and hot as a merely hypothetical defence.
No reference to the labour court can be generally
questioned on the ground of delay alone. Even in a
case where the delay is shown to be existing, the
tribunal, labour court or board, dealing with the case
can appropriately mould the relief by declining to
grant back wages to the workman till the date he
raised the demand regarding his illegal
retrenchment/termination or dismissal. The Court may
also in appropriate cases direct the payment of part of
the back wages instead of full back wages. Reliance
of the learned counsel for the respondent-
management on the full bench judgment of the Punjab and Haryana High court in Ram Chander Morya Vs. State of Haryana (1999) 1 SCT 141 is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held "neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases." However, it went on further to say that "reasonable time in the cases of labour for demand of reference or dispute by appropriate government to labour tribunals will be five years after which the government can refuse to make a reference on the ID no. 168/16 Horam Vs. MCD page no. 16/30 ground of delay and latches if there is no explanation to the delay. " We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 378-C of the Act to be adjudicated. It is not the function of the court to prescribe the limitation where the Legislature in its wisdom had, though if fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding the court cannot be stretched to authorize them to interpret law in such a manner which would amount to legislation intentionally left over by the Legislature. The Judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted here-in-above and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the Courts/boards and tribunal under the Act......" Moreover, in para no. 12 of the statement of claim, workman has specifically pleaded that he had sent a request letter to the Commissioner MCD regarding his pay scale on 17.07.2006 but no reply was received from the department. Thereafter, 15 days demand/legal notice was sent to the Commissioner, MCD on 28.08.2006 but no reply was received by the union. ID no. 168/16 Horam Vs. MCD page no. 17/30 In written statement, management has not specifically denied such pleadings of the workman. There is no denial by the management that the management had not received request letter dated 17.07.2006 sent to the Commissioner MCD regarding pay scale. Admittedly, the workman was working with the management till 31.12.2009. Therefore, in his service tenure, workman has sent request letter to the Commissioner MCD as well as demand notice. Such fact has not been denied specifically. Therefore, in view of law discussed and the facts and the pleadings of the parties, this issue is also answered in favour of the workman and against the management.
Issue no.4:
Terms of Reference.
During arguments, ld. AR for workman referred Ex. WW1/1 which is extract of the Muster Roll maintained by the Management for the workman from 15.11.1980 to 14.10.1981. This document was maintained by the MCD whereupon post of the workman has been mentioned as 'fitter'. During arguments, a specific query was put to ld. AR for management regarding his argument upon document Ex. ID no. 168/16 Horam Vs. MCD page no. 18/30 WW1/1. Admittedly there is no cross-examination upon Ex. WW1/1. At this stage, ld. AR for management refers para no. 4 of the statement of claim filed by the workman.
"That in the year 1986 the workman appeared in trade test for the post of fitter and qualified the same and thereafter he was promoted on the post of assistant fitter vide office Order No. HC- IV/Engg./Estt./2002/1928 dated 15.02.2002 w.e.f 18.02.2002 in the pay scale of 800-1150(2650- 4000). The management MCD granted wrong pay scale of 850-1150 instead of 950-1500".
To counter this argument, ld. AR for workman refers office order dated 09.05.2007 wherein the post of Assistant Fitter and Fitter was merged for grant of pay scale to Rs. 3050-4590 (pre revised Rs.260-
400) w.e.f 1.1.1996.
Ld. AR for workman submits that this fact was very well referred in para no. 19 of the judgment Abid Ali Vs. MCD SLP (civil ) no. 30994-31015/2011. Ld. AR for management submits that he has not verified the office order dated 09.05.2017. However, it is not contended that this office order is forged. Moreover, this office order has been very well referred in Abid Ali judgment (Supra) which is not ID no. 168/16 Horam Vs. MCD page no. 19/30 disputed. Therefore, This Tribunal is having reason to assume that an office order which is passed by a Statutory body cannot be a forged document unless and until same is contended. Moreover, if at any time it is found forged then management is at liberty to proceed against the workman in accordance with law whether as civil or criminal liability.
Admittedly Ex. WW1/1 has not been disputed during trial before this Tribunal. Therefore, it is deemed to be admitted by the management. At this stage, ld. AR for management submits that for rest of the case his arguments may be considered. In his arguments, management raised the arguments that there is no employer, employee relationship as on the date of filing of the present claim in the year 2011, as the workman had retired on 31.12.2009. Ld. AR for workman submits that this fact is wrongly argued as in the year 2006 the case was in the conciliation and thus a labour dispute arises whenever the same was initiated for conciliation proceedings. However, ld. AR for management could not countered these arguments during arguments on this case. It is submitted by ld. AR for workman that workman retired on 31.12.2009. Therefore, when ID no. 168/16 Horam Vs. MCD page no. 20/30 the case was referred to Labour Dispute process, then, certainly workman was in the service. Moreover, during arguments, ld. AR for management could not dispute Ex. WW1/1 which is a document issued by MCD/management itself. It bears the date 08.04.1985 and this document has not been disputed or challenged during evidence by the management. Therefore, such arguments raised by the management does not hold water.
Next point of argument on behalf of management is that no demand notice was issued to the management. Ld. AR for the workman submits that demand notice has been proved as Ex. WW1/4. During cross-examination, there is not even a single challenge to Ex. WW1/4. It is settled position of law that whenever there is no challenge during cross-examination to any document, then, authenticity of document deemed to be admitted.
Next argument raised by the management is regarding limitation. Ld. AR for the management submits that when the workman was promoted there was no protest and without any representation at that time, hence, the statement of claim has not been filed within a reasonable time. Ld. AR for management has ID no. 168/16 Horam Vs. MCD page no. 21/30 further relied upon State of Punjab Vs. Sh. Kali Dass and anr, 1997 LLR 349.
12. Here, Ld. AR for workman refers the judgment of Hon'ble Apex Court in Ajaib Singh Vs. Sirhind Co-operative Marketing-cum- Processing Service Society Ltd and Anr, 1999 LLR 529 wherein Hon'ble Supreme Court held that the Industrial Dispute Act, 1947 was enacted with the object as referred in the Act and to provide machinery and forum for the investigation of industrial disputes, their settlement for purpose of analogous and incidental thereto. The emergence of the concept of welfare state implies an end to exploitation of workman and as a corollary to that collective bargaining came into its own. The legislature had intended to protect workmen against victimization and exploitation by the employer and to ensure termination of industrial dispute in a peaceful manner.
The Hon'ble Court further contemplates realistic and effective negotiations, conciliation and adjudication as per the need of the society keeping in view the fast changing social norms of the developing country like India.
ID no. 168/16 Horam Vs. MCD page no. 22/30
13. This Tribunal is of the considered view that during his service tenure the workman has raised this issue involved in this case. Moreover, this Tribunal has to further consider the fact that workman who according to the facts was simply a fitter and a fitter is not a highly educated person from whom this Tribunal expects that he would have the knowledge of law regarding limitation and other relevant provisions.
Moreover, legislature in all its wisdom has not prescribed any limitation for industrial dispute as legislature in all its wisdom must have considered the fact that when an industrial workman suffers victimization or harassment or any grievance related to his service then, certainly he has not to regret because of passage of time but to approach the court at any stage unless and until the same is not within the reasonable period. Certainly workman was in the office of the management and also if a workman raises dispute immediately, then, certainly, this Tribunal is of the view that the entire management may be after him as to make him further victimized or harassed or to make him further difficult to continue with his service. Therefore, this argument also does not hold water. ID no. 168/16 Horam Vs. MCD page no. 23/30 Moreover, it is also a continuing wrong till the workman is retired and therefore, the workman has suffered wrong continuously day to day in his service tenure. Therefore, this argument of limitation cannot be sustained.
Next argument of management is that this Tribunal is not an appropriate forum. Ld. AR for workman submits that jurisdiction of this Court is not barred under any provisions of law. Ld. AR for management could not refer any law wherein the jurisdiction of this Tribunal is barred to hear and entertain the present dispute. Therefore, this Tribunal has jurisdiction very well to entertain and try the present dispute.
During cross-examination, WW-1 has submitted that he had accepted the offer letter for his regularization dated 22.09.1981 bearing his signature. Same is Ex. WW1/M1. WW-1 has further admitted that he was promoted to the post of Assistant Fitter vide office order dated 15.02.2002, copy of which is Ex. WW1/M-3. A suggestion was given by the management to the workman that he was never worked as a fitter during the tenure of his daily wage service. The suggestion is denied. However, this Tribunal observes ID no. 168/16 Horam Vs. MCD page no. 24/30 that this very suggestion is contrary to the document Ex. WW1/1. The post of the workman has been mentioned as fitter since 15.11.1980 in Ex. WW1/1 and this document has not been challenged during cross-examination of WW-1. WW-1 has admitted that there were two pay scales of Fitter, out of which one was Rs. 210-270 for the post of Assistant Fitter and other which one was Rs. 260-350(which was later on revised to Rs. 260-400). During further cross-examination upon specific question put on behalf of management, WW-1 replied that he did not know that MCD has merged the post of Assistant Fitter and Fitter in the pay scale of Rs. 260-400 vide office order dated 09.05.2007. Upon specific question put on behalf of management it is admitted by WW-1 that benefit of merging aforesaid scale was effective from 1.1.1986. Therefore, this Tribunal observes that grievances raised during arguments by ld. AR for workman thus an admitted case which during cross-examination by the management/not disputed by the management.
During further cross-examination, WW-1 deposed that he had given the representation to the management for the first time against ID no. 168/16 Horam Vs. MCD page no. 25/30 regularizing him on the post of Beldar instead of Fitter in the year 1981. Though he has not filed the copy of the same on the court record. The suggestion was given that WW-1 had made representation in the year 1981 and due to this reason no such representation has been filed on record. However, no evidence has been led by the management to counter this evidence. It is further admitted by MW-1 that till he was promoted to the post of Assistant Fitter in the year 2002, he had not given any representation in writing to the management against regualization on the post of Beldar. WW- 1 further deposed that complaint dated 17.07.2006 was given by the workman personally to the management. Upon specific question put by the management to WW-1 that workman had been given benefit of merging scales of Rs.210-270 and Rs.260-400 w.e.f. 01.01.1996 in accordance with office order dated 09.05.2007 and the suggestion has been denied. Therefore, admittedly management has not disputed that benefit of pay scale w.e.f 01.01.1996 in accordance with office order dated 09.05.2007 qua which the workman is entitled. Therefore, there is no dispute remains from 01.1.1996 regarding merging of scales. Now, the question remains that whether the ID no. 168/16 Horam Vs. MCD page no. 26/30 workman was regularized from 01.4.1981 on the post of beldar vide Ex. WW1/2 was proper or not?
Ld. AR for management submits that post of Beldar is a non technical post. As per services rules of management a test has to be passed, then, only the post of fitter has been given to a person. The requisite test was not passed at that time when the workman was appointed or regularized, then he could not be given the post of fitter and only he was regularized on the post of Beldar.
However, ld. AR for the management could not explain if it is a statutory body working under specific and prescribed rules, then, why workman was appointed as a fitter vide Ex. WW1/1. He could not explain about the regularisation of workman initially on the post of beldar vide letter dated 14.09.1981 Ex. WW1/2 with effect from 01.04.1981. However, the fact remains that till 1981 the workman was working on the post of fitter vide Ex. WW1/1. Admittedly, workman was working as fitter upto 14.10.1981, then certainly the wages were given to him for the post of fitter. Therefore, at this stage, the Tribunal has to draw the inference that the workman was without ID no. 168/16 Horam Vs. MCD page no. 27/30 any fault put at the post below the post whereupon he was appointed initially.
At this stage, ld. AR for management submits that as per recruitment rules, the workman was entitled to the post of fitter only, in case he was appointed as Assistant Fitter. However, again the question arises under which rules the workman was appointed at the post of 'Fitter' from 15.11.1980. Ld. AR for management could not refer any such rule or satisfy such query. To enable management to answer this query, this Tribunal earlier called the Commissioner of the management but he did not come and thereafter, this Court received directions passed by Hon'ble High Court vide order dated 07.10.2021 passed by Hon'ble High Court in South Delhi Municipal Corporation Vs. Horam, WP(C)No. 11529/2021 and CM Appeal No. 35538-39/2021 This Tribunal is bound by the order passed by the Hon'ble High Court. However, it is submitted by ld. AR for management that he has no knowledge to refer the rule under which initially the workman was appointed at the post of fitter from 15.11.1980. Moreover, this Tribunal further observes that management has not led any evidence despite repeated ID no. 168/16 Horam Vs. MCD page no. 28/30 opportunities given by ld. Predecessor. Cost was also imposed upon the management but management has not led any evidence to rebut the evidence of the workman or to prove its defence.
Therefore, in these circumstances, this Tribunal is of the considered view that when a person is appointed on a post, then, certainly he cannot be regularized to a lower post than to the post initially he was appointed as it will be against the principles of equity and natural justice.
Therefore, in these circumstances, this Court has to rely upon Ex. WW1/1 and the workman cannot be given regularization on the post below the post upon which he was appointed initially.
This Tribunal is of the opinion that regularization of the post of beldar vide Ex. WW1/1 was illegal as a person cannot be regularized to the lower post than to which he was initially appointed.
Since the workman has suffered a lot due to the fact that workman was not given his due for which he was entitled to during his life time. Therefore, it is directed that all such benefits shall be given to the LRs of the workman within 30 days failing which LRs of the workman shall be entitled for interest @ 7 % per annum upon all ID no. 168/16 Horam Vs. MCD page no. 29/30 the payments accrued time to time and payable to the workman.
Reference is answered in affirmative in favour of the workman. Accordingly, workman is entitled to be regularized to the post of fitter w.e.f 01.04.1981 with all consequential benefits.
This Tribunal is recording appreciation for the valuable assistance rendered by Sh. Ajeet Kumar Kalia and Sh. Rajeev Aggarwal, Ld. ARs for the workman and Sh. Sandeep Gupta, ld. AR for management.
14. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT Digitally signed
JITENDRA by JITENDRA
ON THIS 12TH DAY OF OCTOBER, 2021 KUMAR KUMAR
MISHRA
MISHRA Date: 2021.10.12
16:57:57 +0530
(Jitendra Kumar Mishra)
POIT-1/Rouse Avenue District Courts
New Delhi
ID no. 168/16
Horam Vs. MCD
page no. 30/30